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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 14D-9
(Amendment No. 4)
(Rule 14D-101)
Solicitation/Recommendation Statement Under Section 14(d)(4)
of the Securities Exchange Act of 1934
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WESLEY JESSEN VISIONCARE, INC.
(Name of Subject Company)
WESLEY JESSEN VISIONCARE, INC.
(Name of Person(s) Filing Statement)
Common Stock, Par Value $0.01 Per Share
(Title of Class of Securities)
951018100
(CUSIP Number of Class of Securities)
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EDWARD J. KELLEY
Chief Financial Officer
Wesley Jessen VisionCare, Inc.
333 East Howard Avenue
Des Plaines, IL 60018-5903
Telephone: (847) 294-3000
(Name, address and telephone number of person authorized to receive notice and
communication on behalf of the person(s) filing statement).
[_]Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
With a Copy to:
Roger S. Aaron, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, NY 10036-6522
(212) 735-3000
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Wesley Jessen VisionCare, Inc., a Delaware corporation ("Wesley Jessen"),
hereby amends and supplements its Solicitation/Recommendation Statement on
Schedule 14D-9 initially filed with the Securities and Exchange Commission on
April 10, 2000, as amended (the "Schedule 14D-9"), relating to the tender
offer by Dylan Acquisition Inc., a New York corporation ("Purchaser") and a
wholly owned subsidiary of Bausch & Lomb Incorporated, a New York corporation
("Bausch & Lomb"), to purchase all of the issued and outstanding common stock,
par value $0.01 per share, of Wesley Jessen, including the associated rights
to purchase preferred stock issued pursuant to the Rights Agreement, dated as
of November 16, 1999, as amended by Amendment No. 1 to Rights Agreement, dated
March 20, 2000, between Wesley Jessen and American Stock Transfer & Trust
Company, as Rights Agent.
Item 3. Past Contact, Transactions, Negotiations and Agreements.
Item 3 is hereby amended and supplemented by adding the following section:
Change of Control Severance Plan
The Wesley Jessen VisionCare, Inc. Change of Control Severance Plan (the
"Severance Plan") provides for benefits for certain employees of Wesley Jessen
and its affiliates (each, a "Participant") in the event that such Participant
is terminated on or within two years following the date of the Change in
Control, (i) by Wesley Jessen or its successor other than for cause, or (ii)
by the Participant for good reason. The Severance Plan provides that "good
reason" for all Participants entitled to level 1 benefits and certain
Participants entitled to level 2 benefits (as discussed below) includes the
failure of such Participants to be named as executive officers of any publicly
traded company which is the ultimate parent of any acquirer. A Participant
will not be entitled to benefits if his or her employment is discontinued by
reason of the Participant's death or a physical or mental condition resulting
in his or her inability to substantially perform his or her duties with Wesley
Jessen. Under the Severance Plan, a "Change of Control" is deemed to have
occurred if the event set forth in any one of the following paragraphs occurs:
(a) any person is or becomes the beneficial owner, directly or
indirectly, of securities of Wesley Jessen representing 20% or more of the
combined voting power of Wesley Jessen's then outstanding securities; or
(b) the following individuals cease for any reason to constitute a
majority of the number of directors then serving: individuals who, on the
date hereof, constitute the entire Board plus any new director whose
appointment or election by the Board or nomination for election by Wesley
Jessen's stockholders was approved or recommended by a vote of at least
two-thirds ( 2/3) of the directors then still in office who either were
directors as of the effective date of the Severance Plan or whose
appointment, election or nomination for election was previously so approved
or recommended; or
(c) there is consummated a merger or consolidation or similar business
combination transaction of Wesley Jessen or any direct or indirect
subsidiary of Wesley Jessen with any other corporation or other entity,
other than (i) a merger or consolidation or similar business combination
transaction (A) which would result in the voting securities of Wesley
Jessen outstanding immediately prior to such merger or consolidation
continuing to represent at least 55% of the combined voting power of the
securities of Wesley Jessen or such surviving entity or any parent thereof
outstanding immediately after such merger or consolidation and (B) as a
result of which, no person is or becomes the beneficial owner, directly or
indirectly, of 20% or more of the combined voting power of the securities
of Wesley Jessen or such other surviving entity or any parent thereof
outstanding immediately after such merger or consolidation, or (ii) a
merger or consolidation effected to implement a recapitalization of Wesley
Jessen (or similar transaction) in which no person is or becomes the
beneficial owner, directly or indirectly, of securities of Wesley Jessen
representing 20% or more of the combined voting power of Wesley Jessen's
then outstanding securities; or
(d) the stockholders of Wesley Jessen approve a plan of complete
liquidation or dissolution of Wesley Jessen or there is consummated an
agreement for the sale or disposition by Wesley Jessen of all or
substantially all of Wesley Jessen's assets, other than a sale or
disposition by Wesley Jessen of all or substantially all of Wesley Jessen's
assets to an entity at least 55% of the combined voting power of the
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voting securities of which are owned by stockholders of Wesley Jessen in
substantially the same proportions as their ownership of Wesley Jessen
immediately prior to such sale.
There are generally three levels of severance benefits that are payable
under the Severance Plan depending upon the Participant. The three levels of
severance benefits are summarized below:
Level 1--Severance pay equal to (i) the sum of his or her annual base
salary and his or her highest annual incentive compensation earned during
the 3 calendar years immediately preceding the calendar year in which the
Change in Control occurs (ii) multiplied by 3.
Level 2--Severance pay equal to (i) the sum of his or her annual base
salary and his or her highest annual incentive compensation earned during
the 3 calendar years immediately preceding the calendar year in which the
Change in Control occurs (ii) multiplied by 2.
