SCHEDULE 14C
Information Statement Pursuant to Section 14(c)
of the Securities Exchange Act of 1934
Check the appropriate box:
x | Preliminary Information Statement |
o | Confidential, for use of the Commission only (as permitted by Rule 14c-5(d)(2)) |
o | Definitive Information Statement |
| OPHTHALMIC IMAGING SYSTEMS |
|
| (Name of Registrant as Specified in Charter) |
|
Payment of Filing Fee (Check the appropriate box):
x No Fee required.
o Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which filing fee is calculated and state how it was determined):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
o Fee paid previously with preliminary materials.
o Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
OPHTHALMIC IMAGING SYSTEMS
221 Lathrop Way, Suite I
Sacramento, California 95815
(916) 646-2020
NOTICE OF STOCKHOLDER ACTION TO BE TAKEN WITHOUT A MEETING
Dear Stockholders of Ophthalmic Imaging Systems:
The purpose of this letter and the enclosed Information Statement is to inform you that our stockholders holding a majority of our issued and outstanding shares of common stock, no par value per share (“Common Stock”) have executed written consents in lieu of a meeting to approve an amendment to our Articles of Incorporation, as amended (the “Articles of Incorporation”) to increase the number of authorized shares of Common Stock from 35,000,000 shares to 100,000,000 shares (the “Share Increase”).
On September ___, 2009, our board of directors and stockholders collectively holding approximately 71.8% of our outstanding Common Stock executed written consents approving the Share Increase. The consents we have received constitute the only stockholder approval required for the Share Increase under the California Corporations Code (the “Code”) and our existing Articles of Incorporation and Amended and Restated Bylaws. Pursuant to Rule 14c-2 of the Securities Exchange Act of 1934, as amended, stockholder approval of the Share Increase will become effective on or after October ___, 2009, which is 20 calendar days following the date we first mailed the Information Statement to our stockholders. As soon as practicable after such date, we intend to file a Certificate of Amendment to our Articles of Incorporation with the Secretary of State of California.
We are furnishing the Information Statement to you solely to inform you of the approval of the Share Increase by the holders of a majority of our issued and outstanding Common Stock. Section 603 of the Code requires that we notify you of these approvals because they were obtained by written consent of stockholders in lieu of a meeting. This letter and the Information Statement are intended to provide such notice. No action is required by you.
WE ARE NOT ASKING YOU FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY.
The Information Statement is for information purposes only. Please read it carefully.
| By order of the Board of Directors |
|
|
| Ariel Shenhar |
| Chief Financial Officer |
|
|
|
|
September ___, 2009 |
|
OPHTHALMIC IMAGING SYSTEMS
221 Lathrop Way, Suite I
Sacramento, California 95815
(916) 646-2020
INFORMATION STATEMENT
PURSUANT TO SECTION 14(C) OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
WE ARE NOT ASKING YOU FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY.
This Information Statement (the “Information Statement”) is being mailed on or about September ___, 2009 to the stockholders of record of Ophthalmic Imaging Systems, a California corporation, as of the close of business on September ___, 2009 (the “Record Date”). This Information Statement is being furnished to you for information purposes only, to inform you that holders of shares representing a majority of our issued and outstanding shares of common stock, no par value per share (“Common Stock”) have adopted, by written consent, resolutions authorizing us to amend our Articles of Incorporation, as amended (the “Articles of Incorporation”), to increase the number of authorized shares of our Common Stock from 35,000,000 shares to 100,000,000 shares (the “Share Increase”).
Board of Directors and Consenting Stockholders
On September ___, 2009, our board of directors (the “Board”) unanimously adopted resolutions authorizing an increase in the number of authorized shares of our Common Stock from 35,000,000 shares to 100,000,000 shares and a corresponding amendment to our Articles of Incorporation to effect the Share Increase.
