-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, O4AhThNxPQOJ/Th54g90bGw0A7M27uuS8uZheX1qrj0VBm2Whn+lZHRVevopLsAR t63cjFZn0dSCfm4cHv2S6w== 0000911420-04-000327.txt : 20040809 0000911420-04-000327.hdr.sgml : 20040809 20040809161717 ACCESSION NUMBER: 0000911420-04-000327 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20040809 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: COMVEST VENTURE PARTNERS LP CENTRAL INDEX KEY: 0001163944 IRS NUMBER: 134124841 STATE OF INCORPORATION: DE FILING VALUES: FORM TYPE: SC 13D MAIL ADDRESS: STREET 1: 830 THIRD AVENUE CITY: NEW YORK STATE: NY ZIP: 10022 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: RITA MEDICAL SYSTEMS INC CENTRAL INDEX KEY: 0001056421 STANDARD INDUSTRIAL CLASSIFICATION: ELECTROMEDICAL & ELECTROTHERAPEUTIC APPARATUS [3845] IRS NUMBER: 943199149 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-60199 FILM NUMBER: 04961556 BUSINESS ADDRESS: STREET 1: 967 N SHORELINE BLVD CITY: MOUNTAIN VIEW STATE: CA ZIP: 94013 BUSINESS PHONE: 6503858500 MAIL ADDRESS: STREET 1: 967 NORTH SHORELINE BLVD CITY: MOUNTAIN VIEW STATE: CA ZIP: 94043 SC 13D 1 d983488.txt SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 (Amendment No. ) RITA MEDICAL SYSTEMS, INC. (Name of Issuer) COMMON STOCK, PAR VALUE $.001 (Title of Class of Securities) 76774E103 (CUSIP Number) MICHAEL S. FALK COMVEST VENTURE PARTNERS, L.P. 830 THIRD AVENUE NEW YORK, NEW YORK 10022 (212) 829-5839 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) JULY 29, 2004 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box .. Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent. (Page 1 of 18) _______________ * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and/or any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSIP NO. 76774E103 SCHEDULE 13D Page 2 of 18 Pages - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) COMVEST VENTURE PARTNERS, LP (13-4124841) - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF MEMBER OF A GROUP* (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* WC - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER ------------------------------------------------ 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY 4,201,470 EACH REPORTING ------------------------------------------------ PERSON WITH 9 SOLE DISPOSITIVE POWER ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 4,201,470 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,201,470 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 11.4% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! CUSIP NO. 76774E103 SCHEDULE 13D Page 3 of 18 Pages - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) COMVEST MANAGEMENT LLC (06-1588640) - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF MEMBER OF A GROUP* (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* AF - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER ------------------------------------------------ 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY 4,201,470 EACH REPORTING ------------------------------------------------ PERSON WITH 9 SOLE DISPOSITIVE POWER ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 4,201,470 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,201,470 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 11.4% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* OO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! CUSIP NO. 76774E103 SCHEDULE 13D Page 4 of 18 Pages - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) COMMONWEALTH ASSOCIATES, L.P. (13-3467952) - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF MEMBER OF A GROUP* (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* OO - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER ------------------------------------------------ 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY 2,733 EACH REPORTING ------------------------------------------------ PERSON WITH 9 SOLE DISPOSITIVE POWER ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 2,733 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,733 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) .0074% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! CUSIP NO. 76774E103 SCHEDULE 13D Page 5 of 18 Pages - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) COMMONWEALTH MANAGEMENT LLC (75-3096361) - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF MEMBER OF A GROUP* (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* AF - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER ------------------------------------------------ 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY 2,733 EACH REPORTING ----------------------------------------------- PERSON WITH 9 SOLE DISPOSITIVE POWER ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 2,733 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,733 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) .0074% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! CUSIP NO. 76774E103 SCHEDULE 13D Page 6 of 18 Pages - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) COMMONWEALTH ASSOCIATES GROUP HOLDINGS, LLC (01-0622406) - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF MEMBER OF A GROUP* (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* OO - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 59,046 ------------------------------------------------ 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY 4,204,203 EACH REPORTING ------------------------------------------------ PERSON WITH 9 SOLE DISPOSITIVE POWER 59,046 ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 4,204,203 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,263,249 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 11.6% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* OO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! CUSIP NO. 76774E103 SCHEDULE 13D Page 7 of 18 Pages - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) MICHAEL S. FALK (###-##-####) - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF MEMBER OF A GROUP* (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* OO - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION USA - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 319,363 ------------------------------------------------ 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY 4,347,489 EACH REPORTING ------------------------------------------------ PERSON WITH 9 SOLE DISPOSITIVE POWER 319,363 ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 4,347,489 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,666,852 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 12.7% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* IN - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! CUSIP NO. 76774E103 SCHEDULE 13D Page 8 of 18 Pages ITEM 1. SECURITY AND ISSUER. This statement relates to the common stock, par value $.001 per share ("Common Stock") of RITA Medical Systems Inc. (the "Issuer"). The address of the Issuer's principal executive office is 967 N. Shoreline Boulevard, Mountain View, CA 94013. ITEM 2. IDENTITY AND BACKGROUND. This statement is filed jointly by (a) ComVest Venture Partners, L.P., a limited partnership organized under the laws of Delaware, whose principal business is investing in securities ("ComVest"), (b) ComVest Management LLC ("ComVest Management"), a limited liability company organized under the laws of Delaware and the general partner of ComVest, whose principal business is investing in securities, (c) Commonwealth Associates, L.P. ("Commonwealth"), a limited partnership organized under the laws of New York, whose principal business is venture capital and merchant banking; (d) Commonwealth Management, LLC ("Commonwealth Management"), a limited liability company organized under the laws of Delaware and the general partner of Commonwealth, whose principal business is managing venture capital funds; (e) Commonwealth Associates Group Holdings, LLC ("CAGH"), a limited liability company organized under the laws of Delaware and the sole member of Commonwealth Management and ComVest Management, whose principal business is investing in securities; and (f) Michael S. Falk ("Falk"), an individual, the Chairman and principal member of CAGH and a managing member of each of Commonwealth Management and ComVest Management. Commonwealth, Commonwealth Management, ComVest, ComVest Management, CAGH, and Falk are the "Reporting Persons." All of the individuals identified in this Item 2 are United States citizens. The business address for all of the Reporting Persons and other individuals identified in this Item 2 is 830 Third Avenue, New York, New York 10022. During the last five years, none of the individuals or entities identified in this Item 2 has been convicted in a criminal proceeding (excluding traffic violations and similar misdemeanors) or been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding, was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws of finding any violation with respect to such laws. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. Pursuant to an Agreement and Plan of Merger, dated as of May 12, 2004 (the "Merger Agreement") by and among the Issuer, Hornet Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of the Issuer (the "Merger Sub") and Horizon Medical Products, Inc., a Georgia corporation ("HMP"), on July 29, 2004 HMP merged (the "Merger") with and into the Merger Sub and the shareholders of HMP (including Commonwealth, ComVest, CAGH and Falk) received ..4212 shares of common stock, par value $.001 per share, of the Issuer (the "Common Stock") in exchange for each share of common stock of HMP held by such shareholder. On March 1, 2002, as part of HMP's recapitalization of existing debt (the "HMP Recapitalization"), ComVest purchased from HMP a Senior Subordinated Convertible Note in the aggregate principal amount of $4,400,000 (the "Note"), pursuant to the terms and conditions of a Note Purchase Agreement, dated March 1, 2002, by and among HMP, ComVest and the other note purchasers named therein (as amended on each of June 10, 2002, July 29, 2002, October 2, 2002 and May 12, CUSIP NO. 76774E103 SCHEDULE 13D Page 9 of 18 Pages 2004, the "Note Purchase Agreement"). In accordance with the terms of the Note Purchase Agreement, ComVest converted an aggregate of 1.50% of the Note prior to March 1, 2004 and received an aggregate of 6,600,000 shares (the "Note Conversion Shares") of common stock of HMP. Each of the Note Conversion Shares was exchanged in the Merger for .4212 shares of the Issuer's Common Stock, resulting in an aggregate of 2,779,920 shares of the Issuer's Common Stock being issued in exchange for the Note Conversion Shares held by ComVest. The remaining outstanding principal and accrued but unpaid interest on the Note is no longer subject to conversion except upon a default of the Note, and in such event the Note would be convertible into shares of common stock of HMP. In connection with the HMP Recapitalization, Commonwealth received shares of common stock of HMP (the "Placement Shares") in exchange for its services as HMP's placement agent in the HMP Recapitalization. Commonwealth subsequently distributed all of the Placement Shares (other than 6,488 Placement Shares, which it retained and exchanged for 2,733 shares of Common Stock of the Issuer) to certain affiliates, officers and directors, including the following: (i) 140,186 of such Placement Shares were distributed to CAGH (the sole member of Commonwealth Management) and (ii) 958,222 of such Placement Shares were distributed to Falk (the Chairman and principal member of CAGH and a managing member of each of Commonwealth Management and ComVest Management). Falk subsequently transferred 100,000 of such shares to each of the Mikaela Falk Trust and the Gianna Falk Trust, of which Falk's wife, Annie Falk, is Trustee. Each of such Placement Shares was exchanged in the Merger for .4212 shares of the Issuer's Common Stock, resulting in an aggregate of 465,382 shares of the Issuer's Common Stock being issued in exchange for the Placement Shares held by Commonwealth, ComVest, CAGH and Falk. ITEM 4. PURPOSE OF