-----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, HExLoK5R1l6rlzerJeRqP0sUp+mB3kTRv36SDpDNTIFSTSY3fLJfNHm5lcldj1a0 3CWeVbqfZpFcDRWNrvTG2A== 0001341004-05-000308.txt : 20051115 0001341004-05-000308.hdr.sgml : 20051115 20051115163720 ACCESSION NUMBER: 0001341004-05-000308 CONFORMED SUBMISSION TYPE: 425 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20051115 DATE AS OF CHANGE: 20051115 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: REFAC CENTRAL INDEX KEY: 0000082788 STANDARD INDUSTRIAL CLASSIFICATION: PATENT OWNERS & LESSORS [6794] IRS NUMBER: 131681234 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 425 SEC ACT: 1934 Act SEC FILE NUMBER: 001-12776 FILM NUMBER: 051207071 BUSINESS ADDRESS: STREET 1: ONE BRIDGE PLAZA STREET 2: SUITE 550 CITY: FORT LEE STATE: NJ ZIP: 07024-7102 BUSINESS PHONE: 2015850600 MAIL ADDRESS: STREET 1: ONE BRIDGE PLAZA STREET 2: SUITE 550 CITY: FORT LEE STATE: NJ ZIP: 07024-7102 FORMER COMPANY: FORMER CONFORMED NAME: REFAC TECHNOLOGY DEVELOPMENT CORP DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: RESOURCES & FACILITIES CORP DATE OF NAME CHANGE: 19740509 FORMER COMPANY: FORMER CONFORMED NAME: REFAC INC DATE OF NAME CHANGE: 19720628 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: REFAC CENTRAL INDEX KEY: 0000082788 STANDARD INDUSTRIAL CLASSIFICATION: PATENT OWNERS & LESSORS [6794] IRS NUMBER: 131681234 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 425 BUSINESS ADDRESS: STREET 1: ONE BRIDGE PLAZA STREET 2: SUITE 550 CITY: FORT LEE STATE: NJ ZIP: 07024-7102 BUSINESS PHONE: 2015850600 MAIL ADDRESS: STREET 1: ONE BRIDGE PLAZA STREET 2: SUITE 550 CITY: FORT LEE STATE: NJ ZIP: 07024-7102 FORMER COMPANY: FORMER CONFORMED NAME: REFAC TECHNOLOGY DEVELOPMENT CORP DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: RESOURCES & FACILITIES CORP DATE OF NAME CHANGE: 19740509 FORMER COMPANY: FORMER CONFORMED NAME: REFAC INC DATE OF NAME CHANGE: 19720628 425 1 nyc537050.txt CURRENT REPORT PURSUANT TO '34 ACT 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): November 11, 2005 Refac (Exact name of registrant as specified in its charter) DELAWARE 001-12776 13-1681234 - ------------------------------- ----------------------- ----------------------- (State or other jurisdiction of (Commission I.R.S. Employer incorporation or organization) File Number) Identification No.) ONE BRIDGE PLAZA, SUITE 550, FORT LEE, NEW JERSEY 07024 - ------------------------------------------------------------------ ------------ (Address of principal executive offices) (Zip Code) (201) 585-0600 ------------------------------------------------------------- (Registrant's telephone number, including area code) None ---------------------------------------------------------------- (Former name, former address and former fiscal year, if changed since last report) 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): |X| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |_| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |_| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Item 1.01 Entry into a Material Definitive Agreement. On November 11, 2005, Refac, a Delaware corporation (the "Company"), entered into an amendment (the "OptiCare Amendment") to the Agreement and Plan of Merger (the "OptiCare Merger Agreement"), dated August 22, 2005, with OptiCare Health Systems, Inc., a Delaware corporation ("OptiCare"), and OptiCare Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Refac. The OptiCare Merger Agreement previously provided that either Refac or OptiCare may generally terminate the Merger Agreement if the transactions contemplated thereby were not completed by December 31, 2005. The OptiCare Amendment extends this date to April 30, 2006. The OptiCare Amendment is attached hereto as Exhibit 10.1 and is incorporated herein by reference. Item 2.02 Results of Operations and Financial Condition. On November 15, 2005, the Company announced its results of operations for its third quarter ended September 30, 2005. A copy of the press release of the Company is attached hereto as Exhibit 99.1 and incorporated herein by reference. The information, including the exhibit attached hereto, in this Item 2.02 is being furnished and shall not be deemed "filed" for the purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that Section. Such information shall not be incorporated by reference into any registration statement or other document pursuant to the Securities Act of 1933, except as otherwise expressly stated in such filing. Item 9.01 Financial Statements and Exhibits. (c) Exhibits. See Exhibit Index below. 