Section 603(a) of the California Corporations Code (the “Code”) provides that the written consent of the holders of the issued and outstanding shares of voting capital stock, having not less than the minimum number of votes which would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted, may be substituted for a meeting. In order to eliminate the costs and management time involved in obtaining proxies and in order to effect the above actions as early as possible to accomplish the purposes hereafter described, the Board elected to seek the written consent of the holders of a majority of our issued and outstanding shares of voting capital stock to reduce the costs and implement the Share Increase in a timely manner.
As of the Record Date, there were issued and outstanding [26,500,059] shares of our Common Stock. These issued and outstanding shares of our Common Stock constitute our only voting securities and each stockholder is entitled to cast one vote for each share of Common Stock held by the stockholder. On September ___, 2009, the following stockholders, who collectively own 71.8% of our Common Stock, consented in writing to the Share Increase (the “Consenting Stockholders”):
Stockholder | Consenting Shares | Total % |
MediVision Medical Imaging Ltd. | 9,380,843 | [35.4]% |
U.M. AccelMed, Limited Partnership | 9,633,228 | [36.4]% |
The actions described in this Information Statement have been consented to by the Consenting Stockholders. Accordingly, the written consent executed by the Consenting Stockholders pursuant to Section 603(a) of the Code and delivered to us is sufficient to approve the Share Increase and the corresponding amendment to our Articles of Incorporation and no further stockholder vote or other action is required.
Pursuant to Section 603(b) of the Code, we are required to provide prompt notice of the taking of this corporate action without a meeting to the stockholders who are entitled to vote and have not consented in writing to such action. This Information Statement is intended to provide such notice.
The entire cost of furnishing this Information Statement will be borne by us. We will request brokerage firms, nominees, custodians, fiduciaries and other like parties to forward this Information Statement to the beneficial owners of our Common Stock held of record by them and will reimburse such persons for their reasonable charges and expenses in connection therewith.
Recent Transaction
On June 24, 2009, we completed a private placement transaction in which we issued and sold to U.M. AccelMed, Limited Partnership (“AccelMed”), 9,633,228 shares of our Common Stock at $0.41522 per share, for an aggregate purchase price of $3,999,909 million before expenses, and a warrant to purchase up to 3,211,076 shares of our Common Stock, which is exercisable at $1.00 per share and expires on June 24, 2012. Upon consummation of this private placement, AccelMed became our largest stockholder with 36.4% of our Common Stock issued and outstanding and MediVision Medical Imaging Ltd., who prior to the private placement owned 55.6%, then owned 35.4% of our Common Stock issued and outstanding. AccelMed paid the private placement purchase price using internal funds. Uri Geiger, a director on our board, is a stockholder of A.M. AccelMed Management (2009) Ltd., the general partner of AccelMed.
AMENDMENT TO THE
ARTICLES OF INCORPORATION
Increase in Authorized Shares of Common Stock
As of the Record Date, we are authorized to issue 35,000,000 shares of Common Stock and [26,500,059] shares of Common Stock are issued and outstanding.
The Board and the Consenting Stockholders approved an amendment to our Articles of Incorporation to increase the number of authorized shares of Common Stock from 35,000,000 shares to 100,000,000 shares.
We will file an amendment to our Articles of Incorporation, substantially in the form attached to this Information Statement as Appendix A (the “Amendment”), with the Secretary of State of California, as soon as practicable following 20 calendar days after the date of the mailing of this Information Statement to our stockholders, and the Share Increase will become effective upon filing.
Purpose and Effects of Increasing the Authorized Shares of Common Stock
The principal purpose of increasing our authorized Common Stock is to ensure that we have sufficient shares of Common Stock available for general corporate purposes including, without limitation, equity financings, conversion of outstanding debt, exercise of outstanding options and warrants, providing equity incentives to employees and other bona fide corporate purposes. Without an increase in the shares of Common Stock authorized for issuance, we might not be able to conclude any such transaction in a timely fashion.
