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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED) September 30, 1997
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PREMIER LASER SYSTEMS, INC.
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(Exact name of registrant as specified in its charter)
California 0-25242 33-0472684
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(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation) Identification No.)
3 Morgan, Irvine, California 92718
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (714) 859-0656
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Not Applicable
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(Former name or former address, if changed since last report.)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On September 30, 1997, Premier Laser Systems, Inc. (the "Company")
acquired EyeSys Technologies, Inc. ("EyeSys") through the merger of Premier
Acquisition of Delaware, Inc. ("PAI"), a wholly owned subsidiary of the Company,
into EyeSys (the "Merger"). Upon the effective date of the Merger, EyeSys became
a wholly owned subsidiary of the Company. The Merger was effected pursuant to an
Agreement and Plan of Merger dated April 24, 1997 by and among the Company, PAI
and EyeSys, as amended.
The consideration paid in the merger consisted of approximately 1,236,668
shares of the Company's Class A Common Stock which was distributed among:
(i) holders of stock and notes of EyeSys, (ii) certain creditors and claimants
of EyeSys and (iii) employees of EyeSys entitled to bonuses for continued
employment following the Merger. Options to purchase Class A Common were also
issued in exchange for outstanding options and warrants to purchase EyeSys
common stock.
EyeSys designs, develops and markets a line of noninvasive corneal
topography systems for use by ophthalmologists and optometrists in surgical
planning and evaluation, diagnosis of corneal pathologies and contact lens
fitting. Premier will continue the operation of EyeSys' business following the
Merger; however, EyeSys' manufacturing and operational facilities and personnel
will be relocated to Premier's headquarters in Irvine, California.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
A. Financial Statements of EyeSys. Financial Statements of EyeSys
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prepared in accordance with Regulation S-X and required to be filed
pursuant to this item are not available at this time. Such financial
statements will be filed by the Company as soon as practicable by an
amended Current Report on Form 8-K/A which will be filed within sixty
(60) days after the date this Current Report on Form 8-K was required
to be filed.
B. Pro Forma Financial Information. The pro forma combined financial
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financial statements of the Company required to be filed pursuant to
this item are not available at this time. Such pro forma financial
information will be filed by the Company as soon as practicable by an
amended Current Report on Form 8-K/A which will be filed within sixty
(60) days after the date this Current Report on Form 8-K was required
to be filed.
C. Exhibits
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Exhibit
Number Description
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2.1 Agreement and Plan of Merger dated as of April 24, 1997 among
Premier Laser Systems, Inc., EyeSys Technologies, Inc. and
Premier Acquisition of Delaware, Inc. (incorporated herein by
this reference to Exhibit 2.1 to the Registrant's Registration
Statement on Form S-4, Registration No. 333-29573).
2.2 First Amendment to Agreement and Plan of Merger dated as of
August 6, 1997 among Premier Laser Systems, Inc., EyeSys
Technologies, Inc. and Premier Acquisition of Delaware, Inc.
(filed herewith).
2.3 Second Amendment to Agreement and Plan of Merger dated as of
September 16, 1997 among Premier Laser Systems, Inc., EyeSys
Technologies, Inc. and Premier Acquisition of Delaware, Inc.
(filed herewith).
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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.
PREMIER LASER SYSTEMS, INC.
October 14, 1997 /s/ Michael L. Hiebert
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Michael L. Hiebert, Chief Financial Officer
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INDEX TO EXHIBITS
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SEQUENTIALLY
NUMBERED
EXHIBIT DESCRIPTION PAGE
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2.1 Agreement and Plan of Merger dated as of April 24, 1997
among Premier Laser Systems, Inc., EyeSys Technologies,
Inc. and Premier Acquisition of Delaware, Inc.
(incorporated herein by this reference to Exhibit 2.1
to the Registrant's Registration Statement on form S-4,
Registration No. 333-29573).
