-----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, JywtDdOLnlr3zigUej+CeRChI99Tm2TWN49qe5sRxUKcfUcl/JZTScB9LCMUZ2bO s9AfRmhP+ntd81VITn/xyQ== 0000891554-99-001315.txt : 19990630 0000891554-99-001315.hdr.sgml : 19990630 ACCESSION NUMBER: 0000891554-99-001315 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19990629 GROUP MEMBERS: ARIE GENGER GROUP MEMBERS: HAIFA CHEMICALS HOLDINGS LTD GROUP MEMBERS: THOMAS G. HARDY GROUP MEMBERS: TPR INVESTMENT ASSOCIATES INC GROUP MEMBERS: TRANS RESOURCES INC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ESC MEDICAL SYSTEMS LTD CENTRAL INDEX KEY: 0001004945 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-MEDICAL, DENTAL & HOSPITAL EQUIPMENT & SUPPLIES [5047] IRS NUMBER: 000000000 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-54169 FILM NUMBER: 99654648 BUSINESS ADDRESS: STREET 1: YOKNEAM INDUSTRIAL PK CITY: YOKNEAM ISRAEL 20692 STATE: L5 ZIP: 00000 BUSINESS PHONE: 9729599000 MAIL ADDRESS: STREET 1: 100 CRESENT ROAD CITY: NEEDHAM STATE: MA ZIP: 02194 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: TRANS RESOURCES INC CENTRAL INDEX KEY: 0000810020 STANDARD INDUSTRIAL CLASSIFICATION: INDUSTRIAL INORGANIC CHEMICALS [2810] IRS NUMBER: 362729497 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 9 WEST 57TH ST CITY: NEW YORK STATE: NY ZIP: 10019 BUSINESS PHONE: 2128883044 MAIL ADDRESS: STREET 1: 9 WEST 57TH STREET CITY: NEW YORK STATE: NY ZIP: 10019 SC 13D/A 1 AMENDMENT NO. 16 TO SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D/A Under the Securities Exchange Act of 1934 (Amendment No. 16)* ESC Medical Systems Ltd. (Name of Issuer) Ordinary Shares, NIS 0.10 par value per Share (Title of Class of Securities) M40868107 (CUSIP Number) Edward Klimerman, Esq. Rubin Baum Levin Constant & Friedman 30 Rockefeller Plaza, 29th Floor New York, New York 10112 (212) 698-7700 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) June 23, 1999 (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 that is the subject of this Schedule 13D, and is filing this schedule because of ss.ss.240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. |_| Page 1 of 15 CUSIP No. M40868107 13D - -------------------------------------------------------------------------------- This Amendment No. 16 (the "Amendment") amends and supplements the Schedule 13D filed on October 9, 1998, as previously amended and restated by Amendment No. 1, filed on March 12, 1999 and further amended by Amendment No. 2 filed on March 23, 1999, Amendment No. 3 filed on March 26, 1999, Amendment No. 4 filed on April 15, 1999, Amendment No. 5 filed on April 20, 1999, Amendment No. 6 filed on May 11, 1999, Amendment No. 7 filed on May 13, 1999, Amendment No. 8 filed on May 21, 1999, Amendment No. 9 filed on June 2, 1999, Amendment No. 10 filed on June 3, 1999, Amendment No. 11 filed on June 16, 1999, Amendment No. 12 filed on June 17, 1999, Amendment No. 13 filed on June 18, 1999, Amendment No. 14 filed on June 21, 1999 and Amendment No. 15 filed on June 22, 1999 (the "Schedule 13D"), on behalf of Mr. Arie Genger ("Genger"), TPR Investment Associates, Inc., a Delaware corporation ("TPR"), TPR's subsidiary, Trans-Resources, Inc., a Delaware corporation ("TRI"), TRI's indirect subsidiary, Haifa Chemicals Holdings Ltd., a company incorporated in the State of Israel ("HCH"; Genger and said corporations, all of which are directly or indirectly controlled by Genger, being collectively called the "TRI Entities"), and Mr. Thomas G. Hardy ("Hardy"; Hardy and the TRI Entities being collectively called the "Reporting Persons") with respect to the Ordinary Shares, par value NIS 0.10 per share (the "Shares"), of ESC Medical Systems Ltd., a company incorporated in the State of Israel (the "Company"). The Reporting Persons are filing this Amendment to update the information with respect to the Reporting Persons' purposes and intentions with respect to the Shares. Item 4. Purpose of Transaction. Item 4 of the Schedule 13D is hereby amended and supplemented as follows: On June 23, 1999, Messrs. Genger and Barnard J. Gottstein ("Gottstein") and the Company reached a compromise with respect to the election of directors of the Company which had been contested by Messrs. Genger and Gottstein and which was to be decided at the June 23 shareholders meeting. The terms of the compromise are set forth in the letter of agreement attached hereto as Exhibit 35 and which is incorporated herein by reference. Other than as described above and as previously described in the Schedule 13D, the Reporting Persons do not have any present plans or proposals which relate to or would result in (although they reserve the right to develop such plans or proposals) any transaction, change or event specified in clauses (a) through (j) of Item 4 of the form of Schedule 13D. Item 7. Material to be Filed as Exhibits. Item 7 of the Schedule 13D is hereby amended to add the following exhibit: Exhibit 35: Letter of Agreement, dated June 23, 1999, from Messrs. Genger and Gottstein to the Company Page 2 of 15 CUSIP No. M40868107 13D - -------------------------------------------------------------------------------- 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: June 28, 1999 /s/ Arie Genger ------------------------------------------------ Arie Genger TPR INVESTMENT ASSOCIATES, INC. By: /s/ Arie Genger ------------------------------------------- Arie Genger, President TRANS-RESOURCES, INC. By: /s/ Arie Genger ------------------------------------------- Arie Genger, Chairman of the Board HAIFA CHEMICALS HOLDINGS LTD.