SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report: October 4, 1999
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TLC The Laser Center Inc.
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(Exact name of registrant as specified in charter)
Ontario, Canada 0-29302
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(State or Other Jurisdiction of Incorporation) (Commission File Number)
980151150
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(IRS Employer Identification No.)
5600 Explorer Drive, Suite 301 Mississauga, Ontario, Canada L4W 4Y2
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(Address of principal executive offices) (Zip Code)
Registrant's telephone no., including area code 905-602-2020
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Item 5. Other Events.
On September 9, 1999, the Board of Directors of TLC The Laser Center
Inc., an Ontario corporation (the "Corporation"), authorized the
Corporation to adopt a shareholder Rights Plan. On September 21, 1999, the
Corporation adopted such a Rights Plan. On October 4, 1998, one Right was
issued under the Rights Plan and is attached to each outstanding common
share of the Corporation. The Plan will be submitted to shareholders for
ratification at the shareholders' meeting on November 4, 1999 (the
"Meeting"). A Right only becomes exercisable upon the occurrence of a
Flip-In Event, which is a transaction pursuant to 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 shareholder who is not then
attempting to acquire control of the Corporation to purchase additional
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 the Corporation, other than by way of a
Permitted Bid. The Rights will expire on the termination of the Rights
Plan, unless redeemed before such time.
Effect and Advantages of a Rights Plan
Under the provincial securities legislation in Canada, a take-over
bid generally means an offer to acquire voting or equity shares of a
corporation that, together with shares already owned by the bidder and
certain parties related thereto, amount to 20% or more of the outstanding
voting shares. The existing legislative framework for take-over bids
presents certain concerns for shareholders, which has led many Canadian
companies to adopt shareholder rights plans. In particular, this
legislation permits a take-over bid to expire 21 days after it is
initiated. The Board of Directors is of the view that this is an
insufficient time period for shareholders to consider a take-over bid and
make a reasoned and careful decision regarding such bid, or to consider
actual or possible competing take-over bids. Furthermore, a shareholder
may feel compelled to tender its common shares to a take-over bid which
such shareholder considers to be inadequate, out of a concern that in
failing to do so, it may be left with illiquid or minority-discounted
common shares. As a result, in the absence of a shareholders rights plan,
shareholders may fail to realize the maximum value for their common
shares.
The purpose of the Rights Plan is to ensure adequate time for
shareholders of the Corporation to assess the merits of a take-over bid
without undue pressure. The Rights Plan is designed to give the Board of
Directors time to consider alternatives, which may allow shareholders to
receive full and fair value for their common shares. Moreover, the Board
of Directors believes that the Rights Plan will encourage persons seeking
to acquire control of the Corporation to do so by means of a public
take-over bid available to all shareholders, which will give shareholders
the best opportunity of being assured that they will participate
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on an equal basis, regardless of the size of their holdings, in an
acquisition of control of the Corporation.
The Rights Plan does not affect the duty of the Board of Directors
to act honestly and in good faith with a view to the best interests of the
Corporation and its shareholders. Indeed, the Board of Directors believes
that the Rights Plan remains an appropriate mechanism to ensure that the
Board of Directors will be able to discharge its responsibility to assist
shareholders in responding to a take-over bid.
The Rights Plan was not adopted by the Board of Directors in
response to any acquisition or take-over bid. Furthermore, in adopting the
Rights Plan, the Board of Directors does not intend to prevent a change of
control of the Corporation or to secure the continuance of current
management or the directors currently in office. The Rights Plan is not
part of a plan by management to adopt a series of anti-takeover measures.
However, the Corporation already has in place certain provisions in its
articles and by-laws which may be deemed to render more difficult, or
discourage, takeovers or changes in control of the Corporation. See
"Existing Anti-Takeover Provisions". At present, management does not
intend to propose other anti-takeover measures in future proxy
solicitations.
Shareholder rights plans have been adopted by a large number of
publicly-held corporations in Canada. The terms of the Rights Plan are
substantially the same as those recently adopted by other major Canadian
companies.
Disadvantages of a Rights Plan
The Rights Plan could have the effect of deterring tender offers or
take-over attempts, even though such an offer or attempt might appear to
shareholders to be beneficial, and could make it more difficult for the
holder of a large block of the common shares to assume control of the
Corporation. In addition, it has been argued that rights plans, in
general, have the effect of entrenching management by discouraging certain
take-overs which are not favored by management.
