Exhibit (A)(2)
Acceptance Letter Pursuant
To The Offer To Exchange
Outstanding Options
With An Exercise Price
Greater Than U.S.$8.688
For New Options
THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT
11:59 P.M., EASTERN DAYLIGHT SAVINGS TIME,
ON SEPTEMBER 6, 2002, UNLESS THE OFFER IS EXTENDED
TO: TLC Vision Corporation
Attention: Heather McDonald
5280 Solar Drive, Suite 300
Mississauga, Ontario
L4W 5M8
Telephone: 1-800-852-1033
Facsimile: (905) 625-8081
Delivery of the signature page of this acceptance letter by regular
external mail or interoffice mail to an address other than as set forth
above or transmission via facsimile to a number other than as set forth
above or transmission via e-mail will not constitute a valid delivery.
Pursuant to the terms and subject to the conditions of the Offer to
Exchange dated July 18, 2002 and this Acceptance Letter, I hereby tender
all of my options to purchase common shares of TLC Vision Corporation
having an option price greater than U.S.$8.688 that are outstanding on the
expiration date of the Offer.
To TLC Vision Corporation:
Upon the terms and subject to the conditions set forth in the Offer to
Exchange dated July 18, 2002 (the "Offer to Exchange"), my receipt of which I
hereby acknowledge, and in this Acceptance Letter (this "Letter" which, together
with the Offer to Exchange, as they may be amended from time to time, constitute
the "Offer"), I, the undersigned, hereby tender to TLC Vision Corporation, a New
Brunswick corporation (the "Company"), all of my options to purchase common
shares of the Corporation (the "Common Shares") that have an option price
greater than U.S.$8.688 (the "Tendered Options") that are outstanding on the
expiration date of the Offer in exchange for "New Options." The number of New
Options to be granted in exchange for Tendered Options that are accepted for
exchange and cancelled in the Offer will be determined as follows, subject to
adjustments for any future stock splits, stock dividends and similar events, in
accordance with the terms of the Option Plan (as defined below):
o For Tendered Options with an option price of over U.S.$40, I will
receive a grant of New Options equal to one-quarter (1/4) of the
number of Tendered Options cancelled in the Offer, rounded down to
the nearest whole number of New Options with respect to each grant
of Tendered Options;
o For Tendered Options with an option price of at least U.S.$30 but
less than U.S.$40, I will receive a grant of New Options equal to
one-third (1/3) of the number of Tendered Options cancelled in the
Offer, rounded down to the nearest whole number of New Options with
respect to each grant of Tendered Options;
o For Tendered Options with an option price of at least U.S.$20 but
less than U.S.$30, I will receive a grant of New Options equal to
one-half (1/2) of the number of Tendered Options cancelled in the
Offer, rounded down to the nearest whole number of New Options with
respect to each grant
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of Tendered Options; and
o For Tendered Options with an option price of greater than U.S.$8.688
but less than U.S.$20, I will receive a grant of New Options equal
to the number of Tendered Options cancelled in the Offer.
However, the Company will not issue any New Options exercisable for fractional
shares. Instead, the Company will round down to the nearest whole number of New
Options with respect to each grant of Tendered Options. Each option entitles me
to purchase one TLC Vision Corporation common share in accordance with the terms
of the Option Plan and instrument of grant.
New Options issued in exchange for Tendered Options granted under the
terms of the Company's Amended and Restated Stock Option Plan (the "Option
Plan") will be subject to the terms of the Option Plan and to a new option
instrument of grant to be issued by the Company.
Subject to, and effective upon, the Company's acceptance for exchange of
the Tendered Options in accordance with the terms and subject to the conditions
of the Offer (including, if the Offer is extended or amended, the terms and
conditions of any such extension or amendment), I hereby sell, assign and
transfer to, or upon the order of, the Company all right, title and interest in
and to the Tendered Options.
I hereby represent and warrant that I have full power and authority to
tender the Tendered Options and that, when and to the extent that the Tendered
Options are accepted for exchange by the Company, the Tendered Options will be
free and clear of all security interests, liens, restrictions, charges,
encumbrances, conditional sales agreements or other obligations relating to the
sale or transfer thereof (other than pursuant to the applicable instrument of
grant) and the Tendered Options will not be subject to any adverse claims. Upon
request, I will execute and deliver any additional documents deemed by the
Company to be necessary or desirable to complete the exchange of the Tendered
Options pursuant to the Offer.
