UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
___________
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date
of
Report (Date of earliest event reported): November 24, 2008
LCA-VISION
INC.
(Exact
name of registrant as specified in its charter)
|
Delaware
(State
or Other Jurisdiction of Incorporation)
|
0-27610
(Commission
File
Number)
|
11-2882328
(IRS
Employer
Identification
No.)
|
|
|
|
|
|
7840
Montgomery Road, Cincinnati, Ohio
(Address
of Principal Executive Offices)
|
45236
(Zip
Code)
|
Registrant’s
telephone number, including area code: (513) 792-9292
N/A
(Former
Name or Former Address, if Changed Since Last Report)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
□
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
□
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
□
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act
(17 CFR 240.14d-2(b))
□
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act
(17 CFR 240.13e-4(c))
Item
1.01 Entry into a Material Definitive Agreement
On
November 24, 2008, LCA-Vision Inc. (the “Company”) entered into a Rights
Agreement with Computershare Trust Company, N.A., as rights agent (the
“
Rights
Agreement
”).
As
noted in the preamble to the Rights Agreement, the Company’s Board of Directors
has authorized and declared a dividend distribution of one right for each
outstanding share of common stock (each a “Right” and collectively the “Rights”)
to stockholders of record at the close of business on November 24, 2008 (the
“Record Date”). The Board of Directors also authorized the issuance of one Right
for each share of common stock issued between the Record Date and the
Distribution Date, as defined below and in the Rights Agreement. Each Right
entitles the registered holder to purchase from the Company a unit consisting
of
one one-hundredth (1/100) of a share (a “
Unit
”)
of
Series A Junior Participating Preferred Stock, par value $0.001 per share (the
“
Series
A
Preferred Stock”), at a purchase price of $100 per Unit, subject to
adjustment.
Initially,
the Rights will be attached to all common stock certificates representing
outstanding shares, and no separate certificates (“Rights Certificates”) will be
distributed. Subject to exceptions specified in the Rights Agreement, the Rights
will separate from the common stock and a distribution date (the “Distribution
Date”) will occur upon the earliest of (i) ten business days following (A) a
public announcement that a person or group of affiliated or associated persons
(an “Acquiring Person”) has acquired beneficial ownership of 20% or more of the
outstanding shares of common stock other than as a result of repurchases by
the
Company, certain inadvertent actions by institutional or certain other
stockholders, or the beneficial ownership by a person of 20% or more of the
outstanding common stock as of the Record Date or (B) the date a person (also
an
“Acquiring Person”) has entered into an agreement or arrangement with the
Company or any subsidiary of the Company providing for an Acquisition
Transaction, as defined below and in the Rights Agreement (any such date, a
“Stock Acquisition Date”), (ii) ten business days (or such later date as the
Board of Directors determines) following the commencement of a tender offer
or
exchange offer that would result in a person or group becoming an Acquiring
Person, and (iii) ten business days after the Board of Directors determines
that
any person, alone or together with its affiliates and associates, has become
the
beneficial owner of an amount of common stock that the Board of Directors
determines to be substantial (which amount shall in no event be less than 10%
of
the shares of common stock then outstanding) and at least a majority of the
Board of Directors who are not officers of the Company, after reasonable inquiry
and investigation, including consultation with such persons as the directors
deem appropriate, determine that (A) such beneficial ownership by such person
is
intended to cause the Company to repurchase the common stock beneficially owned
by such person or to pressure the Company to take action or enter into a
transaction or series of transactions intended to provide such person with
short-term financial gain under circumstances where the Board of Directors
determines that the best long-term interests of the Company and its stockholders
would not be served by taking such action or entering into such transactions
or
series of transactions at that time or (B) such beneficial ownership is causing
or is reasonably likely to cause a material adverse impact (including, but
not
limited to, impairment of relationships with customers or impairment of the
Company’s ability to maintain its competitive position) on the business or
prospects of the Company (any such person being an “Adverse Person”). An
“Acquisition Transaction” is defined in the Rights Agreement as (x) a merger,
consolidation or similar transaction involving the Company or any of its
subsidiaries as a result of which stockholders of the Company will no longer
own
a majority of the outstanding shares of common stock of the Company or a
publicly traded entity which controls the Company or, if appropriate, the entity
into which the Company may be merged, consolidated or otherwise combined (based
solely on the shares of common stock received or retained by such stockholders,
in their capacity as stockholders of the Company, pursuant to such transaction),
(y) a purchase or other acquisition of all or a substantial portion of the
assets of the Company and its subsidiaries, or (z) a purchase or other
acquisition of securities representing 20% or more of the shares of common
stock
then outstanding. Until the Distribution Date, (i) the Rights will be evidenced
by the common stock certificates and will be transferred with and only with
such
common stock certificates, (ii) new common stock certificates issued after
the
Record Date will contain a notation incorporating the Rights Agreement by
reference, and (iii) the surrender for transfer of any certificates for common
stock outstanding will also constitute the transfer of the Rights associated
with the common stock represented by such certificate. Pursuant to the Rights
Agreement, the Company reserves the right to require, before the occurrence
of a
Triggering Event, as defined below and in the Rights Agreement, that, upon
any
exercise of Rights, a number of Rights be exercised so that only whole shares
of
Series A Preferred Stock will be issued.
