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 (094-56-2809)
--------------------------------------------------------------------------------
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