Level 3--Severance pay equal to (i) the sum of his or her annual base
salary and his or her highest annual incentive compensation earned during
the 3 calendar years immediately preceding the calendar year in which the
Change in Control occurs (ii) multiplied by 1.
Edward J. Kelley, Lawrence J. Chapoy, Daniel M. Roussel, and Thomas F.
Steiner, each an executive officer of Wesley Jessen and a Participant in the
Severance Plan, are entitled to level 1 or level 2 benefits. The Severance
Plan by its terms is not applicable to the pending merger between Wesley
Jessen and Ocular.
Item 4. The Solicitation or Recommendation.
Item 4 is hereby amended and supplemented by adding the following section:
Amended Bausch & Lomb Offer
On May 8, 2000, Bausch & Lomb announced that it would amend its offer and
that it would offer to buy all outstanding shares of Wesley Jessen common
stock, including the associated preferred share purchase rights, at $35.55 per
share in cash. Bausch & Lomb's amended offer will expire at 6:00 p.m., Eastern
time, on Wednesday, May 31, 2000, unless further extended. Bausch and Lomb
further stated in its May 8, 2000 letter to Wesley Jessen that if, by May 31,
2000, Wesley Jessen has not entered into negotiations with Bausch & Lomb, or
if less than a majority of the shares are tendered, Bausch & Lomb intends to
let its offer expire on that date. Bausch & Lomb filed its amendment to the
Bausch & Lomb Offer on May 9, 2000.
Wesley Jessen's Board met on May 18, 2000, and, after careful consideration
of the possible alternative transactions with other parties available to
Wesley Jessen and the status of the discussions regarding such transactions,
unanimously recommended that Wesley Jessen shareholders not tender their
shares at this time into the amended Bausch & Lomb Offer. While the
discussions with other parties are still ongoing, there can be no assurance
that they will lead to any agreements or understandings or, if any agreements
or understandings are reached, that any transactions will be consummated.
The Wesley Jessen Board intends to continue monitoring the pending
discussions and will advise shareholders of Wesley Jessen as to the status of
such discussions and of its recommendation with respect to the amended Bausch
& Lomb Offer prior to its May 31, 2000 expiration date. The Wesley Jessen
Board stated that it intends to take whatever actions it determines to be in
the best interests of the Wesley Jessen shareholders.
ACCORDINGLY, THE WESLEY JESSEN BOARD UNANIMOUSLY RECOMMENDS THAT WESLEY
JESSEN'S SHAREHOLDERS NOT TENDER THEIR SHARES INTO THE AMENDED BAUSCH & LOMB
OFFER AT THIS TIME.
Item 7. Purposes of the Transaction and Plans or Proposals.
Items 7(a) and (b) are hereby amended and restated in their entirety as
follows:
(a) Except as indicated in Items 3 and 4 above, or in paragraphs (d) and
(e) below, no negotiations are being undertaken or are underway by Wesley
Jessen in response to the Bausch & Lomb Offer which relate to a tender
offer or other acquisition of Wesley Jessen's securities by Wesley Jessen,
any subsidiary of Wesley Jessen or any other person.
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(b) Except as indicated in Items 3 and 4 above, or in paragraphs (d) and
(e) below, no negotiations are being undertaken or are underway by Wesley
Jessen in response to the Bausch & Lomb Offer which relate to, or would
result in, (i) an extraordinary transaction, such as a merger,
reorganization or liquidation, involving Wesley Jessen or any subsidiary of
Wesley Jessen, (ii) a purchase, sale or transfer of a material amount of
assets by Wesley Jessen or any subsidiary of Wesley Jessen, or (iii) any
material change in the present dividend rate or policy, or indebtedness or
capitalization of Wesley Jessen.
New paragraph (e) is hereby added to Item 7 as follows:
(e) Wesley Jessen is continuing discussions concerning a possible
transaction involving Wesley Jessen. In this connection, the Wesley Jessen
Board has previously adopted a resolution stating that disclosure of the
possible terms of or the parties to any such transaction would jeopardize
continuation of such discussions and, accordingly, has instructed Wesley
Jessen management not to make any such disclosures unless and until an
agreement, arrangement or understanding has been reached which requires
disclosure.
Item 9. Exhibits.
Item 9 is hereby amended and supplemented as follows:
<TABLE>
<CAPTION>
Exhibit
No. Description
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<S> <C>
11. Wesley Jessen VisionCare, Inc. Change of Control Severance Plan.
12. Press release issued by Wesley Jessen VisionCare, Inc. on May 19, 2000.
</TABLE>
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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.
/s/ Kevin J. Ryan
By: _________________________________
Kevin J. Ryan
Chairman and Chief Executive
Officer
Dated: May 19, 2000
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Exhibit 11
WESLEY JESSEN VISIONCARE, INC.
CHANGE IN CONTROL SEVERANCE PLAN
Wesley Jessen VisionCare, Inc., a Delaware corporation, hereby adopts the
Wesley Jessen VisionCare, Inc. Change in Control Severance Plan for the benefit
of certain employees of the Company and its Affiliates, on the terms and
conditions hereinafter stated.
SECTION 1.
DEFINITIONS. All capitalized terms used in this Plan are defined in this
Section 1. The following terms have the definitions set forth in this Section
1, unless the context clearly indicates that a different meaning is required:
1.1 "Affiliate" shall have the meaning set forth in Rule 12b-2
under Section 12 of the Exchange Act.
1.2 "Beneficial Owner" shall have the meaning set forth in Rule
13d-3 under the Exchange Act.
1.3 "Board" means the Board of Directors of the Company.
