UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
TLC Vision Corporation
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(Exact name of registrant as specified in its charter)
New Brunswick 980151150
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
5280 Solar Drive, Suite 100,
Mississauga, Ontario, Canada L4W 5m8
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
None None
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If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. / /
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. /X/
Securities Act registration statement file number to which this form relates:
(if applicable)
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Securities to be registered pursuant to Section 12(g) of the Act:
Rights to Purchase Common Stock
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(Title of class)
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(Title of class)
Item 1. Description of Registrant's Securities to be Registered.
On March 4, 2005, the Board of Directors of TLC Vision Corporation
("TLC") adopted the Shareholders Rights Plan. TLC's previous shareholder rights
plan expired in November 2004.
Background
The Shareholder Rights Plan is dated as of March 4, 2005 and is between
TLC and CIBC Mellon Trust Company, as Rights Agent. The primary objective of the
rights plan is to provide TLC shareholders adequate time to properly assess the
merits of a take-over bid without undue pressure, to allow competing bids to
emerge and to allow TLC's board of directors time to consider alternatives to
enable shareholders to maximize the value of their shares. The rights plan
encourages a potential acquirer to proceed either by way of a permitted bid,
which requires the takeover bid to satisfy certain minimum standards designed to
promote fairness, or with the concurrence of the board of directors.
Rights
One right has been issued and is attached to each outstanding common
share of TLC. One right will also be issued and attached to each common share of
TLC issued after the adoption of the rights plan. The rights will separate from
the common shares and become exercisable ten trading days after a person
acquires, or commences a take-over bid to acquire, 20% or more of the TLC common
shares. A right only becomes exercisable upon the occurrence of a flip-in event,
which is a transaction by which a person becomes an acquiring person and which
otherwise does not meet the requirements of a permitted bid.
When exercised, a right entitles each TLC shareholder who is not then
attempting to acquire control of TLC to purchase additional TLC common shares at
a substantial discount to market value. This purchase would cause substantial
dilution to the person or group of persons attempting to acquire control of TLC,
other than by way of a permitted bid. TLC anticipates that no acquiring person
will be willing to risk such dilution and so will instead either make a
take-over bid that is permitted by the rights plan or negotiate with TLC's board
of directors for a waiver of the rights plan. The rights will expire on the
termination of the rights plan, unless redeemed before such time.
Acquiring Person
An acquiring person is generally a person who becomes the beneficial
owner of 20% or more of the outstanding TLC common shares. Under the rights
plan, there are various exceptions, including:
(1) a person who acquires 20% or more of the outstanding common
shares due to:
o a reduction in the number of outstanding common
shares due to acquisitions of common shares by TLC;
o pro rata distributions of common shares by TLC;
o the issuance of common shares pursuant to a public
distribution provided that the purchaser does not
purchase a percentage of the common shares offered
under such distribution that is greater than the
percentage beneficially owned prior to the public
distribution; or
o the issuance of common shares on an exempt private
placement basis, subject to certain limits, including
that the purchaser does not become the beneficial
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owner of more than 25% of TLC's common shares
outstanding immediately prior to the private
placement; and
(2) underwriters who obtain TLC common shares for the purposes of
a public distribution.
Beneficial Ownership
The thresholds for triggering the rights plan are based on the
percentage of shares that are beneficially owned by a person. This is defined in
terms of legal or equitable ownership of TLC common shares. In addition, a
person is deemed to be the beneficial owner of TLC common shares in
circumstances where that person, and its affiliates or associates and any other
person acting jointly or in concert with such person, has a right to acquire TLC
common shares within 60 days. There are various exceptions to this rule,
including TLC common shares held by investment fund managers, trust companies
acting in their capacities as trustees and administrators and pension plan
administrators.
Lock-Up Agreements
A bidder may enter into lock-up agreements with TLC shareholders
whereby such shareholders agree to tender their common shares to a takeover bid
without the occurrence of a flip-in event. Any such lock-up agreement must:
o permit the shareholder to withdraw the common shares to tender
to another takeover bid or to support another transaction that
exceeds the value of the original bid by as much or more than
a specified amount, which specified amount may not be greater
than 7% of the value of the original bid; and
o not provide any break-up fees or termination penalties except
within specified limits.
Certificates and Transferability
Before the separation time, the rights will be evidenced by the
certificates for the common shares to which they are attached. Certificates
issued after the date the plan was adopted bear a legend to that effect. Rights
will not be transferable separately from the attached common shares before the
separation time. From and after the separation time, the rights will be
evidenced by rights certificates and will be transferable and traded separately
from the common shares.