2.2 First Amendment to Agreement and Plan of Merger dated
as of August 6, 1997 among Premier Laser Systems, Inc.,
EyeSys Technologies, Inc. and Premier Acquisition of
Delaware, Inc. (filed herewith).
2.3 Second Amendment to Agreement and Plan of Merger dated
as of September 16, 1997 among Premier Laser Systems,
Inc., EyeSys Technologies, Inc. and Premier Acquisition
of Delaware, Inc. (filed herewith).
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EXHIBIT 2.2
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This First Amendment to Agreement and Plan of Merger ("First Amendment") is
made as of August 6, 1997 by and among Premier Laser Systems, Inc., a California
corporation ("Premier"), Premier Acquisition of Delaware, Inc., a Delaware
corporation ("PAI"), EyeSys Technologies, Inc., a Delaware corporation
("EyeSys"), and Frontenac Company (the "Principal Shareholder").
RECITALS
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A. The parties hereto have entered into that certain Agreement and Plan of
Merger dated as of April 24, 1997 (the "Merger Agreement"), pursuant to which
PAI, a wholly owned subsidiary of Premier, will be merged with and into EyeSys
(the "Merger"), with EyeSys surviving as a wholly owned subsidiary of Premier.
All capitalized terms that are not otherwise defined herein shall have the
meanings given to them in the Merger Agreement.
B. The parties desire to amend certain provisions of the Merger Agreement
as provided below.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained herein, the parties hereto, intending to be legally bound, do hereby
agree as follows:
1. Termination Date. The parties hereby agree that the deadline for the
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Closing of the Merger specified in Section 8.2(a)(6) and Section 8.2(b)(4) is
hereby extended to September 15, 1997.
2. Contingent Consideration. The parties agree that the Contingent
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Consideration, if any, shall be paid only in shares of Premier Common Stock and
that no Class AA Options or Class BB Options shall be issued in the Merger. The
parties agree that for purposes of calculation of any Contingent Consideration,
notwithstanding any provisions of the Merger Agreement to the contrary, the
Future License Fees shall include only those fees actually received by April 24,
1998.
3. Modifications of Escrow Arrangements.
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a. The term of the escrow referred to in Section 2.3(a) of the Merger
Agreement (the "Escrow"), insofar (and solely insofar) as it relates to claims
that EyeSys' products infringe any patents ("Patent Claims"), shall be eighteen
(18) months, unless EyeSys provides evidence satisfactory to Premier, that
EyeSys publicly demonstrated its "Pupil Finder" product in March 1991, or
earlier. If EyeSys provides such evidence, the escrow period for all claims
shall remain at one year from the Closing. The term of the Escrow, insofar as it
relates to claims other than Patent Claims, shall remain at twelve (12) months.
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(b) The amount of shares to be deducted from the Merger Securities on
a pro rata basis and placed into the escrow, as described in Section 2.3(a) of
the Merger Agreement (the "Escrow"), shall be equal to twenty percent (20%) of
all securities otherwise issuable under the Merger Agreement (the "Base Escrow
Amount"), plus additional Class A Common Stock (the "Additional Escrowed
Shares") having an aggregate value (measured at the Closing Date) equal to $1
million. The Additional Escrowed Shares shall be available solely for the
purpose of indemnifying Premier against loss, cost, expense, and damage
(including reasonable attorneys' fees), if any, incurred by or threatened
against Premier or EyeSys and arising out of or relating to actual or claimed
infringement of patents. The Base Escrow Amount shall not be used to indemnify
Premier for claims that are first made more than one year from the Closing, and
at the end of such one year period the Base Escrow Amount, less any Escrow
Shares distributed to Premier or reserved for future distribution to Premier in
accordance with the Escrow Agreement, shall be released to the Escrow
Shareholders in accordance with the terms of the Escrow Agreement.