(1) By: /s/ Arie Genger ------------------------------------------- Arie Genger /s/ Thomas G. Hardy ----------------------------------------------- Thomas G. Hardy - -------- (1) Pursuant to power of attorney Page 3 of 15 CUSIP No. M40868107 13D - -------------------------------------------------------------------------------- EXHIBIT INDEX Exhibit Number Title Page ------ ----- ---- 35 Letter of Agreement, dated June 23, 5 1999, from Messrs. Genger and Gottstein to the Company Page 4 of 15 EX-99.35 2 LETTER OF AGREEMENT CUSIP No. M40868107 13D - -------------------------------------------------------------------------------- Exhibit 35 June 23, 1999 To the Board of Directors of ESC Medical Systems Ltd. Gentlemen: Effective upon your adoption of the resolutions attached hereto as Annex A, we hereby agree on behalf of ourselves and our affiliates that immediately following the certification of the vote by CT Corporation of the combined extraordinary and annual general meeting, we will support and take all necessary actions within our power to effect the prompt election to the Board of the directors on the reconstituted Board (the "Reconstituted Board"), as contemplated by the attached resolutions, who were not elected at such meeting, it being understood that there will be no obligation to thereafter continue to support such nominations by Messrs. Genger, Gottstein or the current Board. We and our affiliates agree to waive any claims we or our affiliates may have against any existing directors with respect to the proxy contests. As of today we are not aware of any other claims we have against the current Board of Directors. We further agree to jointly issue the press release attached hereto as Annex B. Our agreements are expressly conditioned on the resignation of Shimon Eckhouse as President and Chief Executive Officer of the Company and Karen Sarid and Hillel Bachrach as directors pursuant to executed resignation letters attached hereto as Annex C and the receipt of the certification as to the adoption of the resolutions from Gene Kleinhendler, counsel to the Company. We and our affiliates will vote all shares controlled by us and our affiliates in favor of a shareholder resolution for indemnification of current directors for certain litigation, as specified in Annex D hereto. We agree not to challenge the proxies of ESC and authorize CT Corporation to certify the vote on all three matters and the adjournment resolution presented at the June 23, 1999 meeting. Page 5 of 15 CUSIP No. M40868107 13D - -------------------------------------------------------------------------------- This agreement will expire if the resolutions as attached as Annex A are not adopted by the Board by 11:59 p.m., New York City time, on June 23, 1999. Sincerely, /s/ Arie Genger /s/ Barnard J. Gottstein On behalf of himself On behalf of himself and his affiliates, all as and his affiliates, all as identified in his Schedule 13Ds identified in his Schedule 13Ds filed with the Securities and filed with the Securities and Exchange Commission Exchange Commission Page 6 of 15 CUSIP No. M40868107 13D - -------------------------------------------------------------------------------- June 23, 1999 As counsel to ESC Medical Systems Ltd., I hereby agree that the resolutions attached as Annex A have been validly adopted by the Board of Directors on this date and are in full force and effect. /s/ Gene Kleinhendler ----------------------- Gene Kleinhendler Page 7 of 15 CUSIP No. M40868107 13D - -------------------------------------------------------------------------------- ANNEX A RESOLVED, that all costs and expenses of Messrs. Arie Genger and Barnard J. Gottstein and their affiliates in connection with the election contest shall be reimbursed by the Company promptly on submission of invoices therefor, subject to refund when such reimbursement is submitted to shareholders and not approved by such shareholders at a meeting noticed for such purpose; [to be adopted by both audit committee and Board of Directors] FURTHER RESOLVED, that the Company and its directors and officers and their affiliates shall not challenge the proxies of Genger and Gottstein at the shareholders meeting held on June 23, 1999, and hereby authorizes and instructs CT Corporation to certify as expeditiously as possible the vote on the three proposals presented