UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Form
8-K
Current
Report
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of
1934
Date
of
Report (Date
of
earliest event reported):
August 17, 2005
RITA
Medical Systems, Inc.
(Exact
name of registrant as specified in its charter)
000-30959
(Commission
File Number)
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California
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94-3199149
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(State
or other jurisdiction of
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(I.R.S.
Employer Identification No.)
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incorporation)
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46421
Landing Parkway
Fremont,
CA 94538
(Address
of principal executive offices, with zip code)
(510)
771-0400
(Registrant's
telephone number, including area code)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see
General
Instruction A.2. below):
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Written
communications pursuant to Rule 425 under the Securities Act (17
CFR
230.425)
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR
240.14d-2(b))
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR
240.13e-4(c))
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Item
1.01 Entry
into a Material Definitive Agreement
Pursuant
to the terms of an offer letter, dated July 25, 2005 (the “Agreement”), from
RITA Medical Systems, Inc. (the "Company") to Mario Martinez, Mr. Martinez
commenced employment with the Company on August 17, 2005. Pursuant to the
terms
of the Agreement, Mr. Martinez shall receive an annual salary of $190,000
and he
will be entitled to participate in the Company's management cash bonus program.
In addition, the Company will issue to Mr. Martinez an incentive stock option
to
purchase 100,000 shares of the Company's common stock. These option shares
will
become exercisable at the rate of 1/8 of the total number of shares after
the
first six months of August 17, 2005 and then with respect to 1/48 of the
total
per month, such that the options will become fully vested at the end of four
years.
The
Agreement also provides for the payment of severance in certain circumstances.
Mr. Martinez' agreement provides that if his employment by the Company is
terminated without cause, and provided that he resigns from his position
with
the Company, actively seeks full time employment and executes the Company's
standard form of release agreement releasing any claims he may have against
the
Company, Mr. Martinez will receive monthly severance payments equal to 1/12th
of
his annual base salary and reimbursement for his continued medical coverage
until the earlier of (i) 6 months after his termination date or (ii) such
time
as he accepts an offer of employment or consulting relationship which
constitutes the equivalent of a full-time position.
The
description of the standard form of change of control agreements and
indemnification agreements entered into between Mr. Martinez and the Company
set
forth in Item 5.02 of this Current Report on Form 8-K is incorporated by
reference herein.
The
foregoing description of the Agreement is qualified in its entirety by reference
to the Agreement, a copy of which is attached hereto as Exhibit 10.92
and
incorporated herein by reference.
Item
5.02 Departures
of Directors or Principal Officers; Election of Directors; Appointment
of Principal Officers.
On
August
17, 2005, the Board of Directors of the Company (the "Board") appointed Rich
DeYoung, age 54, the Company's Senior Director of Finance, to serve as Vice
President of Finance of the Company effective August 17 2005. Mr. DeYoung
will
act as the Principal Financial Officer and Principal Accounting Officer of
the
Company. Donald Stewart, who announced in May 2005 that he would be leaving
the
Company to pursue other business interests once a new Chief Financial Officer
for the Company is hired, will continue to hold the position of Chief Financial
Officer but will no longer act as the Company’s Principal Financial Officer and
Principal Accounting Officer. Mr. DeYoung has served as the Company's Senior
Director of Finance since August 2004. From September 2000 to August 2004,
Mr.
DeYoung served as the Company's Corporate Controller. Prior to joining the
Company, from February 2000 to September 2000, he served as Corporate Controller
of Tubetronics, Inc., an aircraft component manufacturing company. From
September 1996 to December 1999, he served as Divisional Controller of the
Novacore Division of Baxter Healthcare, a medical device company. Mr. DeYoung
holds a B.A. in English from Carleton College and an M.B.A. in Finance from
the
University of Michigan Graduate School of Business.
In
connection with Mr. DeYoung's promotion to the office described above, on
August 17, 2005, the Company issued to Mr. DeYoung pursuant to the
Company's 2005 Stock Incentive Plan an incentive stock option to purchase
60,000
shares of the Company's common stock, par value $0.001 per share, at a price
of
$3.34 per share, exercisable at the rate of 1/8 of the total number of shares
after the first six months of August 17, 2005 and then with respect to 1/48
of
the total per month, such that the option will become fully vested at the
end of
four years. Furthermore, in connection with Mr. DeYoung’s promotion, he shall
receive an annual salary of $175,000 and he will be entitled to participate
in
the Company's management cash bonus program.