1.4 "Cause" means (a) the willful and continued failure by the
Eligible Employee to substantially perform the Eligible Employee's duties with
the Employer (unless such failure results from the Eligible Employee's
incapacity due to a physical or mental illness), or (b) the willful engaging by
the Eligible Employee in conduct which is demonstrably and materially injurious
to the Company or its Affiliates, monetarily or otherwise. For purposes of this
definition, no act, or failure to act, on the Eligible Employee's part shall be
deemed "willful" unless done, or omitted to be done, by the Eligible Employee
not in good faith or without reasonable belief that the Eligible Employee's act,
or failure to act, was in the best interest of the Company.
1.5 A "Change in Control" shall be deemed to have occurred if the
event set forth in any one of the following paragraphs occurs:
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(a) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing 20% or more of the
combined voting power of the Company's then outstanding securities (excluding
any Person which becomes the Beneficial Owner of the Company in connection with
a transaction described in clause (i) of paragraph (c) below); or
(b) the following individuals cease for any reason to constitute
a majority of the number of directors then serving: individuals who, on the date
hereof, constitute the entire Board plus any new director (other than a director
whose initial assumption of office is in connection with an actual or threatened
election contest, including but not limited to a consent solicitation, relating
to the election of directors of the Company) whose appointment or election by
the Board or nomination for election by the Company's stockholders was approved
or recommended by a vote of at least two-thirds (2/3) of the directors then
still in office who either were directors as of the effective date of the Plan
or whose appointment, election or nomination for election was previously so
approved or recommended; or
(c) there is consummated a merger or consolidation or similar
business combination transaction of the Company or any direct or indirect
subsidiary of the Company with any other corporation or other entity, other than
(i) a merger or consolidation or similar business combination transaction (A)
which would result in the voting securities of the Company outstanding
immediately prior to such merger or consolidation continuing to represent
(either by remaining outstanding or by being converted into voting securities of
the surviving entity or any parent thereof) at least 55% of the combined voting
power of the securities of the Company or such surviving entity or any parent
thereof outstanding immediately after such merger or consolidation and (B) as a
result of which, no Person is or becomes the Beneficial Owner, directly or
indirectly, of 20% or more of the combined voting power of the securities of the
Company or such other surviving entity or any parent thereof outstanding
immediately after such merger or consolidation, or (ii) a merger or
consolidation effected to implement a recapitalization of the Company (or
similar transaction) in which no Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company representing 20% or more of
the combined voting power of the Company's then outstanding securities; or
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(d) the stockholders of the Company approve a plan of complete
liquidation or dissolution of the Company or there is consummated an agreement
for the sale or disposition by the Company of all or substantially all of the
Company's assets, other than a sale or disposition by the Company of all or
substantially all of the Company's assets to an entity at least 55% of the
combined voting power of the voting securities of which are owned by
stockholders of the Company in substantially the same proportions as their
ownership of the Company immediately prior to such sale.
Notwithstanding the foregoing, a "Change in Control" shall not be
deemed to have occurred by virtue of the consummation of any transaction or
series of integrated transactions (i) immediately following which the record
holders of the common stock of the Company immediately prior to such transaction
or series of transactions continue to have substantially the same proportionate
ownership in an entity which owns all or substantially all of the assets of the
Company immediately following such transaction or series of transactions or (ii)
pursuant to or arising in connection with the Agreement and Plan of Merger among
Wesley Jessen VisionCare, Inc., OSI Acquisition Corp. and Ocular Sciences, Inc.,
as may be amended or restated from time to time.
1.6 "Code" means the Internal Revenue Code of 1986, as amended, and
any regulations promulgated thereunder.
1.7 "Company" means Wesley Jessen VisionCare, Inc. or any
successor(s) thereto.
1.8 "Eligible Employee" means any employee who is a Tier 1, Tier 2
or Tier 3 Employee as defined herein. An Eligible Employee becomes a "Severed
Employee" once he or she incurs a Severance.
1.9 "Employer" means the Company or any of its Affiliates which is
an Employer of an Eligible Employee.
1.10 "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
1.11 "Excise Tax" shall mean any excise tax imposed under Section
4999 of the Code.
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1.12 "Good Reason" shall mean the following:
(a) in respect of a Tier 1 Employee, the occurrence, on or after
the date of a Change in Control and without the affected Employee's written
consent, of (i) the assignment to the Employee of duties in the aggregate that
are inconsistent with the Employee's level of responsibility immediately prior
to the date of the Change in Control or any material diminution in the nature or
status of the Employee's responsibilities from those in effect immediately prior
to the date of the Change in Control, (including, without limitation, the
failure of the Tier 1 Employee to be named as an executive officer of the
publicly traded company, if any, which is the ultimate parent of the acquiring
entity), (ii) a reduction by the Employer in the Employee's annual base salary
or annual salary incentive target, as specified in the Wesley Jessen Corporation
Performance Incentive Plan ("PIP"), or any comparable successor incentive plan,
in effect immediately prior to the Change in Control, or (iii) the relocation of
the Employee's principal place of employment to a location more than 50 miles
from the Employee's principal place of employment immediately prior to the date
of the Change in Control; and
(b) in respect of a Tier 2 Employee, the occurrence, on or after
the date of a Change in Control and without the affected Employee's written
consent, of (i) the assignment to the Employee of duties in the aggregate that
are inconsistent with the Employee's level of responsibility immediately prior
to the date of the Change in Control or any material diminution in the nature or
status of the Employee's responsibilities from those in effect immediately prior
to the date of the Change in Control (excluding the failure of the Tier 2
Employee to be named as an executive officer of the publicly traded company, if
any, which is the ultimate parent of the acquiring entity), (ii) a reduction by
the Employer in the Employee's annual base salary or annual salary incentive
target, as specified in the Wesley Jessen Corporation Performance Incentive Plan
("PIP"), or any comparable successor incentive plan, in effect immediately prior
to the Change in Control, or (iii) the relocation of the Employee's principal
place of employment to a location more than 50 miles from the Employee's
principal place of employment immediately prior to the date of the Change in
Control; and
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(c) in respect of a Tier 3 Employee, the occurrence, on or after
the date of a Change in Control and without the Employee's written consent, of
(i) a reduction by the Employer in the Employee's annual base salary or annual
salary incentive target, as specified in the PIP or any comparable successor
incentive plan in effect prior to the Change in Control, or (ii) the relocation
of the Employee's principal place of employment to a location more than 50 miles
from the Employee's principal place of employment immediately prior to the date
of the Change in Control.