TRANSACTION. Pursuant to the Merger Agreement, effective as of July 29, 2004, HMP merged with and into the Merger Sub and the shareholders of HMP (including Commonwealth, ComVest, CAGH and Falk) received .4212 shares of Common Stock in exchange for each share of common stock of HMP held by such shareholder. In connection with the Merger, on May 12, 2004, certain shareholders of HMP entered into a Voting Agreement (the "Voting Agreement") with the Issuer and HMP, pursuant to which such shareholders agreed to vote all of their shares of common stock of HMP in favor of the approval of the Merger Agreement and to take certain other actions in connection with the transactions contemplated by the Merger Agreement. In addition, such shareholders agreed that at each of the 2004 and 2005 annual meetings of stockholders of the Issuer, each such shareholder will vote all shares of capital stock of the Issuer then held by such share- holder in favor of the election of the nominees for director recommended for election by the Issuer's Board of Directors. Notwithstanding the foregoing, the Voting Agreement does not restrict such shareholders' ability to sell, transfer or otherwise dispose of the shares of capital stock of the Issuer held by such shareholder following the effective time (the "Effective Time") of the Merger (i..e., July 29, 2004), and no transferee of such shareholder's shares will have any obligation under the Voting Agreement after the Effective Time. In connection with the Voting Agreement, ComVest also irrevocably appointed the Chief Executive Officer and Chief Financial Officer of the Issuer as the sole and exclusive power of attorneys and proxies (the "Proxy") for ComVest with full power to vote and exercise all voting and related rights, with respect to all shares of Common Stock of the Issuer now or thereafter owned of record or beneficially by ComVest, in accordance with the terms of the Voting Agreement. The Voting Agreement and Proxy will terminate on the date following the date of the 2005 annual meeting of stockholders of the Issuer. A copy of the Voting Agreement is attached hereto as an Exhibit. CUSIP NO. 76774E103 SCHEDULE 13D Page 10 of 18 Pages In connection with the Merger, on May 12, 2004, the Issuer entered into a Lock-Up Agreement with HMP and ComVest, as a principal shareholder of HMP (the "Lock-Up Agreement"). Pursuant to the terms of the Lock-Up Agreement, ComVest agreed that, during the 12-month period following the effective date of the Merger (i.e., July 29, 2004), it would not 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 of any shares of the Common Stock of the Issuer held by it at such time (each, a "Disposition"), except to the extent that (a) (i) such Disposition is made in conformity with the requirements of Rule 145(d) promulgated under the Securities Act, (ii) such Disposition is made pursuant to an effective registration statement under the Securities Act or an exemption therefrom, (iii) ComVest delivers to the Issuer a written opinion of counsel that such Disposition is otherwise exempt from registration under the Securities Act and (b) the number of shares of the Issuer's Common Stock subject to any such Disposition made by ComVest during the three (3)-month period ending on the date of any such Disposition does not exceed 200% of the number of shares of the Issuer's Common Stock that ComVest would be entitled to sell in accordance with the volume limitations set forth in Rule 144 of the Securities Act. A copy of the Lock-Up Agreement is attached hereto as an Exhibit. Finally, in connection with the Merger and the issuance of the Issuer's Common Stock to the shareholders of HMP, on June 10, 2004, the Issuer filed with the Securities and Exchange Commission (the "SEC") a joint proxy statement and registration statement on Form S-4 ("S-4") for the offer and sale of the Issuer's Common Stock to the shareholders of HMP. The Issuer agreed to use commercially reasonable efforts to cause the S-4 to be declared effective as soon as possible following its filing. In addition, the Issuer agreed to use its commercially reasonable efforts to (i) file a post-effective amendment to the S-4 on Form S-3 (the "S-3" and together with the S-4, the "Registration Statement"), registering the resale by the former shareholders of HMP of the shares of Common Stock received by them in the Merger within ten (10) days subsequent to the Effective Time of the Merger, and (ii) to cause such Form S-3 to be declared effective under the Securities Act of 1933, as amended (the "Securities Act"), as promptly as possible following the filing of the S-3 with the SEC. The Issuer agreed to maintain the effectiveness of the Registration Statement for a period of time ending on the earlier of (a) the date on which all shares of Common Stock issued in connection with the Merger to all former shareholders of HMP have been sold and (b) the date on which all shares of Common Stock held by the former shareholders of HMP, in the opinion of counsel for the Issuer, are eligible for sale pursuant to Section 144 under the Securities Act. The Common Stock issued in connection with the Merger was acquired solely for investment purposes and not for the purpose of acquiring control of the Issuer. Other than as set forth above, the Reporting Persons have no present plans or proposals which relate to, or could result in, any of the matters referred to in paragraphs (a) through (j) of Item 4 of Schedule 13D. The Reporting Persons may, at any time and from time to time, renew or reconsider their position and formulate plans or proposals with respect thereto, but have no present intention of doing so. