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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 5)*
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)
April 19, 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 which is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box. / /
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This Amendment No. 5 (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 and Amendment
No. 4 filed on April 15, 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 April 19, 1999, Messrs. Genger and Mr. Barnard J. Gottstein
("Gottstein") sent a letter to Shimon Eckhouse, the Company's Chairman, Chief
Executive Officer and President, in response to a press release issued by the
Company on April 15, 1999. The contents of such letter are as follows:
"We are writing to you in response to ESC Medical System Ltd.'s (the
"Company") press release, dated April 15, 1999. The press release made certain
allegations about our intentions and
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about the actions that we have taken recently to restructure the Company's Board
of Directors. We believe the statements in the Company's press release are false
and misleading and a gross misrepresentation of our intentions. In our view this
is yet another clear attempt to purposely mislead investors and entrench the
Company's current Board and management.
Specifically, we strongly object to the Company's statement that we are
attempting "to seize control" of the Company. As significant minority
shareholders, we have the absolute right under Israeli law to require a
shareholder vote on the question of whether a change in the current composition
of the Board is warranted. It is a majority of the Company's shareholders -- not
us alone, and certainly not the current Board and management alone -- that is
entitled to make that decision. Moreover, the nominees proposed to replace the
current directors are in no way controlled by us. In fact, a majority of the
directors of the new Board will have had no prior business relationship with
either of us. To suggest that somehow these directors -- who would be elected by
a majority of outside shareholders -- are somehow under our influence and
control is absurd. We demand that you immediately cease such characterizations.
Second, we fail to understand how the Company can assert that no
Israeli law exists requiring a shareholder meeting to be held within 21 days of
the filing of a demand for an extraordinary meeting as we have done. The
language of the Israeli statute (in both the English and the official Hebrew
versions) is crystal clear in that directors "must, notwithstanding any
provision in the articles, convene immediately a lawful extraordinary general
meeting of the company," and if such meeting is not convened within 21 days from
the day of the demand, the demanding shareholders have the right to convene the
meeting themselves and reasonable expenses incurred can be charged back to the
directors who have failed to so convene the
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meeting. Your attempt to thwart the clear statutory right of significant
minority shareholders to convene an extraordinary meeting through some
artificial and contorted interpretation of the plain meaning of the statute
further illustrates management's blatant disregard for meaningful corporate
governance and only reinforces the need for a change in the Board composition.
Third, we refer to the Company's statement that we are soliciting
proxies which would give our attorneys the absolute discretion to appoint
additional members of the Board without identifying them to shareholders. This
would only happen if the Board of Directors of the Company increases the number
of directors to create vacancies. If the Board will stipulate that it will not
take any action to increase the size of the existing Board (currently consisting
of eight directors) through the date on which the extraordinary general meeting
demanded by us is held, we will stipulate that neither of our attorneys will
take any action to add unnamed directors to the Board of Directors during the
same period.
Finally, please advise us in what respects you believe that our form of
proxy does not conform with the requirements in the Company's Articles of
Association and why such form of proxy would be invalid if offered at future
shareholder meetings.
The actions that this Board has taken to date in order to silence two
of the Company's largest shareholders -- whose sole interest is in maximizing
value for all shareholders -- once again demonstrate why we believe a
restructured Board is necessary and is in the best interest of all shareholders
of the Company.
Please advise us at your earliest convenience as to when the meeting
will be held and record date for such meeting.
Very truly yours, Arie Genger and Barnard J. Gottstein."
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Messrs. Genger and Gottstein intend to continue to have discussions
with other shareholders of the Company regarding their proposal and to seek
shareholder support.
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. Materials to be Filed as Exhibits.
Item 7 of the Schedule 13D is hereby amended to add the following
exhibit:
Exhibit 14: Letter, dated April 19, 1999, from Messrs. Genger and
Gottstein to the Chairman, Chief Executive Officer
and President of the Company.