1.13 "Gross-Up Payment" shall have the meaning set forth in Section
2.5 hereof.
1.14 "Person" shall have the meaning given in Section 3(a)(9) of
the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof,
including a group as defined in Section 13(d) of the Exchange Act, except that
such term shall not include (i) the Company or any of its Affiliates, (ii) a
trustee or other fiduciary holding securities under an employee benefit plan of
the Company or any of its Affiliates, (iii) an underwriter temporarily holding
securities pursuant to an offering of such securities or (iv) a corporation
owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company.
1.15 "Plan" means the Wesley Jessen VisionCare, Inc. Change in
Control Severance Plan, as set forth herein, as amended from time to time.
1.16 "Plan Administrator" means the committee appointed by the
Board, at least one of whom shall be a person who was a member of the Board
immediately prior to the Change of Control.
1.17 "Severance" means the termination of an Eligible Employee's
employment with the Employer (or, if applicable, a successor to the Employer) on
or within two years following the date of the Change in Control, (i) by the
Employer other than for Cause, or (ii) by the Eligible Employee for Good Reason.
An Eligible Employee will not be considered to have incurred a Severance if his
or her employment is discontinued by reason of the Eligible Employee's death or
a physical or mental condition resulting in the Eligible Employee's inability to
substantially perform his or her duties with the Employer,
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including, without limitation, such condition entitling him or her to benefits
under any sick pay or disability income policy or program of the Employer.
1.18 "Severance Date" means the date on or after the date of the
Change in Control on which an Eligible Employee incurs a Severance.
1.19 "Severance Pay" means the payment determined pursuant to
Section 2.1, 2.2, 2.3 or 2.4 hereof, as applicable.
1.20 "Tier 1 Employee" means any key management employee of the
Employer who is listed in Schedule A attached to this Plan.
1.21 "Tier 2 Employee" means any senior management employee of the
Employer who is listed in Schedule B attached to this Plan.
1.22 "Tier 3 Employee" means any management and other professional
employee of the Employer who is listed in Schedule C attached to this Plan.
SECTION 2.
BENEFITS.
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2.1 Each Tier 1 Employee identified in Schedule A.1 who incurs a
Severance shall be entitled, subject to Section 2.10, to receive Severance Pay
equal to (i) the sum of his or her annual base salary and his or her highest
annual incentive compensation earned during the 3 calendar years immediately
preceding the calendar year in which the Change in Control occurs (ii)
multiplied by 3. Each Tier 1 Employee identified in Schedule A.2 who incurs a
Severance shall be entitled, subject to Section 2.10, to receive Severance Pay
equal to (i) the sum of his or her annual base salary and his or her highest
annual incentive compensation earned during the 3 calendar years immediately
preceding the calendar year in which the Change in Control occurs (ii)
multiplied by 2. For purposes of this Section, annual base salary shall be
determined immediately prior to the Severance (without regard to any reductions
therein which constitute Good Reason).
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2.2 Each Tier 2 Employee who incurs a Severance shall be entitled,
subject to Section 2.10, to receive Severance Pay equal to (i) the sum of his or
her annual base salary and his or her highest annual incentive compensation
earned during the 3 calendar years immediately preceding the calendar year in
which the Change in Control occurs (ii) multiplied by 2. For purposes of this
Section, annual base salary shall be determined immediately prior to the
Severance (without regard to any reductions therein which constitute Good
Reason).
2.3 Each Tier 3 Employee who incurs a Severance shall be entitled,
subject to Section 2.10, to receive Severance Pay equal to (i) the sum of his or
her annual base salary and his or her highest annual incentive compensation
earned during the 3 calendar years immediately preceding the calendar year in
which the Change in Control occurs (ii) multiplied by 1. For purposes of this
Section, annual base salary shall be determined immediately prior to the
Severance (without regard to any reductions therein which constitute Good
Reason).
2.4 Severance Pay shall be paid to an eligible Severed Employee (a)
in a cash lump sum, as soon as practicable following the Severance Date, but in
no event later than 20 business days immediately following the later of (i) the
Severance Date, or (ii) the expiration of the revocation period, if any,
applicable to such Severed Employee's release, described in Section 2.10, or (b)
in the case of any Severed Tier 1 or Tier 2 Employee or, in the case of a
Severed Tier 3 Employee eligible to participate in the Wesley Jessen Corporation
Deferred Compensation Plan, in such form, and at such time or times, as may be
specified in a separate written agreement between such Tier 1, Tier 2 or Tier 3
Employee and the Company; provided, however, that if no such agreement exists,
Severance Pay will be paid as described in clause (a) above.
