EXHIBIT 10.4
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.
(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
owner of the Shares, which, at the date of this Agreement and at
all times up until the earlier to occur of (A) the Effective Time,
and (B) the Expiration Date, will be free and clear of any liens,
claims, options, charges or other encumbrances, and (ii) does not
own of record or beneficially any shares of capital stock of the
Company other than the Shares (excluding shares as to which Holder
currently disclaims beneficial ownership in accordance with
applicable law). Holder has the le
