-----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, QVLGQ9bTMIUaLVaKY9arr4ayQKB+4W0N838i9yzi3yhYyHJGYlwmKxBetrx3nn03 WeI/82a3UubCnlWkQBUykA== 0000898822-00-000221.txt : 20000412 0000898822-00-000221.hdr.sgml : 20000412 ACCESSION NUMBER: 0000898822-00-000221 CONFORMED SUBMISSION TYPE: SC TO-T/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20000411 GROUP MEMBERS: BAUSCH & LOMB INC GROUP MEMBERS: DYLAN ACQUISITION INC. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: WESLEY JESSEN VISIONCARE INC CENTRAL INDEX KEY: 0001027584 STANDARD INDUSTRIAL CLASSIFICATION: OPHTHALMIC GOODS [3851] IRS NUMBER: 364023739 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T/A SEC ACT: SEC FILE NUMBER: 005-52301 FILM NUMBER: 598806 BUSINESS ADDRESS: STREET 1: 333 EAST HOWARD AVE CITY: DES PLAINES STATE: IL ZIP: 60018-5903 BUSINESS PHONE: 8472943000 MAIL ADDRESS: STREET 1: 333 EAST HOWARD AVE CITY: DES PLAINES STATE: IL ZIP: 60018-5903 FORMER COMPANY: FORMER CONFORMED NAME: WESLEY JESSEN HOLDING INC DATE OF NAME CHANGE: 19961126 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BAUSCH & LOMB INC CENTRAL INDEX KEY: 0000010427 STANDARD INDUSTRIAL CLASSIFICATION: OPHTHALMIC GOODS [3851] IRS NUMBER: 160345235 STATE OF INCORPORATION: NY FISCAL YEAR END: 1226 FILING VALUES: FORM TYPE: SC TO-T/A BUSINESS ADDRESS: STREET 1: BAUSCH & LOMB INCORPORATED STREET 2: ONE BAUSCH & LOMB PLACE CITY: ROCHESTER STATE: NY ZIP: 14604-2701 BUSINESS PHONE: 7163386000 MAIL ADDRESS: STREET 1: ONE BAUSCH & LAMB PLACE STREET 2: P O BOX 54 CITY: ROCHESTER STATE: NY ZIP: 14604-2701 SC TO-T/A 1 AMENDMENT NO. 2 ============================================================================== SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------------------------------------------- SCHEDULE TO/A Tender Offer Statement under Section 14(d)1 or 13(e)(1) of the Securities Exchange Act of 1934 Amendment No. 2 Wesley Jessen VisionCare, Inc. ------------------------------------------------------------------ (Name of Subject Company) Dylan Acquisition Inc. Bausch & Lomb Incorporated ------------------------------------------------------------------ (Name of Filing Person - Offeror) Common Stock, Par Value $0.01 Per Share Preferred Share Purchase Rights ------------------------------------------------------------------ (Title of Class of Securities) 951018100 ------------------------------------------------------------------ (CUSIP Number of Class of Securities) Robert B. Stiles Senior Vice President and General Counsel Bausch & Lomb Incorporated One Bausch & Lomb Place Rochester, New York 14604-2701 Telephone: (716) 338-6000 ------------------------------------------------------------------ (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons) Copy to: Steven A. Cohen, Esq. Wachtell, Lipton, Rosen & Katz 51 West 52nd Street New York, New York 10019 Telephone: (212) 403-1000 _____________________________________________________ CALCULATION OF FILING FEE Transaction Valuation* Amount of Filing Fee $691,664,108 $138,333 * Based on the offer to purchase all of the outstanding shares of common stock of Wesley Jessen at a purchase price of $34.00 cash per share, 18,175,585 shares issued and outstanding, less 555,498 treasury shares, and outstanding options with respect to 2,722,975 shares, in each case as of March 17, 2000. [x] Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. Amount Previously Paid: $138,333 Form or Registration No.: Schedule TO Filing Party: Bausch & Lomb Incorporated Date Filed: April 3, 2000 Check the appropriate boxes below to designate any transactions to which the statement relates: [X] third-party tender offer subject to Rule 14d-1. [ ] issuer tender offer subject to Rule 13e-4. [ ] going-private transaction subject to Rule 13e-3. [ ] amendment to Schedule 13D under Rule 13d-2. Check the following box if the filing is a final amendment reporting the results of the tender offer: [ ] ============================================================================== -2- This Amendment No. 2 amends and supplements the Tender Offer Statement on Schedule TO, as previously amended and supplemented, originally filed with the Securities and Exchange Commission (the "Commission") on April 3, 2000 (as previously amended and supplemented, the "Schedule TO") by Bausch & Lomb Incorporated, a New York corporation ("Bausch & Lomb"), and Dylan Acquisition Inc., a New York corporation and a wholly-owned subsidiary of Bausch & Lomb (the "Purchaser"). The Schedule TO relates to the offer by the Purchaser to purchase all outstanding shares of common stock, par value $0.01 per share, including associated preferred share purchase rights (together, the "Shares"), of Wesley Jessen VisionCare, Inc., a Delaware corporation ("Wesley Jessen"), at $34.00 per Share, net to the seller in cash, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated April 3, 2000 (the "Offer to Purchase"), and in the related Letter of Transmittal, which, as previously, hereby or hereafter amended or supplemented, together constitute the Offer. Copies of the Offer to Purchase and the related Letter of Transmittal are filed with the Schedule TO as Exhibits (a)(1) and (a)(2), respectively. Capitalized terms used and not defined herein shall have the meanings assigned such terms in the Offer to Purchase and the Schedule TO. ITEM 5. Past Contracts, Transactions, Negotiations and Agreements. Section 10 ("Background of the Offer; Contacts with Wesley Jessen") is hereby amended by adding the following paragraph at the end of the section therein: On April 10, 2000, Mr. Ryan telephoned