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. (a) ComVest may be deemed to be the beneficial owner of an aggregate of 4,201,470 shares of Common Stock, representing approximately 11.4% of the issued and outstanding shares of Common Stock of the Issuer. CUSIP NO. 76774E103 SCHEDULE 13D Page 11 of 18 Pages ComVest Management, as the general partner of ComVest, may be deemed to beneficially own the 4,201,470 shares of Common Stock, representing approximately 11.4% of the issued and outstanding shares of Common Stock of the Issuer, beneficially owned by ComVest. Commonwealth may be deemed to be the beneficial owner of an aggregate of 2,733 shares of Common Stock, representing approximately .0074% of the issued and outstanding shares of Common Stock of the Issuer. Commonwealth Management, as the general partner of Commonwealth, may be deemed to beneficially own the 2,733 shares of Common Stock, representing ..0074% of the issued and outstanding shares of Common Stock of the Issuer, beneficially owned by Commonwealth. CAGH may be deemed to be the beneficial owner of an aggregate of 4,263,249 shares of Common Stock, representing approximately 11.6% of the issued and outstanding shares of Common Stock of the Issuer, consisting of the following: (i) 59,046 shares of Common Stock beneficially owned of record by CAGH; (ii) the 2,733 shares of Common Stock beneficially owned by Commonwealth that CAGH may be deemed to beneficially own by virtue of the fact that CAGH is the sole member of Commonwealth Management, the general partner of Commonwealth; and (iii) the 4,201,470 shares of Common Stock beneficially owned by ComVest that CAGH may be deemed to beneficially own by virtue of the fact that CAGH is the sole member of ComVest Management, the general partner of ComVest. Falk may be deemed to be the beneficial owner of an aggregate of 4,666,852 shares of Common Stock, representing approximately 12.7% of the issued and outstanding shares of Common Stock of the Issuer, consisting of the following: (i) the 319,363 shares of Common Stock beneficially owned of record by Falk; (ii) the 42,120 shares of Common Stock beneficially owned by the Mikaela Falk Trust, which Falk may be deemed to beneficially own by virtue of the fact that Falk's wife, Annie Falk, is Trustee of the Mikaela Falk Trust; (iii) the 42,120 shares of Common Stock beneficially owned by the Gianna Falk Trust, which Falk may be deemed to beneficially own by virtue of the fact that Falk's wife, Annie Falk, is Trustee of the Gianna Falk Trust; (iv) the 2,733 shares of Common Stock beneficially owned by Commonwealth, which Falk may be deemed to beneficially own by virtue of the fact that Falk is the Chairman and principal member of CAGH (the sole member of Commonwealth Management) and a managing member of Commonwealth Management (the general partner of Commonwealth); (v) the 4,201,470 shares of Common Stock beneficially owned by ComVest, which Falk may be deemed to beneficially own by virtue of the fact that Falk is the Chairman and principal member of CAGH (the sole member of ComVest Management), and (vi) the 59,046 shares of Common Stock beneficially owned by CAGH, which Falk may be deemed to beneficially own by virtue of the fact that Falk is the Chairman and principal member of CAGH. Falk may be deemed to share indirect voting and dispositive power with respect to each of the shares of Common Stock described in items (ii) through (vi) above, but Falk disclaims beneficial ownership with respect to the shares described in each of items (ii) through (vi) above. (b) Number of shares as to which each such person has: (1) Sole power to vote or to direct the vote, and sole power to dispose or direct the disposition of: Name Number of Shares ---- ---------------- Michael S. Falk 319,363 shares (2) Shared power to vote or to direct the vote, and shared power to dispose or direct the disposition of: (i) ComVest, ComVest Management, CAGH and Falk may be deemed to share such voting and disposition powers with respect to the 4,201,470 shares of Common Stock beneficially held by ComVest. CUSIP NO. 76774E103 SCHEDULE 13D Page 12 of 18 Pages (ii) Commonwealth, Commonwealth Management, CAGH and Falk may be deemed to share such voting and disposition powers with respect to the 2,733 shares of Common Stock beneficially held by Commonwealth. (c) As more fully described above, each of ComVest, Commonwealth, CAGH and Falk acquired the Common Stock in connection with the Merger in exchange for their respective shares of common stock of HMP. (d) Not applicable. (e) Not applicable. ITEM 6. CONTRACTS ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. As stated in Item 4 above, in connection with the Merger, on May 12, 2004, certain shareholders of HMP entered into the Voting Agreement with the Issuer and HMP, pursuant to which such shareholders agreed to vote all of their shares of common stock of HMP in favor of the approval of the Merger Agreement and to take certain other actions in connection with the transactions contemplated by the Merger Agreement. In addition, such shareholders agreed that at each of the 2004 and 2005 annual meetings of stockholders of the issuer, each such shareholder will vote shares of capital stock of the Issuer then held by such shareholder in favor of the election of the nominees for director recommended for election by the Issuer's Board of Directors. Notwithstanding the foregoing, the Voting Agreement does not restrict such shareholders' ability to sell, transfer or otherwise dispose of the shares of capital stock of the Issuer held by such shareholder following the Effective Time of the Merger (i..e., July 29, 2004), and no transferee of such shareholder's shares will have any obligation under the Voting Agreement after the Effective Time. In connection with the Voting Agreement, ComVest also delivered the Proxy, irrevocably appointed the Chief Executive Officer and Chief Financial Officer of the Issuer as the sole and exclusive power of attorneys and proxies for ComVest with full power to vote and exercise all voting and related rights, with respect to all shares of Common Stock of the Issuer now or thereafter owned of record or beneficially by ComVest, in accordance with the terms of the Voting Agreement. The Voting Agreement and Proxy will terminate on the date following the date of the 2005 annual meeting of stockholders of the Issuer. A copy of the Voting Agreement is attached hereto as an Exhibit. Also as stated in Item 4 above, in connection with the