UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
SCHEDULE 13D
(Rule
13d-101)
INFORMATION
TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO
§ 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
§ 240.13d-2(a)
(Amendment
No. 8)
1
Common
Stock, par value
$.001
(Title of
Class of Securities)
STEVEN
WOLOSKY, ESQ.
OLSHAN
GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP
Park
Avenue Tower
65 East
55th Street
New York,
New York 10022
(212)
451-2300
(Name,
Address and Telephone Number of Person
Authorized
to Receive Notices and Communications)
(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 §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box
¨
.
Note:
Schedules
filed in paper format shall include a signed original and five copies of the
schedule, including all exhibits.
See
§ 240.13d-7 for
other parties to whom copies are to be sent.
_______________
1
The remainder of this cover page shall be filled out for a reporting person’s
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The
information required on the remainder of this cover page shall not be deemed to
be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934
(“Act”) or otherwise subject to the liabilities of that section of the Act but
shall be subject to all other provisions of the Act (however,
see
the
Notes
).
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1
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NAME
OF REPORTING PERSON
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2
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CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a)
x
(b)
o
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3
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SEC
USE ONLY
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4
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SOURCE
OF FUNDS
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5
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CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d)
OR 2(e)
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¨
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6
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CITIZENSHIP
OR PLACE OF ORGANIZATION
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NUMBER
OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
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7
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SOLE
VOTING POWER
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8
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SHARED
VOTING POWER
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9
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SOLE
DISPOSITIVE POWER
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10
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SHARED
DISPOSITIVE POWER
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11
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AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,115,320 - See Item 5
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12
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CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
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¨
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13
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PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
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14
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TYPE
OF REPORTING PERSON
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This
Schedule 13D, as amended (“Schedule 13D”), relates to shares of Common Stock,
$.001 par value (the “Shares”), of LCA-Vision Inc., a corporation organized
under the laws of Delaware (the “Issuer”).
This
Amendment No. 8 to Schedule 13D (this “Amendment”) is being filed by the
Reporting Persons solely to amend Items 2, 4, 5, 6 and 7.
Item
2. Identity and Background.
Item 2 is
hereby amended and restated as follows:
This
statement is filed by The LCA-Vision Full Value Committee, (the “Committee”),
Dr. Stephen N. Joffe, Craig P.R. Joffe, Alan H. Buckey, Jason T. Mogel, Robert
Probst, Robert H. Weisman and Edward J. VonderBrink. Dr. Stephen N.
Joffe’s Shares are held jointly with his spouse, Sandra Joffe. Alan
H. Buckey’s Shares are held jointly with his spouse, Karen
Buckey. Each of the foregoing is referred to as a “Reporting Person”
and collectively as the “Reporting Persons.” The Committee is composed of each
of the Reporting Persons who are individuals. The Committee is not a business
entity and has no place of organization. Each of the Reporting Persons is party
to that certain Joint Filing and Solicitation Agreement, as further described in
Item 6. Accordingly, the Reporting Persons are hereby filing a joint
Schedule 13D.
Dr.
Stephen N. Joffe is the founder and former Chairman and CEO of LCA-Vision,
Inc. He is currently a private businessman and investor primarily
operating his business interests from 9560 Montgomery Road, Cincinnati, Ohio
45242. Dr. Joffe is a nominee for the Board of Directors of the
Issuer.
Craig
P.R. Joffe is the former Chief Operating Officer and General Counsel of
LCA-Vision, Inc., where he also served as Interim CEO from March through
November, 2006. He is currently a private businessman and investor
primarily operating his business interests from 8225 Indian Hill Road,
Cincinnati, Ohio 45243. Such interests include Joffe MediCenter, a
healthcare services company of which Craig P.R. Joffe is the CEO and Co-Founder
with Dr. Stephen N. Joffe.
Alan H.
Buckey is the former Executive Vice President and Chief Financial Officer of
LCA-Vision, Inc. He is currently a private businessman and investor
operating his business interests from 8533 Twilight Tear Lane, Cincinnati, Ohio
45249.
Jason T.
Mogel is a nominee for the Board of Directors of the Issuer and his principal
occupation is serving as a Partner with the law firm Spears & Imes
LLP. His principal business address is 423 Atlantic Avenue, #2C,
Brooklyn, NY 11217.