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. REFAC Dated: November 15, 2005 By: /s/Raymond A. Cardonne, Jr. -------------------------------- Name: Raymond A. Cardonne, Jr. Title: Senior Vice President and Chief Financial Officer EXHIBIT INDEX Exhibit No. Description ----------- ----------- 10.1 Amendment No. 1 to Merger Agreement, dated as of November 11, 2005, by and among Refac, OptiCare Merger Sub, Inc. and OptiCare Health Systems, Inc. 99.1 Press Release, dated November 15, 2005 (furnished herewith) EX-10 2 nyc1047011.txt EX 10.1 - AMEND #1 TO AGMT & PLAN OF MERGER Exhibit 10.1 ------------ AMENDMENT NO. 1 This Amendment No. 1, dated November 11, 2005 (this "Amendment"), amends the Agreement and Plan of Merger, (the "Agreement"), dated as of August 22, 2005, by and among REFAC, a Delaware corporation ("Parent"), OptiCare Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent ("Merger Sub"), OptiCare Health Systems, Inc., a Delaware corporation (the "Company"), solely with respect to Sections 6.06 and 6.07, Dr. Dean Yimoyines, whose principal address is 9 Bristol Road, Middlebury, Connecticut 06762, solely with respect to Section 6.06, Linda Yimoyines, whose address is 9 Bristol Road, Middlebury, Connecticut 06762, and, solely with respect to Sections 6.01(a), (d), (e) and (g), 6.02(c), 6.04, 6.06 and 7.03(a)(ii), Palisade Concentrated Equity Partnership, L.P., a Delaware limited partnership. Capitalized terms used but not defined herein shall have the meanings set forth in the Agreement WHEREAS, Parent, Merger Sub and the Company entered into the Agreement; WHEREAS, pursuant to Section 8.03 of the Agreement, the Agreement may be amended by an instrument in writing signed on behalf of Parent, Merger Sub and the Company; WHEREAS, the parties desire to amend the Agreement on the terms hereinafter set forth. NOW, THEREFORE, Parent, Merger Sub and the Company, intending to be legally bound, hereby agree to the following amendments to the Agreement: 1. Amendment to Section 8.01(b)(i). Section 8.01(b)(i) is hereby amended and restated in its entirety as follows: "the Merger is not consummated on or before April 30, 2006; provided that the right to terminate this Agreement under this Section 8.01(b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or results in, the failure of the Merger to occur on or before such date; or" 2. Limited Effect. Except as expressly specified herein, the terms and provisions of the Agreement shall continue and remain in full force and effect and shall remain the valid and binding obligation of the parties thereto in accordance with its terms. 3. Counterparts. This Amendment may be executed in two or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties. 4. Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the principles of conflicts of laws thereof. [SIGNATURE PAGE FOLLOWS] IN WITNESS WHEREOF, Parent, Merger Sub and the Company have duly executed this Amendment, all as of the date first written above. REFAC By: /s/ Robert L. Tuchman --------------------------------------------- Name: Robert L. Tuchman Title: Chief Executive Officer OPTICARE MERGER SUB, INC. By: /s/ Robert L. Tuchman --------------------------------------------- Name: Robert L. Tuchman Title: President OPTICARE HEALTH SYSTEMS, INC. By: /s/ Christopher J. Walls --------------------------------------------- Name: Christopher J. Walls Title: President and Chief Executive Officer EX-99 3 refac1115pr.txt EXHIBIT 99.1 - PRESS RELEASE Exhibit 99.1 ------------ N E W S CONTACT: Raymond A. Cardonne 201-585-0600 Fax: 201-585-2020 E-mail: cardonne@refac.com about REFAC [GRAPHIC OMITTED] Web site: www.refac.com =============================================================================== REFAC REPORTS THIRD QUARTER RESULTS ----------------------------------- Fort Lee, New Jersey, November 15, 2005 - Refac (AMEX: REF) today reported that it had a net loss for the third quarter of 2005 of $454,000 or ($0.06) per share. During the comparable period in 2004, the Company had net income of $131,000, or $0.02 per share, on a diluted basis. Revenues for the three months ended September 30, 2005 were $326,000 as compared to $519,000 for the same period in 2004. The revenue decline of $193,000 in the