AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 23, 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 incorporation (I.R.S. Employer Identification No.)
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 CORPORATION 2004 EMPLOYEE SHARE PURCHASE PLAN
TLC VISION CORPORATION AMENDED AND RESTATED SHARE OPTION 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
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Proposed Maximum
Title of securities Proposed Maximum Aggregate Amount of
to be registered Amount to Offering Offering Price(2) Registration
------------------- be Registered(1) Price per Share(2) ------------------- Fee
---------------- ------------------- ------------
Common Shares 2,500,000 shares $10.03 $25,075,000 $3,177.00
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(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 June 16, 2004 on the Nasdaq National
Market System (a date within five business days of the filing of this
Registration Statement).
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INTRODUCTORY STATEMENT
This Registration Statement on Form S-8 (this "Registration
Statement") relates to common shares of TLC Vision Corporation issuable pursuant
to the TLC Vision Corporation Amended and Restated Share Option Plan (formerly
known as the TLC Laser Eye Centers Inc. Share Option Plan) and the TLC Vision
Corporation 2004 Employee Share Purchase Plan.
Shares issuable pursuant to the TLC Vision Corporation Amended
and Restated Share Option Plan were previously registered in a Registration
Statement on Form S-8 filed with the Securities and Exchange Commission ("SEC")
on December 31, 1997, file number 333-8162, and a Registration Statement on Form
S-8 filed with the SEC on February 13, 2001, file number 333-55480, as amended
by Post-Effective Amendment No. 1 to Form S-8 Registration Statement filed with
the SEC on March 6, 2001 (collectively, the "Previous Registration Statements").
Shares issuable pursuant to the TLC Vision Corporation 2004
Employee Share Purchase Plan have not been previously registered.
On June 14, 2004, the shareholders of the Registrant approved
the creation of the TLC Vision Corporation 2004 Employee Share Purchase Plan and
an increase of the number of shares available under the TLC Vision Corporation
Amended and Restated Share Option Plan of 2,000,000 shares.
The contents of the Previous Registration Statements are
hereby incorporated by reference pursuant to General Instruction E of Form S-8.
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 SEC 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 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
$30,000,000 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.
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.
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.
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 23rd day of June, 2004.
TLC VISION CORPORATION
By: /s/ Robert W. May
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Name: Robert W. May
Title: General Counsel and Secretary
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 June 23, 2004.
SIGNATURE TITLE
/s/ Elias Vamvakas Chief Executive Officer and Chairman of the Board of
- -------------------------- Directors (principal executive officer)
Elias Vamvakas
/s/ B. Charles Bono III Chief Financial Officer and Treasurer (principal
- -------------------------- financial officer)
B. Charles Bono III
/s/ John Klobnak
- -------------------------- Director
John Klobnak
/s/ Thomas N. Davidson
- -------------------------- Director
Thomas N. Davidson
Director
- ---------------------------------------------------
William David Sullins, Jr. O.D.
/s/ Warren S. Rustand Director
- ---------------------------------------------------
Warren S. Rustand
/s/ Richard Lindstrom, M.D. Director
- ---------------------------------------------------
Richard Lindstrom, M.D.
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 June 23, 2004.
TLC VISION (USA) CORPORATION
By: /s/ B. Charles Bono III
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Name: B. Charles Bono III
Title: Treasurer
EXHIBIT INDEX
EXHIBIT DESCRIPTION OF EXHIBIT
4.1 TLC Vision Corporation 2004 Employee Share Purchase Plan (incorporated
by reference to Exhibit 1 to the Company's Proxy Statement on Schedule
14A filed with the Commission on April 29, 2004 (file No. 000-29302))
4.2 TLC Vision Corporation Amended and Restated Share Option Plan
(incorporated by reference to Exhibit 3 to the Company's Proxy
Statement on Schedule 14A filed with the Commission on April 29, 2004
(file No. 000-29302))
4.3 Articles of Continuance (incorporated by reference to
Exhibit 3.3 to the Company's Registration Statement on
Form S-4/A filed with the Commission on March 1, 2002
(file No. 333-71532))
4.4 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. 333-71532))
4.5 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))
4.6 Shareholder Rights Plan Agreement dated as of September
21, 1999 between the Company and CIBC Mellon Trust
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 (file no. 333-71532))
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).