Permitted Bid
If a take-over bid is structured as a permitted bid, a flip-in event
will not occur and the rights will not become exercisable. The requirements of a
permitted bid include the following:
o the take-over bid must be made to all shareholders by means of
a take-over bid circular;
o the take-over bid must not permit the bidder to take up any
TLC common shares that have been tendered to the take-over bid
prior to the expiry of a period not less than 60 days after
the take-over bid is made, and then only if at such time more
than 50% of the TLC common shares held by the independent
shareholders, being shareholders other than the bidder, its
affiliates and persons acting jointly or in concert with such
bidder, have been tendered to the take-over bid and not
withdrawn;
o the take-over bid must contain an irrevocable and unqualified
provision that, unless it is withdrawn, TLC common shares may
be tendered at any time during the 60-day period referred to
above and that any common shares deposited under the take-over
bid may be withdrawn until they have been taken up and paid
for; and
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o if more than 50% of the TLC common shares held by independent
shareholders are tendered to the take-over bid within the
60-day period, then the bidder must make a public announcement
of that fact and the take-over bid must then remain open for
an additional 10 business days from the date of such public
announcement.
The rights plan also allows a competing permitted bid to be made while
a permitted bid is in existence. A competing permitted bid is a take-over bid
that is made after a permitted bid has been made but prior to its expiry, and
which satisfies all of the requirements of a permitted bid except that it may
expire on the same date as the permitted bid, provided that the competing
permitted bid is open for a minimum of 35 days.
The requirements of a permitted bid and competing permitted bid enable
TLC shareholders to decide whether the take-over bid or any competing permitted
bid is adequate on its own merits, without being influenced by the likelihood
that a take-over bid will succeed. Moreover, if there is sufficient support for
a take-over bid such that at least 50% of the outstanding TLC common shares have
been tendered to it, a shareholder who has not yet tendered to that bid will
have a further 10 business days in which to decide whether to withdraw his or
her TLC common shares from a competing take-over bid, if any, and whether to
tender to the take-over bid.
Waiver and Redemption
The TLC board of directors may waive the application of the rights plan
to a particular take-over bid or redeem the rights at a price of US$0.0001 per
right in the following circumstances:
o a waiver can only be given where a take-over bid is made by
way of a take-over bid circular;
o a waiver given in respect of one take-over bid constitutes an
automatic waiver in respect of all other competing take-over
bids;
o a waiver may be given in the event of an acquisition of TLC
common shares by any person over the 20% threshold, provided
that such person has disposed of the excess shares at the time
of the waiver and such acquisition was inadvertent and without
any intention to cause a flip-in event; and
o the rights are deemed to be redeemed upon the successful
completion of a permitted bid or a competing permitted bid or
a takeover bid for which the application of the rights plan
has been waived.
The TLC board of directors may, however, terminate the rights plan,
with prior shareholder approval or approval of the holders of rights, in the
case of termination after the separation time, at any time prior to the
occurrence of a flip-in event by redeeming all of the rights that are then
outstanding at a price of US$0.0001 per right.
Termination
The rights plan will expire at the close of the annual meeting of TLC's
shareholders to be held on June 23, 2005 and every third anniversary after such
meeting unless the continuation of the rights plan is approved by TLC's
shareholders at each such meeting.
Board of Directors
The rights plan does not detract from or lessen the duty of TLC's board
of directors to act honestly and in good faith with a view to the best interests
of TLC. The board of directors, if a permitted bid is made, continues to have
the duty and power to take such actions and make such recommendations to
shareholders as are considered appropriate.
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Item 2. Exhibits.
1. Shareholder Rights Plan Agreement dated March 4, 2005 between TLC
Vision Corporation and CIBC Mellon Trust Company, as Rights Agent, including the
Form of Rights Certificate attached thereto as Exhibit A.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, as amended the registrant has duly caused this registration statement
on Form 8-A to be signed on its behalf by the undersigned, thereto duly
authorized.
TLC Vision Corporation
(Registrant)
Date: By: /s/ Brian Andrew
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Name: Brian Andrew
Title: General Counsel
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EXHIBIT INDEX
1. Shareholder Rights Plan Agreement dated March 4, 2005 between TLC
Vision Corporation and CIBC Mellon Trust Company, as Rights Agent, including the
Form of Rights Certificate attached thereto as Exhibit A.