AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 26, 2004.
REGISTRATION NO. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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TLC VISION CORPORATION
(Exact name of registrant as specified in its charter)
NEW BRUNSWICK, CANADA 980151150
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
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5280 SOLAR DRIVE, SUITE 300
MISSISSAUGA, ONTARIO
L4W 5M8
(Address of principal executive offices)
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TLC VISION (U.S.A.) CORPORATION 401(k) PLAN
(Full title of the plan)
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TORYS LLP
237 PARK AVENUE
NEW YORK, NY 10017
ATTENTION: ANDREW J. BECK, ESQ.
(212) 880-6000
(Name, address and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum Amount of
Title of securities Amount to be Offering Price per Aggregate Offering Registration
to be registered Registered(1) Share(2) Price(2) Fee
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Common Shares 500,000 shares $ 9.98 $ 4,990,000 $ 632.23
(1) Plus such indeterminate number of common shares of the Registrant as may
be issued to prevent dilution resulting from stock dividends, stock splits
or similar transactions in accordance with Rule 416 under the Securities
Act of 1933.
(2) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457 under the Securities Act based upon the average
of the reported high and low sales price of the common shares of TLC
Vision Corporation on May 24, 2004 on the Nasdaq National Market System (a
date within five business days of the filing of this Registration
Statement).
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8
are not required to be filed with the SEC either as part of this registration
statement or as prospectuses or prospectus supplements pursuant to the Note to
Part I of Form S-8 and Rule 424 under the Securities Act of 1933. The
information required in the Section 10(a) prospectus is included in documents
being maintained and delivered by TLC Vision Corporation as required by Part I
of Form S-8 and by Rule 428 under the Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been and will in the future be filed by
us with the SEC are incorporated in the Registration Statement by reference:
(a) Our Annual Report on Form 10-K for the fiscal year ended December
31, 2003, which contains our audited financial statements for such
fiscal year.
(b) All other reports filed by our company under Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 since December 31, 2003.
(c) The description of our common shares contained in our Registration
Statement on Form 8-A filed with the Commission on May 20, 1997
(Commission File No. 0-29302), including any amendment or report
filed for the purpose of updating such description.
In addition, all reports and documents filed by us under Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities being offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in and to be part of this Registration Statement from the date of
filing of each such document.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 81 of the New Brunswick Business Corporations Act (NBBCA) provides
that, except in respect of an action by or on behalf of a corporation to procure
a
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judgment in its favor, a corporation may indemnify a director or officer of the
corporation, a former director or officer of the corporation or a person who
acts or acted at the corporation's request as a director or officer of a body
corporate of which the corporation is or was a shareholder or creditor, and his
heirs and legal representatives against all costs, charges and expenses,
including an amount paid to settle an action or satisfy a judgment, reasonably
incurred by him in respect of any civil, criminal or administrative action or
proceeding to which he is made a party by reason of being or having been a
director or officer of the corporation or such body corporate, if (a) he acted
honestly and in good faith with a view to the best interests of the corporation
and (b) in the case of a criminal or administrative action or proceeding that is
enforced by a monetary penalty, he had reasonable grounds for believing that his
conduct was lawful. A corporation may with the approval of the Court of Queen's
Bench of New Brunswick indemnify a person referred to above in respect of an
action by or on behalf of the corporation or body corporate to procure a
judgment in its favor, to which he is made a party by reason of being or having
been a director or an officer of the corporation or body corporate, against all
costs, charges and expenses reasonably incurred by him in connection with such
action if he fulfills the conditions set out in (a) and (b) above.
Notwithstanding the foregoing, a director or officer of a corporation, a former
director or officer of the corporation or a person who acts or acted at the
corporation's request as a director or officer of a body corporate of which the
corporation is or was a shareholder or creditor, and his heirs and legal
representatives is entitled to indemnification from the corporation in respect
of all costs, charges and expenses reasonably incurred by him in connection with
the defense of any civil, criminal or administrative action or proceeding to
which he is made a party by reason of his position with the corporation or body
corporate if he was substantially successful on the merits in his defense of the
action or proceeding, he fulfills the conditions set out in (a) and (b) above
and he is fairly and reasonably entitled to indemnity. By-Law 2002, our general
by-law, provides that we shall indemnify our directors or officers, former
directors or officers or persons who act or acted at our request as a director
or officer of a body corporate of which we are or were a shareholder or
creditor, and the heirs and legal representatives thereof, to the extent
permitted by the NBBCA or otherwise by law.
