-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Ftnd8SE1RKAhXYZWxds0nIfhlP7OX6EjqzW7s1xgYcVQrZvBAuxpRWgpsHbm1tMc d3zOL+fA95RsXKX8QJD1Xw== 0001005477-02-002146.txt : 20020514 0001005477-02-002146.hdr.sgml : 20020514 ACCESSION NUMBER: 0001005477-02-002146 CONFORMED SUBMISSION TYPE: S-8 POS PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20020514 EFFECTIVENESS DATE: 20020514 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TLC LASER CENTER INC CENTRAL INDEX KEY: 0001010610 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-SPECIALTY OUTPATIENT FACILITIES, NEC [8093] IRS NUMBER: 980151150 STATE OF INCORPORATION: A6 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 POS SEC ACT: 1933 Act SEC FILE NUMBER: 333-71532 FILM NUMBER: 02647781 BUSINESS ADDRESS: STREET 1: 5600 EXPLORER DRIVE STREET 2: SUITE 301 CITY: MISSISSAUGA ONTARIO STATE: A6 ZIP: 00000 BUSINESS PHONE: 3015712020 MAIL ADDRESS: STREET 1: 6701 DEMOCRACY BLVD STREET 2: SUITE 200, LEGAL DEPT. CITY: BETHESDA STATE: MA ZIP: 20817 S-8 POS 1 d37327_pos-am.txt POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-8 As filed with the Securities and Exchange Commission on May 14, 2002 Registration Statement No. 333 -71532 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 POST EFFECTIVE AMENDMENT NO. 1 ON FORM S-8 TO REGISTRATION STATEMENT ON FORM S-4 UNDER THE SECURITIES ACT OF 1933 TLC VISION CORPORATION (Exact Name of Registrant as Specified in its Charter) New Brunswick 8093 980151150 (State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer Incorporation or Organization) Classification Code Number) Identification Number)
5280 Solar Drive Suite 300 Mississauga, Ontario L4W 5M8 (905) 602-2020 (Address, Including Zip Code and Telephone Number, Including Area Code, of Registrant's Principal Executive Office) Laser Vision Centers, Inc. 1990 Incentive Stock Option Plan Laser Vision Centers, Inc. 1990 Non-Qualified Stock Option Plan Laser Vision Centers, Inc. 2000 Incentive Stock Plan Laser Vision Centers, Inc. 1994 Non-Qualified Warrant Plan Supplemental Employment Agreement with John J. Klobnak (Full Titles of Plans) Andrew Beck, Esq. Torys LLP 237 Park Avenue New York, New York 10017-3142 (212) 880-6000 (Name, Address, Including Zip Code and Telephone Number, Including Area Code, of Agent for Service)
Copies to: David Chaikof, Esq. Lloyd Fiorini, Esq. Thomas A. Litz, Esq. Torys LLP TLC Vision Corporation Andrew J. Klinghammer, Esq. Suite 3000, Maritime Life Tower 5280 Solar Drive Thompson Coburn LLP P.O. Box 270, TD Centre Suite 300 One U.S. Bank Plaza 79 Wellington Street West Mississauga, Ontario L4W 5M8 St. Louis, Missouri 63101 Toronto, Ontario M5K 1E2 (905) 602-2020 (314) 552-6000 (416) 865-0040
CALCULATION OF REGISTRATION FEE
- ---------------------- -------------- ----------------------- ------------------------ ---------------- Title of Each Class of Amount to be Proposed Maximum Proposed Maximum Amount of Securities to be Registered (2) Offering Price Per Unit Aggregate Offering Price Registration Fee Registered - ---------------------- -------------- ----------------------- ------------------------ ---------------- Common Shares (1) 8,038,010 (3) (3) (3) Shares - ---------------------- -------------- ----------------------- ------------------------ ----------------
(1) Includes one attached common share purchase right per share. (2) Such shares are issuable upon exercise of options granted by the Registrant to John J. Klobnak pursuant to the terms of a Supplemental Employment Agreement and upon exercise of options issued by the Registrant to replace options and warrants to purchase common stock of Laser Vision Centers, Inc. pursuant to an Agreement and Plan of Merger dated as of August 25, 2001 by and among the Registrant, Laser Vision Centers, Inc. and TLC Acquisition II Corp. This Registration Statement shall also cover such additional number of the Registrant's common shares as are required for issuance upon a stock split, stock dividend or similar transaction. (3) All filing fees payable in connection with the issuance of these securities were paid in connection with the original filing of the Registrant's Registration Statement on Form S-4 (File Number 333-71532) filed on October 12, 2001 to register 35,001,300 common shares of the Registrant, including the 8,038,010 common shares being registered hereunder. Introductory Statement TLC Vision Corporation ("TLC" or the "Company", and formerly TLC Laser Eye Centers Inc.) hereby amends its Registration Statement on Form S-4 as filed with the Securities and Exchange Commission on October 12, 2001, as amended on December 7, 2001, January 18, 2002 and March 1, 2002, by filing this Post-Effective Amendment No. 1 on Form S-8 registering 8,038,010 TLC common shares, no par value, issuable upon the exercise of options that TLC will issue in connection with its acquisition of Laser Vision Centers, Inc. ("LaserVision"), a Delaware corporation. The TLC options will be granted to John J. Klobnak under the terms of a Supplemental Employment Agreement to be entered into in connection with the acquisition and will also be granted to LaserVision employees and directors to replace options and warrants which were originally granted under LaserVision's 1990 Incentive Stock Option Plan, 1990 Non-Qualified Stock Option Plan, 2000 Incentive Stock Plan and 1994 Non-Qualified Warrant Plan. Pursuant to the Agreement and Plan of Merger dated as of August 25, 2001 by and among TLC, LaserVision and TLC Acquisition II Corp., TLC Acquisition II Corp. will merge with and into LaserVision, whereupon LaserVision will become a wholly-owned subsidiary of TLC. Under the terms of the Agreement and Plan of Merger, each outstanding option or warrant to purchase LaserVision common stock will become a TLC option upon the same terms and conditions as provided in the LaserVision plan under which the option or warrant was issued, except that the new option will be exercisable for the number of TLC common shares equal to the number of shares of LaserVision common stock that were issuable upon exercise of the option or warrant immediately before the merger multiplied by 0.95 at a per share exercise price equal to the exercise price at which the option was exercisable immediately before the merger. In addition, pursuant to the terms of a Supplemental Employment Agreement between TLC and John J. Klobnak, Chairman and Chief Executive Officer of LaserVision, TLC will issue an option to purchase 500,000 common shares of TLC on the closing date of the merger in connection with Mr. Klobnak's employment with TLC. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference The following documents filed by TLC with the Securities and Exchange Commission (the "Commission") under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated herein by reference: (a) TLC's annual report on Form 10-K for the fiscal year ended May 31, 2001 as amended by Form 10-K/A filed on September 28, 2001 and Form 10-K/A filed on February 26, 2002; (b) TLC's quarterly report on Form 10-Q for the fiscal quarter ended August 31, 2001 as amended by Form 10-Q/A filed on February 26, 2002; (c) TLC's quarterly report on Form 10-Q for the fiscal quarter ended November 30, 2001 as amended by Form 10-Q/A filed on February 27, 2002; (d) TLC's quarterly report on Form 10-Q for the fiscal quarter ended February 28, 2002; (e) TLC's current reports on Form 8-K dated August 25, 2001, December 10, 2001, December 27, 2001 and April 18, 2002; and (f) the description of TLC's common shares contained in TLC's Registration Statement on Form F-10 filed with the Commission on May 12, 1999. We also incorporate by reference additional documents that we may file with the Commission under Section 13(a) or 15(d) of the Exchange Act between the date of this prospectus and the date that we terminate this offering. 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 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, which is the proposed general by-law of the Registrant, will provide that the Registrant shall indemnify a director or officer of the Registrant, a former director or officer of the Registrant or a person who acts or acted at the Registrant's request as a director or officer of a body corporate of which the Registrant is or was a shareholder or creditor, and the heirs and legal representatives thereof, to the extent permitted by the NBBCA or otherwise by law. A policy of directors' and officers' liability insurance is maintained by the Registrant which insures directors and officers of the Registrant and its subsidiaries for losses as a result of claims based upon the acts or omissions as directors and officers of the Registrant. The Registrant has entered into agreements with certain of its directors and officers and will enter into agreements with all of its directors and