Mr. Carpenter to inform him that the Wesley Jessen board of directors had determined (a) to recommend that Wesley Jessen stockholders reject the Offer and not tender their Shares pursuant to the Offer and (b) that there is a reasonable likelihood that Bausch & Lomb's proposal could result in a Superior Proposal (as defined in the OS Merger Agreement) and, therefore, instructed management to commence discussions with Bausch & Lomb regarding its proposal. Shortly thereafter, a Wesley Jessen representative provided a form of a confidentiality agreement to Bausch & Lomb. On April 11, 2000, Bausch & Lomb and Wesley Jessen entered into a confidentiality agreement in the form of Exhibit (a)(10) attached hereto. Bausch & Lomb expects to begin due diligence with respect to Wesley Jessen in the near term. ITEM 7. Source and Amount of Funds or Other Consideration The second paragraph under Section 12 ("Source and Amount of Funds"), other than the first and last sentences thereof, of the Offer to Purchase is hereby restated as follows: Bausch & Lomb intends to obtain the necessary funds to consummate the offer from available cash and through the sale of commercial paper (maturing from 1 to 270 days from issuance) at market rates. Bausch & Lomb intends to repay any commercial paper issued with proceeds of other sales of commercial paper or from operating cashflow to the extent available. -3- ITEM 11. Additional Information Section 14 ("Conditions of the Offer") of the Offer to Purchase is hereby amended by: o deleting the words "as of the date those Shares are accepted for payment pursuant to the Offer" and replacing them with "as of the Expiration Date" in subsection (a); o deleting the words "prior to the time of acceptance for payment or payment for any Shares" and replacing them with "prior to or as of the Expiration Date" in subsection (f); o adding to the beginning of the second full paragraph of Section 14 the following sentence: "Notwithstanding the foregoing, all of the foregoing offer conditions (including those in (a) - (d) above), other than insofar as relating to necessary governmental approvals, must be satisfied or waived on or before the Expiration Date"; and o restating subsection (d) in its entirety as follows: "the OS Merger Agreement and any related agreements, including the OS Stock Option: o have not have been terminated, or o have been terminated but with fees or other obligations paid or owing other than fees required to be paid in accordance with the terms of those agreements as filed with the SEC prior to April 3, 2000, or the merger contemplated by the OS Merger Agreement, or any other business combination between Wesley Jessen and Ocular Sciences, shall have occurred." ITEM 12. Exhibits Item 12 is hereby amended and supplement with the following information: Exhibit (a)(10): Confidentiality Agreement between Wesley Jessen VisionCare, Inc. and Bausch & Lomb Incorporated, dated as of April 11, 2000. -4- SIGNATURE After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: April 11, 2000 DYLAN ACQUISITION INC. By: /s/ Robert B. Stiles ---------------------------------- Name: Robert B. Stiles Title: Vice President and Secretary BAUSCH & LOMB INCORPORATED By: /s/ Robert B. Stiles ---------------------------------- Name: Robert B. Stiles Title: Senior Vice President and General Counsel -5- EXHIBIT INDEX *(a)(1) Offer to Purchase, dated April 3, 2000. *(a)(2) Form of Letter of Transmittal. *(a)(3) Form of Notice of Guaranteed Delivery. *(a)(4) Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. *(a)(5) Form of Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees *(a)(6) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. *(a)(7) Form of summary advertisement, dated April 3, 2000. *(a)(8) Text of press release issued by Bausch & Lomb, dated April 3, 2000 *(a)(9) Complaint filed by Bausch & Lomb filed in the Court of Chancery of the State of Delaware on April 3, 2000 (a)(10) Confidentiality Agreement between Wesley Jessen VisionCare, Inc. and Bausch & Lomb Incorporated, dated as of April 11, 2000 (d) None. (g) None. (h) Not applicable ___________________ * Previously filed. -6- EX-99 2 CONFIDENTIALITY AGREEMENT [LOGO] WESLEY JESSEN April 10, 2000 Bausch & Lomb, Incorporated One Bausch & Lomb Place Rochester, NY 14006-2701 RE: WJ: CONFIDENTIALITY AGREEMENT Gentlemen: In connection with discussions between Wesley Jessen VisionCare, Inc. ("WJ") and Bausch & Lomb, Inc. ("B&L") regarding the possibility of entering into a business transaction with each other, each of us may need to review certain of the other party's non-public information. As a condition for the disclosure of such information to each other, WJ and B&L each agree, as set forth below, to treat confidentially all such information, all materials containing such information which the disclosing party or its directors, officers, employees or other representatives (hereinafter referred to collectively as a party's "Representatives") furnish or cause to be furnished, and all materials prepared by the disclosing party or its Representatives using, incorporating or relating to such information (collectively, such information and materials are referred to hereinafter as that party's "Information and Evaluation Materials") and to comply with the other terms set forth below. The term "Information and Evaluation Materials" does not include information which (i) becomes generally available to the public other than as a result of disclosure by the receiving party or its Representatives; (ii) was available to the receiving party on a non-confidential