We currently anticipate issuing, subject to certain conditions, 3,581,089 shares of newly available authorized shares of Common Stock and a warrant to purchase up to an aggregate of 1,193,696 shares of newly available authorized shares of Common Stock, for an aggregate purchase price of $1,999,967 to AccelMed, our largest stockholder, as the 2nd Installment in the financing set forth in a Purchase Agreement dated June 24, 2009 between us and AccelMed. The 2nd installment funds will be used for general working capital purposes. The conditions to consummation of the 2nd Installment include, without limitation, the achievement of certain financial milestones, upon which, completion of the 2nd Installment will occur within 14 days of the date of our filing with the SEC our Form 10-Q for the quarter ended March 31, 2010 or on a later date as may be agreed to in writing by the parties. In addition, we continue to explore possible financing transactions, some of which could involve the issuance of additional shares from time-to-time. We also currently anticipate issuing shares of newly available authorized shares of Common Stock upon conversion of outstanding convertible debt and exercise of outstanding options and warrants. Finally, we may issue additional shares from time-to-time to our employees and for other general corporate purposes. Except as set forth above, we do not presently have any other plans, proposals or arrangements to issue any of the newly available authorized shares of Common Stock for any purpose. The newly available authorized shares of Common Stock that will become available by virtue of the Share Increase will be used by us for various purposes, including those set forth above, that may be within the Board’s discretion and will not require further action by our stockholders, unless required by law, regulation or stock market rules.
To the extent that additional authorized shares are issued in the future, such issuance may decrease our existing stockholders' percentage equity ownership and, depending on the price at which they are issued, could be dilutive to our existing stockholders. The holders of our Common Stock have no preemptive rights to subscribe for additional securities that may be issued by us, which means that current stockholders do not have a prior right to purchase any new issue of our capital stock in order to maintain their proportionate ownership of Common Stock. In addition, if the Board elects to cause us to issue additional shares of Common Stock or securities convertible into or exercisable for Common Stock, such issuance could have a dilutive effect on the voting power and earnings per share of existing stockholders. The increase in our authorized capital will not have any immediate effect on the rights of our existing stockholders.
The increase in the number of authorized shares and the subsequent issuance of such shares could have an anti-takeover effect, although this is not the intent of the Board in approving the Share Increase. For example, if the Board issues additional shares in the future, such issuance could dilute the voting power of a person seeking control of our company, thereby deterring or rendering more difficult a merger, tender offer, proxy contest or an extraordinary transaction opposed by the Board. Any such issuance of additional stock could have the effect of diluting our earnings per share and book value per share of outstanding shares of our Common Stock or the stock ownership and voting rights of a person seeking to obtain control of our company. The relative rights and limitations of the shares of Common Stock will remain unchanged under the Amendment.
We do not have any other provisions in our Articles of Incorporation, Amended and Restated Bylaws, employment agreements or any other documents that have material anti-takeover consequences. Additionally, we have no plans or proposals to adopt other provisions or enter into other arrangements that may have material anti-takeover consequences. The Board is not aware of any attempt, or contemplated attempt, to acquire control of our company, and this proposal is not being presented with the intent that it be utilized as a type of anti-takeover device.
SECURITY OWNERSHIP OF
CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth as of September ___, 2009, certain information regarding the ownership of our voting securities by each stockholder known to our management to be (i) the beneficial owner of more than 5% of the our outstanding Common Stock, (ii) our directors, and (iii) all executive officers and directors as a group. Unless otherwise noted, we believe that the beneficial owners of the Common Stock listed below, based on information furnished by such owners, have sole investment and voting power with respect to such shares. Unless otherwise noted, the address of each beneficial owner named below is our corporate address.