Existing Anti-Takeover Provisions
Under the Corporation's Articles of Incorporation, the Board of
Directors may issue an unlimited number of additional common shares.
Although the Board of Directors has no present intention of doing so, such
shares could be issued in a manner that would make an acquisition of the
Corporation more difficult.
Terms of the Rights Plan
The material terms of the Rights Plan are summarized below.
Reference should be made to the actual provisions of the Shareholder
Rights Plan Agreement between the Corporation and CIBC Mellon Trust
Company as Rights Agent, copies of which are
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available to shareholders upon request. Capitalized terms which are not
defined below have the meanings attributed to such terms in such
agreement.
Acquiring Person
An Acquiring Person is generally a person who becomes the beneficial
owner of 20% or more of the outstanding common shares of the Corporation.
Under the Rights Plan, there are various exceptions, including:
(a) a person who acquires 20% or more of the outstanding
common shares due to (i) acquisitions of common shares by the
Corporation, (ii) pro rata distributions of common shares by the
Corporation, or (iii) the issuance of common shares on an exempt
private placement basis (subject to certain limits); and
(b) underwriters who obtain 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 common shares. In
addition, a person is deemed to be the Beneficial Owner of 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 common shares within 60 days. There are various
exceptions to this rule, including:
(a) persons who tender common shares pursuant to a take-over
bid;
(b) persons such as portfolio managers who hold as nominees;
(c) persons who enter into lock-up agreements on certain terms
and conditions; and
(d) persons who have been given proxies to vote other persons'
common shares in connection with the public proxy solicitation, or
who have agreements as to how they will vote their 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:
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(a) the take-over bid must be made to all shareholders by
means of a take-over bid circular;
(b) the take-over bid must not permit the bidder to take up
any common shares that have been tendered pursuant 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 common shares held by the Independent Shareholders
(shareholders other than the bidder, its affiliates and persons
acting jointly or in concert with such bidder), have been tendered
pursuant to the take-over bid and not withdrawn;
(c) the take-over bid must contain an irrevocable and
unqualified provision that, unless it is withdrawn, common shares
may be tendered at any time during the 60 day period referred to in
(b) above and that any common shares deposited pursuant to the
take-over bid may be withdrawn until they have been taken up and
paid for; and
(d) if more than 50% of the 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 21
days).
The requirements of a Permitted Bid and a Competing Permitted Bid
enable 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 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 its common shares from a competing take-over
bid, if any, and whether to tender to the take-over bid.
Waiver and Redemption
The Board of Directors may waive the application of the Rights Plan
to a particular take-over bid or redeem the Rights in the following
circumstances:
(a) a waiver can only be given where a take-over bid is made
by way of a take-over bid circular;
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(b) a waiver given in respect of one take-over bid constitutes
an automatic waiver in respect of all other competing take-over
bids;
(c) a waiver may be given in the event of an acquisition of
common shares by any person over the 20% threshold, provided that
such person agrees to dispose of the excess shares within 30 days,
if such acquisition was inadvertent and without any intention to
cause a Flip-In Event, and otherwise within 10 days; and
(d) the Rights are deemed to be redeemed upon the successful
completion of a Permitted Bid (or a Competing Permitted Bid) if a
waiver has been given in respect of any other take-over bid made by
way of circular.
The Board of Directors may, however, terminate the Rights Plan, with
prior shareholder approval, 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 $0.0001 per Right.
Termination
The Rights Plan will expire on the fifth anniversary of its
adoption, namely on November 4, 2004. However, in addition to the
shareholder approval that is being sought at the Meeting, shareholder
reconfirmation of the Rights Plan is also required at the first annual
shareholders meeting after the third anniversary of the Rights Plan,
namely at the shareholders meeting to be held after November 4, 2002.
If the Rights Plan is not approved at the Meeting, it will terminate
immediately.
Press Release
On September 21, 1999, the Corporation issued a press release
announcing the implementation of the Rights Plan. A copy of the press
release is filed as Exhibit 99.1 and incorporated by reference.
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Item 7. Financial Statements and Exhibits.
