sctota.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
TO
Amendment
No. 2
Tender
Offer Statement under Section 14(d)(1) or 13(e)(1)
of
the Securities Exchange Act of 1934
MENTOR
CORPORATION
(Name of
Subject Company (Issuer))
MAPLE
MERGER SUB, INC.
(Offeror)
A Wholly
Owned Subsidiary of
JOHNSON
& JOHNSON
(Offeror)
(Names of
Filing Persons (identifying status as offeror, issuer or other
person))
COMMON
STOCK, $0.10 PAR VALUE
(Title of
Class of Securities)
587188103
(CUSIP
Number of Class of Securities)
Allen
Y. Kim, Esq.
Johnson
& Johnson
One
Johnson & Johnson Plaza
New
Brunswick, NJ 08933
(732)
524-6400
(Name,
address, and telephone numbers of person authorized to receive notices and
communications on behalf of filing persons)
Copies
to:
Robert
I. Townsend, III, Esq.
Damien
R. Zoubek, Esq.
Cravath,
Swaine & Moore LLP
Worldwide
Plaza
825
Eighth Avenue
New
York, NY 10019-7475
(212)
474-1000
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CALCULATION
OF FILING FEE
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Transaction
Valuation(1)
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Amount
of Filing Fee(2)
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$1,256,184,542
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$49,368.06
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(1) Estimated
for purposes of calculating the filing fee only. This amount was determined by
multiplying 40,522,082 shares of Mentor Corporation common stock (representing
the shares of common stock outstanding, in-the-money options, shares of common
stock issuable upon the exercise of outstanding performance stock unit awards
and shares of common stock issuable upon conversion of Mentor Corporation’s
outstanding 2.75% Convertible Subordinated Notes, due 2024, in each case
outstanding as of November 28, 2008 and the shares of common stock subject to
outstanding rights under the employee stock purchase plan of Mentor Corporation
as of December 1, 2008), by $31.00 per share (which is the offer
price).
(2) The
filing fee was calculated in accordance with Rule 0-11 under the Securities
Exchange Act of 1934 and Fee Rate Advisory #6 for fiscal year 2008, issued
December 27, 2007, by multiplying the transaction value by
..0000393.
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.
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Amount
Previously Paid: $49,368.06
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Filing
Party: Johnson & Johnson and Maple Merger Sub, Inc.
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Form
of Registration No.: Schedule TO
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Date
Filed: December 12, 2008
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o Check
the box if the filing relates solely to preliminary communications made before
the commencement of a tender offer.
Check the
appropriate boxes below to designate any transactions to which the statement
relates:
x Third-party
tender offer subject to Rule 14d-1.
o Issuer
tender offer subject to Rule 13e-4.
o Going-private
transaction subject to Rule 13e-3.
o 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. o
This Amendment No. 2 to the Tender
Offer Statement on Schedule TO (this “Amendment”) is filed by (i) Maple Merger
Sub, Inc., a Minnesota corporation (the “Purchaser”) and wholly owned subsidiary
of Johnson & Johnson, a New Jersey corporation (“Parent”), and (ii) Parent.
This Amendment amends and supplements the Tender Offer Statement on Schedule TO
filed with the Securities and Exchange Commission on December 12, 2008, as
amended, (together with any amendments and supplements thereto, the “Schedule
TO”), and relates to the offer (the “Offer”) by the Purchaser to purchase all of
the outstanding shares of common stock, par value $0.10 per share (the
“Shares”), of Mentor Corporation, a Minnesota corporation (“Seller”), at a
purchase price of $31.00 per Share net to the seller in cash, without interest
and less any required withholding taxes, upon the terms and subject to the
conditions set forth in the Offer to Purchase dated December 12, 2008 (together
with any amendments and supplements thereto, the “Offer to Purchase”) and in the
related Letter of Transmittal.
Capitalized terms used and not defined
herein shall have the meanings assigned to such terms in the Offer to
Purchase.