Robert
Probst is a nominee for the Board of Directors of the Issuer and his principal
occupation is serving as Dean of the College of Design, Architecture, Art, and
Planning of the University of Cincinnati. His principal business
address is University of Cincinnati, 5470N Aronoff, PO Box 210016, Cincinnati,
Ohio 45221-0016.
Edward J.
VonderBrink is a nominee for the Board of Directors of the Issuer, and as his
principal occupation, he is the owner of VonderBrink Consulting LLC, which
primarily provides consulting services to private companies. His principal
business address is 5536 Jessup Road, Cincinnati, Ohio 45247.
Robert H.
Weisman is a nominee for the Board of Directors of the Issuer and his principal
occupation is serving as President of Great Water Capital Partners LLC. His
principal business address is 255 East Fifth Street, Suite 1900, Cincinnati,
Ohio 45202.
During
the last five years, none of the Reporting Persons has been convicted in a
criminal proceeding (excluding traffic violations or similar
misdemeanors).
During
the last five years, none of the Reporting Persons has been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction as a
result of which he was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws.
Each
Reporting Person who is an individual is a citizen of the United States of
America.
Item
4. Purpose of Transaction.
Item
4 is hereby amended to add the following:
On
January 16, 2009, the Committee filed with the Securities and Exchange
Commission (“SEC”) a preliminary consent solicitation statement in connection
with its anticipated solicitation of written consents (the “Solicitation”) from
the stockholders of the Issuer to consent to the following actions without a
stockholders’ meeting, as authorized by the Delaware General Corporation Law
(the “DGCL”):
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·
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Repeal
any provision of the Issuer’s Bylaws (“the Bylaws”) in effect at the time
this proposal becomes effective that were not included in the Bylaws that
became effective on December 31, 2008 and that were filed with the SEC on
January 6, 2009;
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·
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Remove
without cause each member of the Issuer’s Board of Directors (the “Board”)
and each person (other than those elected by this consent solicitation)
elected or appointed to the Board to fill any vacancy on the Board or any
newly-created directorships prior to the effectiveness of Proposal 3
below; and
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·
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Elect
each of Dr. Stephen N. Joffe, Jason T. Mogel, Robert Probst, Edward J.
VonderBrink and Robert H. Weisman (each, a “Nominee” and collectively, the
“Nominees”) to serve as a director of the Issuer (or, if any such Nominee
is unable or unwilling to serve as a director of the Issuer, any other
person designated as a Nominee by the remaining Nominee or
Nominees).
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The
Committee intends to seek approval of these actions because it continues to
believe that the current Board and management team are underperforming and that
operational improvement is necessary for the Issuer to increase stockholder
value in the long-term. The Committee believes the approval of the
actions will provide the Issuer with qualified and committed directors who, in
accordance with their respective fiduciary duties as directors, will direct
management to take decisive steps to maximizing stockholder value through
optimizing operational performance.
Item
5. Interest in Securities of the Issuer.
Item 5(a)
is hereby amended and restated as follows:
(a) The
aggregate percentage of Shares reported owned by each person named herein is
based upon 18,547,417 Shares outstanding, which is the total number of Shares
outstanding as of October 22, 2008, as reported in the Issuer’s Form 10-Q filed
with the SEC on October 28, 2008.
As of the
date hereof, Dr. Stephen N. Joffe, Craig P.R. Joffe and Alan H. Buckey
beneficially own 1,171,952, 865,468 and 77,900 Shares, respectively,
representing approximately 6.3%, 4.6% and less than 1%, respectively, of the
Shares outstanding. Jason T. Mogel, Robert Probst, Robert H. Weisman and Edward
J. VonderBrink do not currently directly own any Shares. Each of Jason T. Mogel,
Robert Probst, Robert H. Weisman and Edward J. VonderBrink, by virtue of his
status as a director nominee of the Committee and as a member of a “group” for
the purposes of Section 13(d)(3) of the 1934 Act, may be deemed to beneficially
own the Shares owned by each of Dr. Stephen N. Joffe, Craig P.R. Joffe and Alan
H. Buckey. Each of Jason T. Mogel, Robert Probst, Robert H. Weisman
and Edward J. VonderBrink, disclaims beneficial ownership of such Shares.
Item 5(c)
is hereby amended to add the following:
(c) None
of the Reporting Persons has effected a transaction in the Shares during the
past 60 days.
Item
6. Contracts, Arrangements, Understandings or Relationships With
Respect to Securities of the Issuer.
