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Agreement and Plan of Merger

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Title:

Agreement and Plan of Merger

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Date:

2004

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Preview shows 49KB of 334KB total

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$99

ID:

#860623

► Plans ► Agreements ► Agreements & Plans of Merger

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AGREEMENT AND PLAN OF MERGER

BY AND AMONG

RITA MEDICAL SYSTEMS, INC.,

HORNET ACQUISITION CORP.

AND

HORIZON MEDICAL PRODUCTS, INC.

Dated as May 12, 2004

TABLE OF CONTENTS


		Page
SECTION 1.	THE MERGER	2
1.1	MERGER OF MERGER SUB INTO THE COMPANY	2
1.2	EFFECT OF THE MERGER	2
1.3	CLOSING; EFFECTIVE TIME	2
1.4	ARTICLES OF INCORPORATION AND BYLAWS	3
1.5	CONVERSION OF SHARES IN THE MERGER	3
1.6	CLOSING OF THE COMPANYS TRANSFER BOOKS	4
1.7	EXCHANGE OF CERTIFICATES	4
1.8	FURTHER ACTION	5
1.9	TAX CONSEQUENCES	5
SECTION 2.	REPRESENTATIONS AND WARRANTIES OF THE COMPANY	5
2.1	DUE ORGANIZATION; SUBSIDIARIES	6
2.2	AUTHORITY; BINDING NATURE OF AGREEMENT	6
2.3	CAPITALIZATION, ETC.	6
2.4	SEC FILINGS; FINANCIAL STATEMENTS	8
2.5	ABSENCE OF CHANGES	8
2.6	PROPRIETARY ASSETS	10
2.7	CONTRACTS	11
2.8	LIABILITIES	12
2.9	COMPLIANCE WITH LEGAL REQUIREMENTS; FDA MATTERS	12
2.10	GOVERNMENTAL AUTHORIZATIONS	15
2.11	TAX MATTERS	15
2.12	EMPLOYEE AND LABOR MATTERS; BENEFIT PLANS	16
2.13	ENVIRONMENTAL MATTERS	20
2.14	LEGAL PROCEEDINGS; ORDERS	20
2.15	VOTE REQUIRED	20
2.16	NON-CONTRAVENTION; CONSENTS	20
2.17	OPINION OF FINANCIAL ADVISOR	21
2.18	FINANCIAL ADVISOR	21
2.19	TAKEOVER STATUTES	21
2.20	INFORMATION TO BE SUPPLIED	22
2.21	FOREIGN CORRUPT PRACTICES ACT	22
2.22	REAL PROPERTY	22
2.23	INSURANCE POLICIES	23
SECTION 3.	REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB	23
3.1	DUE ORGANIZATION; SUBSIDIARIES	23
3.2	AUTHORITY; BINDING NATURE OF AGREEMENT	24
3.3	CAPITALIZATION, ETC.	24
3.4	SEC FILINGS; FINANCIAL STATEMENTS	25
3.5	ABSENCE OF CHANGES	26
3.6	PROPRIETARY ASSETS	27
3.7	CONTRACTS	28
3.8	LIABILITIES	29
3.9	COMPLIANCE WITH LEGAL REQUIREMENTS; FDA MATTERS	30
3.10	GOVERNMENTAL AUTHORIZATIONS	32
3.11	TAX MATTERS	32
3.12	EMPLOYEE AND LABOR MATTERS; BENEFIT PLANS	34
3.13	ENVIRONMENTAL MATTERS	37


