-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LH6F8Jq9mcr70lNyUybBg91eDmGESgXUORS6D1pVYRSfFAbh50UROBEre+ijbStB A+FerfBgc27QBfG+HiNcqw== 0000921895-09-000759.txt : 20090317 0000921895-09-000759.hdr.sgml : 20090317 20090317171920 ACCESSION NUMBER: 0000921895-09-000759 CONFORMED SUBMISSION TYPE: DFAN14A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20090317 DATE AS OF CHANGE: 20090317 EFFECTIVENESS DATE: 20090317 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: LCA VISION INC CENTRAL INDEX KEY: 0001003130 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-SPECIALTY OUTPATIENT FACILITIES, NEC [8093] IRS NUMBER: 112882328 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: DFAN14A SEC ACT: 1934 Act SEC FILE NUMBER: 000-27610 FILM NUMBER: 09688879 BUSINESS ADDRESS: STREET 1: 7840 MONTGOMERY RD CITY: CINCINNATI STATE: OH ZIP: 45236 BUSINESS PHONE: 5137929292 MAIL ADDRESS: STREET 1: 7840 MONTGOMERY ROAD CITY: CINCINNATI STATE: OH ZIP: 45236 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: JOFFE STEPHEN N CENTRAL INDEX KEY: 0001030711 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-NURSING & PERSONAL CARE FACILITIES [8050] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: DFAN14A MAIL ADDRESS: STREET 1: 7840 MONTGOMERY ROAD CITY: CINCINNATI STATE: OH ZIP: 45236 DFAN14A 1 dfan14a07434002_03172009.htm dfan14a07434002_03172009.htm
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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Filed by a Party other than the Registrant   x

Check the appropriate box:

o           Preliminary Proxy Statement

¨           Confidential, for Use of the Commission Only (as permitted by Rule14a-6(e)(2))

¨           Definitive Proxy Statement

x           Definitive Additional Materials

o           Soliciting Material Under Rule 14a-12

LCA-VISION INC.
(Name of Registrant as Specified in Its Charter)
 
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
(Name of Persons(s) Filing Proxy Statement, if Other Than the Registrant)

Payment of Filing Fee (Check the appropriate box):

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On March 17, 2009, the Committee delivered the following letter to John Hassan, the Chairman of the Company's Audit Committee:
 
THE LCA-VISION FULL VALUE COMMITTEE
9560 Montgomery Road
Cincinnati, OH 45242


March 17, 2009
John Hassan
 
Chair, Audit Committee
 
Board of Directors, LCA-Vision, Inc.

 
On March 4, 2009 LCA-Vision, Inc. (LCAV) filed a series of Form 4’s with the Securities and Exchange Commission announcing stock option grants to senior executives in the following amounts:
 
Steve Straus - 108,816 options; Mike Celebrezze - 85,497 options; Steve Jones - 85,497 options; and Dave Thomas - 85,497 options.
 
These option grants, representing approximately 2% of LCAV’s outstanding stock, greatly exceeded the authority granted to the Compensation Committee of the Board of Directors by LCAV’s stockholders under the 2006 Stock Incentive Plan (the Plan) as approved at the 2006 annual meeting.  The internal control system in place at LCAV did not detect that a significant error had occurred.  While you and the other independent directors serve on the Compensation Committee (the Committee), not one of you apparently knew the rules of the Plan.  Internal legal counsel signed off on and filed the form 4s, but apparently was unaware of the significant error.  Outside legal counsel - who helped draft the Plan and who routinely attends Board meetings – apparently did not catch the significant error.  The Chief Executive Officer and the Chief Financial Officer, who were among the recipients of these grants and who are responsible for certifying there are no material weaknesses in internal control for purposes of Sarbanes-Oxley, should have known that they were not eligible to receive these grants.
 
In fact, it was not until the LCA-Vision Full Value Committee wrote a letter, dated as of March 9, 2009, to the Compensation Committee questioning the Committee’s authority to issue these options that the Board, management, and attorneys even realized a significant error had been made.  How can management assert that the internal control system is functioning effectively?
 
The Compensation Committee of the Board is charged with the responsibility to administer the Plan as approved by stockholders.  Yet when LCAV announced the options were to be rescinded, the statement read, “Upon the recommendation of the company’s chief executive officer, the Committee, with the consent of the optionees, has rescinded all of the options granted in 2009.”  Apparently the Chief Executive Officer and the optionees do not understand that it is not within their authority to administer the Plan.  Rather, it should be William Bahl’s role, as Chair of the Compensation Committee, to recommend to the Committee that the options be rescinded because the grants exceeded the authority granted to the Committee by stockholders.  Given the clear failures in internal controls at various levels that went entirely undetected, we question how LCAV’s management can assert there are no material weaknesses in internal control under Sarbanes-Oxley, and how Ernst & Young as LCAV’s auditors were able to get comfortable in connection with such matters.
 
cc:           Chris Reid & Mike Bruggeman
Ernst & Young
 


 
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