Exhibit (D)(1)
TLC THE LASER CENTER INC.
AMENDED AND RESTATED SHARE OPTION PLAN
October 26, 2000
TABLE OF CONTENTS
ARTICLE 1.
GENERAL
1.1. Plan.................................................................... 1
1.2. Purpose................................................................. 1
1.3. Administration.......................................................... 1
1.4. Interpretation.......................................................... 1
1.5. Numbers................................................................. 3
ARTICLE 2.
SHARE OPTION PLAN
2.1. Grants.................................................................. 3
2.2. Exercise of Options..................................................... 4
2.3. Option Price............................................................ 4
2.4. Grant to Participant's RRSP............................................. 4
2.5. Termination, Retirement, Death or Departure............................. 4
2.6. Option Agreements....................................................... 5
2.7. Payment of Option Price................................................. 5
2.8. Amendment of Option Terms............................................... 5
ARTICLE 3.
GENERAL
3.1. Right to Exercise Options in connection with a Proposed Transaction..... 5
3.2. Prohibition on Transfer of Options...................................... 6
3.3. Prohibition on Transfer of Shares....................................... 6
3.4. Capital Adjustments..................................................... 6
3.5. Non-Exclusivity......................................................... 6
3.6. Amendment and Termination............................................... 6
3.7. Compliance with Legislation............................................. 7
3.8. Effective Date.......................................................... 7
REGULATIONS UNDER PLAN
Schedule "A" - Option Agreement
TLC THE LASER CENTER INC.
AMENDED AND RESTATED SHARE OPTION PLAN
ARTICLE 1.
GENERAL
1.1. Plan
This Plan consists of a Share Option Plan.
1.2. Purpose
The purpose of this Plan is to advance the interests of the Corporation by
(i) providing Eligible Persons with additional incentive; (ii) encouraging
stock ownership by Eligible Persons; (iii) increasing the proprietary
interest of Eligible Persons in the success of the Corporation; (iv)
encouraging Eligible Persons to remain with the Corporation or its
Affiliates; and (v) attracting new employees, officers and directors to
the Corporation or its Affiliates.
1.3. Administration
(a) This Plan will be administered by the Board or a committee of the
Board duly appointed for this purpose by the Board and consisting of
not less than 3 directors. If a committee is appointed for this
purpose, all references to the term "Board" will be deemed to be
references to the committee.
(b) Subject to the limitations of this Plan, the Board has the
authority: (i) to grant Options to purchase Shares to Eligible
Persons; (ii) to determine the terms, including the limitations,
restrictions and conditions, if any, upon such grants; (iii) to
interpret this Plan and to adopt, amend and rescind such
administrative guidelines and other rules and Regulations relating
to this Plan as it may from time to time deem advisable, subject to
required prior approval by any applicable regulatory authority; and
(iv) to make all other determinations and to take all other actions
in connection with the implementation and administration of this
Plan as it may deem necessary or advisable. The Board's guidelines,
rules, Regulations, interpretations and determinations will be
conclusive and binding upon all parties.
1.4. Interpretation
For the purposes of this Plan, the following terms will have the following
meanings unless otherwise defined elsewhere in this Plan:
(a) "Affiliate" means any corporation that is an affiliate of the
Corporation as defined under the Securities Act (Ontario);
(b) "Board" means the Board of Directors of the Corporation or a
committee thereof appointed in accordance with the Plan;
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(c) "Corporation" means TLC The Laser Center Inc.;
(d) "Eligible Person" means, subject to the Regulations and to all
applicable law, any employee, officer, director or Service Provider
of (i) the Corporation or (ii) any Affiliate of the Corporation (and
includes any such person who is on a leave of absence authorized by
the Board or the Board of Directors of any Affiliate) designated as
an Eligible Person by the Board;
(e) "Option" means a right granted to an Eligible Person to purchase
Shares of the Corporation on the terms of this Plan;
(f) "Participant" means an Eligible Person to whom or to whose RRSP an
Option has been granted;
(g) "Plan" means the Corporation's Amended and Restated Share Option
Plan consisting of the SOP;
(h) "Regulations" means the regulations made pursuant to this Plan, as
same may be amended from time to time;
(i) "RRSP" means a registered retirement savings plan;
(j) "Service Provider" means an individual who signs a contract or
agreement with the Corporation in order to publicly endorse the
goods or services provided by the Corporation and who may receive
options under the Plan as all or part of their compensation paid by
the Corporation.