third quarter of 2005 was due to a decrease in income from the Company's contract with Patlex Corporation ("Patlex") of $147,000 and a reduction in related party consulting income of $45,000. Expenses for the three months ended September 30, 2005 were $1,097,000 as compared to $440,000 for the same period in 2004. The $657,000 increase in expenses in the third quarter of 2005 over the comparable period of 2004 was primarily due to costs incurred in connection with the possible acquisition of two affiliated companies totaling $322,000 and an increase in salaries of $137,000. For the nine months ended September 30, 2005, the Company reported a net loss of $186,000 or ($0.03) per share, on a diluted basis, attributable entirely to its continuing operations. During the same period in 2004, the Company had a net loss of $77,000, or ($0.01) per share, on a diluted basis, which consisted of a net loss from continuing operations of $87,000, or ($0.01) per share, and a gain, net of tax, from discontinued operations of $10,000, or less than $0.01 per share. Revenues from continuing operations for the nine months ended September 30, 2005 were $2,354,000 as compared to $1,413,000 for the same period in 2004. The revenue increase of $941,000 was attributable to non-recurring licensing-related income of $1,500,000 arising from the settlement of a litigation, offset by a decline in income relating to the Company's agreement with Patlex of $477,000 and a reduction of related party consulting of $80,000. Expenses from continuing operations for the nine months ended September 30, 2005 were $2,888,000 as compared to $1,852,000 for the same period in 2004. The $1,036,000 increase in expenses nine months ended September 30, 2005 as compared to the same period in 2004 was principally attributable to costs incurred in connection with the possible acquisition of two affiliated companies totaling $792,000 and an increase in salaries of $168,000. Update on Pending Mergers - ------------------------- On August 22, 2005, the Company entered into separate merger agreements with two affiliated companies, OptiCare Health Systems, Inc. ("OptiCare") and U.S. Vision, Inc. ("U.S. Vision") pursuant to which they will become wholly-owned subsidiaries of the Company. OptiCare, a public company listed in the American Stock Exchange, operates 18 retail optical centers in Connecticut and is a managed vision care provider in the United States. U.S. Vision, a privately held company, operates 523 retail optical locations in 47 states and Canada, consisting of 512 licensed departments and 11 freestanding stores. The Company, U.S. Vision and OptiCare are all controlled by Palisade Concentrated Equity Partnership, L.P. ("Palisade"), which beneficially owns approximately 90% of the Company's outstanding common stock, 88% of U.S. Vision's outstanding common stock and 84% of OptiCare's outstanding common stock (on a fully diluted basis). The Company estimates that upon the completion of both mergers, it will have approximately 18,101,000 shares outstanding, and that the shares issued in the OptiCare and U.S. Vision mergers will represent approximately 25% and 36%, respectively, of the Company's outstanding common stock. Immediately following the mergers, Palisade is expected to remain the controlling stockholder of the Company, with approximately 87% of the outstanding common stock. The foregoing numbers do not take into account the number of shares that the Company may be required to purchase pursuant to the non-transferable payment right granted to qualifying stockholders in connection with the Company's 2003 merger with a wholly-owned subsidiary of Palisade. As of November 11, 2005, the Company estimates that approximately 608,000 shares of its common stock were subject to this payment right which entitles the holder to sell such shares to the Company at a price of $8.29 per share on or before September 30, 2006. The mergers are currently expected to close in the first or second quarter of 2006. Refac ----- Operating Results ----------------- (UNAUDITED) -----------