The
Rights are not exercisable until the Distribution Date and will expire on the
earlier of (i) the close of business on November 23, 2018, unless such date
is
extended or the Rights are earlier redeemed or exchanged by the Company as
described below, and (ii) the close of business on the first anniversary of
the
Rights Agreement, unless, before such date, the adoption of the Rights Agreement
has been ratified by the Company’s stockholders.
As
soon
as practicable after the Distribution Date, Rights Certificates will be mailed
to holders of record of the common stock as of the close of business on the
Distribution Date and, thereafter, the separate Rights Certificates alone will
represent the Rights. Except as otherwise determined by the Board of Directors,
only shares of common stock issued before the Distribution Date will be issued
with Rights.
If
(i) a
person becomes an Acquiring Person, except pursuant to an offer for all
outstanding shares of common stock that the independent directors determine
to
be fair and not inadequate and to otherwise be in the best interests of the
Company and its stockholders, after receiving advice from one or more investment
banking firms (a “Qualified Offer”), or (ii) the Board of Directors determines
that a person is an Adverse Person, then each holder of a Right will thereafter
have the right to receive, upon exercise, common stock (or, in certain
circumstances, cash, property, or other securities of the Company) having a
value equal to two times the exercise price of the Right. Notwithstanding any
of
the foregoing, following the occurrence of the event set forth in this
paragraph, all Rights that are, or (under certain circumstances specified in
the
Rights Agreement) were, beneficially owned by any Acquiring Person or Adverse
Person (or by certain related parties) will be null and void. However, Rights
are not exercisable following the occurrence of the event set forth above until
such time as the Rights are no longer redeemable by the Company as set forth
below.
For
example, at an exercise price of $100 per Right, each Right not owned by an
Acquiring Person or by an Adverse Person (or by certain related parties)
following an event set forth in the preceding paragraph would entitle its holder
to purchase $200 worth of common stock (or other consideration, as noted above)
for $100. Assuming that the common stock had a per share value of $40 at such
time, the holder of each valid Right would be entitled to purchase five shares
of common stock for $100.
If,
at
any time following a Stock Acquisition Date, (i) the Company engages in a merger
or other business combination transaction in which the Company is not the
surviving corporation (other than with an entity that acquired the shares
pursuant to a Qualified Offer), (ii) the Company engages in a merger or other
business combination transaction in which the Company is the surviving
corporation and the common stock of the Company is changed or exchanged, or
(iii) 50% or more of the Company’s assets, cash flow, or earning power is sold
or transferred, then each holder of a Right (except Rights that have previously
been voided as set forth above) shall thereafter have the right to receive,
upon
exercise, common stock of the acquiring company having a value equal to two
times the exercise price of the Right. The events set forth in this paragraph
and in the second preceding paragraph are referred to as the “Triggering
Events.”
At
any
time after a person becomes an Acquiring Person and before the acquisition
by
such person or group of 50% or more of the outstanding common stock, the Board
of Directors may exchange the Rights (other than Rights owned by such person
or
group that have become void), in whole or in part, at an exchange ratio of
one
share of common stock, or one one-hundredth (1/100) of a share of Series A
Preferred Stock (or of a share of a class or series of the Company’s preferred
stock having equivalent rights, preferences, and privileges), per Right, subject
to adjustment.
At
any
time until the earlier of (i) ten business days following a Stock
Acquisition Date and (ii) ten business days following a determination by the
Board of Directors that a person is an Adverse Person, the Company may redeem
the Rights in whole, but not in part, at a price of $0.001 per Right (payable
in
cash, common stock, or other consideration deemed appropriate by the Board
of
Directors). Immediately upon the action of the Board of Directors ordering
redemption of the Rights, the Rights will terminate and the only right of the
holders of Rights will be to receive the $0.001 redemption price.
Until
a
Right is exercised, the holder thereof, as such, will have no rights as a
stockholder of the Company, including, without limitation, the right to vote
or
to receive dividends. Although the distribution of the Rights will not be
taxable to stockholders or to the Company, stockholders may, depending upon
the
circumstances, recognize taxable income in the event that the Rights become
exercisable for common stock (or other consideration) of the Company or for
common stock of the acquiring company or in the event of the redemption of
the
Rights as set forth above.