officers pursuant to which the Registrant agrees to indemnify its directors and officers to the fullest extent permitted by applicable law. Item 7. Exemption from Registration Claimed Not applicable. Item 8. Exhibits See Exhibit Index immediately following signature page. Item 9. Undertakings (a) The undersigned Registrant hereby undertakes: II - 3 (i) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (A) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (B) to reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; and (C) to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement. provided,however, that paragraphs (a)(l)(i) and (a)(l)(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. (ii) 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. (iii) 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. (b) 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) and 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 the time shall be deemed to be the initial bona fide offering thereof. (c) 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 provisions described in Item 6 above 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 the 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 the Act and will be governed by the final adjudication of such issue. II - 4 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 of 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 the City of Mississauga, Ontario, as of May 13, 2002. TLC VISION CORPORATION By: /s/ Elias Vamvakas ------------------------------------ Elias Vamvakas Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Post-Effective Amendment No. 1 on Form S-8 to the Registration Statement has been signed by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Elias Vamvakas Chief Executive Officer and May 13, 2002 - ------------------------------ Chairman of the Board of Directors Elias Vamvakas (Principal Executive Officer) * Controller and Acting Chief May 13, 2002 - ------------------------------ Financial Officer (Principal Brian Park Financial and Accounting Officer) * Co-National Medical Director May 13, 2002 - ------------------------------ and Director Jeffery J. Machat * Director May 13, 2002 - ------------------------------ Howard J. Gourwitz Director - ------------------------------ Dr. William David Sullins, Jr. * Director May 13, 2002 - ------------------------------ John F. Riegert * Director May 13, 2002 - ------------------------------ Thomas N. Davidson II - 5 Director - ------------------------------ Warren S. Rustand *By: /s/ Elias Vamvakas ------------------ Attorney-in-fact II - 6 INDEX OF EXHIBITS Exhibit Number Description of Exhibit - ------- ---------------------- 4.1 -- Articles of Continuance of the Registrant dated May 13, 2002 (incorporated by reference to Exhibit 3.3 to the Registrant's Form S-4/A dated March 1, 2002). 4.2 -- Articles of Amendment of the Registrant dated May 13, 2002. 4.3 -- By-Law 2002 of the Registrant (incorporated by reference to Exhibit 3.6 to the Registrant's Form S-4/A dated March 1, 2002). 4.4 -- Shareholder Rights Plan Agreement dated as of September 21, 1999 between the Registrant and CIBC Mellon Trust Company (incorporated by reference to Exhibit 4.1 to the Registrant's Form S-4/A dated March 1, 2002). 5.1 -- Opinion of Stewart McKelvey Stirling Scales as to legality of the Registrant's common shares. 23.1 -- Consent of Ernst & Young LLP, independent accountants. 23.2 -- Consent of Stewart McKelvey Stirling Scales (included in the opinion attached as Exhibit 5.1). 24.1 -- Power of Attorney (previously filed). II - 7 EX-4.2 3 d37327_ex4-2.txt FORM 3 ARTICLES OF AMENDMENT Exhibit 4.2 NEW BRUNSWICK NOUVEAU BRUNSWICK BUSINESS CORPORATIONS ACT LOI SUR LES CORPORATIONS COMMERCIALES FORM 3 FORMULE 3 ARTICLES OF AMENDMENT STATUTS DE MODIFICATION (SECTION 26,116) (ARTICLES 26,116) 1-Name of Corporation-Raison 2-Corporation No.