2.5 If any of the payments or benefits received or to be received
by an Eligible Employee in connection with the Change in Control or his or her
termination of employment (whether pursuant to the terms of this Plan or any
other plan, arrangement or agreement) (such payments or benefits, excluding the
Gross-Up Payment, being hereinafter referred to as the "Total Payments") will be
subject to the Excise Tax, the Company shall pay to the Eligible Employee an
additional amount (the "Gross-Up Payment") such that the
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net amount retained by the Eligible Employee, after deduction of any Excise Tax
on the Total Payments and any federal, state and local income and employment
taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total
Payments. The amount of the Gross-Up Payment, if any, shall be determined by the
Eligible Employee's tax counsel (such tax counsel to be selected by the Eligible
Employee, in his or her sole discretion). The costs of obtaining such tax
counsel's opinion shall be borne and paid directly by the Company, not later
than 20 business days following the Company's receipt of the tax counsel's
statement for services rendered, and as long as such tax counsel was chosen by
the Eligible Employee in good faith, the conclusions expressed in such opinion
shall not be challenged or disputed by the Company. The Gross-Up Payment, if
any, (a) with respect to a Severed Employee, shall be paid in a cash lump sum,
as soon as practicable following the Severance Date, but, in any event, not
later than 20 business days immediately following the expiration of the
revocation period, if any, applicable to such Severed Employee's release,
described in Section 2.12, and (b) with respect to any other Eligible Employee,
shall be paid in a cash lump sum not later than 20 business days immediately
following the receipt of payments subject to the Excise Tax.
In the event that the Excise Tax is finally determined by the Internal
Revenue Service or by a court having jurisdiction over the matter to be less
than the amount taken into account hereunder in calculating the Gross-Up
Payment, the Eligible Employee shall repay to the Company, within 20 business
days following the time that the amount of such reduction in the Excise Tax is
finally determined by the Internal Revenue Service or by a court having
jurisdiction over the matter, the portion of the Gross-Up Payment attributable
to such reduction (plus that portion of the Gross-Up Payment attributable to the
Excise Tax and federal, state and local income and employment taxes imposed on
the Gross-Up Payment being repaid by the Eligible Employee, to the extent that
such repayment results in a reduction in the Excise Tax and a dollar-for-dollar
reduction in the Eligible Employee's taxable income and wages for purposes of
federal, state and local income and employment taxes), plus interest on the
amount of such repayment at 120% of the semiannual compounding short term
Applicable Federal Rate published with respect to the month in which the Gross-
Up Payment was made. In the event that the Excise Tax is determined by the
Internal Revenue Service or by any court having jurisdiction over the matter to
exceed the amount taken into account hereunder in calculating the Gross-Up
Payment (including by reason of any payment, the
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existence or amount of which cannot be determined at the time of the Gross-Up
Payment), the Company shall make an additional Gross-Up Payment in respect of
such excess (plus any interest, penalties or additions payable by the Eligible
Employee with respect to such excess) within 20 business days following the time
that the amount of such excess is finally determined. The Eligible Employee
shall notify the Company immediately of the assertion by any taxing authority of
any underpayment of tax. The Eligible Employee and the Company shall each
reasonably cooperate with the other in connection with any administrative or
judicial proceedings concerning the existence or amount of liability for Excise
Tax with respect to the Total Payments and in resolving any dispute with any
taxing authority regarding any asserted underpayment of Excise Tax; however, the
Eligible Employee will not be required to afford the Company any right to
contest the applicability of any such tax to the extent that the Employee
reasonably determines (based on the opinion of his or her tax counsel) that such
contest is inconsistent with the overall tax interests of the Eligible Employee.
2.6 The Company shall provide individual outplacement services to
each Severed Tier 1 and Tier 2 Employee for a period of twelve (12) months and
to each Severed Tier 3 Employee for a period of six (6) months.
2.7 Commencing on the day immediately following a Severed Tier 1,
Tier 2 or Tier 3 Employee's Severance Date, until the third, second or first,
respectively, anniversary of the Severance Date or, if sooner, until such
Severed Tier 1, Tier 2 or Tier 3 Employee obtains employment which provides
substantially similar benefits, the Company shall provide such Severed Employee
and anyone entitled to claim under or through such Severed Employee all benefits
under any group hospitalization, health care plan, dental care plan, life or
other insurance or death benefit plan, or other present or future similar group
employee benefit plan or program of the Employer (excluding any benefits
provided under any Company disability program or plan), to the same extent as if
such Severed Employee had continued to be an employee during such period. The
coverage period for purposes of the group health continuation requirements of
Section 4980B of the Code shall commence immediately following the end of such
benefit continuation.
2.8 The Company shall pay to each Eligible Tier 1, Tier 2, and Tier
3 Employee all legal fees and expenses incurred by such Eligible
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Employee in pursuing any claim under the Plan in which such Eligible Employee
prevails.
2.9 In the event of a claim by an Eligible Employee as to the
amount or timing of any distribution, such Eligible Employee shall present the
reason for his or her claim in writing to the Plan Administrator. The Plan
Administrator shall, within 60 days after receipt of such written claim, send a
written notification to the Eligible Employee as to its disposition. In the
event the claim is wholly or partially denied, such written notification shall
(a) state the specific reason or reasons for the denial, (b) make specific
reference to pertinent Plan provisions on which the denial is based, (c) provide
a description of any additional material or information necessary for the
Eligible Employee to perfect the claim and an explanation of why such material
or information is necessary, and (d) set forth the procedure by which the
Eligible Employee may appeal the denial of his or her claim. In the event an
Eligible Employee wishes to appeal the denial of his or her claim, he or she may
request a review of such denial by making application in writing to the Plan
Administrator within 60 days after receipt of such denial. Such Eligible
Employee (or his or her duly authorized legal representative) may, upon written
request to the Plan Administrator, review any documents pertinent to his or her
claim, and submit in writing, issues and comments in support of his or her
position. Within 60 days after receipt of a written appeal (unless special
circumstances, such as the need to hold a hearing, require an extension of time,
but in no event more than 120 days after such receipt), the Plan Administrator
shall notify the Eligible Employee of the final decision. The final decision
shall be in writing, shall include specific reasons for the decision, shall be
written in a manner calculated to be understood by the claimant, and shall
contain specific references to the pertinent Plan provisions on which the
decision is based.