Item 6 is
hereby amended to add the following:
On January 16, 2009, the Reporting Persons entered into a Joint Filing and
Solicitation Agreement in which, among other things, (i) the parties agreed to
the joint filing on behalf of each of them of statements on Schedule 13D with
respect to the securities of the Issuer, (ii) the parties agreed to solicit
written consents or proxies to elect the Nominees or any other person designated
by the Committee as directors of the Issuer and to take all other action
necessary or advisable to achieve the foregoing, and (iii) Dr. Stephen N. Joffe,
Craig P.R. Joffe and Alan H. Buckey agreed to bear all expenses incurred in
connection with the Committee’s activities, including expenses incurred in
connection with the Solicitation, subject to certain limitations. The Joint
Filing and Solicitation Agreement is attached hereto as Exhibit 99.15 and is
incorporated herein by reference.
Pursuant to letter agreements, Jason T. Mogel, Robert Probst, Edward J.
VonderBrink and Robert H. Weisman consented to being named as nominees in any
consent statement or proxy statement filed by the Committee in connection with
the Solicitation and serving as a director of the Issuer if elected. The form of
consent letter is attached hereto as Exhibit 99.16 and is incorporated herein by
reference.
Pursuant to letter agreements, Dr. Stephen N. Joffe, Craig P.R. Joffe and Alan
H. Buckey have agreed to indemnify Jason T. Mogel, Robert Probst, Edward J.
VonderBrink and Robert H. Weisman against certain claims arising from the
Solicitation, subject to certain conditions. The form of indemnification letter
agreement is attached hereto as Exhibit 99.17 and is incorporated herein by
reference.
Other
than as described herein, including the Powers of Attorney filed as part of Item
7 below, there are no contracts, arrangements, understandings or relationships
among the Reporting Persons, or between the Reporting Persons and any other
person, with respect to the securities of the Issuer.
Item
7. Material to be Filed as Exhibits.
Item 7 is
hereby amended to include to following exhibits:
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Exhibit
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Description
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99.1*
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Power
of Attorney
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99.2*
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Joint
Filing Agreement
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99.3*
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Letter
dated November 21, 2008 from the Reporting Persons to Mr. Tony Woods,
Chairman of the Issuer (included in Exhibit 99.4)
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99.4*
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Press
release dated November 21, 2008
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99.5*
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Letter
dated November 24, 2008 from the Reporting Persons to Mr. Tony Woods,
Chairman of the Issuer (included in Exhibit 99.6)
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99.6*
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Press
release dated November 24, 2008
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99.7*
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Letter
dated December 4, 2008 from the Reporting Persons to Mr. Tony Woods,
Chairman of the Issuer (included in Exhibit 99.8)
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99.8*
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Press
release dated December 4, 2008
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99.9*
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Letter
dated December 9, 2008 from the Reporting Persons to Mr. Tony Woods,
Chairman of the Issuer (included in Exhibit 99.10)
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99.10*
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Press
release dated December 9, 2008
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99.11*
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Open
Letter to Stockholders
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99.12*
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Letter
to the Board
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99.13*
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Power
of Attorney
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99.14*
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Demand
to Inspect Stockholders List et al. dated December 22,
2008
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99.15
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Joint
Filing and Solicitation Agreement by and among Dr. Stephen N. Joffe, Craig
P.R. Joffe, Alan H. Buckey, Jason T. Mogel, Robert Probst, Edward J.
VonderBrink and Robert H. Weisman dated as of January 16,
2009
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99.16
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Form
of Consent Letter to serve as a nominee and as a director of the Issuer,
if elected
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99.17
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Form
of Indemnification Letter Agreement
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99.18
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Power
of Attorney for Jason T. Mogel dated January 16, 2009
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99.19
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Power
of Attorney for Robert Probst dated January 16, 2009
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99.20
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Power
of Attorney for Edward J. VonderBrink dated January 16,
2009
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99.21
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Power
of Attorney for Robert H. Weisman dated January 16,
2009
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*
previously filed
SIGNATURES
After
reasonable inquiry and to the best of their knowledge and belief, each of the
undersigned certifies that the information set forth in this statement is true,
complete and correct.
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/s/
Andrew Freedman
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*By:
Andrew Freedman, as Attorney-in-Fact
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JASON
T. MOGEL
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ROBERT
PROBST
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/s/
Edward J. VonderBrink
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EDWARD
J. VONDERBRINK
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ROBERT
H.
WEISMAN
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