I understand and acknowledge that:
(1) I may tender all of my options granted under the Option Plan having an
option price greater than U.S.$8.688 and that I am not required to tender any of
such options in the Offer. However, I must tender all of such options (no
partial tender of options is permitted).
(2) All Tendered Options properly tendered prior to 11:59 p.m., eastern
daylight savings time, on September 6, 2002, unless the Company has extended the
period of time the Offer will remain open (the "Expiration Date"), and not
properly withdrawn that are cancelled in the Offer will be exchanged for New
Options, upon the terms and subject to the conditions of the Offer described in
Sections 1, 5, 6 and 8 of the Offer to Exchange.
(3) Upon the Company's acceptance of the Tendered Options for exchange, I
understand that the instrument or instruments of grant to which the Tendered
Options are subject will terminate automatically and the Company will terminate
and cancel all then outstanding options thereunder. All New Options will be
subject to the terms and conditions of the Option Plan and the terms of a new
option instrument of grant to be issued by the Company, a copy of which I will
receive after the New Options are granted.
(4) The New Options will be granted immediately upon the Company's
acceptance of the Tendered Options for exchange. The number of New Options
granted in exchange for cancelled Tendered Options will be determined as
follows, subject to adjustments for any stock splits, stock dividends and
similar events, in accordance with the terms of the Option Plan:
o For Tendered Options with an option price of over U.S.$40, I will
receive a grant of New Options equal to one-quarter (1/4) of the
number of Tendered Options cancelled in the Offer, rounded down to
the nearest whole number of New Options with respect to each grant
of Tendered Options;
o For Tendered Options with an option price of at least U.S.$30 but
less than U.S.$40, I will receive a grant of New Options equal to
one-third (1/3) of the number of Tendered Options cancelled in the
Offer, rounded down to the nearest whole number of New Options with
respect to each grant of Tendered Options;
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o For Tendered Options with an option price of at least U.S.$20 but
less than U.S.$30, I will receive a grant of New Options equal to
one-half (1/2) of the number of Tendered Options cancelled in the
Offer, rounded down to the nearest whole number of New Options with
respect to each grant of Tendered Options; and
o For Tendered Options with an option price of greater than U.S.$8.688
but less than U.S.$20, I will receive a grant of New Options equal
to the number of Tendered Options cancelled in the Offer.
The New Options will have (a) an option price (also known as the exercise or
grant price) equal to U.S.$8.688, and (b) the same vesting schedule and
expiration and vesting dates as the related Tendered Options.
(5) By tendering the Tendered Options pursuant to the procedure described
in Section 3 of the Offer to Exchange and in the instructions to this Letter, I
accept the terms and conditions of the Offer. The Company's acceptance for
exchange of the Tendered Options will constitute a binding agreement between the
Company and me upon the terms and subject to the conditions of the Offer.
(6) Under certain circumstances set forth in the Offer to Exchange, the
Company may terminate or amend the Offer and postpone its acceptance and
cancellation of any Tendered Options.
(7) If I choose not to tender all of my options that are eligible for
tender under the Offer or my Tendered Options are not accepted for exchange, all
such options shall remain outstanding and retain their current option price and
vesting schedule.
(8) The Company has advised me to consult with my own advisors (including
my own tax advisors) as to the consequences of participating or not
participating in the Offer.
(9) I agree to all of the terms and conditions of the Offer as they appear
in the Offer.
All authority herein conferred or agreed to be conferred shall not be
affected by, and shall survive, my death or incapacity, and all of my
obligations hereunder shall be binding upon my heirs, personal representatives,
successors and assigns. Except as stated in the Offer, this tender is
irrevocable.
I agree to all of the terms and conditions of the Offer.
This letter must be completed and signed in the space below. If the
signature is by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or another person acting in a fiduciary or
representative capacity, the signer's full title must be specified and proper
evidence of the authority of such person to act in such capacity must be
submitted with this letter.
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I hereby tender all of my options to purchase common shares of TLC Vision
Corporation having an option price greater than U.S.$8.688 that are outstanding
on the expiration date of the Offer.
SIGNATURE OF OWNER
X
----------------------------------
(Signature of Holder or Authorized
Signatory - See Instructions 1 and 3)
Capacity: ______________________________
Date: ____________________________, 2002
Print Name:_____________________________
Address:
_____________________________
_____________________________
_____________________________
_____________________________
Telephone No.