(k) "Share Option Price" means the price at which Shares subject to this
Plan can be purchased as determined by the Board in accordance with
the SOP;
(l) "Shares" means the common shares of the Corporation;
(m) "Share Option Plan" or "SOP" means the Amended and Restated Share
Option Plan;
(n) "Termination Date" means the date on which a Participant ceases to
be an Eligible Person;
(o) "Transfer" includes any sale, exchange, assignment, gift, bequest,
disposition, mortgage, charge, pledge, encumbrance, grant of
security interest or other arrangement by which possession, legal
title or beneficial ownership passes from one person to another, or
to the same person in a different capacity, whether or not voluntary
and whether or not for value, and any agreement to effect any of the
foregoing;
(p) "Trustee" means a person appointed by the Board to act in the
capacity of trustee for the benefit of the SPP; and
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(q) "Year" means a fiscal year of the Corporation commencing on June 1
and ending on May 31.
Words importing the singular number include the plural and vice versa and
words importing the masculine gender include the feminine.
This Plan is to be governed by and interpreted in accordance with the laws
of the Province of Ontario.
1.5. Numbers
The maximum number of Shares available for purchase or issuance under this
Plan is 5,116,000, less the maximum number of Shares which may be issued
under any other "share compensation arrangement" of the Corporation, as
such term is defined under applicable rules of The Toronto Stock Exchange
excluding the Corporation's Share Purchase Plan.
Any Shares subject to an Option which has been granted under the SOP and
which for any reason have been cancelled or terminated without having been
exercised will again be available under this Plan.
ARTICLE 2.
SHARE OPTION PLAN
2.1. Grants
Subject to this SOP, the Board will have the authority to determine the
limitations, restrictions and conditions, if any, in addition to those set
out in this SOP, applicable to the exercise of an Option, including,
without limitation, the nature and duration of the restrictions, if any,
to be imposed upon the sale or other disposition of Shares acquired upon
exercise of the Option, and the nature of the events, if any, and the
duration of the period in which any Participant's rights in respect of
Shares acquired upon exercise of an Option may be forfeited. An Eligible
Person and the Eligible Person's RRSP may receive Options on more than one
occasion under this SOP and may receive separate Options on any one
occasion.
Subject to the Regulations, the aggregate number of securities available
for issuance under the SOP to any one person and an RRSP of which that
person is an annuitant, will be 5% of the Shares outstanding at the time
of the grant (on a non-diluted basis), or such lesser number as may be
required by applicable regulatory authorities from time to time.
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2.2. Exercise of Options
(a) Options granted must be exercised no later than 5 years after the
date of grant or such lesser period as the applicable grant or
Regulations may require.
(b) The Board may determine when any Option will become exercisable and
may determine that the Option will be exercisable in instalments.
(c) No fractional Shares may be issued and the Board may determine the
manner in which fractional Share value will be treated.
(d) Not less than 100 Shares may be purchased at any one time except
where the remainder totals less than 100.
2.3. Option Price
The Board will establish the exercise price of an Option at the time each
Option is granted on the basis of the closing market price of the Shares
on the market with the largest trading volume of the Shares on the last
trading date preceding the date of the grant. If there is no trading on
that date, the exercise price will be the average of the bid and ask on
the date preceding the date of the grant. If there is no trading market
for the Shares, the Board will in good faith determine the exercise price
of an Option based on the fair market value of the Shares on the date of
the grant.
2.4. Grant to Participant's RRSP
Upon written notice from the Participant, any option that might otherwise
be granted to that Participant, will be granted, in whole or in part, to
an RRSP established by and for the sole benefit of the Participant. The
determination of whether and the extent to which a Participant is entitled
by applicable tax law to contribute Options to the Participant's RRSP
shall be the responsibility of the Participant.
2.5. Termination, Retirement, Death or Departure
(a) If a Participant ceases to be an Eligible Person for any reason
whatsoever other than death, each Option held by the Participant or
the Participant's RRSP will cease to be exercisable 90 days after
the Termination Date. If any portion of an Option has not vested by
the Termination Date, that portion of the Option may not under any
circumstances be exercised by the Participant or the Participant's
RRSP. Without limitation, and for greater certainty only, this
subsection (a) will apply regardless of whether the Participant was
dismissed with or without cause and regardless of whether the
Participant received compensation in respect of dismissal or was
entitled to a period of notice of termination which would otherwise
have permitted a greater portion of the Option to vest in the
Participant or the Participant's RRSP.
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(b) If a Participant dies, the legal representatives of the Participant
may exercise the Participant's Options and the participant's RRSP
Options within 180 days after the date of the participant's death
but only to the extent the Options were by their terms exercisable
on the date of death.
2.6. Option Agreements
Each Option must be confirmed, and will be governed, by an agreement (an
"Option Agreement") in the form of Schedule "A" (as the same may be
amended from time to time by the Regulations) signed by the Corporation
and the Participant or an RRSP of which that person is an annuitant.
2.7. Payment of Option Price
The exercise price of each Share purchased under an Option must be paid in
full by bank draft or certified cheque at the time of exercise, and upon
receipt of payment in full, but subject to the terms of this Plan, the
number of Shares in respect of which the Option is exercised will be duly
issued as fully paid and non-assessable.