Name and Address of Beneficial Owner | Amount and | Percent of Class | ||
|
|
| ||
Management and the Board |
|
| ||
Gil Allon | 885,000 | (2) | 3.2% |
|
Ariel Shenhar | 635,000 | (3) | 2.3% |
|
William Greer | 20,000 | (4) | * |
|
Jonathan Phillips | 35,000 | (5) | * |
|
Eric Maurincomme | — |
| — |
|
Uri Ram | — |
| — |
|
Uri Geiger | — |
| — |
|
Menachem Inbar | — |
| — |
|
Directors and officers as a group | 1,575,000 | (6) | 5.6% |
|
|
|
|
|
|
5% Stockholders |
|
|
|
|
U.M. AccelMed, Limited Partnership | 12,844,304 | (7) | 43.2% |
|
6 Hachoshlim St. |
|
|
|
|
Herzliya Pituach, 46120, Israel |
|
|
|
|
P.O. Box 12006 |
|
|
|
|
|
|
|
|
|
MediVision Medical Imaging Ltd. | 9,380,843 | (8) | 35.4% |
|
P.O. Box 45, Industrial Park |
|
|
|
|
Yokneam Elit 20692 Israel |
|
|
|
|
|
|
|
|
|
The Tail Wind Fund Ltd. | 2,220,010 | (9) | 7.7% |
|
c/o Peter J. Weisman, P.C. 52 Vanderbilt Avenue, 17th Floor New York, NY 10017
|
|
| ||
Represents less than 1%. |
|
| ||
(1) | Beneficial ownership is determined in accordance with the rules of the SEC. Under those rules and for purposes of the table above (a) if a person has decision making power over either the voting or the disposition of any shares, that person is generally deemed to be a beneficial owner of those shares; (b) if two or more persons have decision making power over either the voting or the disposition of any shares, they will be deemed to share beneficial ownership of those shares, in which case the same shares will be included in share ownership totals for each of those persons; and (c) if a person held options to purchase shares that were exercisable on, or became exercisable within 60 days of, September ___, 2009, that person will be deemed to be the beneficial owner of those shares and those shares (but not shares that are subject to options held by any other stockholder) will be deemed to be outstanding for purposes of computing the percentage of the outstanding shares that are beneficially owned by that person.
|
(2) | Represents 60,000 shares of Common Stock, options to purchase 765,000 shares of Common Stock and the indirect beneficial ownership by spouse of 60,000 of stock options to purchase 60,000 shares of Common Stock. |
(3) | Represents 30,000 shares of Common Stock and options to purchase 605,000 shares of Common Stock.
|
(4) | Represents options to purchase 20,000 shares of Common Stock.
|
(5) | Represents 15,000 shares of Common Stock and options to purchase 20,000 shares of Common Stock.
|
(6) | Represents 105,000 shares of Common Stock and options to purchase 1,470,000 shares of Common Stock.
|
(7) | Represents 9,633,228 shares of Common Stock and warrants to purchase 3,211,076 shares of Common Stock.
|
(8) | These shares are pledged as security under multiple loans and a debenture. (For more details on the loans and the debenture, see our Form 10-K for the year ended December 31, 2008, Financial Statements, Notes to Consolidated Financial Statements, Note 6. Related Party Transactions, MediVision.)
|
(9) | Represents 1,032,967 shares issuable upon conversion of $1,375,000 in principal amount of the issuer’s 6.5% convertible note and warrants to purchase 1,187,043 shares. |
INTERESTS OF CERTAIN PERSONS IN OR OPPOSITION TO THE SHARE INCREASE
Except as otherwise stated herein, no director, executive officer, or associate of any director or executive officer has any substantial interest, direct or indirect, by security holdings or otherwise, in the Share Increase and the corresponding amendment to the Articles of Incorporation, which is not shared by all other holders of our Common Stock.
DISSENTERS’ RIGHTS OF APPRAISAL
Under the Code, stockholders are not entitled to dissenters’ rights of appraisal in connection with the Share Increase and the corresponding amendment to the Articles of Incorporation.
