-----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, Gmpm6DszXJ+eVEObS1+a2z1GogDTO2J+ihlp5E2GgOMud0h33iz/yqOWJB4SaGOq wKJCyryptrPC3PFPCuRyrw== 0000950131-99-003760.txt : 19990615 0000950131-99-003760.hdr.sgml : 19990615 ACCESSION NUMBER: 0000950131-99-003760 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19990611 FILER: 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: S-3/A SEC ACT: SEC FILE NUMBER: 333-79293 FILM NUMBER: 99645073 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 S-3/A 1 AMENDMENT #1 TO FORM S-3 As filed with the Securities and Exchange Commission on June 11, 1999 Registration No. 333-79293 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------- PRE-EFFECTIVE AMENDMENT NO. 1 TO FORM S-3 REGISTRATION STATEMENT Under The Securities Act of 1933 ---------------- Wesley Jessen VisionCare, Inc. (Exact name of registrant as specified in its charter) Delaware 36-4023739 (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) 333 East Howard Avenue Des Plaines, Illinois 60018-5903 (847) 294-3000 (Address, including zip code, and telephone number, including area code, of registrants principal executive offices) ---------------- Kevin J. Ryan Chairman, President and Chief Executive Officer Wesley Jessen VisionCare, Inc. 333 East Howard Avenue Des Plaines, Illinois 60018-5903 (847) 294-3000 (Name, address, including zip code, and telephone number, including area code, of agent for service) ---------------- Copies of all communications, including communications sent to agent for service, should be sent to: ---------------- DENNIS M. MYERS, ESQ. DAVID B. WALEK, ESQ. Kirkland & Ellis Ropes & Gray 200 East Randolph Drive One International Place Chicago, Illinois 60601 Boston, Massachusetts 02110 (312) 861-2000 (617) 951-7000 ---------------- Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective. If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. [_] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [_] ---------------- The registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ +The information in this preliminary prospectus is not complete and may be + +changed. These securities may not be sold until the registration statement + +filed with the Securities and Exchange Commission becomes effective. This + +preliminary prospectus is not an offer to sell these securities nor does it + +seek offers to buy these securities in any jurisdiction where the offer or + +sale is not permitted. + ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ Subject to Completion, Dated June 11, 1999 4,600,000 Shares Common Stock All of the 4,600,000 shares of common stock are being offered by the selling stockholders identified in this prospectus. We will not receive any of the proceeds from the sale of the shares by the selling stockholders. See "Selling Stockholders." Our common stock is traded on the Nasdaq National Market under the symbol "WJCO." On June 10, 1999, the last reported sale price of our common stock on the Nasdaq National Market was $31.38 per share. Investing in our common stock involves risks. See "Risk Factors" beginning on page 6.
Per Share Total --------- ----- Public offering price......................................... $ $ Underwriting discounts and commissions........................ $ $ Proceeds, before expenses, to the selling stockholders........ $ $
Neither the Securities and Exchange Commission nor any other regulatory body has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense. Certain of the selling stockholders have granted the underwriters the right to purchase up to 687,428 additional shares at the public offering price to cover any over-allotments. ----------- The underwriters are severally underwriting the shares being offered. The underwriters expect to deliver the shares against payment in Baltimore, Maryland on , 1999. Deutsche Banc Alex. Brow___________________________Bear,nStearns & Co. Inc. Robert W. Baird & Co. Incorporated A.G. Edwards & Sons, Inc. Merrill Lynch & Co. , 1999 [picture of a typical print advertisement used by WJ, featuring model Elsa Benitez] Aquaflex(R), CSI Clarity(R), CSI(R), DuraSoft(R), DuraSoft 2, DuraSoft 3, DuraSoft Optifit, Elegance, FreshLook(R), FreshLook Colorblends, Gentle Touch, Hydrocurve, Hydrocurve II(R), Natural Touch, Optifit, Optifit Custom, Polycon(R), Precision UV, SoftPerm(R), Wesley-Jessen(R) and WJ(R) are trademarks of WJ and its subsidiaries. -i- PROSPECTUS SUMMARY This summary highlights information contained elsewhere in this prospectus. This summary is not complete and may not contain all of the information that you should consider before deciding to invest in our common stock. We urge you to read this entire prospectus carefully, including the "Risk Factors" section and our audited consolidated financial statements and the notes thereto. In this prospectus, "WJ," "Wesley Jessen," "we," "us" or "our" each refers to Wesley Jessen VisionCare, Inc., its consolidated subsidiaries and their respective predecessors and "Predecessor" refers to the operations of the Wesley Jessen division of Schering-Plough Corporation prior to its acquisition by Bain Capital, Inc. and management on June 29, 1995. Except as otherwise specified, all information in this prospectus assumes that the underwriters do not exercise their over-allotment option. Our Business We are the leading worldwide developer, manufacturer and marketer of specialty soft contact lenses, based on our share of the specialty lens market. Our specialty lens products include cosmetic lenses, which change or enhance the wearer's eye color appearance; toric lenses, which correct vision for people with astigmatism; and premium lenses, which offer value-added features such as improved comfort for dry eyes and protection from ultraviolet light. We offer both conventional contact lens products, which can typically be used for up to 24 months before replacement, and a broad range of disposable lenses, which are intended to be replaced at least every week. Founded in 1946 by pioneers in the contact lens industry, we have a long-standing reputation for innovation and new product introductions. For the twelve months ended December 31, 1998, our net sales were $292.3 million and our operating income was $48.7 million. The contact lens industry is large and rapidly growing. In 1998, manufacturers' sales of soft contact lenses worldwide totaled $2.3 billion, representing a compound annual growth rate of 10% from $1.1 billion in 1990. According to industry analysts, the U.S. market for contact lenses is expected to grow by approximately 10% per year through the year 2000. We believe that market growth outside the United States will likely exceed domestic growth because of lower contact lens penetration rates internationally. Future growth in the contact lens market is expected to result from (1) continued increases in the number of wearers, as more people use contact lenses as an alternative to eyeglasses, and (2) increased revenues per wearer, as specialty products and disposable lenses grow in popularity. Because the hard contact lens portion of the industry is relatively mature, we expect that most future growth will occur in the soft lens portion, which is comprised of the clear lens segment (lenses that do not provide value-added features) and the specialty lens segment. We operate primarily in the specialty segment of the soft lens market, where we have the leading share in each of the cosmetic and premium lens segments and the fourth leading share in the toric lens segment. We have the leading position in the specialty segment of the soft lens market as a whole, which accounts for one-third of industry sales volume and is projected to grow at approximately 15% per year through the year 2000. In recent years, in both the clear and specialty lens segments, there has been a pronounced shift in consumers' preferences toward disposable lenses and away from conventional lenses, which has led to a significant increase in contact lens expenditures per wearer. We estimate that currently more than 40% of U.S. soft lens wearers use disposable lenses, up from 21% in 1993. We believe that our leading portfolio of disposable specialty lenses has positioned us to benefit from the preference shift toward disposable lenses. For the first quarter of 1999, approximately 50% of our revenues were generated from the sale of disposable lenses as compared to 11% in 1995. We also offer a complete line of conventional and disposable clear lenses, which are positioned as companion products to our cosmetic lenses. 1 According to an independent research firm, more than 75% of all contact lens prescribers in the United States offer our products, which permits us to rapidly launch new categories of products. We develop technology, manufacturing processes and products through a combination of our in-house staff of more than 100 engineers and scientists and WJ-sponsored research by third-party experts. We market our products (1) to consumers through one of the largest advertising campaigns in the industry and (2) to eyecare practitioners through our 211- person salesforce and network of more than 60 independent distributors, which together sell our products in more than 75 countries. We believe that several characteristics of the contact lens industry, in addition to its projected growth, make it an attractive market for us to serve. First, because the need for corrective eyewear is chronic, contact lens wearers typically replace their lenses regularly over an extended period of time. Second, contact lens wearers frequently repurchase the same brand of lenses. We believe this occurs because a doctor's prescription is required for a change in lenses (including a change in brands) and eyecare practitioners are reluctant to change the contact lens brand of a satisfied wearer. The combination of customers' needs for repeat purchases and their brand loyalty provides a recurring revenue stream for established lens manufacturers such as Wesley Jessen. Third, to compete successfully in the contact lens industry requires, among other things, (1) a significant investment in sales and marketing in order to persuade wearers to switch to a new product; (2) the development and cost-efficient application of sophisticated manufacturing processes required to produce contact lenses; (3) U.S. Food and Drug Administration ("FDA") product clearances; and (4) a patent portfolio covering materials, design and processes. As a result, no new significant competitors have entered the soft contact lens industry in the last ten years. Our Competitive Strengths We believe we have achieved our leading worldwide market position in specialty soft contact lenses because of the following competitive strengths: . High-Quality Branded Products. We produce a broad range of high-quality contact lenses that meet customers' demand for improved cosmetic, comfort, ease-of-care and vision-correction features and are sold under brand names recognized by ophthalmologists and optometrists worldwide. . Successful Development and Introduction of New Products. We have a strong track record of developing new specialty contact lens products, with new product lines introduced since 1994 accounting for over 50% of our net sales in 1998. . Broad Patent Portfolio. We believe that our intellectual property, including more than 70 U.S. patents in product design, materials and manufacturing processes, makes imitation of our products difficult, supports our strong gross margins and provides us with a competitive advantage. . Established Sales and Distribution Network. We believe our salesforce and distributor network constitute the largest and most sophisticated sales organization in the specialty contact lens segment. Our salesforce has focused on developing strong relationships with eyecare practitioners by not only serving their product needs but also offering them opportunities to increase profitability and build their practices through the sale of our value-added products. . Strong International Market Presence. We derived approximately 42% of our net sales from sales outside the United States in 1998, and our specialty contact lens products have leading market shares in Europe, Japan and Latin America. . Low-Cost, Proprietary Manufacturing Capabilities. We produce substantially all of our contact lens products in four state-of-the-art manufacturing facilities, which apply proprietary technology, and allow us to be a flexible, low-cost manufacturer of specialty lenses. 2 . Experienced Management with a Proven Record of Improving Operating Performance. Our senior management team averages more than 10 years of experience in the contact lens industry, and has improved our results from operating losses of $50.5 million in 1994 to operating income of $48.7 million in 1998. Our Growth Strategy Our principal objective is to expand our contact lens business in the faster- growing specialty segment of the market in order to achieve continued growth in revenues and operating profit. Our business strategy is to: . Capitalize on favorable industry trends, including continued increases in the number of contact lens wearers and an ongoing shift among wearers from conventional lenses to more profitable disposable lenses and from clear lenses to specialty lenses; . Increase our market share, using both targeted marketing to eyecare practitioners and direct consumer advertising; . Develop and successfully launch new products, particularly category- creating products such as our new lines of disposable toric lenses and disposable specialty color lenses, since industry dynamics have historically provided considerable advantages to a firm that successfully introduces the first product in a category; . Increase the international penetration of our products, both in countries where we have market leadership positions and in new markets; and . Benefit from our significant operating leverage, by utilizing our manufacturing capacity, investing in new low-cost manufacturing technologies and achieving economies of scale in development, manufacturing, distribution and administration. Our History We were founded in 1946 by contact lens pioneers Drs. Newton K. Wesley and George Jessen, after the two doctors discovered that hard contact lenses could be used to prevent a rare sight-threatening eye disease suffered by Dr. Wesley. Originally known as The Plastic Contact Lens Company, we went on to pioneer the design, manufacturing and fitting techniques of hard contact lenses. From 1980 to 1995, we operated as a wholly owned subsidiary of Schering-Plough Corporation ("Schering-Plough"). On June 29, 1995, Bain Capital, Inc. ("Bain Capital"), together with new and certain then-existing members of management acquired the Predecessor in a leveraged acquisition. On October 2, 1996, we acquired substantially all the assets and assumed certain liabilities of the contact lens business of the Barnes-Hind division of Pilkington plc ("Barnes-Hind"). Founded in 1939, Barnes-Hind is widely recognized in the contact lens industry as a leader in product and material innovation and design. At the time of the acquisition, Barnes-Hind was the third largest manufacturer of specialty contact lenses in the world, with a leading market position in premium and toric lenses. WJ is a Delaware corporation organized in May 1995. We completed the initial public offering of our common stock in February 1997. Our principal executive offices are located at 333 East Howard Avenue, Des Plaines, Illinois 60018-5903 and our telephone number is (847) 294-3000. 3 The Offering Common stock offered by the selling stockholders................................. 4,600,000 shares Common stock outstanding after this offering.. 17,172,219 shares Use of proceeds............................... We are not selling shares in this offering and will not receive any of the proceeds from the sale of the shares offered hereby. Nasdaq National Market symbol................. "WJCO"
The common stock to be outstanding after this offering is based on shares outstanding as of May 24, 1999 and excludes: (1) 2,753,029 shares of common stock reserved for issuance upon the exercise of outstanding options and (2) 1,823,635 shares of common stock reserved for issuance to employees or non- employee directors under our stock incentive plans (collectively, the "Stock Plans"). See "Management." 4 Summary Consolidated Financial Data (in thousands, except per share amounts) The following table presents summary consolidated financial data for WJ for the periods and dates indicated. The data presented in this table are derived from "Selected Historical Consolidated Financial Data" and our audited consolidated financial statements and the notes thereto which are included elsewhere in this prospectus. You should read those sections for a further explanation of the financial data summarized here.