Merger, on May 12, 2004, the Issuer entered into the Lock-Up Agreement with HMP and ComVest, as a principal shareholder of HMP, pursuant to which ComVest agreed that, during the 12-month period following the Effective Time of the Merger, it would not Dispose of any shares of Common Stock of the Issuer held by it at such time, except to the extent that (a) (i) such Disposition is made in conformity with the requirements of Rule 145(d) promulgated under the Securities Act, (ii) such Disposition is made pursuant to an effective registration statement under the Securities Act or an exemption therefrom, (iii) ComVest delivers to the Issuer a written opinion of counsel that such Disposition is otherwise exempt from registration under the Securities Act and (b) the number of shares of the Issuer's Common Stock subject to any such Disposition made by ComVest during the three (3)-month period ending on the date of any such Disposition does not exceed 200% of the number of shares of the Issuer's Common Stock that ComVest would be entitled to sell in accordance with the volume limitations set forth in Rule 144 of the Securities Act. A copy of the Lock-Up Agreement is attached hereto as an Exhibit. Finally, as set forth in Item 4 above, in connection with the Merger and the issuance of the Issuer's Common Stock to the shareholders of HMP, on June 10, 2004, the Issuer filed with an S-4 registration statement with the SEC providing for the offer and sale of the Issuer's Common Stock to the CUSIP NO. 76774E103 SCHEDULE 13D Page 13 of 18 Pages shareholders of HMP in the Merger. The Issuer agreed to use commercially reasonable efforts to cause the S-4 to be declared effective as soon as possible following its filing. In addition, the Issuer agreed to use its commercially reasonable efforts to (i) file an S-3, registering the resale by the former shareholders of HMP of the shares of Common Stock received by them in the Merger within ten (10) days subsequent to the Effective Time of the Merger, and (ii) to cause such S-3 to be declared effective under the Securities Act as promptly as possible following the filing of the S-3 with the SEC. The Issuer agreed to maintain the effectiveness of the Registration Statement for a period of time ending on the earlier of (a) the date on which all shares of Common Stock issued in connection with the Merger to all former shareholders of HMP have been sold and (b) the date on which all shares of Common Stock held by the former shareholders of HMP, in the opinion of counsel for the Issuer, are eligible for sale pursuant to Section 144 under the Securities Act. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. Exhibit Document - ------- -------- 1. Joint Filing Agreement, as required by Rule 13d-1 under the Securities Exchange Act of 1934 2. Voting Agreement, dated May 12, 2004, by and among the Issuer, HMP and ComVest. 3. Lock-Up Agreement, dated May 12, 2004, by and among the Issuer, HMP and ComVest CUSIP NO. 76774E103 SCHEDULE 13D Page 14 of 18 Pages SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: August 9, 2004 Commonwealth Associates, L.P. By: /s/ Anthony Giardina ------------------------------------- Name: Anthony Giardina Title: President Dated: August 9, 2004 Commonwealth Management, LLC By: /s/Michael S. Falk ------------------------------------- Name: Michael S. Falk Title: Managing Member Dated: August 9, 2004 Commonwealth Associates Group Holdings, LLC By: /s/Michael S. Falk ------------------------------------- Name: Michael S. Falk Title: Chairman Dated: August 9, 2004 ComVest Venture Partners, LP By: ComVest Management, LLC, its general partner By: /s/Michael S. Falk ------------------------------------- Name: Michael S. Falk Title: Managing Member CUSIP NO. 76774E103 SCHEDULE 13D Page 15 of 18 Pages Dated: August 9, 2004 ComVest Management, LLC By: Commonwealth Associates Group Holdings, LLC, its sole member By: /s/Michael S. Falk --------------------------------- Name: Michael S. Falk Title: Managing Member Dated: August 9, 2004 /s/Michael S. Falk ------------------------------------- Michael S. Falk, individually CUSIP NO. 76774E103 SCHEDULE 13D Page 16 of 18 Pages EXHIBIT INDEX Exhibit Document - ------- -------- 1. Joint Filing Agreement, as required by Rule 13d-1 under the Securities Exchange Act of 1934 2. Voting Agreement, dated May 12, 2004, by and among the Issuer, HMP and ComVest. 3. Lock-Up Agreement, dated May 12, 2004, by and among the Issuer, HMP and ComVest CUSIP NO. 76774E103 SCHEDULE 13D Page 17 of 18 Pages JOINT FILING AGREEMENT The undersigned hereby consent to the joint filing by any of them of a Statement on Schedule 13D and any amendments thereto, whether heretofore or hereafter filed, relating to the securities of Notify Technology Corporation, and hereby affirm that this Schedule 13D is being filed on behalf of each of the undersigned. Dated: August 9, 2004 Commonwealth Associates, L.P. By: /s/ Anthony Giardina ------------------------------------- Name: Anthony Giardina Title: President Dated: August 9, 2004 Commonwealth Management, LLC By: /s/Michael S. Falk ------------------------------------- Name: Michael S. Falk Title: Managing Member Dated: August 9, 2004 Commonwealth Associates Group Holdings, LLC By: /s/Michael S. Falk ------------------------------------- Name: Michael S. Falk Title: Chairman Dated: August 9, 2004 ComVest Venture Partners, LP By: ComVest Management, LLC, its general partner By: /s/Michael S. Falk ------------------------------------- Name: Michael S. Falk Title: Managing Member CUSIP NO. 76774E103 SCHEDULE 13D Page 18 of 18 Pages Dated: August 9, 2004 ComVest Management, LLC By: Commonwealth Associates Group Holdings, LLC, its sole member By: /s/Michael S. Falk --------------------------------- Name: Michael S. Falk Title: Managing Member Dated: August 9, 2004 /s/Michael S. Falk ------------------------------------- Michael S. Falk, individually EX-2 2 e984162.txt VOTING AGREEMENT EXHIBIT 2 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, $0.00 1 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. 