2.8. Amendment of Option Terms
With the consent of any applicable regulatory authorities (as required)
and the Participant affected thereby, the Board may amend or modify any
outstanding Option in any manner to the extent that the Board would have
had the authority to initially grant the award as so modified or amended,
including without limitation, to change the date or dates as of which, or
the price at which, an Option becomes exercisable.
ARTICLE 3.
GENERAL
3.1. Right to Exercise Options in connection with a Proposed Transaction
Notwithstanding any other provision of this Plan, in the event of any
proposed sale or conveyance of all or substantially all of the property
and assets of the Corporation or any proposed merger, consolidation,
amalgamation or offer to acquire all of the outstanding Shares of the
Corporation (collectively, the "Proposed Transaction"), the Corporation
shall give written notice to all Participants advising that their
respective Options or the Options held by their RRSP's, shall be fully
exerciseable immediately, whether or not otherwise fully exerciseable,
vested or unvested on that date, and may be exercised only within 30 days
after the date of the notice and not thereafter, and that all rights of
the Participants and their RRSP's under any Options not exercised will
terminate at the expiration of the 30-day period, provided that the
Proposed Transaction is completed within 180 days after the date of the
notice. If the Proposed Transaction is not completed within the 180-day
period, no right under any Option will be affected by the notice, except
that the Option may not be exercised between the date of expiration of the
30-day period and the day after the expiration of the 180-day period.
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3.2. Prohibition on Transfer of Options
Options are personal to each Eligible Person. No Eligible Person may deal
with any Options or any interest in them or Transfer any Options now or
hereafter held by the Eligible Person except in accordance with the Plan.
A purported Transfer of any Options in violation of the Plan will not be
valid and the Corporation will not issue any Share upon the attempted
exercise of improperly Transferred Options.
3.3. Prohibition on Transfer of Shares
No Participant will, upon exercise of an Option, deal with any Share or
any interest in it or Transfer any Share now or hereafter held by the
Participant or the Participant's RRSP except in accordance with the
Articles of the Corporation as implemented by the Board.
3.4. Capital Adjustments
If there is any change in the outstanding Shares by reason of a stock
dividend or split, recapitalization, consolidation, combination or
exchange of shares, or other fundamental corporate change, the Board will
make, subject to any prior approval required of relevant stock exchanges
or other applicable regulatory authorities, if any, an appropriate
substitution or adjustment in (i) the exercise price of any unexercised
Options under the SOP; (ii) the number or kind of shares or other
securities reserved for issuance pursuant to this Plan; and (iii) the
purchase price of those shares subject to unexercised Options theretofore
granted under the SOP, and in the exercise price of those unexercised
Options; provided, however, that no substitution or adjustment will
obligate the Corporation to issue or sell fractional shares. In the event
of the reorganization of the Corporation or the amalgamation or
consolidation of the Corporation with another corporation, the Board may
make such provision for the protection of the rights of Eligible Persons,
participants and their RRSP's as the Board in its discretion deems
appropriate. The determination of the Board, as to any adjustment or as to
there being no need for adjustment, will be final and binding on all
parties.
3.5. Non-Exclusivity
Nothing contained herein will prevent the Board from adopting other or
additional compensation arrangements for the benefit of any Eligible
Person or Participant, subject to any required regulatory or shareholder
approval.
3.6. Amendment and Termination
(a) The Board may amend, suspend or terminate this Plan or any portion
thereof at any time in accordance with applicable legislation, and
subject to any required regulatory or shareholder approval. Subject
to section 3.1, no amendment, suspension or termination will alter
or impair any Options under the SOP, or any rights pursuant thereto,
granted previously to any Participant or the Participant's RRSP
without the consent of that Participant.
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(b) If this Plan is terminated, the provisions of this Plan and any
administrative guidelines, and other rules and Regulations adopted
by the Board and in force at the time of this Plan, will continue in
effect as long as any Options under the SOP or any rights pursuant
thereto remain outstanding. However, notwithstanding the termination
of the Plan, the Board may make any amendments to the Plan or the
Options it would be entitled to make if the Plan were still in
effect.
3.7. Compliance with Legislation
The Board may postpone or adjust any exercise of any Option or the issue
of any Shares pursuant to this Plan as the Board in its discretion may
deem necessary in order to permit the Corporation to effect or maintain
registration of this Plan or the Shares issuable pursuant thereto under
the securities laws of any applicable jurisdiction, or to determine that
the Shares and this Plan are exempt from such registration. The
Corporation is not obligated by any provision of this Plan or any grant
hereunder to sell or issue Shares in violation of any applicable law. In
addition, if the Shares are listed on a stock exchange, the Corporation
will have no obligation to issue any Shares pursuant to this Plan unless
the Shares have been duly listed, upon official notice of issuance, on a
stock exchange on which the Shares are listed for trading.