Twelve Months Ended Three Months December 31, Ended, ---------------------------- ------------------ March 28, April 3, 1996 1997 1998 1998 1999 -------- -------- -------- --------- -------- Statement of Operations Data: Net sales.................... $156,752 $282,178 $292,259 $70,595 $76,311 Operating costs and expenses: Cost of goods sold.......... 43,152 92,780 90,471 21,939 25,118 Cost of goods sold -- inventory step-up.......... 20,706 22,666 -- -- -- Marketing and administrative............. 88,274 137,650 143,309 37,563 38,403 Research and development.... 7,178 11,997 10,818 2,386 2,873 Amortization of intangible assets (negative goodwill).................. (784) (862) (997) (274) (229) -------- -------- -------- ------- ------- Income (loss) from operations.................. (1,774) 17,947 48,658 8,981 10,146 Other (income) expenses: Interest expense, net....... 5,385 5,559 4,811 996 1,023 Other income, net........... (3,051) -- -- -- -- -------- -------- -------- ------- ------- Income (loss) before income taxes and extraordinary loss........................ (4,108) 12,388 43,847 7,985 9,123 Income tax (expense) benefit..................... 3,037 (4,188) (14,250) (2,715) (2,919) -------- -------- -------- ------- ------- Net income (loss) before extraordinary loss.......... (1,071) 8,200 29,597 5,270 6,204 Extraordinary loss, net of tax benefit................. (1,671) (4,902) -- -- -- -------- -------- -------- ------- ------- Net income (loss)............ $ (2,742) $ 3,298 $ 29,597 $ 5,270 $ 6,204 ======== ======== ======== ======= ======= Net income (loss) per common share: Basic: Income (loss) before extraordinary loss......... $ (0.07) $ 0.49 $ 1.70 $ 0.30 $ 0.36 Extraordinary loss, net of income tax benefit......... $ (0.12) $ (0.29) -- -- -- Net income (loss)........... $ (0.19) $ 0.20 $ 1.70 $ 0.30 $ 0.36 Diluted: Income (loss) before extraordinary loss......... $ (0.07) $ 0.45 $ 1.57 $ 0.27 $ 0.34 Extraordinary loss, net of income tax benefit......... $ (0.12) $ (0.27) -- -- -- Net income (loss)........... $ (0.19) $ 0.18 $ 1.57 $ 0.27 $ 0.34 Weighted average common shares outstanding: Basic....................... 14,638 16,898 17,432 17,784 17,039 Diluted..................... 14,638 18,451 18,904 19,396 18,455
December 31, April 3, 1998 1999 ------------ ---------- Balance Sheet Data: Working capital......................................... $ 83,717 $ 86,739 Total assets............................................ 204,518 202,235 Total debt.............................................. 69,000 72,000 Stockholders' equity.................................... $ 49,952 $ 55,327
5 RISK FACTORS You should consider, in addition to the other information set forth elsewhere in this prospectus, the following matters in evaluating WJ and our common stock offered hereby. We operate in the highly competitive contact lens market and compete against larger contact lens manufacturers. The contact lens market is highly competitive. We face competition from other companies within each segment of the contact lens market in which we operate. In the specialty segment of the market, we principally compete with divisions of large medical and pharmaceutical companies as well as with smaller companies. To the extent we operate in the clear lens segment, we face competition primarily from Vistakon (a division of Johnson & Johnson) and other large contact lens manufacturers. Certain of our competitors in each segment have lower costs of operations, products with enhanced features, substantially greater resources to invest in product development and customer support, greater vertical integration and greater access to financial and other resources than WJ. To a lesser extent, we also compete with manufacturers of eyeglasses and other forms of vision correction such as surgical refractive procedures, including new refractive laser procedures like PRK, or photorefractive keratectomy, and like LASIK, or laser in situ keratomileusis. If surgical refractive procedures become increasingly accepted as an effective and safe technique for permanent vision correction, they could substantially reduce the demand for contact lenses by enabling patients to avoid the ongoing cost and inconvenience of contact lenses. We cannot assure you that we will not encounter increased competition in the future, particularly from large manufacturers of clear lenses that have entered or are seeking to enter the specialty lens segment, which could have a material adverse effect on our financial condition or results of operations. The contact lens industry has experienced significant growth in recent years. We cannot assure you that such growth will continue in the future or that a general economic slowdown or recession will not have a material adverse effect on our results of operations. During 1998, the average selling prices for disposable clear lenses declined significantly due to competitive market conditions. Because we operate primarily in the specialty segment of the market, these competitive conditions did not require us to reduce the prices for our specialty lens products. Further declines in the prices of disposable clear lenses could, however, cause decreased demand for our products if consumers begin to substitute clear lenses for our products because of the price difference. We cannot assure you that competitive market conditions will not result in further declines in the prices for disposable clear lenses or that we will not have to reduce our prices to remain competitive. In addition, we believe that we currently benefit from significant advertising expenditures by certain of our competitors, which serve to raise consumer awareness of the benefits of disposable contact lenses. We cannot assure you that our operations would not be adversely affected in the event such advertising campaigns were discontinued or substantially reduced. Our success depends in part on our ability to develop new and enhanced products for the soft contact lens market. The specialty segment of the soft contact lens market is characterized by rapid technological advancements and new product innovations. We believe that the manufacturer who is the first to introduce a new product in a particular category is likely to maintain the leading market share in such category. Although we have in the past been successful in attaining an early market share lead in new product categories, we cannot assure you that we will be successful in doing so in the future. In addition, the expense involved in developing new products, as well as the cost of obtaining regulatory approval to market such products, can be substantial. We cannot assure you that such new products will be successful in the marketplace and, as a result, justify the expenses involved in their development and approval. In addition, we cannot assure you that our competitors will not develop 6 new products or technology which will lead to the obsolescence of our products, which could have a material adverse effect on our business, financial condition or results of operations. We are subject to risks associated with manufacturing our products at our four dedicated facilities and relying on single source suppliers from time to time. We produce substantially all of our contact lens products in four state-of- the-art manufacturing facilities. Each facility is dedicated to producing a particular type of contact lens. As a result, any prolonged disruption in the operations of any one of our facilities, whether due to technical or labor difficulties, destruction of or damage to any facility or other reasons, could have a material adverse effect on our financial condition or results of operations. We utilize a number of advanced polymers and other sophisticated materials in the production of our contact lenses. Due to the highly technical and specialized nature of certain of our production materials, we rely from time to time on a single supplier to provide us with sufficient quantities of certain materials used in the production of one or more of our product lines. To minimize our reliance on a particular vendor, we continually seek to identify multiple vendors qualified to supply our production materials and currently have only two materials that are significant to our operations that are available from a single source. Although we believe that we are not dependent on any single supplier, our inability to obtain sufficient quantities of certain production inputs could have a material adverse effect on our financial condition or results of operations. We are subject to certain operational, financial, political and foreign exchange risks due to our significant level of international sales. We derived approximately 42% of our net sales from the sale of products outside the United States in the twelve months ended December 31, 1998. We expect that sales to international customers will continue to represent a significant portion of our net sales. Risks inherent in our international business activities generally include difficulties and unexpected changes in the regulatory environment, currency fluctuation risk, longer accounts receivable payment cycles and greater difficulty in collecting accounts receivable, costs and risks associated with localizing products for foreign countries, the burdens of complying with foreign laws, tariffs and other trade barriers, trade embargoes, political instability and difficulties in staffing and managing foreign operations. In addition, the laws of certain countries in which our products are or may be sold may not provide our products and intellectual property rights with the same degree of protection as the laws of the United States. We cannot assure you that these factors or other factors relating to our international business operations will not have a material adverse effect on our financial condition or results of operations. We are dependent to a large degree on the services of our senior management team. We are dependent to a large degree on the services of our senior management team, including Kevin J. Ryan, Chairman, President and Chief Executive Officer. While Mr. Ryan has entered into an employment agreement with us, there can be no assurance that he or other members of the senior management team will remain with us. The loss of any of these individuals could have a material adverse effect on our financial condition or results of operations. As of March 31, 1999, our senior management team collectively owned 196,398 shares of common stock and held options to purchase an additional 1,687,115 shares of common stock, representing on a fully-diluted basis approximately 10% of the outstanding common stock. Each employee's options expire upon or shortly following the termination of such person's employment with WJ for any reason. See "Management--Employment Agreements." 7 Our business may be adversely impacted by our indebtedness, which requires the use of a substantial amount of our cash flow. As of April 3, 1999, we had approximately $72.0 million of long-term indebtedness. Subject to the restrictions in our bank credit agreement, we may incur additional indebtedness from time to time to finance acquisitions or capital expenditures or for other purposes. The level of our indebtedness could have important consequences, including: . a substantial portion of our cash flow from operations must be dedicated to debt service and will not be available for other purposes; . our ability to obtain additional debt financing in the future for working capital, capital expenditures or acquisitions may be limited; and . our level of indebtedness could limit our flexibility in reacting to changes in the industry and economic conditions generally. Certain of our competitors currently have greater operating and financing flexibility than us. We believe that, based upon current levels of operations, we should be able to meet our debt service obligations when due. Our ability to service such indebtedness, however, will be dependent on our future performance, which will be affected by prevailing economic conditions and financial, business and other factors, certain of which are beyond our control. In addition, our bank credit agreement imposes certain operating and financial restrictions on us. We cannot assure you that we will be successful in our efforts to make strategic acquisitions. We expect to continue to seek acquisitions, joint ventures or other strategic arrangements that would enable us to expand our existing product line, broaden our geographic coverage or allow us to offer complementary product lines. We cannot assure you that we will continue to acquire businesses or establish such arrangements on satisfactory terms or that any acquired business will be integrated successfully into our operations or be able to operate profitably. Future acquisitions or other strategic arrangements could require additional financing, which could result in an increase in our indebtedness. Our manufacturing facilities and products are subject to stringent regulation by the FDA and by various state, local and foreign jurisdictions in which our products are manufactured and/or sold. Our manufacturing facilities and products are subject to stringent regulation by the FDA and by various governmental agencies for the states and localities in which our products are manufactured and/or sold, as well as by governmental agencies in certain foreign countries in which our products are manufactured and/or sold. Pursuant to the Federal Food, Drug, and Cosmetic Act (the "FDC Act"), and the regulations promulgated thereunder, the FDA regulates the preclinical and clinical testing, manufacture, labeling, distribution and promotion of medical devices such as contact lenses. Noncompliance with applicable requirements can result in, among other things, fines, injunctions, civil penalties, recall or seizure of products, total or partial suspension of production, failure of the government to grant premarket clearance or premarket approval for devices, withdrawal of marketing clearances or approvals and criminal prosecution. The FDA also has the authority to request the recall, repair, replacement or refund of the cost of any device manufactured or distributed by us. In addition, as we continue to expand internationally, we will be subject to regulations in most of the foreign countries in which we sell our products; such regulations may or may not be similar to those of the FDA. Compliance with U.S. and foreign governmental regulations, which are subject to change, can delay new product introduction and may have a material adverse effect on our financial condition or results of operations. 8 Under the FDC Act, products developed by us, and significant changes or modifications to existing products, generally require FDA clearance ("510(k) clearance") pursuant to the Section 510(k) notification process ("510(k) notice") or approval of a premarket approval application ("PMA"). We manufacture and market contact lenses which have received 510(k) clearances as well as lenses which have been the subject of approved PMA applications. We have made modifications to our products which we believe do not require the submission of new 510(k) notices or PMA supplements. There can be no assurance, however, that the FDA would agree with any of our determinations not to submit a new 510(k) notice or PMA supplement for any of these changes or would not require us to submit a new 510(k) notice or PMA supplement for any of the changes made to the device. If the FDA requires us to submit a new 510(k) notice or PMA supplement for any device modification, we may be prohibited from marketing the modified device until the 510(k) notice or PMA supplement is cleared or approved by the FDA. The process of obtaining FDA approvals is lengthy, expensive and uncertain. Moreover, approvals, if granted, may limit the uses for which a product may be marketed. No assurance can be given that future changes in the FDC Act or the FDAs regulations will not have a material adverse effect on any FDA clearance or approval previously received with respect to our products. In addition, we cannot assure you that the selling and prescribing practices for contact lenses will not change at some point in the future. These changes could have a material adverse effect on our business, results of operations or financial condition. We are aware of a pending lawsuit against other manufacturers of contact lenses challenging certain of their selling and distribution practices. We have not been named in this lawsuit. Our products are also subject to regulation in other countries in which we sell our products. The laws and regulations of such countries range from comprehensive medical device approval procedures such as those described above to simple requests for product data or certifications. The number and scope of these laws and regulations are increasing. Specifically, our products are subject to the "CE marking" approval process in the European Union ("EU"). Additional approvals from foreign regulatory authorities may be required for international sale of our products in non-EU countries. Failure to comply with applicable regulatory requirements can result in the loss of previously received approvals and other sanctions and could have a material adverse effect on our business, financial condition and results of operations. Our business could be adversely affected if we are unable to protect our intellectual property rights. We consider certain of our intellectual property rights, including patents, trademarks and licensing agreements, to be an integral component of our business. Our policy is to file patent applications to protect technology, inventions and improvements that are considered important to the development of our business. We cannot assure you that the patent applications filed by us will result in the issuance of patents or that any of our intellectual property will continue to provide competitive advantages for our products or will not be challenged, circumvented by others or invalidated. Our policy is to aggressively prosecute and defend our patents and other proprietary technology. The prosecution and defense of intellectual property protection, like any lawsuit, is inherently uncertain and carries no guarantee of success. The protection of intellectual property in certain foreign countries is particularly uncertain. We face an inherent risk of exposure to product liability claims in the event that the use of our products results in personal injury. We face an inherent risk of exposure to product liability claims in the event that the use of our products results in personal injury. Although we have not experienced any material losses due to 9 product liability claims, we cannot assure you that we will not experience such losses in the future. Also, in the event that any of our products prove to be defective, we may be required to recall or redesign such products. We maintain insurance against product liability claims, but there can be no assurance that such coverage will be adequate to cover any liabilities that we may incur or that such insurance will continue to be available on terms acceptable to us. A successful claim brought against us in excess of available insurance coverage, or any claim or product recall that results in significant adverse publicity against us, may have a material adverse effect on our financial condition or results of operations. Certain provisions of our charter documents and Delaware law could discourage potential acquisitions proposals and could delay, deter or prevent a change in control. Certain provisions of our certificate of incorporation and by-laws may inhibit changes in control of WJ not approved by our board of directors. These provisions include: . a classified board of directors; . a prohibition on stockholder action through written consents; . a requirement that special meetings of stockholders be called only by the board of directors or our chief executive officer; . advance notice requirements for stockholder proposals and nominations; . limitations on the ability of stockholders to amend, alter or repeal the by-laws; and . the authority of the board to issue without stockholder approval preferred stock with such terms as the board may determine. We are also afforded the protections of Section 203 of the Delaware General Corporation Law, which could have similar effects. See "Description of Capital Stock." We do not expect to pay dividends on our common stock for the foreseeable future. Since our incorporation in 1995, we have not declared or paid any cash or other dividends on our common stock and do not expect to pay dividends for the foreseeable future. Instead, we currently intend to retain earnings to support our growth strategy and reduce indebtedness. Any future determination to pay dividends will be at the discretion of our board of directors and will depend upon, among other factors, our results of operations, financial condition, capital requirements and contractual restrictions. See "Dividend Policy." Trading in our shares has in the past been, and could in the future be, subject to price and volume fluctuations. The market for our shares has in the past been, and could in the future be, subject to price and volume fluctuations. We believe that a number of factors, both within and outside our control, could cause the price of our common stock to fluctuate. These factors include, but are not limited to: . announcements of developments related to our business or our competitors' or customers' businesses; . fluctuations in our financial results; . general conditions or developments in the contact lens market; . potential sales of our common stock into the marketplace by WJ or our stockholders; . announcements of technological innovations or new or enhanced products by us or our competitors or customers; 10 . FDA regulatory actions or litigation by competitors seeking to enjoin us from manufacturing or selling our products; . a shortfall in revenue, gross margin, earnings or other financial results or changes in research analysts expectations; and . the limited number of shares of our common stock traded on a daily basis. We cannot be certain that the market price of our common stock will not experience significant fluctuations in the future, including fluctuations that are material, adverse and unrelated to our performance. Our failure to identify and remediate all material Year 2000 risks could significantly disrupt our business if we are forced to devote substantial resources to Year 2000 remediation efforts, or if Year 2000 problems among our suppliers or customers cause delays in shipping or receiving products. We have implemented a multi-phase Year 2000 project consisting of assessment and remediation, and testing following remediation. We cannot, however, be certain that we have identified all of the potential risks. Failure by us to identify and remediate all material Year 2000 risks could adversely affect our business, financial condition and results of operations. We have identified the following risks you should be aware of: . we cannot be certain that the entities on whom we rely for certain goods and services that are important for our business will be successful in addressing all of their software and systems problems in order to operate without disruption in the year 2000 and beyond; . we cannot be certain that all defects in hardware and software (including embedded chips) used in our production equipment have been identified and will be fully remediated on a timely basis; . our customers or potential customers may be affected by Year 2000 issues that may, in part: --cause a reduction, delay or cancellation of customer orders --cause a delay in payments for products shipped --cause customers to expend significant resources on Year 2000 compliance matters, rather than investing in our products; and . we have not fully developed a contingency plan related to a failure of our, or a third-party's, Year 2000 remediation efforts and may not be prepared for such an event. The forward-looking statements contained in this prospectus are based on our predictions of future performance. As a result, you should not place undue reliance on these forward-looking statements. This prospectus contains forward-looking statements within the meaning of Section27A of the Securities Act. Such forward-looking statements are based on the beliefs of our management as well as on assumptions made by and information currently available to us at the time such statements were made. When used in this prospectus, the words "anticipate," "believe," "estimate," "expect," "intends," and similar expressions, as they relate to us are intended to identify forward-looking statements, which include statements relating to, among other things, . the ability of WJ to continue to compete successfully in the contact lens market; . the anticipated benefits from new product introductions; . the continued effectiveness of our sales and marketing strategy; 11 . the ability of WJ to continue to successfully develop and launch new products; . the timely resolution of the Year 2000 issue by WJ and our suppliers; and . the Euro conversion. Actual results could differ materially from those projected in the forward- looking statements as a result of the matters discussed herein under heading "Risk Factors" and certain economic and business factors, some of which may be beyond our control. USE OF PROCEEDS We are not selling shares of common stock in this offering and will not receive any of the proceeds from the sale of the shares of common stock offered hereby. MARKET PRICE FOR COMMON STOCK Our common stock is traded on the Nasdaq National Market ("Nasdaq") under the symbol "WJCO." Our common stock commenced trading on February 13, 1997. The following table sets forth the high and low sale prices per share for our common stock as reported by Nasdaq for the period indicated:
High Low ------ ------ 1997: First Quarter (from February 13, 1997) ................ $16.75 $14.63 Second Quarter......................................... 25.88 13.00 Third Quarter.......................................... 31.00 22.50 Fourth Quarter......................................... 39.00 26.25 1998: First Quarter.......................................... $40.25 $31.38 Second Quarter......................................... 35.63 18.19 Third Quarter.......................................... 26.38 16.13 Fourth Quarter......................................... 28.25 16.13 1999: First Quarter.......................................... $28.13 $20.25 Second Quarter (through June 10, 1999)................. 35.50 26.63
As of the close of business on June 10, 1999, we had approximately 204 holders of record of our common stock. We believe that there are a significantly larger number of beneficial holders of our common stock. A recent reported last sale price of our common stock on Nasdaq is set forth on the cover page of this prospectus. DIVIDEND POLICY Since our incorporation in 1995, we have not declared or paid any cash or other dividends on our common stock and do not expect to pay dividends for the foreseeable future. Instead, we currently intend to retain earnings to support our growth strategy and reduce indebtedness. As a holding company, our ability to pay dividends in the future is dependent upon the receipt of dividends or other payments from our principal operating subsidiary. Our bank credit agreement permits the payment of dividends of up to $3.0 million annually plus certain excess cash available at the time of payment, if any. Any future determination to pay dividends will be at the discretion of our board of directors and will depend upon, among other factors, our results of operations, financial condition, capital requirements and contractual restrictions. 12 SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA (in thousands, except per share amounts) Set forth below are selected historical consolidated financial data of the Predecessor and WJ for the dates and for the periods indicated. The selected historical consolidated financial data of the Predecessor as of December 31, 1994 and for the year ended December 31, 1994 and the period from January 1, 1995 through June 28, 1995, were derived from the historical financial statements of the Predecessor that were audited by PricewaterhouseCoopers LLP. The selected historical consolidated financial data of WJ as of December 31, 1995, 1996, 1997 and 1998 and for the period from June 29, 1995 through December 31, 1995 for the years ended December 31, 1996, 1997 and 1998 were derived from the historical financial statements of WJ that were audited by PricewaterhouseCoopers LLP. The selected historical consolidated financial data of WJ for the three months ended March 28, 1998 and April 3, 1999 have been derived from unaudited financial statements of WJ and reflect all adjustments which, in the opinion of management, are necessary for a fair presentation of the consolidated financial statements for an interim period. All such adjustments are of a normal, recurring nature. Results of operations for an interim period are not necessarily indicative of results for the full year. The information in this table should be read in conjunction with, and are qualified by reference to, "Management's Discussion and Analysis of Financial Condition and Results of Operations" and our audited consolidated financial statements and the notes thereto which are included elsewhere in this prospectus.