2 (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 legal capacity, power and authority to enter into and perform all of Holder's under this Agreement (including under the Proxy). This Agreement (including the Proxy) has been duly and validly executed and delivered by Holder and constitutes a valid and binding agreement of Holder, enforceable against Holder in accordance with its terms, subject to (a) laws of general application relating to bankruptcy, insolvency and the relief of debtors and (b) rules of law governing specific performance, injunctive relief and other equitable remedies. 5. ADDITIONAL DOCUMENTS. Holder hereby covenants and agrees to execute and deliver any additional documents reasonably necessary to carry out the purpose and intent of this Agreement. 6. CONSENT AND WAIVER. Holder hereby gives any consents or waivers that are reasonably required for the consummation of the Merger under the terms of any agreement to which Holder is a party or pursuant to any rights Holder may have. 3 7. TERMINATION. This Agreement and the Proxy delivered in connection herewith shall terminate and shall have no further force or effect as of the earlier to occur of (i) the Expiration Date and (ii) the date following the date of the 2005 annual meeting of stockholders of Parent, including any adjournment or postponement thereof. 8. FIDUCIARY DUTIES. Notwithstanding anything in this Agreement to the contrary: (i) Holder makes no agreement or understanding herein in any capacity other than in Holder's capacity as a record holder and beneficial owner of the Shares, (ii) nothing in this Agreement shall be construed to limit or affect any action or inaction by Holder, or any officer, partner, member or employee, as applicable, of Holder, serving on the Company's Board of Directors acting in such person's capacity as a director or fiduciary of the Company, and (iii) Holder shall have no liability to Parent, Merger Sub or any of their respective affiliates under this Agreement as a result of any action or inaction by Holder, or any officer, partner, member or employee, as applicable, of Holder, serving on the Company's Board of Directors acting in such person's capacity as a director or fiduciary of the Company. 9. MISCELLANEOUS. (a) AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended or waived with the written consent of the parties or their respective successors and assigns. Any amendment or waiver effected in accordance with this Section 9(a) shall be binding upon the parties and their respective successors and assigns. (b) GOVERNING LAW. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of Delaware, without giving effect to principles of conflicts of law. (c) COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. (d) TITLES AND SUBTITLES. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. (e) NOTICES. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon receipt, when delivered personally or by courier, overnight delivery service or confirmed facsimile, or 72 hours after being deposited in the regular mail as certified or registered mail (airmail if sent internationally) with postage prepaid, if such notice is addressed to the party to be notified at such party's address or facsimile number as set forth below, or as subsequently modified by written notice. (f) SEVERABILITY. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith, in order to maintain the economic position enjoyed by each party as close as possible to that under the provision rendered unenforceable. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms. (g) SPECIFIC PERFORMANCE. Each of the parties hereto recognizes and acknowledges that a breach of any covenants or agreements contained in this Agreement will cause Parent and Merger Sub to sustain damages for which they would not have an adequate remedy at law for money damages, and therefore each of the parties hereto agrees that in the event of any such breach Parent shall be entitled to the remedy of specific performance of such covenants and agreements and injunctive and other equitable relief in addition to any other remedy to which they may be entitled, at law or in equity. [SIGNATURE PAGE FOLLOWS] 5 The parties have caused this Agreement to be duly executed on the date first above written. PARENT By: /s/Joseph DeVivo ---------------------------------------- Name: Joseph DeVivo Title: President and CEO Address: RITA Medical Systems, Inc. 967 North Shoreline Blvd. Mountain View, CA 94043 Attention: Joseph DeVivo, President and Chief Executive Officer Facsimile No.: (650) 967-1691 COMPANY By: /s/Robert J. Wenzel ---------------------------------------- Name: Robert J. Wenzel Title: Interim CEO Address: Horizon Medical Products, Inc. One Horizon Way Manchester, GA 91816 Attention: Robert Wenz &, President Facsimile No.: (706) 846-5226 SIGNATURE PAGE TO VOTING AGREEMENT 5 HOLDER ComVest Venture Partners LP By: /s/Harold Blue -------------------------------- Name: Harold Blue Title: Partner; President Holder's Address for Notice: 830 Third Avenue New York, N.Y. 10022 Shares owned of record: Beneficially owned shares: Class of Shares Number Class of Shares Number Common Stock 9,975,000 Options to 0 purchase Common Stock exervisable within 6o days 6 EXHIBIT A IRREVOCABLE PROXY TO VOTE STOCK OF HORIZON MEDICAL PRODUCTS, INC. AND RITA MEDICAL SYSTEMS, INC. The undersigned shareholder of Horizon Medical Products, Inc. a Georgia corporation (the "Company"), hereby irrevocably (to the full extent permitted by the Georgia Business Corporation Code) appoints the Chief Executive Officer and Chief Financial Officer of RITA Medical Systems, Inc. a Delaware corporation ("Parent"), and each of them, as the sole and exclusive attorneys and proxies of the undersigned, with full power of substitution and resubstitution, to vote and exercise all voting and related rights (to the full extent that the undersigned is entitled to do so) with respect to all of the shares of capital stock of the Company and all of the shares of capital stock of Parent that now are or hereafter may be owned of record or