SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
TO
Amendment
No. 4
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.
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. 4 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
11. Additional Information.
Item 11
of the Schedule TO is hereby amended and supplemented by adding the following
text thereto:
“On
January 6, 2009, as agreed between Parent, the Purchaser and Seller, the
Purchaser extended the Offer until 5:00 p.m., New York City time, on January 16,
2009, unless further extended. The waiting period applicable to the
Offer under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended
(including the rules and regulations promulgated thereunder, the “HSR Act”), has
expired. Accordingly, the condition to the Offer relating to the
termination or expiration of the HSR Act waiting period has been
satisfied. Other regulatory clearances required for the closing
of the Offer remain pending. Parent anticipates receipt of those
clearances on or prior to January 15, 2009 and, accordingly, has
caused the Purchaser to extend the Offer to reflect this
timetable. The full text of the press release issued by Parent on
January 6, 2009 announcing the extension of the Offer and the expiration of the
HSR Act waiting period is filed as Exhibit (a)(5)(E) hereto and is incorporated
herein by reference.
In
addition, on January 2, 2009, the Booth Family Trust, alleging itself to be a
shareholder of Seller, filed a purported shareholder class action complaint in
the United States District Court for the Central District of California,
captioned The Booth Family Trust v. Whitters et
al., Case No. CV09-00010, in connection with the Offer and the
Merger. The complaint names as defendants Seller, the members of the
Seller Board and certain Seller officers and alleges that the defendants
breached and/or aided and abetted the breach of their fiduciary duties to Seller
in connection with the sale of Seller. The suit seeks various
equitable relief related to the Offer and the Merger and the process by which
offers or potential offers are evaluated and also seeks the costs and
disbursements of the action, including reasonable attorneys’ fees and experts’
fees. On
January 2, 2009, the court in Hardy v. Mentor Corporation et
al., Case No. 27-CV-08-30823 in the District Court for the Fourth
Judicial District of the State of Minnesota, granted defendants’ motion to stay
the case in light of In re
Mentor Corporation Shareholder Litigation, Lead Case No. 1304357, pending
in Santa Barbara County Superior Court. Further, on January 6, 2009,
the court in In re Mentor
Corporation Shareholder Litigation, Lead Case No. 1304357, ordered Police and Fire Retirement System of
the City of Detroit v. Mentor Corporation et al., Case No. 1304489,
consolidated as part of In re
Mentor Corporation Shareholder Litigation, Lead Case No.
1304357.”
Item
12. Exhibits.
Item 12 of the Schedule TO is hereby
amended and supplemented by adding the following exhibit:
“(a)(5)(E) Press Release issued by
Johnson & Johnson on January 6, 2009.”
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.
MAPLE
MERGER SUB, INC.
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By
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/s/
Susan E. Morano
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Name:
Susan E. Morano
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Title: Chief
Executive Officer
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Date: January
6, 2009
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JOHNSON
& JOHNSON
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By
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/s/
John A. Papa
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Name: John
A. Papa
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Title: Treasurer
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Date: January
6, 2009
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