Predecessor WJ ---------------------- ----------------------------------------------------------------------- Three Twelve January 1 June 29 Twelve Months Ended December 31, Months Ended, Months Ended through through -------------------------------------- ------------------ December 31, June 28, December 31, March 28, April 3, 1994 1995 1995 1995(a) 1996 1997 1998 1998 1999 ------------ --------- ------------ -------- -------- -------- -------- --------- -------- Statement of Operations Data: Net sales................ $109,640 $ 51,019 $ 54,315 $105,334 $156,752 $282,178 $292,259 $70,595 $76,311 Operating costs and expenses: Cost of goods sold...... 65,591 20,871 19,916 38,442 43,152 92,780 90,471 21,939 25,118 Cost of goods sold --inventory step-up.... -- -- 33,929 -- 20,706 22,666 -- -- -- Marketing and administrative......... 79,185 43,236 29,476 69,162 88,274 137,650 143,309 37,563 38,403 Research and development............ 9,843 4,569 2,524 4,677 7,178 11,997 10,818 2,386 2,873 Amortization of intangible assets (negative goodwill).... 5,472 2,736 (392) (784) (784) (862) (997) (274) (229) -------- --------- -------- -------- -------- -------- -------- ------- ------- Income (loss) from operations.............. (50,451) (20,393) (31,138) (6,163) (1,774) 17,947 48,658 8,981 10,146 Other (income) expenses: Interest expense, net... -- -- 2,599 4,889 5,385 5,559 4,811 996 1,023 Financing charge........ 7,172 3,511 -- -- -- -- -- -- -- Other income, net....... (202) (1,360) -- (1,360) (3,051) -- -- -- -- -------- --------- -------- -------- -------- -------- -------- ------- ------- Income (loss) before income taxes and extraordinary loss...... (57,421) (22,544) (33,737) (9,692) (4,108) 12,388 43,847 7,985 9,123 Income tax (expense) benefit................. 26,935 9,401 14,022 4,032 3,037 (4,188) (14,250) (2,715) (2,919) -------- --------- -------- -------- -------- -------- -------- ------- ------- Net income (loss) before extraordinary loss...... (30,486) (13,143) (19,715) (5,660) (1,071) 8,200 29,597 5,270 6,204 Extraordinary loss, net of tax benefit.......... -- -- -- -- (1,671) (4,902) -- -- -- -------- --------- -------- -------- -------- -------- -------- ------- ------- Net income (loss)........ $(30,486) $ (13,143) $(19,715) $ (5,660) $ (2,742) $ 3,298 $ 29,597 $ 5,270 $ 6,204 ======== ========= ======== ======== ======== ======== ======== ======= =======
13
Predecessor WJ ---------------------- -------------------------------------------------------------------- Twelve Months Ended Three Twelve January 1 June 29 December 31, Months Ended, Months Ended through through ------------------------------------ ------------------ December 31, June 28, December 31, March 28, April 3, 1994 1995 1995 1995(a) 1996 1997 1998 1998 1999 ------------ --------- ------------ ------- -------- -------- -------- --------- -------- Net income (loss) per common share (b): Basic: Income (loss) before extraordinary loss.... $ (1.37) $ (0.07) $ 0.49 $ 1.70 $ 0.30 $ 0.36 Extraordinary loss, net of income tax benefit............... -- $ (0.12) $ (0.29) -- -- -- Net income (loss)...... $ (1.37) $ (0.19) $ 0.20 $ 1.70 $ 0.30 $ 0.36 Diluted: Income (loss) before extraordinary loss.... $ (1.37) $ (0.07) $ 0.45 $ 1.57 $ 0.27 $ 0.34 Extraordinary loss, net of income tax benefit............... -- $ (0.12) $ (0.27) -- -- -- Net income (loss)...... $ (1.37) $ (0.19) $ 0.18 $ 1.57 $ 0.27 $ 0.34 Weighted average common shares outstanding: Basic.................. 14,416 14,638 16,898 17,432 17,784 17,039 Diluted................ 14,416 14,638 18,451 18,904 19,396 18,455 Balance Sheet Data (at end of period): Working capital......... $ 30,940 $ 30,262 $ 77,747 $ 65,835 $ 83,717 $ 78,893 $ 86,739 Total assets............ 191,429 67,330 180,600 173,076 204,518 178,722 202,235 Total debt.............. -- 42,000 102,975 57,000 69,000 62,000 72,000 Stockholders equity (deficit).............. $173,409 $(12,190) $(13,292) $ 36,846 $ 49,952 $ 44,289 $ 55,327
- ------- (a)The pro forma operating results for the year ended December 31, 1995 combine the operations of the Predecessor from January 1, 1995 through June 28, 1995 and WJ from June 29, 1995 through the end of the period and have been adjusted to reflect the period as if the acquisition of WJ and related financing transaction had occurred on January 1, 1995. Because of the purchase accounting adjustments made to the Predecessor's financial statements, the financial statements of the Predecessor for the periods prior to June 29, 1995 are not comparable to those of subsequent periods. The combined pro forma data are intended to assist in making comparisons for periods prior to the acquisition of Barnes-Hind. See "Management's Discussion and Analysis of Financial Condition and Results of Operations" and the Notes to Consolidated Financial Statements of WJ included herein. (b)No historical earnings per share data is presented for periods prior to 1995 as we do not consider such data to be meaningful. 14 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS Overview We are the leading worldwide developer, manufacturer and marketer of specialty soft contact lenses, based on our share of the specialty lens market. Our specialty lens products include cosmetic lenses, which change or enhance the wearer's eye color appearance; toric lenses, which correct vision for people with astigmatism; and premium lenses, which offer value-added features such as improved comfort for dry eyes and protection from ultraviolet light. Founded in 1946 by pioneers in the contact lens industry, we have a long- standing reputation for innovation and new product introductions. We develop technology, manufacturing processes and products through a combination of our in-house staff of more than 100 engineers and scientists and Company-sponsored research by third-party experts. We market and sell our products to consumers through the second largest advertising campaign in the industry and to eyecare practitioners through our 211-person salesforce and network of independent distributors, which together sell our products in more than 75 countries. Wesley Jessen Acquisition On June 29, 1995, Bain Capital, together with new and certain then-existing members of management, acquired the Wesley Jessen contact lens business from Schering-Plough (the "Wesley Jessen Acquisition"). The cash purchase price in the Wesley Jessen Acquisition of $47.0 million (plus fees and expenses of $3.5 million) was funded with $7.5 million of equity and $43.0 million of borrowings under a bank credit agreement. The aggregate purchase price in the Wesley Jessen Acquisition, including assumed liabilities, was $76.6 million. The Wesley Jessen Acquisition was accounted for under the purchase method of accounting. As a result of the Wesley Jessen Acquisition, we recognized a significant non-cash increase in cost of goods sold of $6.6 million in 1996 related to the amortization of Wesley Jessen purchased inventory step-up to fair value at the acquisition date. An adjustment for this non-recurring charge has been reflected in the pro forma column of our Unaudited Statement of Operations Data. See "Results of Operations." Barnes-Hind Acquisition On October 2, 1996, we acquired the contact lens business of Pilkington plc, operating as the Pilkington Barnes-Hind Group (the "Barnes-Hind Acquisition"). The Barnes-Hind Acquisition was completed for a total purchase price of $117.6 million, consisting of cash paid of $62.3 million and liabilities assumed of $55.3 million. In addition, we paid acquisition-related fees and expenses of $4.4 million. The acquisition was financed through borrowings on our then- existing credit agreement and a $5.0 million seller note. In connection with the Barnes-Hind Acquisition, we entered into a voluntary consent order with the Federal Trade Commission, which required, among other things, that we divest Barnes-Hind's U.S. Natural Touch product line. On March 17, 1997, we completed the sale of the product line for which we received aggregate consideration of $7.5 million, consisting of $3.0 million in cash and a four-year $4.5 million promissory note which accrues interest at a compound rate of 12% per annum, 8% of which is payable currently and 4% of which is payable-in-kind. On July 31, 1997, the purchaser made a voluntary prepayment of $3.0 million on the promissory note. On May 7, 1998, the purchaser made an additional voluntary prepayment of $1.0 million. As part of the divestiture agreement, we also entered into a supply agreement pursuant to which we will supply the purchaser with Natural Touch lenses for sale in the United States and granted licenses to the purchaser applicable to certain Barnes-Hind patents. 15 In connection with the Barnes-Hind Acquisition, we identified significant operating synergies and substantial cost saving opportunities. We have completed the majority of our initial cost reduction measures which, as expected, have improved our operating results. We announced the closing of our manufacturing operations in San Diego, California, expected to be substantially completed by March 2000, with a shift of conventional lens production to our plant in Cidra, Puerto Rico. We believe this consolidation of facilities will generate additional cost savings and further operating leverage. However, there can be no assurance that we will be able to achieve such cost savings in future periods. As a result of the Barnes-Hind Acquisition, we incurred significant non- recurring charges as follows: (1) a non-cash increase in cost of goods sold of $14.1 million in 1996 and $22.7 million in 1997 related to the amortization of the Barnes-Hind purchased inventory step-up to fair value at the acquisition date; and (2) extraordinary debt extinguishment costs of $2.8 million ($1.7 million, net of income tax benefit) in 1996 related to the write-off of capitalized financing fees incurred in connection with the refinancing of our then-existing credit agreement. Adjustments for these non-recurring charges and expected cost savings related to the reduction of certain operating expenses including the consolidation of corporate offices, a reduction in the number of corporate level employees and related expenses and the curtailment of certain manufacturing activities have been reflected in the pro forma columns of our Unaudited Statement of Operations Data. See "'Results of Operations." The IPO and the 1997 Offering In February 1997, we consummated an initial public offering (the "IPO") of 2.8 million shares of our common stock at $15.00 per share. In August 1997, we completed a secondary public offering (the "1997 Offering") of 4.3 million shares of our common stock at $23.50 per share, of which 3.8 million shares were sold by certain selling stockholders and 0.5 million shares were sold by us. In connection with the IPO, we incurred a non-recurring charge for extraordinary debt extinguishment costs of $7.4 million ($4.9 million, net of income tax benefit) related to the write-off of capitalized financing fees incurred in connection with the Barnes-Hind Acquisition financing. Additionally, we incurred and capitalized financing fees of $2.5 million, which are being amortized over 60 months. In September 1997, in connection with the 1997 Offering, we entered into an amended bank credit agreement which increased the total borrowing availability thereunder to $135.0 million, converted all of our remaining term loan borrowings into revolving loans, and reduced the interest rate thereunder. We incurred an additional $0.6 million of fees and expenses associated with the amended bank credit agreement. These costs have been capitalized and are being amortized through September 2002. Interest expense reductions as if the IPO had occurred on January 1, 1996 are reflected in the pro forma columns of our Unaudited Statement of Operations Data. See "Results of Operations." However, there can be no assurance that our interest expense will not increase in future periods either as a result of increased borrowings or higher interest rates. Results of Operations The Wesley Jessen and Barnes-Hind Acquisitions occurred on June 29, 1995 and October 2, 1996, respectively. Because of the revaluation of the assets and liabilities, the related impact on cost of sales and expenses and the several cost-reduction and operating improvements undertaken in connection with such acquisitions, the financial statements of WJ for the years ended December 31, 1998, 1997 and 1996 are not comparable. In addition, we completed our IPO in February 1997, which had a significant impact on our on-going interest expense. To improve the comparability of our last three 16 fiscal years, and to assist the reader in better understanding the changes in our operations over such periods, we have set forth below certain pro forma operating results for the years ended December 31, 1996 and 1997 giving effect to the cost-reduction and operating improvements as if such transactions occurred on January 1, 1996. The pro forma adjustments are set forth in the notes to the table. The pro forma information included herein for the prior year periods is presented for informational purposes only and should not be viewed as a substitute for our results of operations calculated in accordance with generally accepted accounting principles. In addition, the following pro forma information does not purport to represent the results of operations of WJ had such transactions in fact occurred on such date, nor does it purport to be indicative of the results of operations of any future periods. The following pro forma information should be read in conjunction with our audited consolidated financial statements and the notes thereto included elsewhere in this prospectus. Unaudited Statement of Operations Data (in thousands, except per share data)
Three Twelve Months Ended December 31, Months Ended, ------------------------------------------------ ----------------------- Pro Pro Actual Forma Actual Forma Actual March 28, April 3, 1996 1996(a) 1997 1997(b) 1998 1998 1999 -------- -------- -------- -------- -------- --------- -------- Net sales............... $156,752 $249,999 $282,178 $282,178 $292,259 $70,595 $76,311 Operating costs and expenses: Cost of goods sold..... 63,858 86,568 115,446 92,780 90,471 21,939 25,118 Marketing and administrative........ 88,274 127,030 137,650 136,565 143,309 37,563 38,403 Research and development........... 7,178 12,050 11,997 11,997 10,818 2,386 2,873 Amortization of goodwill, net......... (784) (784) (862) (862) (997) (274) (229) -------- -------- -------- -------- -------- ------- ------- Income (loss) from operations............ (1,774) 25,135 17,947 41,698 48,658 8,981 10,146 Other (income) expense: Interest expense, net.. 5,385 5,809 5,559 5,148 4,811 996 1,023 Other income, net...... (3,051) (3,051) -- -- -- -- -- -------- -------- -------- -------- -------- ------- ------- Income (loss) before income taxes and extraordinary loss..... (4,108) 22,377 12,388 36,550 43,847 7,985 9,123 Income tax (expense) benefit................ 3,037 (7,608) (4,188) (12,244) (14,250) (2,715) (2,919) -------- -------- -------- -------- -------- ------- ------- Income (loss) before extraordinary loss..... (1,071) 14,769 8,200 24,306 29,597 5,270 6,204 Extraordinary loss, net of related income tax benefit................ (1,671) -- (4,902) -- -- -- -- -------- -------- -------- -------- -------- ------- ------- Net income (loss)....... $ (2,742) $ 14,769 $ 3,298 $ 24,306 $ 29,597 $ 5,270 $ 6,204 ======== ======== ======== ======== ======== ======= ======= Net income (loss) per common share: Basic.................. $ 0.19 $ 0.85 $ 0.20 $ 1.40 $ 1.70 $ 0.30 $ 0.36 Diluted................ $ 0.19 $ 0.79 $ 0.18 $ 1.29 $ 1.57 $ 0.27 $ 0.34 Weighted average common shares outstanding: Basic.................. 14,638 17,459 16,898 17,302 17,432 17,784 17,039 Diluted................ 14,638 18,684 18,451 18,856 18,904 19,396 18,455