On
August
17, 2005, the Board appointed Mario Martinez, age 51, to serve as Vice President
of Operations and General Manager of the Company effective August 17, 2005.
Prior to joining the Company, from January 2000 to August 2005, he was President
and Chief Executive Officer of Tecnix, LLC, a technology advisory company.
From
October 1997 to January 2000, he served as Vice President Engineering and
Technology Development at 2C Optics, a medical device company. From December
1995 to August 1997, he served as Vice President Engineering and Operations
at
Biofield Corp., a medical device company. From June 1992 to December 1995,
Mr.
Martinez served as Vice President Operations at EP Technologies, a division
of
Boston Scientific Corp. Prior to June 1992, Mr. Martinez held various
positions at Cordis Corporation, a division of Johnson & Johnson, from March
1987 to June 1992. Mr. Martinez holds a B.S. degree from Florida International
University.
In
connection with Mr. Martinez' appointment to the office described above,
on
August 17, 2005, the Company issued to Mr. Martinez pursuant to the Company's
2005 Stock Incentive Plan an incentive stock option to purchase 100,000 shares
of the Company's common stock, par value $0.001 per share, at a price of
$3.34
per share, exercisable at the rate of 1/8 of the total number of shares after
the first six months of August 17, 2005 and then with respect to 1/48 of
the
total per month, such that the options will become fully vested at the end
of
four years.
The
Company has entered into its standard form of change of control agreements
and
indemnification agreements with each of Mr. DeYoung and Mr. Martinez. The
Company’s change of control agreements provide the following benefits upon the
sale or merger of the Company. In the event that the Company consummates
a
change of control transaction, 50% of any unvested options held by the Company
officers shall become fully vested and immediately exercisable and repurchase
rights retained by the Company with respect to 50% of the restricted stock
held
by the Company’s officers shall immediately lapse. In addition, on each one
month anniversary following the effective date of a change of control
transaction, 1/12th of the remaining unvested options held by the Company’s
officers shall become fully vested and immediately exercisable and repurchase
rights retained by the Company with respect to 1/12th of any remaining
restricted stock held by the Company’s officers shall immediately lapse. If the
officer is involuntarily terminated within 12 months after the change of
control
transaction, all unvested options held by the Company’s officers shall become
fully vested and immediately exercisable and all repurchase rights retained
by
the Company with respect to the restricted stock held by the Company’s officers
shall immediately lapse. If the officer voluntarily resigns or is terminated
for
cause after the change of control, then the officer is not entitled to any
acceleration of the vesting of options or lapse of repurchase rights with
respect to restricted stock.
The
Company’s indemnification agreements contain provisions which may require the
Company, among other things, to indemnify the Company’s officers and directors
against a number of liabilities that may arise by reason of their status
or
service as officers or directors (other than liabilities arising from willful
misconduct of a culpable nature) and to advance their expenses incurred as
a
result of any proceeding against them as to which they could be indemnified.
Insofar as indemnification for liabilities arising under the Securities Act
of
1933 may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed that
in the
opinion of the SEC such indemnification is against public policy as expressed
in
the Securities Act and is therefore unenforceable.
The
description of the employment agreement between Mr. Martinez and the Company
set
forth in Item 1.01 of this Current Report on Form 8-K is incorporated by
reference herein.
Item
8.01 Other Events.
On
August
17, 2005, the Company announced that it had appointed Mario Martinez, age
51, to
serve as Vice President of Operations and General Manager of the Company.
The
full text of the press release issued in connection with this announcement
is
attached as Exhibit 99.1 to this Current Report on Form 8-K.
Item
9.01 Financial
Statements and Exhibits.
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10.92 |
Offer
Letter to Mario Martinez dated July 25,
2005
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99.1 |
Press
Release of RITA Medical Systems, Inc. dated August 17,
2005
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant
has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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RITA MEDICAL SYSTEMS, INC. |
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| Date:
August 22, 2005 |
By: |
/s/
Joseph
DeVivo |
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Joseph
DeVivo |
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President
and Chief Executive Officer |
RITA
MEDICAL SYSTEMS, INC.
INDEX
TO EXHIBITS
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Exhibit
Number
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Description
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10.92
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Offer
Letter to Mario Martinez dated July 25, 2005
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99.1
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Press
Release of RITA Medical Systems, Inc. dated August 17,
2005
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