at the meeting and on the adjournment motion; FURTHER RESOLVED, that the Board hereby accepts the resignation of Karen Sarid and Hillel Bachrach as directors of the Company; FURTHER RESOLVED, that the Board hereby accepts the resignation of Shimon Eckhouse as President and Chief Executive Officer of the Company, recognizing that he will remain as Chairman of the Board and acting Chief Executive Officer until further action by the Board; FURTHER RESOLVED, that all litigation pending against Messrs. Genger and Gottstein and their affiliates, including the litigation pending in Federal District Court regarding Schedule 13D violations, shall be dismissed with prejudice, in the form attached to the resolutions; FURTHER RESOLVED, that the following persons are hereby appointed to the Board of Directors, in addition to the six remaining directors (collectively, the "Reconstituted Board"), effective immediately; Aharon Dovrat Philip Friedman Darrell S. Rigel, M.D. S.A. Spencer Mark Tabak Professor Zehev Tadmor FURTHER RESOLVED, that immediately following the certification by CT Corporation of the vote at the meeting convened on June 23, 1999, the current Board will take all necessary actions to support the election of the individuals constituting the reconstituted Board it being understood that there will be no obligation to thereafter continue to support such nominations by Messrs. Genger, Gottstein or the current Board; and FURTHER RESOLVED, that the attached joint press release is approved. Page 8 of 15 CUSIP No. M40868107 13D - -------------------------------------------------------------------------------- UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x ESC MEDICAL SYSTEMS, LTD. : Plaintiff, : -against- : ARIE GENGER, BARNARD J. GOTTSTEIN, THOMAS G. HARDY, TPR INVESTMENTS : ASSOCIATES, INC., TRANS-RESOURCES, INC., HAIFA CHEMICALS LTD., HAIFA : CHEMICALS HOLDINGS, INC., and BARNARD J. GOTTSTEIN REVOCABLE : TRUST, : Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x No. 99 CV 2984 (KMW) STIPULATION & ORDER OF DISMISSAL WITH PREJUDICE It is hereby stipulated and agreed by the undersigned counsel to the parties hereto that this action shall be, and hereby is, dismissed with prejudice, each side to bear its own costs. Dated: June , 1999 New York, New York SIMPSON THACHER & SKADDEN, ARPS, SLATE, BARTLETT MEAGHER & FLOM LLP By:_______________________ By:_______________________ Paul C. Curnin (PC 7209) Samuel Kadet (SK 1856) 425 Lexington Avenue 919 Third Avenue New York, New York 10017 New York, New York 10022 (212) 455-2000 (212) 735-3000 Attorneys for Plaintiff Attorneys for Defendants SO ORDERED: - -------------------------- U.S.D.J. Page 9 of 15 CUSIP No. M40868107 13D - -------------------------------------------------------------------------------- ANNEX B For Immediate Release ESC MEDICAL SYSTEMS AND GENGER AND GOTTSTEIN REACH COMPROMISE ON BOARD COMPOSITION New Board to Consist of Nominees from Both Slates June 23, 1999, New York, New York - ESC Medical Systems Ltd. (Nasdaq: ESCMF) and Messrs. Arie Genger and Barnard J. Gottstein jointly announced a compromise reached today with respect to the election of directors of ESC which had been contested by Messrs. Genger and Gottstein and was to be decided at the shareholders meeting held today. Under the compromise, the six new nominees proposed by the Genger/Gottstein group have joined the Board immediately, plus Mr. Hardy who is already on the Board. In addition, two management directors of the Company, Karen Sarid and Hillel Bachrach, have stepped down. Effective today, the restructured Board consists of twelve directors and both sides have agreed that immediately following the certification of the vote by the inspector of election, the Board will be so reconstructed, regardless of the outcome of the vote. In order to facilitate the selection of a new CEO which both sides have previously supported, Shimon Eckhouse, current President, CEO and Chairman of ESC, has relinquished the titles of President and CEO and remains Chairman of the new Board of Directors until further decision of the Board. The new Board will select ESC's new chief executive officer as promptly as possible. In the interim, Dr. Eckhouse has agreed to serve as acting chief executive officer. In addition, as part of a compromise, Messrs. Genger and Gottstein have agreed to support at the next shareholders meeting a resolution providing for indemnification of the incumbent directors of ESC, and ESC has agreed to reimburse Messrs. Genger and Gottstein for their expenses in conducting the election contest. Both sides have agreed to dismiss with prejudice all litigation pending against them. Dr. Eckhouse stated, "I am very pleased to see this matter resolved. The interest of the Company will best be served by the joint efforts of all of the shareholders. I look forward to returning my focus to our restructuring efforts to enhance ESC's position in the market." Messrs. Genger