beneficially by the undersigned, and any and all other shares or securities of the Company (collectively, the "Company Shares") or Parent (collectively, the "Parent Shares" and together with the Company Shares, the "Shares") issued or issuable in respect thereof on or after the date hereof in accordance with the terms of this Proxy and that certain Voting Agreement of even date herewith, by and among Parent, the Company and the undersigned (the "Voting Agreement"). The shares of the capital stock of the Company owned by the undersigned shareholder of the Company as of the date of this Proxy are listed beneath the undersigned's signature on the final page of this Proxy. Upon the undersigned's execution of this Proxy, any and all prior proxies given by the undersigned with respect to any Shares are hereby revoked and the undersigned agrees not to grant any subsequent proxies with respect to the Shares until after the earlier to occur of (i) the Expiration Date (as defined below) and (ii) the Effective Time (after which time the undersigned agrees not to grant any proxy with respect to shares of the capital stock of Parent in a manner inconsistent with this Proxy). This Proxy is coupled with an interest, is irrevocable (to the extent permitted by the Georgia Business Corporation Code in the case of the capital stock of the Company and, in the case of the capital stock of Parent, the Delaware General Corporation Law), is granted pursuant to the Voting Agreement, and is granted in consideration of Parent entering into that certain Agreement and Plan of Merger, of even date herewith, by and among the Company, Parent and Hornet Acquisition Corp., a Delaware corporation ("Merger Sub") and wholly-owned subsidiary of Parent (the "Merger Agreement"). The Merger Agreement provides for the merger of Merger Sub with and into the Company (the "Merger"). 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. The attorneys and proxies named above, and each of them, are hereby further authorized and empowered by the undersigned, at any time prior to the earlier to occur of (i) the Effective Time and (ii) Expiration Date, to act as the undersigned's attorney and proxy to vote the Shares, and to exercise all voting and other rights of the undersigned with respect to the Shares (including, without limitation, the power to execute and deliver written consents pursuant to the Georgia Business Corporation Code), at every annual, special or adjourned meeting of the shareholders of the Company and in every written consent in lieu of such meeting (i) in favor of approval of the Merger and the Merger Agreement 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 the undersigned under the Voting 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. The attorneys and proxies named above, and each of them, are hereby authorized and empowered by the undersigned, at any time prior to the earlier to occur (i) the Expiration Date and (ii) the date following the date of the 2005 annual meeting of stockholders of Parent, including any adjournment or postponement thereof, to act as the undersigned's attorney and proxy to vote all Parent Shares owned beneficially or of record by the undersigned as of the record date for each annual meeting of Parent stockholders, and to exercise all voting and other rights of the undersigned with respect to such shares (including, without limitation, the power to execute and deliver written consents pursuant to the Delaware General Corporation Law), at every annual meeting of the stockholders of Parent, including any adjournment or postponement thereof, in favor of the election of nominees to the Board of Directors of Parent recommended for election by the Board of Directors of Parent. Any obligation of the undersigned hereunder shall be binding upon the successors and assigns of the undersigned. This Proxy is irrevocable (with respect to the shares of capital stock of the Company, to the extent provided in the Georgia Business Corporation Code and, with respect to the shares of capital stock of Parent, to the extent provided in the Delaware General Corporation Law). [SIGNATURE PAGE FOLLOWS] 2 Dated: __________________ Shares owned of record: Beneficially owned shares: Class of Shares Number Class of Shares Number Common Stock 9,975,000 Options to 0 purchase Common Stock exervisable within 6o days EX-3 3 e984144.txt LOCK-UP AGREEMENT EXHIBIT 3 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. (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 ACT OF 1933 APPLIES. THE SHARES REPRESENTED BY THIS CERTIFICATE MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT DATED MAY __, 2004 BETWEEN THE REGISTERED HOLDER HEREOF, RITA MEDICAL SYSTEMS, INC. AND HORIZON MEDICAL PRODUCTS, INC., A COPY OF WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICES OF RITA MEDICAL SYSTEMS, INC." It is understood and agreed that the legend contemplated in this Section 2(c) shall be removed by delivery of a substitute certificate without such legend if Holder shall have delivered to Parent a copy of a letter from the staff of the Securities and Exchange Commission, or a written opinion of counsel reasonably acceptable to Parent, to the effect that such legend is not required for purposes of the 1933 Act; provided, however, it is further understood and agreed that if one year has passed since Holder's acquisition of Parent Common Stock as a result of the Merger (as determined in accordance with paragraph (d) of Rule 144 under the 1933 Act) and Holder is not an "affiliate" of Parent, Holder may request of Parent in writing that the legend contemplated in this Section 2(c) be removed by delivery of a substitute certificate without such legend and 2 Parent thereafter will cause such substitute certificate to be issued to Holder, without the delivery of such a letter or written opinion. (d) As soon as practicable following the execution of the Merger Agreement, Parent shall prepare (together with the Company) and file with the Commission, a joint registration and proxy statement consisting of the Company Proxy Statement, the