- -------- (a) The pro forma results comprise the Wesley Jessen operations and the Barnes- Hind operations and include adjustments for: (i) the divestiture of the U.S. Natural Touch product line of $1,039; (ii) the elimination of inventory step-up amortization of $20,706; (iii) the net reduction in depreciation and amortization expense of $2,876 as a result of our application of purchase accounting; (iv) the net cost savings of $20,712 relating to the reduction of certain operating expenses including the consolidation of corporate offices, a reduction in the number of corporate- level employees and related expenses, and the curtailment of certain manufacturing activities; (v) the net increase in interest expense associated with the financing of the Barnes-Hind Acquisition and the refinancing in connection with the IPO of $386; (vi) the elimination of the extraordinary write-off of capitalized financing fees of $1,671; and (vii) the adjusted income tax expense resulting from the preceding adjustments at an effective income tax rate of 34%. (b) The pro forma results include adjustments for (i) the elimination of inventory step-up amortization of $22,666; (ii) the cost savings of $1,085 relating to the reduction of certain operating expenses including the consolidation of corporate offices, a reduction in the number of corporate- level employees and related expenses, and the curtailment of certain manufacturing activities; (iii) the net decrease in interest expense of $411 associated with the refinancing in connection with the IPO; (iv) the elimination of the extraordinary write-off of capitalized financing fees of $4,902; and (v) the adjusted income tax expense resulting from the preceding adjustments at an effective income tax rate of 33.5%. 17 Three Months Ended April 3, 1999 (Unaudited) Compared to Three Months Ended March 28, 1998 (Unaudited) Net sales for the three months ended April 3, 1999 increased $5.7 million, or 8.1%, to $76.3 million from $70.6 million for the three months ended March 28, 1998. This increase resulted primarily from 42.8% growth in the sales of disposable and planned replacement contact lenses, from $27.4 million to $39.1 million, offset by a 13.9% decline in the sales of conventional lens products, from $43.2 million to $37.2 million. Sales of disposable and planned replacement lenses grew 59.2% in the U.S. and 23.7% internationally, while sales of conventional lenses fell 8.2% domestically and 22.7% in the rest of the world. Total sales in the United States grew 16.1%, with total international sales posting a decrease of 2.8% for the three month period. Gross profit for the three months ended April 3, 1999 increased $2.5 million, or 5.2%, to $51.2 million from $48.7 million in the comparable 1998 period. Gross profit margin decreased 1.8% to 67.1% in 1999, reflecting temporary inefficiencies related to increased production to meet the sales demand for new products. Marketing and administrative expenses for the three months ended April 3, 1999 increased by $0.8 million, or 2.2%, to $38.4 million from $37.6 million for the three months ended March 28, 1998. This increase was largely due to higher selling expenses incurred to support an expansion of the international direct salesforce. As a percentage of net sales, marketing and administrative expenses decreased to 50.3% in the 1999 period from 53.2% in the 1998 period. Research and development expenses increased $0.5 million, or 20.4%, to $2.9 million for the three months ended April 3, 1999 from $2.4 million for the three months ended March 28, 1998. As a percentage of net sales, research and development expenses increased to 3.8% in the 1999 period from 3.4% in the 1998 period. The increase was driven by developmental spending for a bifocal lens product and regulatory costs for gaining approval to market new products in Japan. Interest expense increased 8.1% to $1.2 million for the three months ended April 3, 1999 from $1.1 million for the three months ended March 28, 1998 due to higher average debt balances in 1999, partially offset by the effects of lower current year interest rates available to WJ under our revolving credit facility. Net income for the three months ended April 3, 1999 increased $0.9 million, or 17.7%, to $6.2 million from $5.3 million for the three months ended March 28, 1998 as improvement in gross profit was partially offset by increased spending in marketing and administrative expenses along with higher research and development costs and a more favorable year-over-year effective tax rate. The decrease in the effective tax rate to 32% in 1999 from 34% in 1998 was primarily due to a shift in the mix of earnings among our various operations. Year Ended December 31, 1998 Compared to Pro Forma Year Ended December 31, 1997 (Unaudited) Net sales for the year ended December 31, 1998 increased $10.1 million, or 3.6%, to $292.3 million from $282.2 million for the year ended December 31, 1997. This increase resulted primarily from 27.3% growth in the sales of disposable and planned replacement contact lenses, from $98.0 million to $124.8 million, offset by a 9.1% decline in the sales of conventional lenses, from $184.1 million to $167.4 million. Sales of disposable and planned replacement lenses grew 40.4% in the U.S. and 15.0% internationally while sales of conventional lenses fell 8.4% domestically and 10.2% in the rest of the world. For the year, total U.S. sales increased 6.1% while international sales were flat. The sales returns and allowances reserve increased slightly from $10.4 million at December 31, 1997 to $10.6 million at December 31, 1998. This increase resulted primarily from a price rebate provision, which was only partially offset by lower distributor return reserve requirements in the current year. 18 Gross profit for the year ended December 31, 1998 increased $12.4 million, or 6.5%, to $201.8 million from $189.4 million in the comparable 1997 period. Gross margin improved 1.9% to 69.0% in 1998, reflecting sales-driven increases in production of the high margin disposable and planned replacement lenses, as well as cost savings from improved plant utilization and other operating efficiencies including those associated with benefits of consolidation. Marketing and administrative expenses increased by $6.7 million, or 4.9%, to $143.3 million in 1998 from $136.6 million in 1997. As a percentage of net sales, marketing and administrative expenses increased to 49.0% in 1998 from 48.4% in 1997. This increase was largely due to added promotional spending to support the launch of the FreshLook toric lens and the market expansion of the disposable and planned replacement product lines, along with higher performance related compensation expenses. Research and development expenses for 1998 decreased by $1.2 million, or 9.8%, to $10.8 million from $12.0 million in 1997. As a percentage of net sales, research and development expenses declined to 3.7% from 4.3% in the prior year period. The decrease was driven by the realization of operational synergies related to the Barnes-Hind Acquisition, successful completion of various production-related development projects and nonrecurring development efforts in 1997. Amortization of goodwill increased by $0.1 million, or 15.7%, to $1.0 million in 1998 from $0.9 million in 1997 due to the impact on negative goodwill of the purchase price reduction, pension valuation and integration of cost estimate changes related to the Barnes-Hind Acquisition. Interest expense, net decreased 6.5% to $4.8 million in 1998 from $5.1 million in 1997 due to the paydown of debt throughout 1997 and early 1998 with proceeds from the offerings and funds generated from operations. Net income for the year ended December 31, 1998 increased by $5.3 million to $29.6 million from $24.3 million for the year ended December 31, 1997 due to improvement in gross margin partially offset by higher spending in marketing and administrative expenses and a more favorable year-over-year effective tax rate. Pro Forma Year Ended December 31, 1997 (Unaudited) Compared to Pro Forma Year Ended December 31, 1996 (Unaudited) Net sales for the year ended December 31, 1997 increased $32.2 million, or 12.9%, to $282.2 million from $250.0 million for the year ended December 31, 1996. This increase resulted primarily from 38.1% growth in sales of our disposable and planned replacement contact lenses, from $71.0 million to $98.0 million, along with a moderate increase in the conventional lens product lines of 3.1%. Sales of disposable and planned replacement contact lenses grew 51.4% in the U.S. and 27.6% internationally. Total sales in the United States grew 17.4%, while sales in the rest of the world grew 7.8% for the year. The sales returns and allowances reserve decreased slightly from $10.6 million at December 31, 1996 to $10.4 million at December 31, 1997. This is a result of lower actual sales returns and allowances trends which we experienced throughout the year. Gross profit for the year ended December 31, 1997 increased $26.0 million, or 15.9%, to $189.4 million from $163.4 million in the comparable 1996 period. Gross profit margin improved 1.7% to 67.1% in 1997, reflecting the higher margins realized on our disposable and planned replacement lenses due to higher production volumes, as well as cost savings from improved plant utilization and other operating efficiencies. Marketing and administrative expenses increased by $9.5 million, or 7.5%, to $136.6 million in 1997 from $127.0 million in 1996, largely due to higher promotional spending for all product lines, 19 particularly the former Barnes-Hind conventional lens products, along with higher performance related compensation expenses. As a percentage of net sales, though, marketing and administrative expenses decreased to 48.4% in 1997 from 50.8% in 1996. Income from operations of $41.7 million for the year ended December 31, 1997 increased 65.9% from $25.1 million for the year ended December 31, 1996 due to the overall increase in sales volume along with improvement in our gross margin offset slightly by the increase in marketing and administrative expenses. Interest expense, net decreased 11.4% to $5.1 million in 1997 from $5.8 million in 1996 due to the paydown of debt with proceeds from the offerings as well as interest income earned on the promissory note receivable related to the sale of our Natural Touch product line. Other income for the year ended December 31, 1996 includes $3.7 million of non-recurring licensing fee income. There was no such income in the comparable 1997 period. Net income for the year ended December 31, 1997 increased $9.5 million to $24.3 million from $14.8 million for the year ended December 31, 1996. Excluding the 1996 licensing fee income, net income increased $12.0 million. This resulted from higher sales volume and improvement in our gross margins, partially offset by increased spending in marketing and administrative expenses. Liquidity and Capital Resources We finance our operations primarily through funds provided from operations and through borrowings under our revolving credit facility. For the three months ended April 3, 1999, we generated approximately $2.7 million in cash from operating activities, primarily as a result of profitability gains and a higher income taxes payable balance, along with improved customer collections and decreased inventory levels, partially offset by payments made for the prior year's performance related compensation and integration costs related to the Barnes-Hind Acquisition. For the three months ended March 28, 1998, we used approximately $6.1 million in cash from operating activities. This use resulted from increases in accounts receivable and inventories, along with payments made for the prior year's performance related compensation and integration costs relating to the Barnes-Hind Acquisition, partially offset by improvements in profitability and an increase in accounts payable. Since December 31, 1998, we have incurred additional borrowings of $3.0 million, primarily to fund capital expenditures. For the year ended December 31, 1998, we provided approximately $31.2 million in cash from operating activities. This source of funds resulted from improved profitability, along with higher income taxes payable and accounts payable balances, partially offset by increased inventory and accounts receivable levels. For the year ended December 31, 1997, we provided approximately $6.9 million in cash from operating activities, primarily as a result of increases in profitability (giving effect to the inventory step-up amortization and the extraordinary loss), partially offset by working capital requirements and payments under the plan to integrate the Barnes-Hind operations. For the year ended December 31, 1996, we provided approximately $19.2 million in cash from operating activities, primarily as a result of increases in profitability (giving effect to the inventory step-up amortization), a decrease in accounts receivable and increases in income taxes payable and accrued liabilities offset by a decrease in accounts payable. For the three month periods ended April 3, 1999 and March 28, 1998, we made capital expenditures of approximately $7.8 million and $2.0 million, respectively. The majority of these capital expenditures were for production capacity expansion, information technology enhancements, and site consolidations. For the years ended December 31, 1998, 1997 and 1996, we made capital expenditures of approximately $17.2 million, $16.3 million and $6.6 million, respectively. The majority of these 20 capital expenditures were for facility and equipment improvement, information technology enhancements and site consolidations. We anticipate additional capital expenditures of approximately $23.4 million to be made throughout 1999 to continue to expand production capacity, further consolidate locations, and improve management information systems. We expect to fund these capital expenditures primarily by cash generated from operating activities and borrowings under our revolving credit facility. As a result of the Barnes-Hind Acquisition, we expect to incur integration costs of approximately $20.4 million, principally for severance costs and lease expenses on vacated premises. Management expects that this restructuring will be substantially completed by March 2000. As of April 3, 1999, we have paid $13.7 million of these integration costs. Effective July 29, 1998, we entered into the first amendment and consent of the amended bank credit agreement to increase the borrowing availability under the revolving credit facility to $170.0 million and to permit the repurchase of a maximum of $35.0 million of our common stock. See "Share Repurchase Program." As of April 3, 1999, we had approximately $98.0 million in borrowing availability under the revolving credit facility portion of the amended bank credit agreement. The amended bank credit agreement imposes certain restrictions on us, including restrictions on our ability to incur indebtedness, declare dividends or other distributions, make investments and capital expenditures, grant liens, sell our assets and engage in certain other activities. In addition, the indebtedness under the amended bank credit agreement is secured by substantially all of our assets, including our real and personal property, inventory, accounts receivable, intellectual property and other tangible assets. Management believes that, based on current levels of operations and anticipated internal growth, cash flow from operations, together with other available sources of funds including borrowings under the amended bank credit agreement and cash on hand at April 3, 1999, of $7.6 million, will be adequate over the next twelve months to make required payments of principal and interest on our indebtedness, to fund anticipated capital expenditures and working capital requirements, including the aforementioned restructuring and integration costs, and to enable us and our subsidiaries to comply with the terms of our debt agreements. However, actual capital requirements may change, particularly as a result of any acquisitions we may pursue. Our ability to meet our debt service obligations and reduce our total debt will be dependent upon our future performance and our subsidiaries' future performance which, in turn, will be subject to general economic conditions and to financial, business and other factors, including factors beyond our control. A significant portion of our consolidated debt bears interest at floating rates; therefore, our financial condition is and will continue to be affected by changes in prevailing interest rates. In December 1996, we purchased an interest rate cap on $35.0 million notional principal amount at a fixed rate of 8.5%, which expires on December 31, 1999. The cap is intended to provide partial protection from potential exposure relating to our variable rate debt instruments. Approximately 38% of our net sales for the three months ended April 3, 1999 and approximately 42% of our net sales for the year ended December 31, 1998 were to international customers and we expect that sales to international customers will continue to represent a material portion of our net sales. Historically, fluctuations in foreign currency exchange rates have had only a minor impact on our results of operations and we do not expect such fluctuations to be material in the foreseeable future. Share Repurchase Program The board of directors approved a share repurchase plan on June 10, 1998 and we completed the program on September 18, 1998. Under the plan, we repurchased one million shares of our 21 outstanding common stock at an average cost of $21 per share. Repurchases were made in normal market trading at prevailing prices and were funded from operating cash flow and our existing bank credit agreement. Recent Acquisitions In May 1999, we, through our Hong Kong subsidiary, acquired certain assets of Eycon Lens (Hong Kong) Co., Ltd. On June 26, 1998, we acquired the operations of Plastic Contact Lens Argentina SAIC ("'PCL") from its sole shareholder. On July 31, 1998, we, through our Australian subsidiary, acquired certain assets and assumed certain liabilities of Eycon Lens Laboratories, Pty, Ltd. from its shareholders. The total adjusted purchase price for the three acquisitions of approximately $3.2 million (including additional fees and expenses) was funded with existing liquidity. None of these acquisitions were material to our financial statements. We have accounted for the acquisitions under the purchase method of accounting. Seasonality and Quarterly Information Historically, we have experienced limited seasonality, with slightly greater revenues in the quarters ended June and September and slightly lower revenues in the quarters ended March and December. The following table sets forth our unaudited operating results for the last eight fiscal quarters, excluding the impact of the inventory step-up. The information for each of the quarters is unaudited but includes all adjustments, consisting of only normal receiving adjustments, which management considers necessary for the fair presentation thereof.