4. Colloptics. Premier hereby waives the condition to closing set forth
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in Section 6.23 of the Merger Agreement, relating to receipt of an estoppel
certificate from General Electric Company and Colloptics Inc. The parties agree
that following the closing of the Merger EyeSys and/or Premier may take legal
action against General Electric Company and/or Colloptics Inc. relating to the
enforcement of the License Agreement among them and EyeSys dated September 23,
1994 (the "License Agreement"). Any expenses incurred in such legal action shall
be reimbursed to Premier from the Escrow. If Premier is unable to successfully
enforce the License Agreement, through legal action or otherwise, during the
period ending one year from the Closing Date, Premier shall be entitled to
liquidated damages (which shall be charged to the Escrow) in an amount equal to
$275,000 (but in such event shall be entitled to no additional amounts for
expenses incurred in seeking to enforce the License Agreement). Premier shall be
solely entitled to determine whether it has been able to "successfully enforce"
the License Agreement. THE PARTIES AGREE THAT IT WOULD BE EXTREMELY DIFFICULT OR
IMPOSSIBLE TO ESTABLISH THE EXACT AMOUNT OF PREMIER'S DAMAGES RESULTING FROM ITS
INABILITY TO ENFORCE THE LICENSE AGREEMENT, AND THAT THE FOREGOING IS A
REASONABLE ESTIMATE OF SUCH DAMAGES.
Initials: ____ for Premier ____ for EyeSys ____ for the Principal Shareholder
The maximum aggregate amount that may be charged to the Escrow for the
purpose of indemnifying or compensating Premier for loss of the License
Agreement (or for any expenses incurred in seeking to enforce the License
Agreement) shall be $275,000. If EyeSys and/or Premier successfully enforces the
License Agreement and receives any license or similar fees from future licensing
or disposition of rights under the License Agreement, such fees shall be applied
first to the replenishment of the Escrow, if and only to the extent that any
Escrow Shares have been released to Premier to indemnify it under this
Section 4.
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5. Waiver of Conditions. Premier hereby waives the conditions set forth
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in Sections 6.21, 6.23 and 6.26 of the Merger Agreement. Premier further agrees
to waive its right to terminate the Merger Agreement under the circumstances set
forth in Sections 8.2(a)(4) and (5) of the Merger Agreement.
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6. Evaluation of Contingent Consideration. For purposes of calculating
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the Merger Securities issuable with respect to the Contingent Consideration, if
any, the parties shall use the Per Share Value in effect at the Closing Date.
7. Amendment of Definition of Series B Preference. The definition of
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"Series B Preference," as set forth in the Merger Agreement, is hereby amended
to read in full as follows:
"Series B Preference" with respect to all of the outstanding shares of
Series B Preferred Stock, in the aggregate, shall mean that amount of the
Shareholder Consideration equal to "A" in the following formula:
A = (1-P)*(any Principal or Contingency Payments made to holders of
EyeSys Notes in excess of $3,359,993, plus the Shareholder Consideration), where
P equals (9.732853 * 10/-8/ * (any Principal or Contingency Payments made
to holders of EyeSys Notes in excess of $3,359,993, plus the Shareholder
Consideration)) minus 0.31470577; provided, however, in no event shall P be
less than .2726550 or more than .4016254.
8. Full Force and Effect. Except as expressly amended by this First
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Amendment, the Merger Agreement is hereby ratified, confirmed and approved, and
shall continue in full force and effect.
9. Execution in Counterparts. This First Amendment may be executed in
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several counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the parties has executed this First Amendment
to Agreement and Plan of Merger as of the date first above written.
PREMIER LASER SYSTEMS, INC.
By: /s/ Colette Cozean
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Name: Colette Cozean
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Title: CEO
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PREMIER ACQUISITION OF DELAWARE, INC.
By: /s/ Colette Cozean
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Name: Colette Cozean
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Title: CEO
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EYESYS TECHNOLOGIES, INC.