Item
4. Terms of the Transaction.
The fourth paragraph under Section
1—“Terms of the Offer”
of the Offer to Purchase is hereby amended by restating the final sentence
thereof as follows:
“All questions as to validity, form,
eligibility (including time of receipt) and acceptance for payment of any
tendered Shares will be determined by the Purchaser, in its sole discretion,
which determination shall be final and binding on all parties, subject to such
parties disputing such determination in a court of competent
jurisdiction.”
The penultimate paragraph under Section
3—“Procedures for
Accepting the Offer and Tendering Shares” of the Offer to Purchase is hereby
amended by deleting the final sentence thereof and restating the first sentence
thereof as follows:
“All questions as to the validity, form,
eligibility (including time of receipt) and acceptance for payment of any tender
of Shares will be determined by the Purchaser, in its sole discretion, which
determination shall be final and binding on all parties, subject to such parties
disputing such determination in a court of competent jurisdiction.”
The final paragraph under Section
4—“Withdrawal Rights” of
the Offer to Purchase is hereby amended by restating the first sentence thereof
as follows:
“All questions as to the form and
validity (including time of receipt) of any notice of withdrawal will be
determined by the Purchaser, in its sole discretion, whose determination will be
final and binding, subject to the dispute of such determination in a court of
competent jurisdiction.”
Item
11. Additional Information.
Item
11 of the Schedule TO is hereby amended and supplemented by adding the following
text thereto:
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“On
December 15, 2008, the Police and Fire Retirement System of the City of
Detroit, alleging itself to be a shareholder of Seller, filed a
purported shareholder class action complaint in the Santa Barbara County
Superior Court of the State of California, captioned Police
and Fire Retirement System of the City of Detroit v. Mentor Corporation et
al., Case No. 1304489, in connection with the Offer and
Merger. The complaint names as defendants Seller, the
members of the Seller Board, certain Seller officers, Parent,
Ethicon and Does 1-25. The suit alleges that the members
of the Seller Board and certain officers of Seller breached their
fiduciary duties to Seller’s shareholders in connection with the sale of
Seller, and that Seller, Parent and Ethicon aided and abetted the
purported breaches of fiduciary duties. The suit seeks various
equitable relief related to the Offer and the Merger and also seeks the
costs of the action, including reasonable allowances for attorneys’ fees
and experts’ fees. Parent believes the allegations against
Parent and Ethicon are without merit, and Parent intends to defend
vigorously the action.
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On
December 17, 2008, Cinotto
v. Mentor Corporation et al., Case No. 1304357, and Steamfitters
Local 449 Pension Fund v. Mentor Corporation et al., Case No.
1304364, were consolidated for all purposes as In
re Mentor Corporation Shareholder Litigation, Lead Case No.
1304357, in Santa Barbara County Superior
Court."
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The
second and third paragraphs under Section 7—“Certain Information Concerning
Seller” of the Offer to Purchase are hereby amended by deleting the third
paragraph in its entirety and adding to the end of the second paragraph the
following:
“Although
the Purchaser has no knowledge that any information included in the periodic
reports, proxy statements and other information filed by Seller with the SEC is
untrue, the Purchaser takes no responsibility for the accuracy or completeness
of such information or for any failure by Seller to disclose any events which
may have occurred or may affect the significance or accuracy of any such
information.”
The
first paragraph under Section 18—“Miscellaneous” of the Offer to Purchase is
hereby amended by deleting the parenthetical “(nor will tenders be accepted from
or on behalf of)” from the first sentence thereof.
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.
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MAPLE
MERGER SUB, INC.
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By
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/s/
Richard D. Gooding
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Name:
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Richard
D. Gooding
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Title:
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Vice
President
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Date:
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December
19, 2008
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JOHNSON
& JOHNSON
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By
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/s/
Allen Y. Kim
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Name:
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Allen
Y. Kim
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Title:
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Attorney-in-Fact
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Date:
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December
19, 2008
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