2.10 No Severed Employee shall be eligible to receive Severance Pay
or other benefits under the Plan unless he or she first executes a written
release substantially in the form attached hereto as Schedule D (or, if the
Severed Employee is not a United States employee, a similar release which is in
accordance with the applicable laws of the relevant jurisdiction).
2.11 An Employer shall be entitled to withhold from amounts to be
paid to the Severed Employee hereunder any federal, state or local
10
<PAGE>
withholding or other taxes or charges (or foreign equivalents of such taxes or
charges) which it is from time to time required to withhold.
2.12 Any person other than a Tier 1, Tier 2 or Tier 3 Employee who
is principally employed by the Employer in the United States and who works on a
regular schedule of at least 20 hours per week for an indefinite period of time
(other than a person classified as a temporary employee of the Employer, any
employee represented by a collective bargaining agent or subject to a collective
bargaining agreement, a leased employee, or any person retained by the Employer
under written contract on a consulting or other independent contractor basis)
whose employment is terminated by the Employer other than for cause or by reason
of death or a physical or mental inability to substantially perform such
person's employment duties or whose work site is moved beyond 50 miles within
two years of a Change in Control shall be entitled to receive severance benefits
in accordance with the terms and conditions set forth in the Wesley Jessen
Corporation Severance Pay Plan (or its successor) as in effect immediately prior
to the Change in Control.
SECTION 3.
PLAN ADMINISTRATION.
-------------------
3.1 The Plan Administrator shall administer the Plan and may
interpret the Plan, prescribe, amend and rescind rules and regulations under the
Plan and make all other determinations necessary or advisable for the
administration of the Plan, subject to all of the provisions of the Plan,
provided that the Plan may not be interpreted, prescribed, amended or rescinded
in any manner which would reduce or limit any benefit to which an Eligible
Employee (or an employee whose rights are set forth in Section 2.12 herein)
becomes entitled, or any obligation which the Company incurs, under the terms of
the Plan.
3.2 The Plan Administrator may delegate any of its duties hereunder
to such person or persons from time to time as it may designate.
3.3 The Plan Administrator is empowered, on behalf of the Plan, to
engage accountants, legal counsel and such other personnel as it
11
<PAGE>
deems necessary or advisable to assist it in the performance of its duties under
the Plan. The functions of any such persons engaged by the Plan Administrator
shall be limited to the specified services and duties for which they are
engaged, and such persons shall have no other duties, obligations or
responsibilities under the Plan. Such persons shall exercise no discretionary
authority or discretionary control respecting the management of the Plan. All
reasonable expenses thereof shall be borne by the Employer.
SECTION 4.
PLAN MODIFICATION OR TERMINATION.
--------------------------------
The Plan may be amended or terminated by the Board at any time;
provided, however, that the Plan may not be terminated or amended within two
years following a Change in Control, and provided, further, that the Plan may
not be terminated or amended in any manner which would reduce or limit any
benefit to which an Eligible Employee becomes entitled upon incurring a
Severance, or any obligation which the Company incurs, under the terms of the
Plan.
SECTION 5.
GENERAL PROVISIONS.
------------------
5.1 Except as otherwise provided herein or by law, no right or
interest of any Eligible Employee under the Plan shall be assignable or
transferable, in whole or in part, either directly or by operation of law or
otherwise, including without limitation by execution, levy, garnishment,
attachment, pledge or in any manner; no attempted assignment or transfer thereof
shall be effective; and no right or interest of any Eligible Employee under the
Plan shall be liable for, or subject to, any obligation or liability of such
Eligible Employee. When a payment is due under this Plan to a Severed Employee
who is unable to care for his or her affairs, payment may be made directly to
his or her legal guardian or personal representative.
12
<PAGE>
5.2 If an Employer is obligated by law or by contract to pay
severance pay, a termination indemnity, notice pay, or the like, or if an
Employer is obligated by law to provide advance notice of separation ("Notice
Period"), then any Severance Pay hereunder shall be reduced by the amount of any
such severance pay, termination indemnity, notice pay or the like, as
applicable, and by the amount of any compensation received during any Notice
Period.
5.3 Neither the establishment of the Plan, nor any modification
thereof, nor the creation of any fund, trust or account, nor the payment of any
benefits shall be construed as giving any Eligible Employee, or any person
whomsoever, the right to be retained in the service of the Employer, and all
Eligible Employees shall remain subject to discharge to the same extent as if
the Plan had never been adopted.
5.4 If any provision of this Plan shall be held invalid or
unenforceable, such invalidity or unenforceability shall not affect any other
provisions hereof, and this Plan shall be construed and enforced as if such
provisions had not been included.
5.5 This Plan shall inure to the benefit of and be binding upon the
heirs, executors, administrators, successors and assigns of the parties,
including each Eligible Employee, present and future, and any successor to the
Company. If a Severed Employee shall die while any amount would still be
payable to such Severed Employee hereunder if the Severed Employee had continued
to live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Plan to the executor, personal representative
or administrators of the Severed Employee's estate.
5.6 The headings and captions herein are provided for reference and
convenience only, shall not be considered part of the Plan and shall not be
employed in the construction of the Plan.
5.7 The Plan shall not be funded. No Eligible Employee shall have
any right to, or interest in, any assets of any Employer which may be applied by
the Employer to the payment of benefits or other rights under this Plan.
