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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 shareholder of the Company
("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 Parent and Merger
Sub to enter into the Merger Agreement,
Parent 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
the Company 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 the Company's Board of
Directors withdraws or modifies in a manner
adverse to Parent or Merger Sub the
Company Recommendation (as defined in the
Merger Agreement) in accordance with
the requirements of the second sentence of
Section 4.3(e) of the Merger
Agreement.
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(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
the Company 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 (including without limitation shares
of capital stock of Parent acquired by
Holder as a result of the Merger) 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, the Company
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 shareholders of the Company called
with respect to any of the following, and
at every adjournment thereof, and on
every action or approval by written consent
of the shareholders of the Company
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 Merger Agreement and the
Merger and (ii) against any proposal for
any recapitalization, merger, sale of
assets or other business combination (other
than the Merger) between the Company
and any person or entity other than Parent
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 the Company
under the Merger Agreement or Holder under
this Agreement or which could
reasonably be expected to result in any of
the conditions to the Company's
obligations under the Merger Agreement not
being fulfilled. This Agreement is
intended to bind Holder as a shareholder of
the Company 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
shareholders of the Company.
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(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)
the individual designated by the
Company 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 Parent 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
Parent that Holder (i) is the record and
beneficial own