By: /s/ Henry H. Kuehn
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Name: Henry H. Kuehn
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Title: President & CEO
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FRONTENAC COMPANY
By: /s/ James E. Crawford
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Name: James E. Crawford
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Title: General Partner
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EXHIBIT 2.3
SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER ("Second Amendment")
is made as of September 16, 1997, by and among PREMIER LASER SYSTEMS, INC., a
California corporation ("Premier"), PREMIER ACQUISITION OF DELAWARE, INC., a
Delaware corporation ("PAI"), EYESYS TECHNOLOGIES, INC., a Delaware corporation
("EyeSys") and FRONTENAC COMPANY (the "Principal Shareholder").
R E C I T A L S:
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A. The parties hereto have previously entered into an Agreement and Plan of
Merger dated April 24, 1997 (the "Merger Agreement") which provides for the
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acquisition (the "Acquisition") by Premier of EyeSys. The Merger Agreement has
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previously been amended, pursuant to a First Amendment of Agreement and Plan of
Merger between the parties hereto dated August 6, 1997 (the "First Amendment").
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B. The parties desire to make the agreements set forth herein with respect
to matters pertaining to the terms of the transactions contemplated by the
Merger Agreement, as amended.
AGREEMENT
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1. Per Share Value. The parties agree that the term "thirty (30) days"
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as referred to in clause (ii) of the definition of "Per Share Value" in the
Merger Agreement shall refer to thirty (30) business days.
2. Termination Date. The reference to "September 15, 1997" in
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Section 8.2(a)(6) and 8.2(b)(4) of the Merger Agreement, as amended, is hereby
amended to be, instead, "September 30, 1997."
3. Stay Bonuses. With respect to those EyeSys employees (the
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"Subject Employees") who are entitled to "Stay Bonuses" if they remain in the
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employ of EyeSys until the sixtieth (60th) day following the Closing of the
Acquisition or some earlier date approved by Premier in its sole discretion (the
earlier of such dates being referred to herein as the "Measuring Date"),
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Premier agrees that if at the Measuring Date the closing sale price of the
Premier Common Stock ("Common Stock") deliverable to such persons at the
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Closing (the "Market Price") is less than the Per Share Value (as defined in the
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Merger Agreement) used to calculate the number of shares delivered to such
persons, then Premier shall pay to each such person an amount in cash equal to:
(A) the number of shares of Common Stock issued to such person on account of his
or her Stay Bonus, times (B) the difference between (i) the Per Share Value, and
(ii) the Market Price per share. Premier's obligation to make such payment is
subject to the condition that the employee entitled to receive such payment
shall have executed, within 5 business days of the Closing, an agreement in form
and substance satisfactory to Premier, by which such employee
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agrees to forfeit any Common Stock received in cancellation of his or her Stay
Bonus, to the extent the aggregate market value of such Common Stock exceeds, on
the Measuring Date, the total amount of the Stay Bonus to which such employee
would otherwise be entitled. EyeSys represents and warrants that Schedule A
attached hereto contains a true and accurate list of employees entitled to Stay
Bonuses, including the amounts to which they are entitled.
4. Full Force and Effect. Except as expressly amended by the First
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Amendment and this Second Amendment, the Merger Agreement is hereby ratified,
confirmed and approved, and shall continue in full force and effect.
5. Counterparts. This Second Amendment may be executed in several
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counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Second Amendment as
of the dates indicated opposite their names below.
PREMIER LASER SYSTEMS, INC.
Dated: September 16, 1997 By: /s/ Colette Cozean
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PREMIER ACQUISITION OF DELAWARE, INC.
Dated: September 16, 1997 By: /s/ Colette Cozean
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EYESYS TECHNOLOGIES, INC.
Dated: September 16, 1997 By: /s/ Henry H. Kuehn
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FRONTENAC COMPANY
Dated: September 16, 1997 By: /s/ James E. Crawford
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