1997 1998 1999 ------------------------- ---------------------------------- ------- Second Third Fourth First Second Third Fourth First Quarter Quarter Quarter Quarter Quarter Quarter Quarter Quarter ------- ------- ------- ------- ------- ------- ------- ------- Statement of Operations Data: Net sales............... $72,083 $75,235 $70,789 $70,595 $73,417 $75,254 $72,992 $76,311 Operating income........ 710 11,989 12,220 8,981 12,840 13,535 13,302 10,146 Net income (loss)....... (371) 7,095 7,305 5,270 7,727 8,051 8,549 6,204 Other Data: Amortization of goodwill, net.......... (196) (196) (274) (274) (273) (247) (203) (229) Depreciation............ 231 231 317 475 470 842 335 1,135 Inventory step-up....... 9,574 -- -- -- -- -- -- --
Inflation Management believes that inflation has not had a material impact on our results of operations during the three years ended December 31, 1998 and the three months ended April 3, 1999. Recently Issued Accounting Pronouncements Statement of Financial Accounting Standards ("SFAS") No.133, "Accounting for Derivative Instruments and Hedging Activities" issued in June 1998, establishes accounting and reporting standards for derivative instruments and for hedging activities. Amending SFAS 52, "Foreign Currency Translation" and SFAS 107, "Disclosures about Fair Value of Financial Instruments" and superseding SFAS 80, "Accounting for Futures Contracts," SFAS 105, "Disclosure of Information about Financial Instruments with Off-Balance-Sheet Risk and Financial Instruments with Concentrations of Credit Risk" and SFAS 119, "Disclosure about Derivative Financial Instruments and Fair Value of Financial Instruments," SFAS 133 requires the recognition of all derivatives as either assets or liabilities in the 22 statement of financial position and measurement of those instruments at fair value. SFAS 133 is effective for fiscal quarters of fiscal years beginning after June 15, 1999 and does not permit retroactive application to prior period financial statements, however the FASB has issued an exposure draft that may delay the effective date to fiscal years beginning after June 15, 2000. We expect to implement SFAS 133 in our financial statements for the year ending December 31, 2000, unless the exposure draft is adopted as a final statement. This Statement is not expected to have a material impact on our financial statements. Year 2000 We utilize and rely upon computer technology in many facets of our operations, such as in the manufacture of contact lenses, the distribution of lenses to customers, the arrangement of credit in connection with the purchase of goods and the internal and external reporting of financial and operational information. The technologies employed by us throughout our operation include hardware and software as well as microprocessors and other electronic devices which are components of production equipment ("embedded chips"). In the past, certain computer programs were written using two digits rather than four to define the applicable year. Consequently, any of our systems and equipment that involve the use of time-sensitive software programmed in that manner may recognize a date identified as "00" as the year "1900" rather than "2000", which could result in miscalculations or system failures. This is commonly referred to as the Year 2000 or Y2K issue. We have undertaken a global approach to addressing the Year 2000 issue. Thus far, we have identified the areas of our operations in which the Year 2000 issue may arise and conducted a global survey of all personal computer, software and other essential equipment to identify components that must be modified or replaced. A formal plan has been established to acquire new and repair existing Company personal computers and associated software by June 1999. An assessment of manufacturing equipment and software has been completed. We are using both internal and external resources to identify and test systems for Year 2000 compliance and to modify or replace them when necessary. Mainframe system software modifications are progressing according to plan, and critical components are being tested. In addition, we have initiated written communications with significant suppliers and all banking institutions with which we have financial arrangements to determine the extent to which our systems and operations are vulnerable to those third parties' failures to remediate their Year 2000 compliance problems. Our global steering committee meets bi-weekly to monitor the progress of testing all Company Information Technology ("IT") and relevant non-IT systems, to establish milestones for completion of specific Year 2000-related tasks throughout our facilities, and to supervise generally the measures taken by us to address the Year 2000 issue. We presently believe that, as a result of our actions, the Year 2000 issue will not pose significant operational problems for our computer systems. If, however, the modifications, conversions and testing described above are not accomplished in a timely manner, the Year 2000 issue could have a material impact on our operations. In addition, there can be no guarantee that the systems of third parties will be made compliant in a timely manner and would not have an adverse effect on us. To minimize the potential risk related to unsuccessful remediation on either our part or the part of our significant suppliers or bankers, a contingency plan is being developed. We are using both internal and external resources to identify and test systems for Year 2000 compliance and to modify or replace them where necessary. To assure Year 2000 compliance, we have made commitments of $1.9 million to date, of which $0.8 million and $0.6 million was spent in 1998 and 1999, respectively, and have projected commitments of $1.2 million in future periods. The majority of these costs will be expensed as incurred, with the remainder treated as capital expenditures. Costs related to Year 2000 compliance were not significant in years prior to 1998. 23 At this time, management is unable to estimate the effect of noncompliance with the Year 2000 issue on our results of operations, liquidity and financial condition beyond the belief that noncompliance would be material in nature. Conversion to Euro Currency On January 1, 1999, eleven member countries of the European Union established fixed conversion rates between their existing currencies ("legacy currencies") and one common currency--the euro. The conversion to the euro will eliminate currency exchange risk between member countries. Beginning in January 2002, new euro-denominated bills and coins will be issued, and legacy currencies will be withdrawn from circulation. The transition period for the introduction of the euro will be between January 1, 1999 and June 30, 2002. We conduct business in some member countries affected. The more important issues facing us include: converting information technology systems; negotiating and amending business agreements and contracts; processing tax and accounting records; and potentially the competitive impact of cross-border price transparency. Our operating subsidiaries affected by the euro currency conversion are addressing the issues involved, currently with preliminary emphasis on order processing, banking and assessment of financial systems. Due to the uncertainties involved, the issue of one common currency's effect on pricing and its impact on results of operations cannot be reasonably estimated at this time. Based on our work to date, we believe the euro currency conversion has not and will not have a material impact on our consolidated financial condition and results of operations. Quantitative and Qualitative Disclosure About Market Risk We are primarily exposed to market risks that relate to interest rates and foreign currency exchange rates. Our attempts to manage these risks to an acceptable level based on management's judgment of the appropriate trade-off between risk, opportunity and costs. Selectively, we enter into interest rate caps and foreign currency forward exchange contracts to manage market risks. We do not hold financial instruments for trading or speculative purposes. Foreign currency exchange rate risk We use forward exchange contracts to minimize the effects of foreign currency fluctuations between the British Pound Sterling and the Japanese Yen. These contracts are used to hedge certain intercompany amounts owed, and the notional amounts and fair values of those contracts were not material at December 31, 1998. Interest rate risk Virtually all of our debt bears interest at floating rates, approximately 6% at December 31, 1998. Therefore, increases and decreases in interest rates have significant impact on our overall profitability, but do not have a significant impact on the fair value of the debt overall. A 10% increase in the interest rate would increase our interest expense by approximately 10%, or $544,000. We purchased an interest rate cap of 8.5% on $35.0 million of notional principal amount in order to partially offset adverse impacts of potential interest rate increases. We currently do not expect to incur any expense or receive any significant benefit from the interest rate cap because of the large difference between the current interest rate and the interest rate cap. 24 BUSINESS General We are the leading worldwide developer, manufacturer and marketer of specialty soft contact lenses, based on our share of the specialty lens market. Our specialty lens products include cosmetic lenses, which change or enhance the wearer's eye color appearance; toric lenses, which correct vision for people with astigmatism; and premium lenses, which offer value-added features such as improved comfort for dry eyes and protection from ultraviolet light. We offer a broad range of both conventional contact lenses, which can typically be used for up to 24 months before replacement, and disposable contact lenses, which are intended to be replaced at least every week. Founded in 1946 by pioneers in the contact lens industry, we have a long-standing reputation for innovation and new product introductions. For the twelve months ended December 31, 1998, our net sales were $292.3 million and our operating income was $48.7 million. We operate primarily in the specialty segment of the soft lens market. In recent years, in both the clear and specialty lens segments, there has been a pronounced shift in consumers' preferences toward disposable lenses and away from conventional lenses, which has led to a significant increase in contact lens expenditures per wearer. We estimate that more than 40% of U.S. soft lens wearers use disposable lenses, up from 21% in 1993. We also offer a complete line of conventional and disposable clear lenses, which are positioned as companion products to our cosmetic lenses. According to an independent research firm, more than 75% of all contact lens prescribers in the United States offer our products, which permits us to rapidly launch new categories of products. Wesley Jessen develops proprietary technologies, manufacturing processes and products through a combination of its in-house staff of more than 100 engineers and scientists and Company-sponsored research by third-party experts. We are among the largest advertisers in the industry and market our products to consumers through advertising campaigns and to eyecare practitioners through our 211 person salesforce and network of independent distributors, which together sell our products in more than 75 countries. We were founded by Drs. Newton K. Wesley and George Jessen, who went on to pioneer the design, manufacture and fitting techniques of hard contact lenses. From 1980 to 1995, we operated as a wholly owned subsidiary of Schering-Plough. On June 29, 1995, Bain Capital and management acquired the Predecessor in a leveraged acquisition. On October 2, 1996, we acquired Barnes-Hind division from Pilkington plc. At the time of the acquisition, Barnes-Hind was the third largest manufacturer of specialty contact lenses in the world, with a leading market position in premium and toric lenses. Industry Overview Industry analysts estimate that over 50% of the world's population needs some type of corrective eyewear. In the United States alone, there are over 156 million people who require some form of corrective eyewear. Most individuals who wear contact lenses begin to do so in their early teens and the majority of wearers are between the ages of 18 and 39. We believe that the number of contact lens wearers will expand as technology improves the convenience, comfort and fit of contact lenses, so that lenses provide cost-effective and comfortable vision correction to a larger segment of the population. The contact lens industry is large and rapidly growing. In 1998, manufacturers' sales of soft contact lenses worldwide totaled $2.3 billion, representing a compound annual growth rate of approximately 10% from $1.1 billion in 1990. We believe that market growth outside the United States will likely exceed domestic growth because of lower contact lens penetration rates internationally. 25 Since 1991, the number of contact lens wearers in the United States has increased by 4% per year while revenue per wearer has increased by 5% per year as conventional users have shifted to more costly specialty and disposable lenses. While the market for hard contact lenses has been relatively flat since 1991 with approximately 6 million U.S. wearers, the number of people wearing soft contact lenses has grown at a compound annual growth rate of 6% since that time. The contact lens industry can be divided into the soft lens portion, which represents approximately 80% of U.S. wearers, and the hard lens portion, primarily rigid gas permeable ("RGP"), which represents approximately 20% of U.S. wearers. Within the soft contact lens market, there are three principal replacement regimes: conventional, disposable and planned replacement. Conventional lenses are typically replaced after 12 to 24 months and require periodic cleaning throughout the life of the lens. Disposable soft contact lenses were introduced in the late 1980s based on the concept that changing lenses on a more frequent basis helped to improve comfort, convenience and health of the eye for many wearers. Disposable lenses are intended to be changed as often as daily or weekly depending on the product. Planned replacement lenses are designed to be changed as often as every month or up to every three months and currently represent 15% of the overall soft lens market. The two primary segments within the soft lens market are clear and specialty. Clear lenses, which do not provide value-added features that specialty lenses offer, represent approximately 67% of the U.S. soft lens market and include both conventional and disposable products. Growth in the clear lens segment has been driven primarily by growth in the population of 14- to 25-year-olds, the prime age group for new lens wearers, the substitution of soft for hard contact lenses and the continuous evolution in the contact lens market toward more frequent replacement of contact lenses. Specialty lenses represent the remaining 33% of the U.S. soft lens market and generally command a premium price because they are designed for patients who have a medical need for a specialized lens or who desire a lens with additional features. Specialty lenses include cosmetic lenses which change or enhance the natural color of eyes while correcting vision, toric lenses for astigmatics, bifocal lenses for presbyopes and premium lenses that offer protein deposit resistance, improved visual acuity, enhanced comfort for dry eyes or UV protection. The specialty lens segment of the soft contact lens market has higher projected growth rates than the clear lens segment. During the past several years the number of specialty lens wearers has increased at a rate of 11% per year; more than double the rate of increase of clear wearers. We believe that continued rapid growth in sales of specialty lenses will result from: . the continued trend toward disposables; . increased awareness among consumers and eyecare practitioners of the value-added features available with specialty lenses; and . new product innovations, such as disposable toric contact lenses, new cosmetic designs, ultraviolet protection lenses and effective bifocal contact lenses. An important characteristic of the contact lens industry is that an individual's need for corrective eyewear is chronic. The need for vision correction is often diagnosed at an early age and increases over time. Contact lenses represent an alternative to eyeglasses, while offering improved peripheral vision and additional features, such as eye color enhancement and UV protection. Contact lens wearers will typically purchase lenses regularly for several years. Contact lenses require a prescription specifying a particular brand of lenses. Such prescriptions are written by either ophthalmologists or optometrists referred to in the contact lens industry as "fitters." An ophthalmologist is a physician with a Doctor of Medicine ("MD") degree who specializes in eyecare, and an optometrist is a state-licensed eyecare specialist who holds a Doctor of Optometry ("OD") degree. Fitters have the ability to influence patients' choice of which contact lens brand they 26 will wear. Therefore, if a contact lens manufacturer successfully markets its products to a fitter, that fitter will carry that manufacturer's brand of contact lenses in inventory and offer it to patients. Once the brand is in the fitter's inventory, the manufacturer will likely receive a stream of revenues from new patients for whom the brand is prescribed as well as from patients who are refitted, change lens types or need different prescriptions. Also, the manufacturer will be more likely to successfully place new products in the fitter's inventory. Prescriptions for contact lenses are filled by either ophthalmologists, optometrists, optical chains, health maintenance organizations (HMOs), pharmacies or mail order houses. The contact lens industry is characterized by high brand loyalty. We believe that wearers resist switching brands once a particular brand is prescribed and fitted successfully. By staying with an existing brand, a customer can replace his or her current lens without an eye examination. Even for an adjusted prescription, customers typically acclimate to a particular lens design and may experience discomfort if refitted with a new brand. Typically, only when a customer is experiencing difficulty with a lens or the customer wants to switch from conventional to disposable lenses or from clear to specialty lenses will a fitter refit with a different brand of lens. We believe, based on historical patterns in the contact lens industry that once a product category has matured, brand loyalty causes competitive market share to remain relatively constant. However, overall market share may shift because of different growth rates of each category or the creation of new categories. No new significant competitors have entered the soft contact lens industry in the last ten years. To compete successfully in the industry entails substantial risks and requires significant investment of time and resources. In particular, we believe a new entrant must successfully (1) develop innovative product offerings; (2) master the sophisticated processes required to manufacture contact lenses; (3) invest the significant capital required to develop manufacturing capacity; (4) overcome existing patent protections covering the design, materials and manufacturing processes of contact lenses; and (5) obtain FDA product clearances, each of which may take several years. Competitive Strengths We believe we have achieved our leading worldwide market position in specialty contact lenses because of the following competitive strengths: High-Quality Branded Products. We produce a broad range of high-quality contact lenses that meet customer demand for improved cosmetic, comfort, ease-of-care and vision-correction features and are sold under brand names recognized by ophthalmologists and optometrists worldwide. Our cosmetic lens products are marketed under the DuraSoft, Elegance, Wild Eyes, FreshLook and FreshLook Colorblends brand names, our toric lenses under the Optifit, Hydrocurve and CSI brand names, and our premium lenses under the Gentle Touch, Precision UV, Aquaflex and CSI brand names. Both eyecare practitioners and wearers tend to show significant brand loyalty once a particular brand of lenses is properly fitted and