13
<PAGE>
5.8 Any notice or other communication required or permitted
pursuant to the terms hereof shall have been duly given when delivered or mailed
by United States Mail (or any non-U.S. equivalents), first class, postage
prepaid, addressed to the intended recipient at his, her or its last known
address.
5.9 This Plan shall be construed and enforced according to the laws
of the State of Illinois, to the extent not preempted by the Employee Retirement
Income Security Act of 1974, as amended, or of other applicable provisions of
federal law, which shall otherwise control.
5.10 Time is of the essence of this Plan and of each and every term
and provision hereof.
5.11 All notices, consents, waivers, and other communications under
this Agreement must be in writing and will be deemed to have been duly given
when (a) delivered by hand (with written confirmation of receipt), (b) sent by
facsimile (if received during regular business hours; otherwise on the next
business day) (with written confirmation of receipt), provided that a copy is
mailed by registered mail, return receipt requested, or (c) when received by the
addressee, if sent by certified mail or a nationally recognized overnight
delivery service (receipt requested), in each case to the appropriate addresses
and facsimile numbers set forth below (or to such other addresses and facsimile
numbers as a party may designate by notice to the other parties):
(a) If to the Company:
Wesley Jessen VisionCare, Inc.
333 East Howard Avenue
Des Plaines, IL 60018
Attention: Michael R. Southard, V.P.,
Human Resources
Facsimile: 847-294-3052
with a copy to:
Gerald B. Sweeney, Esq.
Sweeney, Lev & Blinkoff
14
<PAGE>
460 Bloomfield Avenue, Suite 200
Montclair, New Jersey 07042
Facsimile: 973-509-1074
(b) If to an employee, at the employee's most recent address
listed with the Company, or such other address as an employee may
provide, at the address as set forth in (a).
15
<PAGE>
SCHEDULE D
WAIVER AND RELEASE OF CLAIMS AGREEMENT
--------------------------------------
YOU HAVE BEEN ADVISED TO CONSULT AN ATTORNEY PRIOR TO SIGNING THIS
AGREEMENT.
YOU HAVE [FORTY-FIVE] [TWENTY-ONE] DAYS AFTER RECEIVING THIS AGREEMENT
TO CONSIDER WHETHER TO SIGN IT.
AFTER SIGNING THIS AGREEMENT, YOU HAVE ANOTHER SEVEN DAYS IN WHICH TO
REVOKE IT, AND IT DOES NOT TAKE EFFECT UNTIL THOSE SEVEN DAYS HAVE ENDED.
In consideration of, and subject to, the payments to be made to me by
[Name of Employer Corporation] ("WJ") or any of its subsidiaries or affiliates,
pursuant to the Wesley Jessen VisionCare, Inc. Change in Control Severance Plan
(the "Plan"), which I acknowledge that I would not otherwise be entitled to
receive, I hereby waive any claims I may have for employment or re-employment by
WJ or any subsidiary or parent of WJ after the date hereof, and I further agree
to and do release and forever discharge WJ or any subsidiary or parent of WJ and
their respective past and present officers, directors, shareholders, employees
and agents from any and all claims and causes of action, known or unknown,
arising out of or relating to my employment with WJ or any subsidiary or parent
of WJ or the termination thereof, including, but not limited to, wrongful
discharge, breach of contract, tort, fraud, the Civil Rights Acts, Age
Discrimination in Employment Act, Employee Retirement Income Security Act,
Americans with Disabilities Act, or any other federal, state or local
legislation or common law relating to employment or discrimination in employment
or otherwise.
Notwithstanding the foregoing or any other provision hereof, nothing
in this Waiver and Release of Claims Agreement shall adversely affect (i) my
rights under the Plan; (ii) my rights to benefits other than severance benefits
under plans, programs and arrangements of WJ or any subsidiary or parent of WJ;
(iii) my rights to indemnification under any indemnification agreement,
applicable law and the certificates of incorporation and bylaws of WJ and any
subsidiary or parent of WJ, or (iv) my rights under any director's and officer's
liability insurance policy covering me.
16
<PAGE>
I acknowledge that I have signed this Waiver and Release of Claims
Agreement voluntarily, knowingly, of my own free will and without reservation or
duress, and that no promises or representations, written or oral, have been made
to me by any person to induce me to do so other than the promise of payment set
forth in the first paragraph above and WJ's acknowledgment of my rights reserved
under the second paragraph above.
I understand that this release will be deemed to be an application for
benefits under the Plan, and that my entitlement thereto shall be governed by
the terms and conditions of the Plan, and I expressly hereby consent to such
terms and conditions.
I acknowledge that I have been given not less than [forty-five (45)]
[twenty-one (21)] days to review and consider this Waiver and Release of Claims
Agreement, and that I have had the opportunity to consult with an attorney or
other advisor of my choice and have been advised by WJ to do so if I choose. I
may revoke this Waiver and Release of Claims Agreement seven (7) days or less
after its execution by providing written notice to WJ.
Finally, I acknowledge that I have carefully read this Waiver and
Release of Claims Agreement and understand all of its terms. This is the entire
Agreement between the parties and is legally binding and enforceable.
This Waiver and Release of Claims Agreement shall be governed and
interpreted under federal law and the laws of the State of Illinois.
I knowingly and voluntarily sign this Waiver and Release of Claims
Agreement.