basis prior to its disclosure by the disclosing party or its Representatives, or (iii) becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party or its Representatives, provided that such source is not bound by confidentiality obligations to the disclosing party. WJ and B&L each agree that the Information and Evaluation Materials provided by the other will be used only for the evaluation purposes described above and shall be kept confidential, except that the Information and Evaluation Materials or portions thereof may be disclosed to the receiving party's Representatives who need to know such information for the purpose of evaluating a proposed business transaction; provided that the receiving party has informed its Representatives or the confidential nature of the Information and Evaluation Materials and that such Representatives have agreed to be bound by that party's obligations under this Agreement. Each of us agrees to be responsible for the breach of this Agreement by our respective Representatives. Without the prior written consent of the other party to this Agreement, neither WJ nor B&L shall disclose to any third party (including, without limitation, any corporation, company, partnership or individual) any information contained in the disclosing party's Information and Evaluation Materials, the fact that discussions or negotiations are taking place concerning a possible transaction, or any terms, conditions or the status thereof, unless in the unqualified opinion of that party's counsel, disclosure is required to be made under the Securities Act of 1933 or the Securities Exchange Act of 1934, or other applicable law. In the event that WJ or B&L or a Representative thereof is requested or required, by subpoena, civil investigative demand, interrogatories, requests for information or other similar process, to disclose any portion of the Information and Evaluation Materials supplied by its counterparty (or its counterparty's Representatives) pursuant to this Agreement, the recipient of the request or demand shall immediately notify its counterparty of the existence and terms of such request or demand, and if disclosure of such Information and Evaluation materials is required, exercise best efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to the Information and Evaluation Materials. Each of WJ and B&L will promptly return to the other, upon request, the Information and Evaluation Materials provided hereunder, without retaining any copy thereof. All notes, analyses, compilations, studies or other documents prepared by the recipient of a party's Information and Evaluation Materials shall be kept confidential and subject to the terms of this Agreement or destroyed, at the option of the party which prepared such notes, analyses, compilations, studies or other documents. Each of us agrees to endeavor to disclose to the other information which we believe to be reliable and relevant for the purpose of informed evaluation. Nonetheless, neither WJ nor B&L is making any representation or warranty as to the accuracy or completeness of its Information and Evaluation Materials and our respective officers, directors, employees, agents or controlling persons (within the meaning of the Securities Act of 1934) shall have no liability resulting from a party's use of its counterparty's Information and Evaluation Materials. Each of us hereby acknowledges awareness, and will so advise our Representatives, that the United States securities laws restrict persons with material nonpublic information about a company obtained directly or indirectly from that company from purchasing or selling securities of such company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. Each of us acknowledges and agrees that money damages would not be a sufficient remedy for breach of this Agreement and that the injured party shall be entitled to specific performance and injunctive relief. In addition to all other remedies at law or equity available to that party. The benefits of this Agreement shall inure to the respective successors and assigns of the parties hereto, and the obligations and liabilities assumed in this -2- Agreement by the parties hereto shall be binding upon their respective successors and assigns. This Agreement shall establish no rights, duties or obligations between the parties other than those expressly provided by the terms of this Agreement. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subject matter hereof. The Agreement shall expire five (5) years from the date set forth below. This Agreement shall be construed under the laws of the State of New York, without giving effect to its conflict of laws, principles or rules. If for any reason any provision contained in this Agreement should be held invalid in whole or in part by a court of competent jurisdiction, then it is the intent of the parties hereto that the balance of this Agreement be enforced to the full extent permitted by applicable law. No failure or delay by either party in exercising any right, power or privilege pursuant to this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege. Any waiver must be in writing signed by both parties. If the terms of this Agreement are acceptable to B&L, please sign and return a copy of it to my office. Very truly yours, Wesley Jessen VisionCare, Inc. By: /s/ Kevin J. Ryan ------------------------ Title: Chairman, President & CEO Accepted and Agreed to: Bausch & Lomb, Incorporated By: /s/ William M. Carpenter ------------------------ Title: Chairman and CEO Date: 4-10-00 -3- -----END PRIVACY-ENHANCED MESSAGE-----