prescribed. As a result, our large installed base of contact lens fitters and current wearers affords us a recurring revenue stream. Successful Development and Introduction of New Products. We have a strong track record of developing new specialty contact lens products, with new product lines introduced since 1994 accounting for over 50% of our net revenues for 1998. We introduced the first disposable opaque lens and the first disposable lens that offers UV protection in 1994. We believe that being the first to introduce a new specialized lens is a competitive advantage over subsequent entrants to that product category because of the significant brand loyalty in the contact lens industry. Broad Patent Portfolio. We believe that our intellectual property, including more than 70 U.S. patents in product design, materials and manufacturing processes, makes imitation of our 27 products difficult, supports our strong gross margins and provides us with a competitive advantage. Our most important patents cover the design of our toric lenses; the material, process and design of clear-pupil cosmetic lenses; and the technology necessary to produce certain advanced polymer lenses. We believe that our patent portfolio and manufacturing expertise allow us to produce and sell specialty lens products that are not otherwise available on the market. Established Sales and Distribution Network. We believe our salesforce and distributor network constitute the largest and most sophisticated sales organization in the specialty contact lens market. Our salesforce has focused on developing strong relationships with eyecare practitioners throughout North America, Europe, Asia and Latin America. Through our sales efforts, we seek to educate and inform eyecare practitioners as to (1) the breadth of our specialized product line; (2) the extent to which they can build their practice through the use of our products; and (3) their ability to generate more revenue per patient by prescribing our value-added lenses instead of conventional or disposable clear lenses. Strong International Market Presence. We derived approximately 42% of our 1998 net sales from sales outside the United States, and our specialty contact lens products have leading market shares in Europe, Japan and Latin America. We have over 107 international sales representatives and more than 60 distributors covering more than 75 countries. We believe that such international markets offer attractive opportunities for increased sales as a result of lower contact lens penetration rates as compared to the United States. Low-Cost, Proprietary Manufacturing Capabilities. We produce substantially all of our contact lens products in four state-of-the-art manufacturing facilities, which apply proprietary technology, allow us to be a flexible, low-cost manufacturer of specialty lenses. We believe that we enjoy a competitive advantage over other contact lens manufacturers as a result of our ability to produce cost-effective specialized contact lenses using short production runs. Consequently, we can offer approximately 180,000 stock-keeping units (SKUs). Furthermore, our manufacturing operations in Puerto Rico provide us with significant tax benefits. Experienced Management with a Proven Record of Improving Operating Performance. Our senior management team averages more than 10 years of experience in the contact lens industry, and has improved our results from operating losses of $50.5 million in 1994 to operating income of $48.7 million in 1998. This operating improvement was accomplished through the successful implementation of cost reduction programs, rationalization of manufacturing processes, refocusing of research and development programs, and execution of targeted marketing strategies. Growth Strategy Our principal objective is to expand our contact lens business in the faster- growing specialty segments of the market in order to achieve continued growth in revenues and operating profit. Our continuing business strategy is to: Capitalize on Favorable Industry Trends. According to industry analysts, the number of soft contact lens wearers in the United States has increased from 19 million in 1990 to over 27 million in 1998. We estimate that the number of soft contact lens wearers will increase by approximately 5% annually through the year 2000 as soft contact lenses continue to gain popularity and the number of 14- to 25-year-olds, the prime age group for new lens wearers, increases. In addition, there has been an ongoing shift among wearers from conventional lenses to more profitable disposable lenses as well as from clear lenses to specialty lenses, which favors our product line, including our FreshLook disposable cosmetic lenses and Precision UV disposable premium lenses. For the first quarter of 1999, approximately 50% of our net sales were generated from the sale of disposable lenses as compared to 11% in 1995. 28 Increase Our Market Share. We employ a two-pronged marketing strategy to increase our market share, using both direct consumer advertising and targeted marketing to eyecare practitioners. In 1998, we spent approximately $15.0 million on a national consumer advertising campaign featuring model Elsa Benitez to raise brand awareness and demand among consumers. In addition, we use our highly trained salesforce to market our specialty lens products to eyecare practitioners. The salesforce seeks to train new ODs and MDs to fit our lenses and to educate eyecare practitioners as to the value-added features and revenue potential of our products. Develop and Successfully Launch New Products. Our research and development program is geared toward developing new products with commercial appeal, particularly category-creating products such as our new line of disposable toric lenses and disposable specialty color lenses, as industry dynamics have historically provided considerable advantages to a firm that successfully introduces the first product in a category. In the last twelve months, we have introduced four new products or line extensions, including disposable toric lenses, a new line of specialty color lenses, novelty cosmetic lenses and ultraviolet-absorbing disposable lenses. The ultraviolet protection lens allows us to further penetrate the emerging health-conscious market and permits cross-promotion with our current specialty lens wearers. Increase the International Penetration of our Products. We believe that several international markets, particularly Europe, Japan and Brazil, offer significant opportunities for growth. In Europe, we intend to expand our direct sales organization, and in Japan, we will continue to develop strategic partnerships with leading local manufacturers and distributors. Benefit from Our Significant Operating Leverage. We plan to further improve our results of operations by utilizing our manufacturing capacity, investing in new low-cost manufacturing technologies and achieving economies of scale in development, manufacturing, distribution and administration. We enjoy significant operating leverage (i.e., a disproportionately greater impact on earnings resulting from a change in revenues) due to significant fixed-cost components of our manufacturing operations, research and development program and marketing efforts. We regularly consider the expansion of our contact lens business through acquisitions, joint ventures and other strategic alliances. Through such arrangements, we will seek to broaden our product lines within the contact lens industry and our geographic coverage and to acquire complementary product lines. Products The following table sets forth the approximate composition, by product line, of our net sales for the year ended December 31, 1998: Net Sales by Product Line (dollars in thousands)
Year Ended December 31, 1998 ---------------- Amount Percent -------- ------- Product Line Specialty Lenses.......................... $241,948 83% Clear Lenses.............................. 41,784 14% Hard/Other Lenses......................... 8,527 3% -------- --- Total Lenses............................ $292,259 100% ======== ===
29 Specialty Lenses. Our products primarily consist of specialty soft contact lenses, including cosmetic, toric and premium lenses. With the broadest product offering in the industry, we captured nearly 38% of the U.S. specialty lens segment in 1998. Our specialty soft contact lens products include the following: Cosmetic Lenses. Cosmetic lenses enhance or change the color of a wearer's eyes. Our opaque color lenses, which change the color of dark eyes (e.g., brown to green), utilize a patented dot matrix technology that we believe allows for superior cosmetic appeal. As a result, our opaque cosmetic lens products have become the standard in the market. In early 1996, we introduced our FreshLook Enhancers lenses, which enhance the natural color of light eyes and which we believe will become the market standard due to its patented color printing process that allows the pupil-covering zone of the lens to remain clear. In September 1998, we launched FreshLook ColorBlends in North America. This new cosmetic disposable lens is made with proprietary technology which imprints three distinct color patterns on a lens to better replicate the natural iris coloration. We manufacture a complete line of cosmetic lenses including: (1) the conventional DuraSoft 2 daily wear lens, which is removed and cleaned daily and typically is replaced after 12 to 24 months; (2) the conventional DuraSoft 3 extended wear lens, which can be worn overnight for up to seven days and is also typically replaced after 12 to 24 months; and (3) the disposable FreshLook contact lens, which is intended to be replaced weekly. With the broadest product offering in the cosmetic lens segment, we have obtained over 60% share of the U.S. cosmetic lens market in 1998. Toric Lenses. Toric lenses are designed to correct vision for people with astigmatism, which is characterized by an irregularly shaped cornea. Prior to the introduction of our toric lenses and other competing products in the late 1980s, this condition was not effectively correctable through the use of soft contact lenses. In February 1997, we introduced a toric version of our enhancer colored lenses. Over 30% of the U.S. population requiring vision correction are diagnosed with astigmatism, of which only about 5% currently wear soft contact lenses. Our FreshLook Toric, Optifit, Hydrocurve and CSI toric lens sales represented 15% of the U.S. toric lens market in 1998. Premium Lenses. Premium lenses offer the wearer value-added features such as protein deposit resistance, improved visual acuity, enhanced comfort for dry eyes and UV protection. We manufacture the premium CSI lens, which has long been regarded by eyecare practitioners and optical retailers as having superior visual acuity and deposit resistance. We also recently repositioned Precision UV, the first disposable lens available with UV protection, which is gaining share from many clear disposable lenses. Our market research suggests that some 90% of contact lens wearers are interested in lenses offering UV protection. Our Gentle Touch product, which is typically replaced every three months, was the first lens designed specifically for and approved by the FDA for use without intensive cleaning or special handling required of conventional lenses and offers the unique combination of enhanced comfort for dry eyes, deposit resistance and low cost relative to disposable alternatives. The following table sets forth certain of the brand names under which our specialty contact lenses are sold:
Type of Lens Specialty Contact Lens - ------------------------------- --------------------------------------------- Cosmetic Toric Premium --------------------- ---------- ------------ Conventional: DuraSoft CSI Aquaflex Elegance (a) Optifit CSI Natural Touch (a) Hydrocurve Hydrocurve Wild Eyes Disposable/Planned Replacement: FreshLook Colors FreshLook Gentle Touch FreshLook Enhancers Precision UV FreshLook ColorBlends
- -------- (a) Sold only in international markets. 30 We have successfully entered into the private label market with the offering of a private label UV protection lens. We sell our specialty contact lenses under private label primarily in Japan, the United Kingdom, France, Belgium, Spain, Italy and Canada. We believe that the private label market offers significant growth opportunities due to our unique product offerings and low- cost manufacturing capabilities. Clear Lenses. Wesley Jessen manufactures a complete line of conventional and disposable clear lenses that are positioned as companion lenses to the DuraSoft and FreshLook cosmetic product lines. We believe that eyecare practitioners can increase their revenues and profitability, as well as the value provided to lens wearers, by fitting patients with either a DuraSoft or FreshLook clear or cosmetic lens and then selling the patient a companion cosmetic or clear lens with no additional fitting expense. In fact, approximately 70% of color lens wearers also own clear lenses. Hard/Other Lenses. We also sell Polycon RGP lenses to a large base of eyecare practitioners who fit RGP lenses. In addition, we manufacture prosthetic lenses, which are custom cosmetic products that return damaged or disfigured eyes to normal appearance. We donate all profits generated from our prosthetic product line to professional associations to generate goodwill with eyecare practitioners. Research and Development Our research and development efforts are focused on product development and process technology to support our specialty lens business. We maintain a core research and development staff of over 100 engineers and scientists, which oversees our research projects. Most such projects are conducted in-house by the technical staff. Other projects are conducted by independent laboratories and universities at our direction and expense. Our research and development expenses totaled $10.8 million, or 3.7% of net sales, for the year ended December 31, 1998. In the last twelve months, we have introduced four new products or line extensions, including disposable toric lenses, a new line of specialty color lenses, novelty cosmetic lenses and additional UV-absorbing disposable lenses. The UV protection lens allows us to further penetrate the emerging health- conscious market and permits cross-promotion with our current specialty lens wearers. We have a history of innovation and new product introductions. We are currently investing in the development of, among other specialty products, extensions to our lines of cosmetic contact lenses, new disposable UV- protection lenses, new disposable bifocal contact lenses (for persons, typically over age 45, who experience both farsightedness and nearsightedness) and new premium disposable lenses. Finally, we have targeted additional research and development projects to cut manufacturing costs in the cosmetic, premium and toric product lines. Manufacturing Substantially all of our products are manufactured in our four principal production facilities, which are located in Cidra, Puerto Rico; Des Plaines, Illinois; San Diego, California; and Southampton, United Kingdom. See "-- Properties." We utilize state-of-the-art manufacturing equipment and process technology to control the quality of our products and to minimize costs. We engage in manufacturing processes that are designed to handle short production runs. As a result, we believe that we enjoy a competitive advantage over other contact lens manufacturers because we can be more versatile and cost- competitive in market segments that require special features and products manufactured to meet more stringent specifications. Our disposable lens manufacturing facilities are currently operating at approximately 80% of their capacity. We are currently expanding our production capacity at our Des Plaines, Illinois facility. This expansion is expected to be completed by the end of 1999. 31 We produce our hard and soft contact lens products primarily through manufacturing processes known as lathing and cast molding. Lathing is a machining process through which a piece of rigid lens material is shaped into a concave form with refractive characteristics by using a high-precision lathe. Following this machining, soft lenses are hydrated in a saline solution and sterilized, while RGP lenses are produced using polymers that do not absorb moisture and do not require sterilization. Lathing technology is particularly well suited for use in short production runs and is used by us to produce soft lenses at our Cidra, Puerto Rico; San Diego, California; and Southampton, United Kingdom facilities and to produce RGP lenses at our Atlanta, Georgia and Farnham, United Kingdom facilities. In connection with the 1996 Barnes-Hind Acquisition, we are in the process of closing our manufacturing operations in San Diego, California and shifting conventional lens production to our plant in Cidra, Puerto Rico. In addition, we have obtained alternate production sources for our RGP contact lenses. We use cast molded technology to produce our disposable contact lenses. In this process, a disposable plastic mold is made through the use of an automated injection molding press containing highly-engineered optical tooling. A liquid monomer is then dispensed into the mold which polymerizes to form the lens. In dry cast molding, the lenses are formed in a rigid state and are hydrated to their final characteristics after being removed from the mold. In wet cast molding, the lenses are formed fully hydrated. We use dry cast molded technology at our Southampton, United Kingdom facility and wet cast molded technology at our Des Plaines, Illinois facility. Sales and Marketing We have implemented a two-pronged sales and marketing strategy that reflects our belief that both consumers and eyecare practitioners are important to the success of our products. To generate consumer awareness and increase demand for its products, we have spent approximately $15 million in 1998 on a national advertising campaign featuring supermodel Elsa Benitez. In total, we spent approximately $31.5 million worldwide during 1998 for the advertisement and promotion of our disposal cosmetic lenses. We also developed a successful national consumer mail-in rebate program in 1998. We continued our "free gift with purchase" offer designed to increase sales of our cosmetic lenses. Due to the fitter's influence over a patient's choice of contact lens brand, we believe that developing and maintaining strong relationships with eyecare practitioners is the most critical aspect of our sales and marketing strategy. We have a salesforce of 211-persons who market our products to eyecare practitioners. Our salesforce seeks to train new ODs and MDs to fit our lenses and to inform them of the revenue potential and value-added features of our products. In marketing to eyecare practitioners, we stress the quality and features offered by our products, the breadth of our product line and the ability of such practitioners to generate more revenue per patient by offering our value-added products. We also advertise our products to eyecare practitioners through promotional materials, trade publications and conventions. We currently sell through a direct salesforce in North America, U.K., Italy, France, Spain, Belgium, Holland, Germany, Mexico, Brazil, Argentina, Japan and Australia. Countries in Europe, Asia and Latin America not directly served by us are serviced by a broad network of distributors. The Barnes-Hind Acquisition strengthened our global distribution infrastructure by contributing direct salesforces in Germany, Spain, Belgium, Netherlands, Luxembourg and Australia, in addition to strengthening existing salesforces in the United States, France, Italy, Canada and the United Kingdom. 32 The following table sets forth our net sales to the geographic regions indicated for the year ended December 31, 1998: Net Sales to Geographic Regions (dollars in thousands)
Region Amount Percent ------ -------- ------- United States............................. $170,189 58% Rest of World............................. 122,070 42% -------- --- Total................................... $292,259 100% ======== ===