		Page
3.14	LEGAL PROCEEDINGS; ORDERS	38
3.15	VOTE REQUIRED	38
3.16	NON-CONTRAVENTION; CONSENTS	38
3.17	OPINION OF FINANCIAL ADVISOR	39
3.18	FINANCIAL ADVISOR	39
3.19	TAKEOVER STATUTES	39
3.20	INFORMATION TO BE SUPPLIED	39
3.21	FOREIGN CORRUPT PRACTICES ACT	40
3.22	REAL PROPERTY	40
3.23	INSURANCE POLICIES	40
SECTION 4.	CERTAIN COVENANTS OF THE COMPANY AND PARENT	41
4.1	ACCESS AND INVESTIGATION	41
4.2	OPERATION OF BUSINESS	41
4.3	NO SOLICITATION BY THE COMPANY	45
4.4	NO SOLICITATION BY PARENT	47
SECTION 5.	ADDITIONAL COVENANTS OF THE PARTIES	49
5.1	REGISTRATION STATEMENT AND PROXY STATEMENT FOR STOCKHOLDER APPROVAL	49
5.2	COMPANY SHAREHOLDERS MEETING AND PARENT STOCKHOLDERS MEETING	51
5.3	REGULATORY APPROVALS	52
5.4	COMPANY STOCK OPTIONS AND WARRANTS	52
5.5	EMPLOYEE BENEFITS	53
5.6	INDEMNIFICATION OF OFFICERS AND DIRECTORS	54
5.7	ADDITIONAL AGREEMENTS	54
5.8	PUBLIC DISCLOSURE	55
5.9	TAX MATTERS	55
5.10	RESIGNATION OF DIRECTORS	55
5.11	LISTING	55
5.12	TAKEOVER LAWS	56
5.13	FORM S-8; SECTION 16	56
5.14	AFFILIATES	56
5.15	LITIGATION	56
5.16	ADVICE OF CHANGES	57
5.17	DIRECTORS AND OFFICERS OF PARENT	57
5.18	EMPLOYMENT AGREEMENTS	57
SECTION 6.	CONDITIONS TO THE MERGER	57
6.1	CONDITIONS TO EACH PARTYS OBLIGATION	57
6.2	ADDITIONAL CONDITIONS TO PARENTS AND MERGER SUBS OBLIGATIONS	58
6.3	ADDITIONAL CONDITIONS TO THE COMPANYS OBLIGATIONS	59
SECTION 7.	TERMINATION	60
7.1	TERMINATION	60
7.2	EFFECT OF TERMINATION	61
7.3	EXPENSES; TERMINATION FEES	61
SECTION 8.	MISCELLANEOUS PROVISIONS	62
8.1	AMENDMENT	62
8.2	WAIVER	62
8.3	NO SURVIVAL OF REPRESENTATIONS AND WARRANTIES	63
8.4	ENTIRE AGREEMENT; COUNTERPARTS	63
8.5	APPLICABLE LAW; JURISDICTION	63


		Page
8.6	ATTORNEYS FEES	64
8.7	ASSIGNABILITY; THIRD PARTY BENEFICIARIES	64
8.8	NOTICES	64
8.9	SEVERABILITY	65
8.10	SPECIFIC PERFORMANCE	65
8.11	CONSTRUCTION	65

iii

AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER (this Agreement) is made and entered into on May 12, 2004, by and among RITA MEDICAL SYSTEMS, INC., a Delaware corporation (Parent), HORNET ACQUISITION CORP., a Delaware corporation and a wholly-owned subsidiary of Parent (Merger Sub), and HORIZON MEDICAL PRODUCTS, INC., a Georgia corporation (the Company). Certain capitalized terms used in this Agreement are defined in Exhibit A.

RECITALS

WHEREAS, Parent, Merger Sub and the Company intend to effect a merger (the Merger) of Merger Sub into the Company in accordance with this Agreement, the General Corporation Law of the State of Delaware (the DGCL) and the Georgia Business Corporation Code (GBCC). Upon consummation of the Merger, Merger Sub will cease to exist, and the Company will become a wholly-owned subsidiary of Parent;

WHEREAS, it is intended that the Merger shall qualify as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the Code);

WHEREAS, the Board of Directors of the Company (i) has determined that the Merger is in the best interests of the Company and its shareholders, (ii) has approved and adopted this Agreement, (iii) has approved the Merger and the other transactions contemplated by this Agreement and (iv) has determined to recommend that the shareholders of the Company approve this Agreement (the recommendation referred to in this clause (iv) is referred to in this Agreement as the Company Recommendation);

WHEREAS, the Board of Directors of Parent (i) has determined that the Merger is in the best interests of Parent and its stockholders, (ii) has approved and adopted this Agreement, the Merger and the other transactions contemplated by this Agreement, (iii) has taken all corporate action necessary to render the rights issuable under the Parent Stockholder Rights Agreement inapplicable to this Agreement, the Merger and the other transactions contemplated by this Agreement, and (iv) has determined to recommend that the stockholders of Parent approve the issuance of Parent Common Stock pursuant to the Merger as contemplated by this Agreement (the recommendation referred in this clause (iv) is referred to in this Agreement as the Parent Recommendation);

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