AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 6, 2006.
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
incorporation or organization) Identification No.)
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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 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 Proposed Maximum Amount of
Title of securities Amount to Offering Aggregate Registration
to be registered be Registered(1) Price per Share(2) Offering Price(2) Fee
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Common Shares 2,000,000 shares $5.37 $10,740,000 $1,149.18
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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 August 30, 2006 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).
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, 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 and a Registration Statement on Form S-8 filed with the SEC
on June 23, 2004, file number 333-116769 (collectively, the "Previous
Registration Statements").
On June 22, 2006, the shareholders of the Registrant approved 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/A for the fiscal year ended
December 31, 2005, 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,
2005.
(c) The description of our common shares contained in our
Registration Statement on Form 8-A filed with the SEC on May 20,
1997, 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
representative 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, 2005 were
approximately $787,000. The insurance policy does not distinguish between
directors and officers as separate groups.
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 5th day of September, 2006.
TLC VISION CORPORATION
By: /s/ Brian L. Andrew
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Name: Brian L. Andrew
Title: General Counsel and Secretary
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and
appoints Brian L. Andrew and Steven P. Rasche, 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 September 5, 2006.
SIGNATURE TITLE
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/s/ James C. Wachtman President, Chief Executive Officer and
- ------------------------------------- Director (principal executive officer)
James C. Wachtman
/s/ Steven P. Rasche Chief Financial Officer (principal
- ------------------------------------- financial officer and principal
Steven P. Rasche accounting officer)
/s/ Thomas N. Davidson Director
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Thomas N. Davidson
/s/ Michael D. DePaolis Director
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Michael D. DePaolis, O.D.
/s/ Richard Lindstrom Director
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Richard Lindstrom, M.D.
/s/ Warren S. Rustand Director
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Warren S. Rustand
Director
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Elias Vamvakas
/s/ Toby S. Wilt Director
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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 September 5, 2006.
TLC VISION (USA) CORPORATION
By: /s/ Brian L. Andrew
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Name: Brian L. Andrew
Title: General Counsel and Secretary
EXHIBIT INDEX
EXHIBIT DESCRIPTION OF EXHIBIT
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4.1 TLC Vision Corporation Amended and Restated Share Option Plan
(incorporated by reference to Appendix B to the Company's Proxy
Statement on Schedule 14A filed with the Commission on May 1, 2006)
4.2 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))
4.3 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))
4.4 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))
4.5 Shareholder Rights Plan Agreement dated March 4, 2005 between the
Company and CIBC Mellon Trust Company (incorporated by reference to
Exhibit A to the Company's Registration Statement on Form 8-A filed
with the Commission on March 14, 2005)
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).