For additional information about our geographic sales, refer to footnote 15 of our audited consolidated financial statements which are included elsewhere in this prospectus. Customers We currently sell our products through a variety of channels including fitters and wholesalers who sell to fitters and lens-replacement suppliers. We sell to a highly fragmented account base with no one customer accounting for more than 5% of our revenues for the year ended December 31, 1998. Furthermore, our top 10 customers accounted for less than 25% of our revenues for the year ended December 31, 1998. In the United States, we sell to three customer segments: private practitioners, chain warehouses and wholesalers. There are approximately 17,100 private practitioners (MDs and ODs not affiliated with a retail chain) who fit our products. In addition, we have distribution in over 10,000 retail chain locations, such as Cole National Corporation, LensCrafters, National Vision Association and Wal-Mart Stores, Inc., that advertise, promote and fill prescriptions for our products. Wholesalers supply but do not fit our lenses. The chart below illustrates the mix of our distribution channels in the United States in 1998: Net Sales by Distribution Channel (as a percentage of net sales)
Percent of 1998 U.S. Distribution Channel Sales -------------------- ---------- Private practitioners............................ 54% Chain warehouses................................. 14% Wholesalers...................................... 32% --- Total.......................................... 100% ===
In Europe, key corporate accounts like Boots in the United Kingdom and Optic 2000 in France have selected our lenses as their private label as well as offering our branded products. In Japan, the world's second largest contact lens market, we have a direct salesforce and also have formed strategic relationships with several hard and soft contact lens manufacturers. The Barnes-Hind Acquisition provided us with access to a new set of accounts and the opportunity to cross-sell existing product lines between the extensive customer bases of Barnes-Hind and us. Distribution We perform most warehousing, inventory management, order taking and order fulfillment functions in-house. Our fulfillment system provides the flexibility to receive, fill and ship orders as 33 small as a single lens and as large as a full truckload. Approximately 8,500 orders are received daily, primarily by telephone and facsimile in nine customer service centers in North America, Europe, Japan, Argentina and Australia. In the U.S., approximately 68% of our lenses are shipped primarily by common carriers directly to eyecare practitioners from a distribution center in Des Plaines, Illinois. The remaining 32% are shipped to wholesalers, who resell lenses to practitioners and mail-order houses. In several key markets outside the U.S., we sell and distribute lenses directly to eyecare practitioners. In other international markets, we serve customers through our network of independent distributors. Competition The contact lens market is highly competitive. We face competition from other companies within each segment of the contact lens market in which we operate. In the specialty segment of the market, we principally compete with divisions of large medical and pharmaceutical companies, including Ciba Vision (a division of Novartis Corporation) and Bausch & Lomb, Inc. as well as with smaller companies. To the extent we operate in the clear lens segment, we face competition primarily from Vistakon (a division of Johnson & Johnson) and other large contact lens manufacturers such as Ciba Vision, Bausch & Lomb, Inc. and Ocular Sciences, Inc. Certain of our competitors in each segment have lower costs of operations, products with enhanced features, substantially greater resources to invest in product development and customer support, greater vertical integration and greater access to financial and other resources than us. While we are the leading manufacturer and distributor of specialty contact lenses, we rank fourth in the contact lens market overall in terms of net revenues. To a lesser extent, we also compete with manufacturers of eyeglasses and providers of other methods of vision correction, including refractive surgical procedures. Within the contact lens market, we believe that the principal competitive factors in the specialty segment include product innovation, brand awareness, product quality and price. Due to the manner in which contact lenses are distributed (i.e., through prescription), we also compete on the basis of our relationships and reputation with eyecare practitioners. Suppliers We have a broad base of suppliers. We have qualified multiple vendors to supply substantially all of the materials we use in our manufacturing processes and actively seek to qualify new vendors to insure adequate access to such materials. The primary raw materials we use in the production of contact lenses are specialty chemicals. For the year ended December 31, 1998, no supplier accounted for more than 5% of our costs of goods sold. We use a number of advanced polymers and other sophisticated materials in the production of our contact lenses. Due to the highly technical and specialized nature of certain of our production materials, we rely from time to time on single suppliers to provide us with sufficient quantities of certain materials used in the production of one or more of our product lines. To minimize our reliance on a particular vendor, we continually seek to identify multiple vendors qualified to supply our production materials. Although we believe that we are not dependent on any single supplier, our inability to obtain sufficient quantities of certain production inputs could have a material adverse effect on our financial condition or results of operations. Patents and Trademarks Our business and competitive position benefit from the validity and enforcement of our intellectual property protection. We own a variety of patents, trademarks, trade secrets, know-how and other intellectual property which we believe to be important to our current and future success. The 34 market for our products rewards product innovation, which tends to amplify the importance of intellectual property protection. We hold numerous U.S. and foreign patents and patent applications which relate to aspects of the technology used in our products. Our policy is to file patent applications to protect technology, inventions and improvements that are considered important to the development of our business. There can be no assurance that patent applications filed by us will result in the issuance of patents or that any of our intellectual property will continue to provide competitive advantages for our products or will not be challenged, circumvented by others or invalidated. We hold more than 70 U.S. patents, many of which have been extended into key foreign countries. The most important part of our patent portfolio relates to the design and production techniques of our cosmetic lenses. These patents begin to expire in the year 2004. Our patents include patterns for changing the color of and enhancing the iris, as well as methods for performing the printing operation and promoting the adhesion of the printed ink to the lens. This group of patents covers both the technology used by us in the production of our cosmetic lenses, as well as many viable alternatives which could be used to replicate such production techniques. Another important group of patents covers our newest lens molding technology, which accommodates a high degree of automation with correspondingly lower manufacturing cost. The features covered are casting cup design, numerous process techniques and blister package design. We have filed but not yet received a patent for our automatic lens inspection system. We also hold patents covering a UV-absorbing compound used for making UV-absorbing lenses, the design and manufacture of toric lenses, lens materials and bifocal lens technology. Our policy is to aggressively prosecute and defend our patents and other proprietary technology. We are currently seeking to enforce our intellectual property rights to cosmetic lenses in lawsuits filed by us and pending in Italy and have similar actions planned in other countries. The prosecution and defense of intellectual property protections, like any lawsuit, is inherently uncertain and carries no guarantee of success. The protection of intellectual property in certain foreign countries is particularly uncertain. We cannot assure you that the prosecution and defense of our intellectual property will be successful or that we will be able to secure adequate intellectual property protections in the future. Our trademarks include the following well recognized brand names: Aquaflex(R), CSI(R), DuraSoft(R), Elegance, FreshLook(R), FreshLook Colorblends, Gentle Touch, Hydrocurve, Optifit(R), Polycon(R), Precision UV and SoftPerm(R). Our policy is to register trademarks in countries where registration is available and deemed necessary or appropriate. Trademark applications are pending for various marks in the United States and other countries. There are gaps in registrations, and some marks may not be available for use in various countries. In addition to patents and trademarks, we own certain trade secrets, copyrights, know-how and other intellectual property. We seek to protect these assets, in part, by entering into confidentiality agreements with our business partners, consultants and vendors and appropriate non-competition agreements with our officers and employees. We cannot assure you that these agreements will not be breached, that we will have adequate remedies for any such breach or that our trade secrets and other intellectual property will not otherwise become known or be independently developed by others and thereby become unprotected. Government Regulation Our products are generally regulated in the United States and in foreign countries as "medical devices." As a manufacturer of medical devices, we are subject to regulation in the United States by the FDA and corresponding state and foreign regulatory agencies where we sell our products. These 35 regulations generally govern the introduction of new medical devices, the maintenance of certain records, the tracking of devices and other matters. The regulatory environment in which we operate can be expensive, time-consuming and uncertain. FDA Regulation Pursuant to the FDC Act, and the regulations promulgated thereunder, the FDA regulates the preclinical and clinical testing, manufacture, labeling, distribution, and promotion of medical devices. Noncompliance with applicable requirements can result in, among other things, fines, injunctions, civil penalties, recall or seizure of products, total or partial suspension of production, failure of the government to grant premarket clearance or PMA for devices, withdrawal of marketing clearances or approvals and criminal prosecution. The FDA also has the authority to request the recall, repair, replacement or refund of the cost of any device manufactured or distributed by us. Under the FDC Act, clearance or approval by the FDA is required prior to the commercialization of a medical device. The FDA classifies medical devices as Class I, Class II or Class III, depending on the nature of the medical device and the existence in the market of any similar devices. The nature of the clearance or approval procedures is dependent on the classification of the medical device in question. Class I medical devices are subject to general controls, including labeling, premarket notification and adherence to the FDA's good manufacturing practice regulations ("GMP Regulations"). Class II medical devices are subject to general and special controls, including performance standards, postmarket surveillance, patient registries and FDA guidelines. Class III medical devices are those which must receive premarket approval by FDA to ensure their safety and effectiveness, are generally life-sustaining, life-supporting devices or implantable devices or new devices which have been found not to be substantially equivalent to currently marketed medical devices. Our products are generally regulated as Class II medical devices, with some products (extended wear lenses) regulated as Class III medical devices. Before a new device can be introduced into the U.S. market, it must receive from the FDA clearance or approval, either premarket notification clearance under Section 510(k) of the FDC Act or approval pursuant to the more costly and time-consuming PMA procedure. Our daily wear contact lenses are generally subject to the 510(k) clearance procedure while our extended wear contact lenses are subject to the PMA requirements. A PMA application must be supported by valid scientific evidence to demonstrate the safety and effectiveness of the device, typically including the results of clinical trials, bench tests, laboratory and animal studies. The PMA must also contain a complete description of the device and its components, and a detailed description of the methods, faculties and controls used to manufacture the device. In addition, the submission must include the proposed labeling, advertising literature and any training materials. The PMA process can be expensive, uncertain and lengthy, and a number of devices for which FDA approval has been sought by other companies have never been approved for marketing. Modifications to a device that is the subject of an approved PMA, its labeling, or manufacturing process may require approval by the FDA of PMA supplements or new PMAs. Supplements to a PMA often require the submission of the same type of information required for an initial PMA, except that the supplement is generally limited to that information needed to support the proposed change from the product covered by the original PMA. A 510(k) clearance will be granted if the submitted information establishes that the proposed device is "substantially equivalent" to a legally marketed Class I or Class II medical device or a Class III medical device for which the FDA has not called for PMAs. For any devices that are cleared through the 510(k) process, modifications or enhancements that could significantly affect safety or effectiveness, or constitute a major change in the intended use of the device, will require new 510(k) submissions. While less expensive and time- consuming than obtaining PMA clearance, securing 510(k) clearance may involve the submission of a substantial volume of data, including clinical data, and may require a substantive review of six months or more. We market contact lenses which have received 510(k) clearances as well as lenses which have been the subject of approved PMA applications. 36 Any products manufactured or distributed pursuant to 510(k) clearance or an approved PMA are subject to pervasive and continuing regulation by the FDA, including recordkeeping requirements and reporting of adverse experience with the use of the device. We currently have over 20 PMAs and 510(k) clearances for our products marketed in the United States. New products may require clinical studies to support a PMA or 510(k) clearance. There is no certainty that clinical studies involving new products will be completed in a timely manner or that the data and information obtained will be sufficient to support the filing of a PMA or 510(k) clearance. We cannot assure you that we will be able to obtain necessary approvals to market new devices or any other products under development on a timely basis, if at all, and delays in receipt or failure to receive such approvals, the loss of previously received approvals, or failure to comply with existing or future regulatory requirements could have a material adverse effect on our business, financial condition and results of operations. We have made modifications to our devices which we believe do not require the submission of new 510(k) notices or PMA supplements. We cannot assure you, however, that the FDA would agree with any of our determinations not to submit a new 510(k) notice or PMA supplement for any of these changes or would not require us to submit a new 510(k) notice or PMA supplement for any of the changes made to the device. If the FDA requires us to submit a new 510(k) notice or PMA supplement for any device modification, we may be prohibited from marketing the modified device until the 510(k) notice or PMA supplement is cleared by the FDA. We cannot assure you that future clearances or approvals, whether under the 510(k) clearance procedure or the PMA procedure, will be obtained in a timely fashion or at all. The failure to obtain such clearances or approvals in a timely fashion or at all, could have a material adverse effect on our business, financial condition or results of operations. If human clinical trials of a device are required, whether for a 510(k) or a PMA, and the device presents a "significant risk," the sponsor of the trial (usually the manufacturer or the distributor of the device) is required to file an investigational device exemption ("IDE") application prior to commencing human clinical trials. IDE regulations generally require FDA approval and approval by an independent institutional review board before a clinical study may begin. Conforming with IDE regulations can add significant cost and/or delay to the process of obtaining FDA approval for a medical device. Submission of an application IDE does not give assurance that the FDA will approve the IDE application and, if it is approved, we cannot assure you that the FDA will determine that the data derived from these studies support the safety and efficacy of the device or warrant the continuation of clinical studies. Sponsors of clinical trials are permitted to sell investigational devices distributed in the course of the study provided such compensation does not exceed recovery of the costs of manufacture, research, development and handling. An IDE supplement must be submitted to and approved by the FDA before a sponsor or investigator may make a change to the investigational plan that may affect its scientific soundness or the rights, safety or welfare of human subjects. As a manufacturer of medical devices, we are required to register with the FDA and comply with the FDA's good manufacturing practice ("GMP") regulations. GMP regulations require that we manufacture our products and maintain our manufacturing, testing and control activities records in a prescribed manner. Further, we are required to comply with FDA requirements for labeling and promoting our products. We are subject to periodic inspections by the FDA and can be subjected to a number of regulatory actions if we are found not to be in compliance with applicable laws and regulations. If the FDA believes that a company may not be operating in compliance with applicable laws and regulations, it can record its observations on a Form FDA 483; place it under observation and reinspect the facilities; institute proceedings to issue a warning letter apprising of violative conduct; detain or seize products; mandate a recall; enjoin future violations; and assess civil and criminal penalties against us, our officers or our employees. In addition, clearances or approvals could be withdrawn in appropriate circumstances. Failure to comply with regulatory requirements or any 37 adverse regulatory action could have a material adverse affect on us. On occasion, we have received notifications from the FDA of alleged deficiencies in our compliance with FDA requirements. Our San Diego, California; Cidra, Puerto Rico; and Des Plaines, Illinois facilities have been inspected within the past two years. A Form FDA 483 was issued following the inspection of our San Diego facility. We responded and no follow up inspection was required. We do not expect such inspections to give rise to any material FDA compliance issues or to otherwise have a material adverse effect on us. On April 19, 1998, the FDA issued a warning letter challenging certain claims by us regarding Precision UV contact lenses. We responded by suspending use of the challenged materials. We later submitted to the FDA a PMA supplement and a 510(k) submission substantiating the claims. We also took additional steps to address the FDAs concerns. The PMA supplement and the 510(k) submission were approved by the FDA and we have resumed use of the claims. We do not expect any future action by the FDA regarding the warning letter. Manufacturers of medical devices for marketing in the United States must also comply with medical device reporting ("MDR") requirements that a firm report to FDA any incident in which its product may have caused or contributed to a death or serious injury, or in which its product malfunctioned and, if the malfunction were to recur, it would be likely to cause or contribute to a death or