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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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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.
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(Name of Subject Company)
Dylan Acquisition Inc.
Bausch & Lomb Incorporated
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(Name of Filing Person - Offeror)
Common Stock, Par Value $0.01 Per Share
Preferred Share Purchase Rights
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(Title of Class of Securities)
951018100
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(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
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(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
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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: [ ]
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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.
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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.
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<PAGE>
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
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Name: Robert B. Stiles
Title: Vice President and Secretary
BAUSCH & LOMB INCORPORATED
By: /s/ Robert B. Stiles
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Name: Robert B. Stiles
Title: Senior Vice President and
General Counsel
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<PAGE>
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
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* Previously filed.
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[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.
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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
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<PAGE>
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
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Title: Chairman, President & CEO
Accepted and Agreed to:
Bausch & Lomb, Incorporated
By: /s/ William M. Carpenter
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Title: Chairman and CEO
Date: 4-10-00
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