Parent Proxy Statement and the Registration Statement (as such terms are defined in the Merger Agreement) for the offer and sale of Parent Common Stock pursuant to the Merger, included in which shall be the Company Proxy Statement and the Parent Proxy Statement which shall constitute a prospectus. Parent shall use commercially reasonable efforts to have the Registration Statement declared effective under the 1933 Act as promptly as practicable after its filing. Parent agrees to use its commercially reasonable efforts to: (i) file the Resale Registration Statement within ten (10) days subsequent to the Effective Time; (ii) cause the Resale Registration Statement to be declared effective under the Securities Act as promptly as practicable after its filing; and (iii) maintain the effectiveness of the Resale Registration Statement for a period of time ending on the earlier of (A) the date on which all shares of Parent Common Stock issued in connection with the Merger to Holder have been sold and (B) the date on which all shares of Parent Common Stock held by Holder issued to Holder in connection with the Merger, in the opinion of counsel for Parent, are eligible for sale pursuant to Rule 144 under the 1933 Act and could be sold in any three-month period in accordance with the volume limitations contained in Rule 144(e)(1) under the 1933 Act. 3. Termination. This Agreement shall terminate and shall be of no further force and effect in the event of the termination of the Merger Agreement at any time prior to the Effective Time. 4. Miscellaneous. (a) Waiver; Severability. No waiver by any party hereto of any condition or of any breach of any provision of this Agreement shall be effective unless in writing and signed by each party hereto. In the event that any provision of this Agreement, or the application of any such provision to any person, entity or set of circumstances, shall be determined to be invalid, unlawful, void or unenforceable to any extent, the remainder of this Agreement, and the application of such provision to persons, entities or circumstances other than those as to which it is determined to be invalid, unlawful, void or unenforceable, shall not be impaired or otherwise affected and shall continue to be valid and enforceable to the fullest extent permitted by law. (b) Binding Effect and Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, but, except as otherwise specifically provided herein, neither this Agreement nor any of the rights, interests or obligations of the parties hereto may be assigned by either of the parties without prior written consent of the other party hereto. (c) Amendments and Modification. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written agreement executed by the parties hereto. 3 (d) Governing Law. This Agreement shall be governed by and construed, interpreted and enforced in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. (e) Entire Agreement. This Agreement sets forth the entire understanding of Holder, Parent and the Company relating to the subject matter hereof and supersedes all prior agreements and understandings among Holder, Parent and the Company relating to the subject matter hereof. (f) Attorneys' Fees. In the event of any legal actions or proceeding to enforce or interpret the provisions hereof, the prevailing party shall be entitled to reasonable attorneys' fees, whether or not the proceeding results in a final judgment. (g) Further Assurances. Holder shall execute and/or cause to be delivered to Parent and the Company such instruments and other documents and shall take such other actions as Parent may reasonably request to effectuate the intent and purposes of this Agreement. (h) Survival. The representations, warranties, covenants and other provisions contained in this Agreement shall survive the consummation of the Merger. (i) Notices. All notices and other communications pursuant to this Agreement shall be in writing and deemed to be sufficient if contained in a written instrument and shall be deemed given if delivered personally, by facsimile, sent by nationally-recognized overnight courier or mailed by registered or certified mail (return receipt requested), postage prepaid, to the parties at the following address (or at such other address for a party as shall be specified by like notice): If to Parent: RITA Medical Systems, Inc. 967 North Shoreline Blvd. Mountain View, CA 94043 Attention: Joseph DeVivo, President and Chief Executive Officer Facsimile No.:(650) 967-1691 with a copy to: Heller Ehrman White & McAuliffe LLP 2775 Sand Hill Road Menlo Park, California 94025 Attention: Mark Weeks Steve Tonsfeldt Facsimile No.: (650) 233-8386 4 If to the Company: Horizon Medical Products, Inc. One Horizon Way Manchester, GA 91816 Attention: Robert Wenzel, President Facsimile No.: (706) 846-5226 with a copy to: King & Spalding LLP 191 Peachtree Street Atlanta, Georgia 30303 Attention: Jon R. Harris, Jr. Facsimile No.: (404) 572-5136 If to Holder: To the address for notice set forth on the signature page hereof. (j) Counterparts. This Agreement shall be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. [SIGNATURE PAGE FOLLOWS] 5 IN WITNESS WHEREOF, the parties have caused this Lock-Up Agreement to be duly executed on the day and year first above written. RITA MEDICAL SYSTEMS, INC. HORIZON MEDICAL PRODUCTS, INC. By: /s/ Joseph DeVivo By: /s/ Robert J. Wenzel ------------------------ ------------------------------- Name: Joseph DeVivo Name: Robert J. Wenzel ------------------------ ------------------------------- Title: President and CEO Title: Interim CEO ------------------------ ------------------------------- HOLDER COMVEST VENTURE PARTNERS LP By: /s/ Harold Blue ------------------------- Name: Harold Blue ------------------------ Title: Partner/President ------------------------ Holder's address for notices: ComVest Venture Partners LP - ----------------------------- 830 Third Avenue - ----------------------------- New York, NY 10022 - ----------------------------- SIGNATURE PAGE TO LOCK-UP AGREEMENT 6 -----END PRIVACY-ENHANCED MESSAGE-----