Date Delivered to Employee: [Name of Employer Corporation]
____________________________
Date Signed by Employee: By: _______________________
____________________________ Title: ______________________
Seven-Day Revocation Period Ends:
_________________________
17
<PAGE>
____________________________ Date: _____________________
Signature of Employee
____________________________
(Print Employee's Name)
18
<PAGE>
[WESLEY JESSEN LOGO] Exhibit 12
Press Release
- --------------------------------------------------------------------------------
CONTACT: George Sard/David Reno/Christina Johnson
Citigate Sard Verbinnen
(212) 687-8080
WESLEY JESSEN BOARD RECOMMENDS SHAREHOLDERS NOT
TENDER SHARES AT THIS TIME
Continues Discussions With Other Parties
----------------------------------------------
DES PLAINES, IL, MAY 19, 2000 - Wesley Jessen VisionCare, Inc. (NASDAQ:
WJCO), the world's leading manufacturer of specialty soft contact lenses, today
announced that its Board of Directors recommends that Wesley Jessen shareholders
not tender their shares at this time into the recently amended hostile tender
offer made by Bausch & Lomb Incorporated (NYSE: BOL) to purchase all outstanding
shares of Wesley Jessen common stock at $35.55 per share.
The Board unanimously took this action in view of the fact that Wesley Jessen
continues to be in discussions with other parties regarding possible alternative
transactions. While these discussions are still ongoing, there can be no
assurance that they will lead to any agreements or understandings, or if any
agreements or understandings are reached, that any transactions will be
consummated. Wesley Jessen continues to be a party to a pending merger
agreement with Ocular Sciences, Inc. (NASDAQ: OCLR).
The Board intends to continue to monitor these pending discussions and to
advise shareholders of Wesley Jessen as to the status of these discussions and
of the Board's recommendation with respect to the pending amended Bausch & Lomb
tender offer prior to the May 31, 2000 expiration date of such amended Bausch &
Lomb tender offer.
The Board Stated that it intends to take whatever actions it determines to be
in the best interests of Wesley Jessen's shareholders.
Wesley Jessen VisionCare, Inc. is the leading worldwide developer,
manufacturer and marketer of specialty contact lenses. Its products include
cosmetic lenses, which
<PAGE>
change or enhance the wearer's eye color, toric lenses, which correct
astigmatism, and premium lenses, which offer value-added features such as
protection from ultraviolet light.
# # #
FORWARD-LOOKING STATEMENTS
The foregoing communications contain forward-looking statements within the
meaning of the Safe Harbor Provisions of the Private Securities Litigation
Reform Act of 1995 (the "Safe Harbor Provisions"). References made in the
foregoing, in particular, statements regarding the proposed business combination
between WJ and OSI are based on management's current expectations or beliefs and
are subject to a number of factors and uncertainties that could cause actual
results to differ materially from those described in the forward-looking
statements. In particular, the following factors, among others, could cause
actual results to differ materially from those described in the forward-looking
statements: inability to obtain, or meet conditions imposed for, governmental
approvals, the stockholders of either WJ or OSI fail to approve the business
combination; costs related to the business combination; the risk that the WJ and
OSI businesses will not be integrated successfully; and other economic,
business, competitive and/or regulatory factors relating to WJ's or OSI's
business generally. WJ and OSI are under no obligation to (and expressly
disclaim any such obligation to) update or alter their forward-looking
statements whether as a result of new information, future events or otherwise.
The Safe Harbor Provisions are not applicable to the foregoing communications to
the extent that they constitute tender offer materials and have not been
judicially determined to be applicable to such communications to the extent that
they constitute soliciting materials.
For a detailed discussion of these and other cautionary statements, please refer
to WJ's filings with the Securities and Exchange Commission (the "Commission"),
especially in the "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and "Risk Factors" sections of WJ's Form S-3
Registration Statement (Commission File No. 333-79293), which became effective
in June 14, 1999. In addition, please refer to OSI's filings with the
Commission, especially the information set forth under the heading "Factors That
May Affect Future Results" in OSI's Quarterly Report on Form 10-Q for the
quarterly period ending September 30, 1999.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
A joint proxy statement/prospectus will be filed by Wesley Jessen VisionCare,
Inc. ("WJ") and Ocular Sciences, Inc. ("OSI") with the Commission as soon as
practicable. WE URGE INVESTORS TO READ THE JOINT PROXY STATEMENT/PROSPECTUS AND
ANY OTHER RELEVANT DOCUMENTS TO BE FILED WITH THE COMMISSION, BECAUSE THEY
CONTAIN IMPORTANT INFORMATION. Investors and security holders may obtain a free
copy of the joint proxy statement/prospectus (when available) and other
documents filed by WJ and OSI with the Commission at the Commission's web site
at www.sec.gov. The joint proxy statement/prospectus and other documents filed
with the Commission by WJ may also be obtained for free from
<PAGE>
WJ by directing a request to Wesley Jessen VisionCare, Inc., 333 East Howard
Avenue, Des Plaines, IL 60018, telephone: (847) 294-3000. In addition, the joint
proxy statement/prospectus and other documents filed with the Commission by OSI
may be obtained for free from OSI by directing a request to Ocular Sciences,
Inc., 475 Eccles Avenue, South San Francisco, California 94080, telephone: (650)
583-1400.
WJ and its officers and directors may be deemed to be participants in the
solicitation of proxies from WJ's stockholders with respect to the transactions
contemplated by the merger agreement. Information regarding such officers and
directors is included in WJ's Current Report on Form 8-K/A, dated April 10,
2000. This document is available free of charge at the Commission's web site at
http://www.sec.gov and from WJ at the address set forth above. OSI and its
officers and directors may be deemed to be participants in the solicitation of
proxies from stockholders of OSI with respect to the transactions contemplated
by the merger agreement. Information regarding such officers and directors is
included in OSI's Proxy Statement for its 1999 Annual Meeting of Stockholders
filed with the Commission on April 26, 1999. This document is available free of
charge at the Commission's web site at http://www.sec.gov and from the OSI at
the address set forth above.
# # #