STOCKHOLDERS SHARING AN ADDRESS
In accordance with notices to many stockholders who hold their shares through a bank, broker or other holder of record (a “street-name stockholder”) and share a single address, only one Information Statement is being delivered to that address unless contrary instructions from any stockholder at that address were received. This practice, known as “householding,” is intended to reduce our printing and postage costs. However, any such street-name stockholder residing at the same address who wishes to receive a separate copy of this Information Statement, may request a copy by contacting the bank, broker or other holder of record, or our offices by telephone at (916) 646-2020 x316, or by mail to: Ariel Shenhar, Secretary, Ophthalmic Imaging Systems, 221 Lathrop Way, Suite I, Sacramento, California 95815. In addition, any such street-name stockholders residing at the same address who have received multiple copies of this Information Statement and wish to receive a single copy of our annual reports, information statements and proxy materials in the future may contact the bank, broker or other holder of record, or our offices at the contact information above.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the U.S. Securities and Exchange Commission (“SEC”). You may obtain such SEC filings from the SEC’s website at http://www.sec.gov. You can also read and copy these materials at the SEC’s public reference room at 100 F Street, N.E., Washington, D.C. 20549. You can obtain information about the operation of the SEC’s public reference room by calling the SEC at 1-800-SEC-0330.
FORWARD-LOOKING STATEMENTS
This information statement may contain certain "forward-looking" statements (as that term is defined in the Private Securities Litigation Reform Act of 1995 or by the SEC in its rules, regulations and releases) representing our expectations or beliefs regarding our company. These forward-looking statements include, but are not limited to, statements concerning our operations, economic performance, financial condition, and prospects and opportunities. For this purpose, any statements contained herein that are not statements of historical fact may be deemed to be forward-looking statements. Without limiting the generality of the foregoing, words such as "may," "will," "expect," "believe," "anticipate," "intend," "could," "estimate," "might," or "continue" or the negative or other variations thereof or comparable terminology are intended to identify forward-looking statements. These statements, by their nature, involve substantial risks and uncertainties, certain of which are beyond our control, and actual results may differ materially depending on a variety of important factors, including factors discussed in this and other of our filings with the SEC.
| By order of the Board of Directors |
|
|
| Ariel Shenhar |
| Chief Financial Officer |
Appendix A
CERTIFICATE OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
OPHTHALMIC IMAGING SYSTEMS
The undersigned certify that:
1. They are the Chief Executive Officer and the Secretary, respectively, of Ophthalmic Imaging Systems, a California corporation (the “Corporation”).
2. Article Three of the Articles of Incorporation of the Corporation is amended to read as follows:
THREE: This Corporation is authorized to issue two (2) classes of shares of stock to be designated, respectively, Common and Preferred. The total number of Common Shares which this Corporation is authorized to issue is One Hundred Million (100,000,000). The total number of Preferred Shares which this Corporation is authorized to issue is Twenty Million (20,000,000). The Preferred Shares may be authorized in one or more series. The Board of Directors is authorized to fix the number of any such series of Preferred Shares and to fix the designation of such series. The Board of Directors is further authorized to determine or alter the rights, preferences, privileges and restrictions granted to or imposed upon any wholly unissued series of Preferred Shares and, within the limits and restrictions stated in any resolution or resolutions of the Board of Directors originally fixing the number of shares constituting any series, to increase or decrease (but not below the number of shares of such series then outstanding) the number of shares of any such series subsequent to the issue of shares of that series.
3. The foregoing amendment of Articles of Incorporation has been duly approved by the board of directors.
4. The foregoing amendment of Articles of Incorporation has been duly approved by the required vote of stockholders in accordance with Section 902, California Corporations Code. The total number of outstanding shares of the Corporation is [26,500,059]. The number of shares voting in favor of the amendment equaled or exceeded the vote required. The percentage vote required was more than 50%.
We further declare under penalty of perjury under the laws of the State of California that the matters set forth in this certificate are true and correct of our own knowledge.
October ___, 2009 | /s/ Gil Allon |
| Gil Allon, Chief Executive Officer |
| /s/ Ariel Shenhar |
| Ariel Shenhar, Secretary |