(with area code):
_____________________________
Email Address:
_____________________________
Acceptance Letter
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INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. Delivery of Acceptance Letter. A properly completed and signed original
of the signature page of this Letter (or a facsimile thereof) must be received
by the Company at its address or facsimile number set forth on the front cover
of this Letter on or before the Expiration Date. Only the signature page of this
Letter is required to be delivered to the Company; you are not required to
deliver the instruments of grant for Tendered Options or any of the other pages
of the Letter.
The only acceptable methods of delivery of the signed signature page are
regular external mail, interoffice mail and facsimile, as indicated above. The
method by which you deliver the signed signature page is at your option and
risk, and the delivery will be deemed made only when actually received by the
Company. If you elect to deliver your signed signature page by external mail,
the Company recommends that you use registered mail with return receipt
requested. Delivery by e-mail will not be accepted. In all cases, you should
allow sufficient time to ensure timely delivery.
Tenders of eligible options made pursuant to the Offer may be withdrawn at
any time prior to 11:59 p.m., eastern daylight savings time, on September 6,
2002. You must withdraw all Tendered Options; you may not withdraw only a
portion of Tendered Options. If the Offer is extended by the Company beyond that
time, you may withdraw your Tendered Options at any time until the extended
expiration of the Offer. In addition, unless the Company accepts your Tendered
Options before 11:59 p.m., eastern daylight savings time, on September 6, 2002,
you may withdraw your Tendered Options at any time after September 6, 2002. To
withdraw Tendered Options we must receive the signature page of the withdrawal
letter in the form attached to the end of the Offer document, or a facsimile
thereof, signed by you while you still have the right to withdraw the Tendered
Options. Withdrawals may not be rescinded and any Tendered Options withdrawn
will thereafter be deemed not properly tendered for purposes of the Offer unless
such withdrawn options are properly re-tendered prior to the Expiration Date by
following the procedures described above.
The Company will not accept any alternative, conditional or contingent
tenders. All tendering optionholders, by signing this Letter (or a facsimile of
it), waive any right to receive any notice of the acceptance of their tender,
except as provided for in the Offer to Exchange.
2. Tenders. If you intend to tender eligible options pursuant to the
Offer, you must tender all of your eligible options that are outstanding on the
Expiration Date. This means that you must tender all options having an option
price greater than U.S.$8.688.
3. Signatures on This Acceptance Letter. If this Letter is signed by the
holder of the Tendered Options, the signature must be by such holder.
If this Letter is signed by a trustee, executor, administrator, guardian,
attorney-in-fact, officer of a corporation or other person acting in a fiduciary
or representative capacity, such person should so indicate when signing, and
proper evidence satisfactory to the Company of the authority of such person so
to act must be submitted with this Letter.
4. Requests for Assistance or Additional Copies. Any questions or requests
for assistance, as well as requests for additional copies of the Offer to
Exchange or this Letter may be directed to Heather McDonald, at the address and
telephone number given on the front cover of this Letter. Copies will be
furnished at the Company's expense.
5. Irregularities. All questions as to the number of eligible options to
be accepted for exchange, and the validity, form, eligibility (including time of
receipt) and acceptance for exchange of any tender of eligible options will be
determined by the Company in its sole discretion, which determinations shall be
final and binding on all parties. The Company reserves the right to reject any
or all tenders of eligible options the Company determines not to be in proper
form or the acceptance of which may, in the opinion of the Company's counsel, be
unlawful. The Company also reserves the right to waive any of the conditions of
the Offer and any defect or irregularity in the tender of any particular
eligible options, and the Company's interpretation of the terms of the Offer
(including these instructions) will be final and binding on all parties. No
tender of eligible options will be deemed to be properly made until all defects
and irregularities have been cured or waived. Unless waived, any defects or
irregularities in connection with tenders must be cured within such time as the
Company shall determine. Neither the Company nor any other person is or will be
obligated to give notice of any defects or irregularities in tenders, and no
person will incur any liability for failure to give any such notice.
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Important: To accept the Offer, the signed signature page to this Letter
(or a facsimile copy thereof) must be received by the Company on or prior to the
Expiration Date. You must deliver a properly signed paper copy of the signature
page to this Letter by regular external mail, interoffice mail or facsimile.
Delivery by e-mail will not be accepted.
6. Important Tax Information. You should refer to Sections 14 and 15 of
the Offer to Exchange, which contain important United States and Canadian tax
information and, if applicable to you, the separate summaries of material tax
consequences under the laws of the country in which you are based.