and Gottstein stated "We are gratified that we were able to amicably resolve our differences with the Board of Directors. We, of course, recognize the tremendous contribution made by Shimon Eckhouse and are pleased that he and the current Board are willing to resolve the issues in a constructive manner. We think this compromise will accelerate the Company's ability to focus 100% of its energy to returning the Company to profitability and restoring shareholder value." [ESC tag line.] Page 10 of 15 CUSIP No. M40868107 13D - -------------------------------------------------------------------------------- ANNEX C-1 June 23, 1999 I hereby resign as President and Chief Executive Officer of ESC Medical Systems Ltd. effective immediately, and agree to serve as acting chief executive officer, until further action by the Board. /s/ Shimon Eckhouse -------------------- Shimon Eckhouse Page 11 of 15 CUSIP No. M40868107 13D - -------------------------------------------------------------------------------- ANNEX C-2 June 23, 1999 I hereby resign as a Director of ESC Medical Systems Ltd. effective immediately. /s/ Karen Sarid -------------------------- Karen Sarid Page 12 of 15 CUSIP No. M40868107 13D - -------------------------------------------------------------------------------- ANNEX C-3 June 23, 1999 I hereby resign as a Director of ESC Medical Systems Ltd. effective immediately. /s/ Hillel Bachrach -------------------------- Hillel Bachrach Page 13 of 15 CUSIP No. M40868107 13D - -------------------------------------------------------------------------------- ANNEX D RESOLVED to indemnify each of Shimon Eckhouse, Karen Sarid, Kenneth Rind, Hillel Bachrach, Marshall Butler, Halley S. Faust, Dan Suesskind, Thomas Hardy and Benjamin Givli (all together and each separately the "Directors") in respect of the actions consolidated under the caption In Re ESC Medical Systems Ltd. Securities Litigation, Case No. 98 Civ. 7530 (MBM) filed in the United States District Court, Southern District of New York, including the events described in the complaints relating thereto and any amendments thereof (the "Complaint") and any other claims relating thereto for (a) any monetary obligation imposed upon any of them for the benefit of a third party by a judgment, including a settlement agreed to in writing by the Company, or an arbitration decision certified by the court, as a result of an act or omission of any of their capacity as a director or an office holder of the Company, and (b) reasonable litigation expenses, including legal fees, incurred by any of the Directors or which he/she is obligated to pay by a court order, in a proceeding brought against him/her by or on behalf of the Company or by others, in each case relating to acts or omissions of any of the Directors in his/her capacity as a director or an office holder of the Company relating to the events described in the Complaint and any claims relating thereto. Said indemnification shall be limited to any amounts not covered by the officer's and director's liability insurance policy for him/her which is currently in effect. RESOLVED that in the event that any of Shimon Eckhouse, Hillel Bachrach, Halley S. Faust, Thomas Hardy, Karen Sarid, Kenneth Rind, Marshall Butler and Dan Suesskind (all together the "Directors" and each separately a "Director") of the Company becomes involved, in their capacity as an officer or a director, in any claim, suit, action, proceeding, investigation or inquiry with respect to the filing with the U.S. Securities and Exchange Commission of Schedule 13D, and any amendment thereto by Messrs. Arie Genger and/or Mr. Barnard Gottstein, the Company shall indemnify and reimburse any such Director for his/her legal and other expenses, to the fullest extent permitted by the Companies Ordinance [New Version], 1983-5743 and/or the Companies Law, 1999-5759, as the case may be, as such expenses incurred by such director in connection therewith. Said indemnification shall be limited to any amounts not covered by the officer's and director's liability insurance policy for him/her which is currently in effect. Page 14 of 15 CUSIP No. M40868107 13D - -------------------------------------------------------------------------------- June 23, 1999 We, the undersigned, do hereby agree to vote all shares controlled by us or our affiliates for their reimbursement of the expenses incurred by Messrs. Genger and Gottstein and reimburse by the Company pursuant to the Board resolution adopted on June 23, 1999. /s/ Dr. Shimon Eckhouse ------------------------------- Dr. Shimon Eckhouse /s/ Karen Sarid ------------------------------- Karen Sarid /s/ Hillel Bachrach ------------------------------- Hillel Bachrach ------------------------------- Dan Suesskind ------------------------------- Marshall Butler ------------------------------- Halley S. Faust ------------------------------- Kenneth Rind Page 15 of 15 -----END PRIVACY-ENHANCED MESSAGE-----