3.8. Effective Date
This Plan will become effective immediately.
TLC THE LASER CENTER INC.
AMENDED AND RESTATED SHARE OPTION PLAN
REGULATIONS
1. In these Regulations, words defined in this Plan and not otherwise defined
herein will have the same meaning as set forth in this Plan.
2. A Participant will cease to be an Eligible Person on earliest of:
(a) the date of the Participant's termination, retirement or cessation
of employment with or engagement by the Corporation or any of its
Affiliates;
(b) the date of the Participant's death; and
(c) the date on which the Participant otherwise fails to meet the
criteria set forth under the definition of an Eligible Person.
3. If the legal representative of a Participant who has died exercises the
Option of the Participant or the Participant's RRSP in accordance with the
terms of the SOP, the Corporation will have no obligation to issue the
Shares until evidence satisfactory to the Corporation has been provided by
the legal representative that the legal representative is entitled to
purchase the Shares under this Plan.
4. Share certificates representing the number of Shares in respect of which
the Option has been exercised will be issued only upon payment in full of
the relevant exercise price. These share certificates will be held for
safekeeping by the Secretary of the Corporation, unless the Participant
directs the Secretary otherwise.
SCHEDULE "A"
PERSONAL AND CONFIDENTIAL
[Date]
[FirstName] [LastName]
c/o TLC Vision Corporation
5280 Solar Drive, Suite 300
Mississauga, Ontario
L4W 5M8
Dear [FirstName],
The Share Option Plan (The "Option Plan") of the Corporation permits the Board
of Directors to grant options to officers, employees and certain others whose
contributions to the Corporation is significant. In recognition of your future
and continuing contribution to the Corporation and in order to permit you to
share in enhanced values that you will help to create, the Board is pleased to
grant you, as of [DateofIssue]an option (the "Option") to purchase Common shares
(the "Shares") of the Corporation. This Option is granted on the basis set out
in this letter, and is subject to the Share Option Plan Document and the
Insiders Trading Policy. This letter and the Option Plan are referred to
collectively as the "Option Documents". All capitalized terms not otherwise
defined are to bear the meaning attributed to them in the Option Plan.
The total number of Shares that you may purchase pursuant to this Option
is: [Amount]
The price you must pay for each Share to be acquired on the exercise of an
Option is:[Price]
Your rights to purchase Shares will vest and expire as follows:
Vesting Date Percentage of Options Exercisable Expiry Date
On or After Vesting Date
o o o
Subject to earlier expiration in accordance with the Option Documents, your
rights to purchase Shares pursuant to this option will expire at 11:59 p.m. on
[ExpiryDate].
This Option may be exercised in whole or in part in respect of vested Options at
any time prior to expiry of the relevant Options, by delivery of written notice
to the Corporation's head office to the attention of Human Resources, specifying
the number of Shares to be purchased, accompanied by payment by bank draft or
certified check of the total purchase price of the Shares. This Option may not
be exercised in amounts less than 100 Shares in the case of any one exercise
unless that exercise would entirely exhaust the Option.
All options, when exercised, will be taxed at source according to the Income Tax
laws in whichever Country you reside in and taxed at the normal withholding rate
based on Taxable Income. The benefit will be included on your T4/W2. All US
residents are now required to complete and sign the attached letter and return
it to Human Resources.
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Nothing in the Option Documents will affect our right to terminate your
services, responsibilities, duties and authority to represent the Corporation or
any of its Affiliates at any time for any reason whatsoever. Regardless of the
reason for your termination, your rights to exercise this option will be
restricted to those rights which have vested on or prior to your date of
termination and, in any claim for wrongful dismissal or breach of contract, no
consideration will be given to any options that might have vested during an
appropriate notice period or as a result of additional compensation you may have
received in place of that notice period. Complete details of these restrictions
are set out in the Option Plan.
All decisions made by the Board with regard to any questions arising in
connection with the Option Documents, whether of interpretation or otherwise,
will be binding and conclusive on all parties.
This option is personal and may not be sold, pledged, transferred or encumbered
in any way. These are restrictions on the transfer of Shares issued to you
pursuant to the Option Plan. As well, restrictions apply in connection with
cessation of engagement. Complete details of these restrictions are set out in
the Option Plan.
Please acknowledge acceptance of this Option by signing where indicated below on
the enclosed copy of this letter and returning the signed copy to the
Corporation, attention Human Resources. By signing and delivering this copy, you
are agreeing to be bound by all terms of the Option Documents.
Yours truly,
TLC VISION CORPORATION
By: ______________________________
Paul Frederick
Executive Vice President, Human Resources
I have read and agree to be bound by this letter.
Signature: ______________________
Date: ______________________
Witness: ______________________
Witness Name:
(Printed) ______________________