Exhibit No. Exhibit
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4.1 Shareholder Rights Plan dated as of
September 21, 1999, between TLC The
Laser Center Inc. and CIBC Mellon Trust
Company, as Rights Agent, including the
Form of Rights Certificate attached
thereto as Exhibit A (incorporated
herein by reference to Exhibit 1 to the
registrant's Registration Statement on
Form 8-A, dated October 4, 1999).
99.1 Press Release, dated September 21, 1999.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
TLC The Laser Center Inc.
Date: October 4, 1999 By: /s/ Elizabeth A. Karmin
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Name: Elizabeth A. Karmin
Title: Deputy General Counsel and
Assistant Secretary
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EXHIBIT INDEX
Exhibit No. Exhibit
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4.1 Shareholder Rights Plan dated as of
September 21, 1999, between TLC The
Laser Center Inc. and CIBC Mellon Trust
Company, as Rights Agent, including the
Form of Rights Certificate attached
thereto as Exhibit A (incorporated
herein by reference to Exhibit 1 to the
registrant's Registration Statement on
Form 8- A, dated October 4, 1999).
99.1 Press Release, dated September 21, 1999.
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Exhibit 99.1
News Release Contact:
For Immediate Release Peter Kastelic
Chief Financial Officer
(905) 602-2020 ext. 225
Email: [email protected]
Internet: http://www.lzr.com
TLC The Laser Center Inc. Announces
Shareholder Rights Plan
Toronto, ON / Bethesda, MD, September 21, 1999: TLC The Laser Center Inc.
(TSE:LZR; Nasdaq:LZRC) announced today that it has implemented a shareholder
rights plan (the "Plan"). The rights will be distributed at the close of
business on October 4, 1999 to holders of record of TLC on that date. The Plan
has been developed and refined following consultation by management with TLC's
advisors and Fairvest Securities Corporation.
The purpose of the Plan is to ensure that all TLC shareholders receive fair and
equal treatment and to guard against unfair take-over tactics. The Plan protects
shareholders if any person or group acquires 20% or more of TLC's common shares
otherwise than pursuant to a permitted bid (as that term is defined in the Plan)
to all shareholders or pursuant to certain other exceptions. Upon the occurrence
of a triggering event under the Plan, the rights issued to shareholders under
the Plan will entitle each holder, other
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than an acquiring person or group, to acquire common shares of TLC at a
substantial discount to market value.
The Plan was not adopted by TLC in response to any acquisition or take-over bid.
The Plan is not intended to prevent a take-over bid being made for the
outstanding common shares of TLC; however, it does provide TLC additional time
to maximize value to shareholders in the event of a bid and it encourages offers
by way of a permitted bid. The Plan provides for a ten-day window after the
scheduled end of a permitted bid, when shareholders can determine whether or not
to tender into the bid. The Plan is subject to all required regulatory
approvals.
The Plan will be submitted to shareholders for ratification at the shareholders'
meeting on November 4, 1999.
About TLC The Laser Center Inc.
TLC operates refractive centers throughout North America and is the largest
provider of laser vision correction services in the world. TLC's core business
strategy is providing excimer laser eye surgery in partnership with its network
of more than 11,000 affiliated doctors. TLC's common shares trade on the NASDAQ
National Market under the symbol 'TLCV' and on The Toronto Stock Exchange under
the symbol 'TLC'.
Forward Looking Statements
This press release contains certain forward-looking statements within the
meaning of Section 27A of the U.S. Securities Act of 1933 and Section 21E of the
Securities Exchange Act of 1934, which statements can be identified by the use
of forward looking terminology, such as "may", "will", "expect", "anticipate",
"estimate", "predict", "plans" or "continue" or the negative thereof or other
variations thereon or comparable terminology referring to
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future events or results. The Company's actual results could differ materially
from those anticipated in these forward-looking statements as a result of
numerous factors, including the timing of acquisitions and expansion
opportunities, any of which could cause actual results to vary materially from
current results or TLC's anticipated future results. See the Company's reports
filed with The Ontario Securities Commission and the U.S. Securities and
Exchange Commission from time to time for cautionary statements identifying
important factors with respect to such forward looking statements, including
certain risks and uncertainties, that could cause actual results to differ
materially from results referred to in forward looking statements. TLC assumes
no obligation to update the information contained in this press release.