-Numero de la sociale de la corporation corporation TLC Laser Eye Centers Inc. 601168 3-The articles of the above-mentioned Les statuts de la corporation corporation are amended as follows: mentionnee ici sont modifies comme suit: 1. The name of the Corporation is changed to : TLC Vision Corporation 2. The number (or minimum and maximum number) of directors is changed to : a minimum of one (1) and a maximum of (15) as determined as resolution of the board of directors of the Corporation Date Signature Description of Office- Description du bureau May 7, 2002 /s/ Lloyd D. Fiorini General Counsel and Secretary FOR DEPARTMENT USE ONLY RESERVE A Filed-Depose L'USAGE DU MINISTERE May 13, 2002 EX-5.1 4 d37327_ex5-1.txt REGISTRATION STATEMENT ON FORM S-8 10th Floor, Brunswick Correspondence: Telephone:506.632.1970 44 Chipman Hill P.O. Box 7289 Fax:506.652.1989 Saint John, NB Postal Station A saint-john@smss.com Canada E2L 2A9 Saint John, NB www.smss.com Canada E2L 4S6 May 14, 2002 TLC Vision Corporation 5280 Solar Drive Suite 300 Mississauga, ON L4W 5M8 Ladies and Gentlemen: Re: Registration Statement on Form S-8 We have acted as New Brunswick counsel for TLC Vision Corporation, a New Brunswick corporation (the "Company"), in connection with the Company's Registration Statement on Form S-8 proposed to be filed with the United States Securities and Exchange Commission on or about May 14, 2002 (the "Registration Statement"). The Registration Statement covers the registration of up to an additional 8,038,010 shares of common stock of the Company (the "Shares"), 7,538,010 Shares of which are issuable by the Company upon the exercise of options ("Replacement Options") issued by the Company to replace options and warrants to purchase shares of Laser Vision Centers Inc. ("Laser Vision") pursuant to an Agreement and Plan of Merger (the "Merger Agreement") dated August 25, 2001 among the Company, TLC Acquisition II Corp. and Laser Vision and 500,000 Shares of which are to be issued upon the exercise of new options to be granted by the Company to John J. Klobnak under the terms of a supplemental employment agreement (together with the Replacement Options, the "Options"). We have reviewed the corporate proceedings of the Company with respect to the approval of the Merger and the authorization of the Options and the issuance of the Shares thereunder and, in particular, a resolution of the board of directors dated May 14, 2002. We have also examined and relied upon originals or copies of such agreements, instruments, corporate records, certificates and other documents as we have deemed necessary or appropriate as a basis for the opinions hereinafter expressed. In our examination, we have assumed the genuineness of all signatures, the conformity to the originals of all documents reviewed by us as copies, the authenticity and completeness of all original documents reviewed by us in original or copy form and the legal competence of each individual executing any document. Page 2 We further assume that all Shares issued pursuant to the Options will be issued in accordance with the terms thereof including as to payment. Subject to the limitations set forth below, we have made such examination of law as we have deemed necessary for the purposes of this opinion. This opinion is limited solely to New Brunswick law. Based upon and subject to the foregoing, we are of the opinion that the Shares, when issued and delivered upon exercise of the Options and against the payment of the exercise price therefor, will be duly authorized, validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as an exhibit to the registration statement on Form S-8 by the Company to effect registration of the Shares issued and sold pursuant to the exercise of Options under the Securities Act of 1933, as amended and to the references to this firm in the Registration Statement. Yours very truly, /s/ Stewart McKelvey Stirling Scales EX-23 5 d37327_ex23-1.txt EXHIBIT 23.1 CONSENT OF INDEPENDENT AUDITORS Exhibit 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the reference to our firm in the Registration Statement (Form S-8 No. 333-71532) pertaining to the registration of shares issuable upon exercise of options issued by TLC Laser Eye Centers Inc. to John J. Klobnak pursuant to the terms of a Supplemental Employment Agreement and issued to replace the options and warrants of Laser Vision Centers, Inc. pursuant to an Agreement and Plan of Merger dated as at August 25, 2001 and to the incorporation by reference in the Registration Statement of our report dated July 6, 2001 (except as to note 20, which is dated as at August 27, 2001), with respect to the consolidated financial statements and schedules of TLC Laser Eye Centers Inc. included in its Form 10-K/A for the year ended May 31, 2001, filed with the Securities and Exchange Commission. Toronto, Canada /s/ Ernst & Young LLP May 14, 2002 Chartered Accountants -----END PRIVACY-ENHANCED MESSAGE-----