- Additional Proxy Soliciting Materials - Non-Management (definitive) (DFAN14A)
March 02 2009 - 5:21PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
SCHEDULE 14A
(Rule
14a-101)
INFORMATION
REQUIRED IN PROXY STATEMENT
SCHEDULE
14A INFORMATION
Proxy
Statement Pursuant to Section 14(a) of the Securities Exchange Act of
1934
(Amendment
No. )
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the Registrant
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Definitive
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Definitive
Additional Materials
o
Soliciting
Material Under Rule 14a-12
|
(Name
of Registrant as Specified in Its Charter)
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STEPHEN
N. JOFFE
CRAIG
P.R. JOFFE
ALAN
H. BUCKEY
JASON
T. MOGEL
ROBERT
PROBST
EDWARD
J. VONDERBRINK
ROBERT
H. WEISMAN
THE
LCA-VISION FULL VALUE COMMITTEE
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(Name
of Persons(s) Filing Proxy Statement, if Other Than the
Registrant)
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of Filing Fee (Check the appropriate box):
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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:
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Filed:
On
February 6, 2009, The LCA-Vision Full Value Committee (the “Committee”) made a
definitive filing with the Securities and Exchange Commission (“SEC”) of a
consent solicitation statement relating to the solicitation of written consents
from stockholders of LCA-Vision Inc., a Delaware corporation (the “Company”), in
connection with seeking to remove and replace the current members of the Board
of Directors of the Company.
On March
2, 2009, the Committee sent the following letter to Glass, Lewis & Co.,
LLC:
THE
LCA-VISION FULL VALUE COMMITTEE
March 2,
2009
Mr. Jason
McCandless Ms. Janny Jiang
Glass,
Lewis & Co., LLC
One
Sansome Street
Suite
3300
San
Francisco, CA 94104
Dear Mr.
McCandless and Ms. Jiang:
We have
reviewed the Proxy Paper that you issued regarding LCA-Vision, Inc. (“LCAV” or
“the Company”). We are writing to you now to bring to your attention certain
facts concerning the 2007 restatement of which you may not have been aware of at
the time you were researching and assessing the LCAV situation. We believe these
facts and circumstances put the restatement in a different light than the
description in your Proxy Paper, and that your view of the restatement may have
been different had you been aware of them.
We
believe that your characterization of the restatement in the Proxy Paper implies
that the Securities and Exchange Commission (“SEC”) forced LCAV to do the
restatement. This, however, was not the case.
Two of
the large four accounting firms in the United States had signed off on the
Company’s accounting for deferred revenues for years without question or
comment. In 2007, the Company received a comment letter from the SEC as part of
its customary three-year review cycle of the Company’s disclosure documents,
which requested more detail regarding the accounting for deferred revenue for
separately priced extended warranties (“Deferred Revenue Accounting”), an
extremely specialized subject. The Company provided full documentation regarding
the Deferred Revenue Accounting, which it forwarded first to the local office of
its outside auditors for review prior to submitting it to the SEC. That local
office, which had worked closely with the Company when the Company initially
instituted the Deferred Revenue Accounting to ensure it complied with all
applicable accounting rules, approved the documentation prior to submitting it
to the revenue recognition expert in its National Office. The expert in revenue
recognition at the National Office felt that the Deferred Revenue Accounting was
not appropriate. As a result, the
Company
voluntarily
made the necessary restatements. It is important to note that the
Company’s reported cash provided by operations did not change.
Since
changing to the new method for deferred revenue, the Company has reported both
revenue and operating income according to generally accepted accounting
principles (GAAP) and a nonGAAP adjusted revenue and operating income which
backs out the effect of the amortization of deferred revenues.
In other words, the Company
continues to disclose its financial results based on the Deferred Revenue
Accounting.
