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. |_|
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CUSIP No. M40868107 13D
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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
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CUSIP No. M40868107 13D
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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
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CUSIP No. M40868107 13D
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EXHIBIT INDEX
Exhibit
Number Title Page
------ ----- ----
35 Letter of Agreement, dated June 23, 5
1999, from Messrs. Genger and Gottstein
to the Company
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CUSIP No. M40868107 13D
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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.
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CUSIP No. M40868107 13D
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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
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CUSIP No. M40868107 13D
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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
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CUSIP No. M40868107 13D
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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.
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CUSIP No. M40868107 13D
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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.
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CUSIP No. M40868107 13D
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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.]
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CUSIP No. M40868107 13D
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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
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CUSIP No. M40868107 13D
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ANNEX C-2
June 23, 1999
I hereby resign as a Director of ESC Medical Systems Ltd. effective immediately.
/s/ Karen Sarid
--------------------------
Karen Sarid
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CUSIP No. M40868107 13D
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ANNEX C-3
June 23, 1999
I hereby resign as a Director of ESC Medical Systems Ltd. effective immediately.
/s/ Hillel Bachrach
--------------------------
Hillel Bachrach
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CUSIP No. M40868107 13D
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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.
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CUSIP No. M40868107 13D
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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
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