Three Months Ended September 30, 2005 2004 ---------------- ---------------- Total revenues $326,000 $519,000 Net income (loss) from continuing operations $(454,000) $126,000 Income from discontinued operations, net of taxes - $5,000 Net income (loss) $(454,000) $131,000 Net income (loss) per diluted share $(0.06) $0.02 Number of diluted shares 7,039,399 6,996,963 Nine Months Ended September 30, 2005 2004 ------------------ ---------------- Total revenues $2,354,000 $1,413,000 Net loss from continuing operations $(186,000) $(87,000) Income from discontinued operations, net of taxes - $10,000 Net loss $(186,000) $(77,000) Diluted loss per share from continuing operations $(0.03) ($0.01) Income per diluted share from discontinued operations - - Net loss per diluted share $(0.03) $(0.01) Number of diluted shares 7,009,615 6,991,678
* * * * * ADDITIONAL INFORMATION ABOUT THE MERGERS AND WHERE TO FIND IT: This press release does not constitute an offer to sell or a solicitation of an offer to buy and does not constitute an offer, solicitation, or sale in any jurisdiction. Refac intends to file with the SEC a registration statement on Form S-4 that will include a proxy statement to stockholders of Refac, an information statement to stockholders of OptiCare and other relevant documents in connection with the proposed transactions. INVESTORS AND SECURITYHOLDERS OF REFAC, OPTICARE AND U.S. VISION ARE URGED TO READ THE JOINT PROXY AND INFORMATION STATEMENT/PROSPECTUS AND OTHER RELEVANT MATERIALS WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT REFAC, OPTICARE AND U.S. VISION AND THE PROPOSED TRANSACTIONS. Investors and securityholders may obtain a free copy of these materials (when they are available) and other documents filed with the Securities and Exchange Commission at the SEC's web site at www.sec.gov. A free copy of the joint proxy and information statement/prospectus, when it becomes available, may also be obtained from Corporate Secretary of Refac, One Bridge Plaza, Suite 550 Fort Lee, New Jersey 07024 or from Refac's website at www.refac.com. In addition, investors and securityholders may access copies of the documents filed with the SEC by OptiCare on OptiCare's web site at www.opticare.com, and investors and security holders may access copies of the documents filed with the SEC by Refac on Refac's web site at www.refac.com. Refac and its executive officers and directors may be deemed to be participants in the solicitation of proxies from its stockholders with respect to the proposed transactions. Information regarding the interests of these officers and directors in the proposed transactions will be included in the joint proxy and information statement/prospectus. CAUTIONARY STATEMENT REGARDING ------------------------------ FORWARD-LOOKING STATEMENTS -------------------------- This News Release includes certain statements of the Company that may constitute "forward-looking statements" within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, and which are made pursuant to the Private Securities Litigation Reform Act of 1995. These forward-looking statements and other information relating to the Company are based upon the beliefs of management and assumptions made by and information currently available to the Company. Forward-looking statements include statements concerning plans, objectives, goals, strategies, future events, or performance, as well as underlying assumptions and statements that are other than statements of historical fact, including statements regarding the Company's acquisition plans. When used in this document, the words "expects," "anticipates," "estimates," "plans," "intends," "projects," "predicts," "believes," "may" or "should," and similar expressions, are intended to identify forward-looking statements. These statements reflect the current view of the Company's management with respect to future events. Many factors could cause the actual results, performance or achievements of the Company to be materially different from any future results, performance, or achievements that may be expressed or implied by such forward-looking statements, including, but not limited to, whether the proposed mergers with OptiCare and U.S. Vision will prove to be beneficial acquisitions for the Company. Investors are cautioned that all forward-looking statements involve those risks and uncertainties detailed in the Company's filings with the Securities and Exchange Commission, including its Annual Report on Form 10-K for the fiscal year ended December 31, 2004. Forward-looking statements speak only as of the date they are made and the Company undertakes no duty or obligation to update any forward-looking statements in light of new information or future events. # # # -----END PRIVACY-ENHANCED MESSAGE-----