EXHIBIT 10.1
VOTING AGREEMENT
This Voting Agreement (the “
Agreement ”) is made and entered into as of May 12,
2004, between RITA Medical Systems, Inc., a Delaware corporation
(“ Parent ”), Horizon Medical Products, Inc., a
Georgia corporation (the “ Company ”), and the
undersigned stockholder of Parent (“ Holder
”).
RECITALS
Pursuant to an Agreement and Plan of
Merger dated as of May 12, 2004 (the “ Merger
Agreement ”) by and among Parent, Hornet Acquisition
Corp., a Delaware corporation and wholly-owned subsidiary of Parent
(“ Merger Sub ”), and the Company, Merger Sub is
merging with and into the Company (the “ Merger
”) and the Company, as the surviving corporation of the
Merger, will thereby become a wholly-owned subsidiary of Parent.
Concurrently with the execution and delivery of the Merger
Agreement and as a condition and inducement to the Company to enter
into the Merger Agreement, the Company has required that Holder
enter into this Agreement. The Holder is the record and beneficial
owner of such number of shares of the outstanding Common Stock,
$0.001 par value per share, of Parent as is indicated beneath
Holder’s signature on the last page of this Agreement (the
“ Shares ”).
AGREEMENT
The parties agree as
follows:
1. Agreement to Retain Shares
.
(a) Transfer and Encumbrance
. (1) Except as contemplated by the Merger Agreement, and except as
provided in Section 1(b) below, during the period beginning on the
date hereof and ending on the earlier to occur of (i) the Effective
Time (as defined in the Merger Agreement), and (ii) the Expiration
Date (as defined below), Holder agrees not to, directly or
indirectly, transfer (except as may be specifically required by
court order), sell, exchange, tender, pledge, assign, contribute to
the capital of any entity, hypothecate or otherwise dispose of
(including by merger, consolidation or otherwise by operation of
law) or encumber the Shares or any New Shares (as defined below),
or to, directly or indirectly, make any offer or agreement relating
thereto, (2) Holder agrees not to, directly or indirectly, grant
any proxies or powers of attorney, deposit any of such
Holder’s Shares into a voting trust or enter into a voting
agreement with respect to any of such Holder’s Shares, or
enter into any agreement or arrangement providing for any of the
actions described in this clause (2) and (3) Holder agrees not to,
directly or indirectly, take any action that could reasonably be
expected to have the effect of preventing or disabling Holder from
performing Holder’s obligations under this Agreement at any
time prior to the earlier to occur of (i) the Effective Time, and
(ii) the Expiration Date. As used herein, the term “
Expiration Date ” shall mean the earlier to occur of
(i) the date of termination of the Merger Agreement in accordance
with the terms and provisions thereof and (ii) the date on which
Parent’s Board of Directors withdraws or modifies in a manner
adverse to the Company the Parent Recommendation (as defined in the
Merger Agreement) in accordance with the requirements of the second
sentence of Section 4.4(e) of the Merger Agreement.
(b) Permitted Transfers .
Section 1(a) shall not prohibit a transfer of Shares or New Shares
by Holder (i) in accordance with the provisions of Rule 144
applicable to Holder, (ii) if Holder is an individual (A) to any
member of Holder’s immediate family, or to a trust for the
benefit of Holder or any member of Holder’s immediate family,
or (B) upon the death of Holder, or (iii) 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 a
transfer referred to in clauses (ii) and (iii) of this sentence
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 Agreement.
(c) New Shares . Holder
agrees that any shares of capital stock of Parent that Holder
purchases or with respect to which Holder otherwise acquires record
or beneficial ownership after the date of this Agreement and prior
to the earlier to occur of (i) the Effective Time and (ii) the
Expiration Date (“ New Shares ”) shall be
subject
to the terms and conditions of this Agreement to
the same extent as if they constituted Shares. Holder further
agrees that any shares of capital stock of Parent that Holder
purchases or with respect to which Holder otherwise acquires record
or beneficial ownership after the date of this Agreement and prior
to the earlier to occur of (i) the record date for Parent’s
2005 annual meeting of stockholders and (ii) the Expiration Date
shall be subject to the terms and conditions of Section 2(b) of
this Agreement.
(d) Stop Transfer . From and
after the date of this Agreement through the term of this
Agreement, Parent will not register or otherwise recognize the
transfer (book-entry or otherwise) of any Shares or any certificate
or uncertificated interest representing any of Holder’s
Shares, except as permitted by, and in accordance with, Section
1(b).
2. Agreement to Vote Shares
.
(a) Until the earlier to occur of
(i) the Effective Time and (ii) the Expiration Date, at every
meeting of the stockholders of Parent called with respect to any of
the following, and at every adjournment thereof, and on every
action or approval by written consent of the stockholders of Parent
with respect to any of the following, Holder shall vote or consent
the Shares and any New Shares (i) in favor of approval of the
issuance of shares of the Common Stock of Parent in the Merger and
(ii) against any proposal for any recapitalization, merger, sale of
assets or other business combination (other than the Merger)
between Parent and any person or entity other than the Company or
any other action or agreement that could reasonably be expected to
result in a breach of any covenant, representation or warranty or
any other obligation or agreement of Parent or Merger Sub under the
Merger Agreement or Holder under this Agreement or which could
reasonably be expected to result in any of the conditions to the
obligations of Parent and Merger Sub under the Merger Agreement not
being fulfilled. This Agreement is intended to bind Holder as a
stockholder of Parent only with respect to the specific matters set
forth herein. Except as set forth in clauses (i) and (ii) of this
Section 2, Holder shall not be restricted from voting in favor of,
against or abstaining with respect to any other matter presented to
the stockholders of Parent.
(b) At each of the 2004 and 2005
annual meeting of stockholders of Parent, and at any adjournment or
postponement of either such meeting, Holder shall vote all shares
of capital stock of Parent owned beneficially or of record by
Holder as of the record date for each such annual meeting in favor
of the election of the nominees for director recommended for
election by the Board of Directors of Parent; provided, however,
that Holder shall have no obligation under this Section 2(b) in the
event that the Expiration Date occurs prior to either such annual
meeting of stockholders; provided further, that Holder shall have
no obligation under this Section 2(b) with respect to the 2005
annual meeting of stockholders of Parent if (i) either of the
individuals designated by Parent pursuant to section 5.17(a) of the
Merger Agreement to serve as a Class II director of Parent is
willing, able and qualified to serve as a director of Parent and is
not one of the nominees the Board of Directors of Parent recommends
for election at the 2005 annual meeting of stockholders of Parent
or (ii) Parent’s compensation policy with respect to
non-employee directors is modified in any material respect prior to
the 2005 annual meeting of stockholders of Parent. Notwithstanding
the foregoing, nothing in this Agreement, including without
limitation this Section 2(b), shall restrict Holder’s ability
to sell, transfer or otherwise dispose of shares of the capital
stock of Parent following the Effective Time, and no transferee of
shares of the capital stock of Parent beneficially owned by Holder
shall have any obligation under this Agreement after the Effective
Time.
3. Irrevocable Proxy .
Concurrently with the execution of this Agreement, Holder agrees to
deliver to the Company a proxy in the form attached hereto as
Exhibit A (the “ Proxy ”), which shall be
irrevocable to the extent provided in the Georgia Business
Corporation Code covering the Shares and New Shares.
4. Representations, Warranties
and Covenants of Holder . Holder hereby represents, warrants
and covenants to the Company that Holder (i) is the record and
beneficial owner of the Shares, which at the