SIGNATURES
After reasonable inquiry and to the best of the undersigned's knowledge
and belief, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Dated: April 19, 1999
/s/ Arie Genger
-------------------------------
Arie Genger
TPR INVESTMENT ASSOCIATES, INC.
By: /s/ Arie Genger
---------------------------
Arie Genger,
President
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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
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Title Page
-------------- ----- ----
<S> <C> <C>
14 Letter, dated April 19, 1999, from Messrs.
Genger and Gottstein to the Chairman, Chief
Executive Officer and President of the Company.
</TABLE>
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<PAGE> 1
Exhibit 14
April 19, 1999
Dr. Shimon Eckhouse
ESC Medical Systems Ltd.
P.O. Box 240
Yokneam Industrial Park
Yokneam, Israel 20692
Dear Dr. Eckhouse:
We are writing to you in response to ESC Medical System Ltd.'s (the
"Company") press release, dated April 15, 1999. The press release made certain
allegations about our intentions and about the actions that we have taken
recently to restructure the Company's Board of Directors. We believe the
statements in the Company's press release are false and misleading and a gross
misrepresentation of our intentions. In our view this is yet another clear
attempt to purposely mislead investors and entrench the Company's current Board
and management.
Specifically, we strongly object to the Company's statement that we are
attempting "to seize control" of the Company. As significant minority
shareholders, we have the absolute right under Israeli law to require a
shareholder vote on the question of whether a change in the current composition
of the Board is warranted. It is a majority of the Company's shareholders -- not
us alone, and certainly not the current Board and management alone -- that is
entitled to make that decision. Moreover, the nominees proposed to replace the
current directors are in no way controlled by us. In fact, a majority of the
directors of the new Board will have had no prior business relationship with
either of us. To suggest that somehow these directors -- who would be elected by
a majority of outside shareholders -- are somehow under our influence and
control is absurd. We demand that you immediately cease such characterizations.
Second, we fail to understand how the Company can assert that no
Israeli law exists requiring a shareholder meeting to be held within 21 days of
the filing of a demand for an extraordinary meeting as we have done. The
language of the Israeli statute (in both the English and the official Hebrew
versions) is crystal clear in that directors "must, notwithstanding any
provision in the articles, convene immediately a lawful extraordinary general
meeting of the company," and if such meeting is not convened within 21 days from
the day of the demand, the demanding shareholders have the right to convene the
meeting themselves and reasonable expenses incurred can be charged back to the
directors who have failed to so convene the meeting. Your attempt to thwart the
clear statutory right of significant minority shareholders to
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<PAGE> 2
convene an extraordinary meeting through some artificial and contorted
interpretation of the plain meaning of the statute further illustrates
management's blatant disregard for meaningful corporate governance and only
reinforces the need for a change in the Board composition.
Third, we refer to the Company's statement that we are soliciting
proxies which would give our attorneys the absolute discretion to appoint
additional members of the Board without identifying them to shareholders. This
would only happen if the Board of Directors of the Company increases the number
of directors to create vacancies. If the Board will stipulate that it will not
take any action to increase the size of the existing Board (currently consisting
of eight directors) through the date on which the extraordinary general meeting
demanded by us is held, we will stipulate that neither of our attorneys will
take any action to add unnamed directors to the Board of Directors during the
same period.
Finally, please advise us in what respects you believe that our form of
proxy does not conform with the requirements in the Company's Articles of
Association and why such form of proxy would be invalid if offered at future
shareholder meetings.
The actions that this Board has taken to date in order to silence two
of the Company's largest shareholders -- whose sole interest is in maximizing
value for all shareholders -- once again demonstrate why we believe a
restructured Board is necessary and is in the best interest of all shareholders
of the Company.
Please advise us at your earliest convenience as to when the meeting
will be held and record date for such meeting.
Very truly yours,
/s/ Arie Genger /s/ Barnard J. Gottstein
cc: ESC Board of Directors
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