Any
of
the provisions of the Rights Agreement may be amended by the Board of Directors
before the Distribution Date. After the Distribution Date, the provisions of
the
Rights Agreement may be amended by the Board of Directors to cure any ambiguity,
to make changes that do not adversely affect the interests of holders of Rights
(excluding the interests of an Acquiring Person, an Adverse Person, or certain
related parties), or to shorten or lengthen any time period under the Rights
Agreement. Notwithstanding the foregoing, no amendment may be made to the Rights
Agreement at a time when the Rights are not redeemable, except to cure any
ambiguity or correct or supplement any provision contained in the Rights
Agreement that may be defective or inconsistent with any other provision
therein.
The
summary description of the Rights included in this Item 1.01 does not purport
to
be complete and is qualified in its entirety by reference to the Rights
Agreement, a copy of which is attached to this Current Report on Form 8-K as
Exhibit 4.1.
In
connection with the Rights Agreement, the Company has filed a Certificate of
Designation of Series A Junior Participating Preferred Stock with the Department
of State of the State of Delaware on November 24, 2008 (the “Certificate of
Designation”). The Certificate of Designation provides that the holders of
Series A Preferred Stock are entitled to receive, when, as, and if declared
by
the Board of Directors, quarterly dividends payable in cash in an amount per
share equal to the greater of (i) $10 and (ii) 100 times the aggregate per
share
amount of all cash dividends, and 100 times the aggregate per share amount
(payable in kind) of all non-cash dividends or other distributions other than
a
dividend payable in shares of common stock, declared on common stock. The
Company must declare a dividend or distribution on the Series A Preferred Stock
as provided in the immediately preceding sentence after it declares a dividend
or distribution on the common stock other than a dividend payable in shares
of
common stock. Accrued and unpaid dividends do not bear interest. Subject to
adjustment, the holders of Series A Preferred Stock are entitled to 100 votes,
for each share of Series A Preferred Stock, on all matters submitted to a vote
of the stockholders. The holders of shares of Series A Preferred Stock shall
vote together as one class with the holders of common stock. If dividends on
any
Series A Preferred Stock are in arrears in an amount equal to six quarterly
dividends thereon, this marks the beginning of a default period, which extends
until the time when all accrued and unpaid dividends for all previous quarterly
dividend periods and for the then-current quarterly dividend period on all
shares of Series A Preferred Stock then outstanding have been declared and
paid
or set apart for payment. During the default period, all holders of Series
A
Preferred Stock with dividends in arrears in an amount equal to six quarterly
dividends thereon, voting as a class, have the right to elect two directors. The
terms of these directors will terminate automatically upon the expiration of
the
default period. Except as expressly set forth in the Certificate of Designation,
or as required by applicable law, holders of Series A Preferred Stock have
no
special voting rights and their consent for taking any corporate action is
not
required. Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock are in arrears, thereafter and until
all
accrued and unpaid dividends and distributions have been paid in full, the
Company may not, among other things, declare, pay dividends, redeem, purchase,
or otherwise acquire any shares of stock ranking junior to the Series A
Preferred Stock. Upon any liquidation, dissolution, or winding up of the
Company, no distribution may be made to the holders of shares of stock ranking
junior to the Series A Preferred Stock unless, prior to, the holders of Series
A
Preferred Stock have received $100 per share plus an amount equal to accrued
and
unpaid dividends. If the Company enters into any consolidation, merger,
combination, or other transaction in which the shares of common stock are
exchanged for or changed into other stock or securities, cash and/or any other
property, then in any such case the shares of Series A Preferred Stock shall
at
the same time be similarly exchanged or changed in an amount per share, subject
to adjustment, equal to 100 times the aggregate amount of stock, securities,
cash, or any other property (payable in kind), as the case may be, into which
or
for which each share of common stock is changed or exchanged. The shares of
Series A Preferred Stock are not redeemable.
The
summary description of the terms of the Series A Preferred Stock included in
this Item 1.01 does not purport to be complete and is qualified in its entirety
by reference to the Certificate of Designation, a copy of which is attached
to
this Current Report on Form 8-K as Exhibit 3.1.
Item
3.03 Material Modification to Rights of Security Holders
The
information required by this Item 3.03 is included in Item 1.01.
Item
5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year
In
connection with the adoption of the Rights Agreement, the Company filed a
Certificate of Designation of Series A Junior Participating Preferred Stock
with
the Department of State of the State of Delaware on November 24, 2008. The
description and terms of the Series A Junior Participating Preferred Stock
are
included in Item 1.01.
Item
9.01 Financial Statements and Exhibits
(d)
Exhibits
|
3.1
|
Certificate
of Designation of Series A Junior Participating Preferred Stock,
as filed
with the Department of State of the State of Delaware on November
24,
2008
|
|
|
|
|
4.1
|
Rights Agreement
dated
November 24, 2008, between LCA-Vision Inc. and Computershare Trust
Company, N.A.
|
|
|
|
|
99.1
|
Press
release dated November 24, 2008
|
SIGNATURE
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
duly authorized.
|
|
LCA-VISION
INC.
/s/
Steven C. Straus
Steven
C. Straus, Chief Executive Officer
|
Date:
November 24, 2008
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