We
believe that most investors and virtually all of the sell side analysts that
follow the Company use the Deferred Revenue Accounting in their valuation
models. As the Company itself notes in its earnings releases:
LCA-Vision
is providing both adjusted revenue and operating income as a means of measuring
performance that adjusts for the non-cash impact of accounting for separately
priced extended warranties. A reconciliation of revenue and operating income
(loss) as reported in accordance with U. S. Generally Accepted Accounting
Principles (GAAP) is provided at the end of this news release. Management
believes the adjusted information better reflects operating performance and,
therefore, is more meaningful to investors.
We would
also like to bring to your attention that (i) each of the Company’s
current Chief
Executive Officer and Chief
Financial Officer
signed off on the 2006 financial statements that were
included as part of the restatement and (ii) John Hassan, the Company’s current
Chair of the Audit Committee, has held this position for a number of years,
including all of the years that were included as part of the restatement. Mr.
Hassan, who does not have a CPA license, signed off on these financial
statements.
On a
separate note, your Proxy Paper states that if the LCA-Vision Full Value
Committee were successful, Dr. Stephen Joffe would serve as Chairman of LCAV and
Craig Joffe would serve as Chief Executive Officer. We have disclosed, however,
that if the LCA-Vision Full Value Committee is successful in its efforts, Dr.
Joffe will resume the position of Chief Executive Officer and Craig Joffe will
resume the position of Chief Operating Officer, positions each of them has
successfully held in the past.
We would
very much welcome the opportunity to discuss these and other matters included in
your Proxy Paper at your convenience.
Sincerely,
The
LCA-Vision Full Value Committee
CERTAIN
INFORMATION CONCERNING PARTICIPANTS
On
February 6, 2009, The LCA-Vision Full Value Committee made a definitive filing
with the Securities and Exchange Commission (“SEC”) of a consent solicitation
statement relating to the solicitation of written
consents from
stockholders of the Company in connection with seeking to remove and replace the
current members of the Board of Directors of the Company.
THE LCA-VISION FULL VALUE
COMMITTEE ADVISES ALL STOCKHOLDERS OF THE COMPANY TO READ THE CONSENT
SOLICI
TATION STATEMENT AND ANY OTHER SOLICITATION MATERIALS AS THEY
BECOME AVAILABLE BECAUSE THEY CONTAIN IMPORTANT INFORMATION. SUCH SOLICITATION
MATERIALS WILL BE AVAILABLE AT NO CHARGE ON THE SEC’S WEB SITE AT
HTTP://WWW.SEC.GOV
. IN ADDITION, THE
PARTICIPANTS IN THIS SOLICITATION WILL PROVIDE COPIES
OF THE CONSENT
SOLICITATION STATEMENT WITHOUT CHARGE UPON REQUEST. REQUESTS FOR COPIES SHOULD
BE DIRECTED TO THE PARTICIPANTS’ SOLICITOR BY CALLING, TOLL-FREE,
(888)750-5834.
The
participants in the consent solicitation are Dr. Stephen N. Joffe, Craig P.R.
Joffe, Alan H. Buckey, Jason T. Mogel, Robert Probst, Robert H. Weisman and
Edward J. VonderBrink.
As of the
date of this filing, Dr. Joffe directly beneficially owns 1,171,952 shares of
Common Stock of the Company, Craig P.R. Joffe directly beneficially owns 865,468
shares of Common Stock of the Company, and Alan H. Buckey directly beneficially
owns 77,900 shares of Common Stock of the Company.
For the
purposes of Rule 13d-5(b)(1) of the Securities Exchange Act of 1934, as amended,
each of the participants in this solicitation is deemed to beneficially own the
shares of Common Stock of the Company beneficially owned in the aggregate by the
other participants. Each of the participants in this proxy solicitation
disclaims beneficial ownership of such shares of Common Stock except to the
extent of his or its pecuniary interest therein.
Contact:
For The
LCA-Vision Full Value Committee and Stephen N. Joffe
Lisa
Blaker, 513-600-1867
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