We maintain directors' and officers' liability insurance. Under this
insurance coverage the insurer pays on our behalf for losses for which we
indemnify our directors and officers, and on behalf of individual directors and
officers for losses arising during the performance of their duties for which we
do not indemnify them. The total limit for the policy is $20,000,000 per policy
term subject to a deductible of $100,000 per occurrence with respect to
corporate indemnity provisions and $500,000 if the claim relates to securities
law claims. The total premiums in respect of the directors' and officers'
liability insurance for the fiscal year ended December 31, 2003 were
approximately $961,598. The insurance policy does not distinguish between
directors and officers as separate groups.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in such
Act and is, therefore, unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
A list of exhibits included as part of this Registration Statement is set
forth in the Exhibit Index to this Registration Statement.
We have submitted the TLC Vision (USA) Corporation 401(k) Plan, as amended
and restated (the "Plan"), to the Internal Revenue Service ("IRS") in a timely
manner, and undertake to submit any amendments thereto to the IRS in a timely
manner. We further undertake to make all changes required by the IRS in order to
qualify the Plan under Section 401 of the Internal Revenue Code.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes, except as otherwise
specifically provided in the rules of the Securities and Exchange Commission
promulgated under the Securities Act of 1933:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this Registration
Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in such
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in such Act and will
be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in St. Louis, Missouri on the 26th day of May, 2004.
TLC VISION CORPORATION
By: /s/ B. Charles Bono III
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Name: B. Charles Bono III
Title: Chief Financial
Officer and Treasurer
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and appoints Robert
W. May and B. Charles Bono III, and each of them, either of whom may act without
the joinder of the other, as his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any or all post-effective
amendments to this Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the U.S.
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or their substitute or substitutes may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities listed below and on May 26, 2004.
SIGNATURE TITLE
/s/ Elias Vamvakas Chief Executive Officer and Chairman
_____________________________ of the Board of Directors
Elias Vamvakas (principal executive officer)
/s/ B. Charles Bono III Chief Financial Officer and Treasurer
_____________________________ (principal financial officer)
B. Charles Bono III
_____________________________ Director
John J. Klobnak
/s/ Thomas N. Davidson Director
___________________________________
Thomas N. Davidson
/s/ William David Sullins, Jr. O.D. Director
___________________________________
William David Sullins, Jr. O.D.
___________________________________ Director
Warren S. Rustand
/s/ Richard Lindstrom, M.D. Director
___________________________________
Richard Lindstrom, M.D.
/s/ Toby S. Wilt Director
___________________________________
Toby S. Wilt
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of the Securities Act of 1933, the
undersigned has signed this Registration Statement, solely in the capacity of
the duly authorized representative of TLC Vision Corporation in the United
States, on May 26, 2004.
TLC VISION (USA) CORPORATION
By: /s/ B. Charles Bono III
__________________________
Name: B. Charles Bono III
Title: Treasurer
EXHIBIT INDEX
EXHIBIT DESCRIPTION OF EXHIBIT
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4.1 TLC Vision (USA) Corporation 401(k) Plan, as amended and restated
4.2 Amendment #1 to the TLC Vision (USA) Corporation 401(k) Plan
dated January 26, 2004
4.3 Amendment #2 to the TLC Vision (USA) Corporation 401(k) Plan
dated January 26, 2004
4.4 Amendment #3 to the TLC Vision (USA) Corporation 401(k) Plan
dated May 21, 2004
4.5 Articles of Continuance (incorporated by reference to Exhibit 3.6
to the Company's Registration Statement on Form S-4/A filed with
the Commission on March 1, 2002 (file no. 333-71532))
4.6 Articles of Amendment (incorporated by reference to Exhibit 4.2
to the Company's Post Effective Amendment No. 1 on Form S-8 to
the Company's Registration Statement on Form S-4 filed with the
Commission on May 14, 2002 (file no. 33-71532))
4.7 By-Laws of the Company (incorporated by reference to Exhibit 3.6
to the Company's Registration Statement on Form S-4/A filed with
the Commission on March 1, 2002 (file no. 333-71532))
4.8 Shareholder Rights Plan Agreement dated as of September 21, 1999
between the Company and CIBC Mellon Company (incorporated by
reference to Exhibit 4.1 to the Company's Registration Statement
on Form S-4 filed with the Commission on October 12, 2001)
5.1 Opinion of Stewart McKelvey Stirling Scales.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Stewart McKelvey Stirling Scales (contained in Exhibit
5.1).
24.1 Powers of Attorney (included on the signature page of this
Registration Statement).