serious injury. Labeling and promotional activities are subject to scrutiny by the FDA and, in certain circumstances, by the FTC. Current FDA enforcement policy prohibits the marketing of approved medical devices for unapproved uses. We are subject to routine inspection by the FDA and certain state agencies for compliance with GMP requirements, MDR requirements, and other applicable regulations. The FDA has recently finalized changes to the GMP regulations, including the addition of design control requirements, which will likely increase the cost of compliance with GMP requirements. We cannot assure you that we will not incur significant costs to comply with laws and regulations in the future or that laws and regulations will not have a material adverse effect upon our business, financial condition or results of operation. We believe that all of our products offered for sale have received all required FDA approvals or clearance, and that we are in substantial compliance with FDA regulations, including GMP and MDR requirements. International Regulation Our products are also subject to regulation in other countries in which we sell our products. The laws and regulations of such countries range from comprehensive medical device approval procedures such as those described above to simple requests for product data or certifications. The number and scope of these laws and regulations are increasing. In particular, medical devices in the EU are subject to the EU's new medical devices directive (the "Directive"). Under the system established by the Directive, all medical devices other than active implants and in vitro diagnostic products currently must qualify for CE marking. "CE marking" means the manufacturer certifies that its product bearing the CE mark satisfies all requirements essential for the product to be considered safe and fit for its intended purpose. In order to qualify for CE marking, the manufacturer must comply with the "Essential Requirements" of the Directive, relating to the safety and performance of the product. In order to demonstrate compliance, a manufacturer is required to undergo a conformity assessment, which includes assessment of the manufacturer's quality assurance system by self-selected certification organizations referred to as a "Notified Body." After all necessary conformity assessment tests have been completed to the satisfaction of the Notified Body and the manufacturer is convinced that it is in full compliance with the Directive, CE marking may be affixed on the products concerned. We have undergone such conformity assessment, with two Dutch and one British non- governmental entities chosen by us as our Notified Bodies. We have received CE marking authorization for all products we currently market in the EU. 38 Although member countries must accept for marketing medical devices bearing a CE marking without imposing further requirements related to product safety and performance, each country may require the use of its own language or labels and instructions for use. "National Competent Authorities" who are required to enforce compliance with the requirements of the Directive, can restrict, prohibit and recall CE-marked products if they are unsafe. Such a decision must be confirmed by the European Commission in order to be valid. Member countries can impose additional requirements as long as they do not violate the Directive or constitute technical barriers to trade. Additional approvals from foreign regulatory authorities may be required for international sale of our products in non-EU countries. Failure to comply with applicable regulatory requirements can result in the loss of previously received approvals and other sanctions and could have a material adverse effect on our business, financial condition and results of operations. Additional Regulation We also are subject to numerous federal, state and local laws relating to such matters as safe working conditions, manufacturing practices, environmental protection, fire hazard control and disposal of hazardous or potentially hazardous substances. We cannot assure you that we will not be required to incur significant costs to comply with such laws and regulations in the future or that such laws or regulations will not have a material adverse effect upon our ability to do business. Our success depends to a significant extent upon the success of our customers in the retail optical industry. These customers are subject to a variety of federal, state and local laws, regulations and ordinances, including those regarding advertising, location and design of stores, products sold and qualifications and practices of the industry. The state and local legal requirements vary widely among jurisdictions and are subject to frequent change. Furthermore, numerous health-care related legislative proposals have been made in recent years in the United States Congress and in various state legislatures. The potential impact of these proposals with respect to the business of our customers is uncertain, and we cannot assure you that the proposals, if adopted, would not have a material adverse impact on us. Employees As of April 3, 1999, we had approximately 2,690 full-time and part-time employees, including 1,767 in the United States (including Puerto Rico), 766 in Europe, and 157 in the rest of the world. We have no collective bargaining agreements with any union and believe that our overall relations with employees are satisfactory. Environmental, Health and Safety Matters We are subject to federal, state, local and foreign environmental laws and regulations and are subject to liabilities and compliance costs associated with the past and current handling, processing, storing and disposing of hazardous substances and wastes. Our operations are also subject to federal, state and local occupational health and safety laws and regulations. We devote resources to maintaining environmental regulatory compliance and managing environmental risk and believe that we conduct our operations in substantial compliance with applicable environmental and occupational health and safety laws and regulations. We do not expect to incur material capital expenditures for environmental controls in the current or succeeding fiscal year. In connection with the Wesley Jessen Acquisition and the Barnes-Hind Acquisition, the respective sellers, subject to certain limitations, agreed to retain responsibility for, and indemnify us from and against, certain environmental matters. These matters include addressing a limited area of historical contamination at our Des Plaines facility and settling any liability of Barnes-Hind at Superfund sites 39 located in Whittier, California and Santa Barbara County, California. Notwithstanding these contractual agreements, we could be pursued in the first instance by governmental authorities or third parties with respect to certain indemnified matters, subject to our right to seek indemnification from the appropriate seller. Management does not currently believe that any such matter will have a material adverse effect on our business or financial condition. Properties Our principal manufacturing facilities are located in Cidra, Puerto Rico; Des Plaines, Illinois; San Diego, California; and Southampton, United Kingdom. Our headquarters is located in Des Plaines, Illinois (a suburb of Chicago). In Europe, Barnes-Hind has consolidated warehouses and customer service centers into one distribution center in the United Kingdom and two customer service centers in the United Kingdom and France. We believe that substantially all of our property and production equipment is in good condition and, after the completion of our current expansion at our Des Plaines, Illinois facility, that we have sufficient capability to meet our current and projected manufacturing and distribution needs for the foreseeable future. All of our owned properties are subject to a mortgage as collateral under our bank credit agreement. The following table describes our principal properties as of December 31, 1998:
Square Location Function Footage Owned/Leased --------------------------------- ------------------------------ ------- ------------ Des Plaines, Illinois............ Corporate 340,000 Owned Headquarters/Disposable Manufacturing/R&D/Distribution Des Plaines, Illinois............ Distribution Center 62,883 Leased Chicago, Illinois ............... Distribution Center (1) 48,000 Leased San Diego, California............ Conventional Manufacturing 19,000 Owned San Diego, California............ Conventional 69,700 Leased Manufacturing/Distribution Atlanta, Georgia ................ RGP Manufacturing 7,200 Leased Cidra, Puerto Rico............... Conventional Lens 65,000 Owned Manufacturing Southampton, United Kingdom...... Disposable Manufacturing/R&D 66,200 Leased Southampton, United Kingdom...... Conventional Manufacturing 12,250 Leased Farnham, United Kingdom.......... RGP Manufacturing 5,000 Leased Chandlers Ford, United Kingdom .. Conventional Manufacturing 20,000 Leased Eastleigh, United Kingdom........ Distribution Center 25,000 Leased Mississauga, Ontario ............ Sales Office/Distribution 7,000 Leased Rome, Italy ..................... Sales Office/Distribution 7,750 Leased Paris, France ................... Sales Office 12,000 Leased Sydney, Australia ............... Sales Office/Distribution 7,500 Leased Sydney, Australia ............... Manufacturing 7,050 Leased Tokyo, Japan .................... Sales Office/Distribution 5,000 Leased Madrid, Spain ................... Sales Office/Distribution * Leased Rotterdam, Holland .............. Sales Office * Leased Sao Paulo, Brazil................ Sales Office/Distribution * Leased Munich, Germany ................. Sales Office * Leased Hong Kong ....................... Sales Office * Leased Singapore........................ Sales Office * Leased Mexico City, Mexico.............. Sales Office * Leased Buenos Aires, Argentina.......... Manufacturing * Leased Buenos Aires, Argentina.......... Sales Office/Distribution * Leased
- -------- *Less than 5,000 square feet. (1) This facility was sublet to a third party in September 1998. 40 Cidra, Puerto Rico. This 65,000 square foot facility was completed in 1991 and produces our DuraSoft and Optifit conventional clear and specialty lenses. Des Plaines, Illinois. This 340,000 square foot facility currently produces all of our FreshLook disposable lenses, and also houses our corporate headquarters, research and development activities and other administrative services. San Diego, California. This 88,700 square foot facility produces our CSI, Hydrocurve and Gentle Touch premium and toric lenses. Additionally, the facility is used for customer service and management information systems. The U.S. distribution function was transferred to the Des Plaines, Illinois facility in February 1999. For additional information about the phase out of this facility, refer to Management's Discussion and Analysis of Financial Condition and Results of Operations. Southampton, United Kingdom. This 66,200 square foot facility was substantially completed in 1996 and supports production of our Precision UV lenses. Legal Proceedings We are currently a party to various claims and legal actions which arise in the ordinary course of business. We believe such claims and legal actions, individually or in the aggregate, will not have a material adverse effect on our business, financial condition or results of operations. We carry insurance coverage in the types and amounts that management considers reasonably adequate to cover the risks we face in the industry in which we compete. We cannot assure you, however, that such insurance coverage will be adequate to cover all losses which we may incur in future periods. In connection with the Barnes-Hind Acquisition, Pilkington agreed, subject to certain limitations, to retain responsibility for, and indemnify us from and against, certain litigation and other claims. Notwithstanding these contractual agreements, we could be pursued in the first instance by third parties with respect to certain indemnified matters, subject to our right to seek indemnification from such seller. Management does not currently believe that any such matter will have a material adverse effect on our business or financial condition. 41 MANAGEMENT Directors, Executive Officers and Key Employees The following table sets forth certain information with respect to our directors, executive officers and certain key employees as of March 31, 1999:
Name Age Position - ---- --- -------- Kevin J. Ryan (1)....... 59 Chairman of the Board, President and Chief Executive Officer Edward J. Kelley........ 51 Vice President, Finance, Chief Financial Officer and Director Raleigh S. Althisar, Jr..................... 50 Vice President, Worldwide Manufacturing Ronald J. Artale........ 48 Vice President and Controller Lawrence L. Chapoy...... 56 Vice President, Research & Development William M. Flynn........ 40 Vice President, Pan Asia Joseph F. Foos.......... 47 Vice President, Scientific Affairs George H. McCrary....... 56 Vice President, Americas Daniel M. Roussel....... 50 Vice President, Europe Thomas F. Steiner....... 53 Vice President, Marketing Michael A. D'Amato (2).. 45 Director Adam W. Kirsch.......... 37 Director Sol Levine (1)(2)....... 70 Director John W. Maki (2)........ 38 Director John J. O'Malley........ 51 Director Stephen G. Pagliuca (1).................... 44 Director
- -------- (1)Member of the Compensation Committee. (2)Member of the Audit Committee. Kevin J. Ryan has served as President, Chief Executive Officer and a Director of WJ since June 1995 and has served as Chairman of the Board since February 1999. From 1991 to 1995, Mr. Ryan was President of Biosource Technologies Inc., a company engaged in discovery, development and production of new biopharmaceuticals and gene-based agricultural products. From 1987 to 1990, Mr. Ryan served as President of Barnes-Hind's contact lens business; from 1983 to 1987, as President of Revlon VisionCare (a division of Revlon, Inc.); and from 1978 to 1983, as President of Barnes-Hind (then a part of Revlon VisionCare). Edward J. Kelley has served as Vice President, Finance, Chief Financial Officer and a Director of WJ since June 1995. Prior to joining WJ, Mr. Kelley served as the President, Asia Pacific and Latin America of Barnes-Hind's contact lens business from 1994 to 1995 and its Chief Financial Officer from 1989 to 1994. Prior to joining Barnes-Hind, Mr. Kelley held positions of increasing responsibility with Simon & Schuster, Revlon Health Care and Peat Marwick Mitchell & Company. Raleigh S. Althisar, Jr. has served as Vice President, Worldwide Manufacturing of WJ since October 1996. Prior to joining WJ, Mr. Althisar served as Executive Vice President, Worldwide Manufacturing of Barnes-Hind. Prior thereto, he held positions of increasing responsibility with the Sola division of Barnes-Hind, Syntex Ophthalmics, Retail Optical Management and Milton Roy Ophthalmics. Ronald J. Artale has served as Vice President of WJ since February 1997 and Controller since March 1996. Prior to joining WJ, Mr. Artale served as Corporate Vice President, Planning with Simon & Schuster. In addition, Mr. Artale has held positions of increasing responsibility with Revlon VisionCare, including Vice President, Finance for Barnes-Hind. 42 Lawrence L. Chapoy has served as Vice President, Research & Development of WJ since 1993. Prior to joining WJ, Dr. Chapoy spent eight years with Montedison Chemical Company as a Project Researcher and fifteen years as a Chemical Engineering Professor at the Polytechnic University of Denmark. In these positions, Dr. Chapoy conducted and managed research in a variety of materials science related areas. Dr. Chapoy holds more than 25 patents, has authored more than 75 publications and presented over 100 lectures during the course of his career. William M. Flynn has served as the Vice President, Pan Asia of WJ since 1994. Prior to being named to his current position, Mr. Flynn served as International Finance Manager for two years and in other positions in the Finance Department of Schering-Plough Corporation for two years. In addition, Mr. Flynn held a variety of finance positions with Prudential Insurance Company of America and RCA Records. Joseph F. Foos has served as Vice President, Scientific Affairs of WJ since 1994. Mr. Foos joined Wesley Jessen in 1987 and has served as Manager, Quality for two years, Project Manager for Research and Development Pilot Manufacturing and various other positions of increasing responsibility. George H. McCrary has served as Vice President, Americas of WJ since 1996. Prior to joining WJ, Mr. McCrary held the position of Senior Vice President of Sales, Marketing and Distribution for Foster Grant Corporation and prior to that, Vice President Sales and Marketing, Consumer Products Division for Revlon VisionCare. Before joining Revlon VisionCare, he held sales and marketing positions of increasing responsibility with the Warner-Lambert Company. Daniel M. Roussel has served as Vice President, Europe for WJ since 1995. Mr. Roussel opened WJ's French subsidiary and served for three years as General Manager Wesley Jessen, France. Previously, Mr. Roussel held positions in marketing and sales with Schering-Plough in Hong Kong, Japan, and Portugal. Mr. Roussel also worked as Regional Director, Asia Pacific, for Goupit Labs based in Hong Kong. Thomas F. Steiner has served as Vice President, Marketing of WJ since 1996. Mr. Steiner has served in various marketing-related positions since joining WJ in 1982. Prior to joining WJ, Mr. Steiner worked at Sara Lee Corporation for seven years as Group Product Manager and Project Research Manager. Mr.Steiner also worked at J. Walter Thompson Company as Associate Research Director. Michael A. D'Amato has been a Director of WJ since September 1997. Mr. D'Amato has served as the Executive Vice President of The Advisory Board Company and the Chief Financial Officer of DGB Enterprises, Inc. since October 1997, and from 1996 until July 1998, he was the Chief Financial Officer of The Advisory Board Company. From July 1998 until February 1999, Mr. D'Amato also served as the Executive Vice President--Finance and the Secretary of The Corporate Executive Board Company ("CEBC"). From October 1997 until November 1998, Mr. D'Amato served as the Chief Financial Officer of CEBC. From 1995 to 1996, Mr. D'Amato served as the Special Advisor to the Chairman of The Advisory Board Company. Prior to joining The Advisory Board Company, Mr. D'Amato was a Partner of Bain & Company from 1982 through 1995. Mr. D'Amato joined Bain & Company in 1977. Mr. D'Amato also serves as a director of CEBC. Adam W. Kirsch has been a Director of WJ since its incorporation in May 1995. Mr. Kirsch also held the office of Executive Vice President of WJ from April 1995 to May 1998. Mr. Kirsch has been a Managing Director of Bain Capital since May 1993 and a general partner of Bain Venture Capital since 1990. Mr. Kirsch joined Bain Venture Capital in 1985 as an associate, and prior to joining Bain Venture Capital, Mr. Kirsch was a consultant at Bain & Company, where he worked in mergers and acquisitions. He serves on the board of several companies including Therma-Wave, Inc., Brookstone, Inc., Dade Berhing Inc. and several other private companies. 43 Sol Levine has been a Director of WJ since September 1997. Mr. Levine is currently the President of Mardan Corporation. Mr. Levine served as President of Revlon, Inc. prior to his retirement in December 1991. Mr. Levine also serves on the board of Biosource Technologies, Inc. and several other private companies. John W. Maki has been a Director of WJ since November 1996. Mr. Maki is currently a Managing Director of Technology Directors Inc. Mr. Maki was a Principal at Bain Capital from 1995 to July 1997 and was an associate at Bain Capital from 1993 to 1995 and at Bain Venture Capital from 1988 to 1993. Prior to joining Bain Venture Capital, Mr. Maki was a consultant at Bain & Company, an international management consulting firm, where he specialized in healthcare and consumer product companies. He also serves on the board of Biosource Technologies, Inc. and Chroma Graphics, Inc. John J. O'Malley has been a Director of WJ since November 1996. Mr. O'Malley is currently a Managing Director of Technology Directors Inc. Mr. O'Malley was an Executive Vice President of Bain Capital from 1993 to February 1999. From 1991 to 1993, Mr. O'Malley was President and Chief Executive Officer of Robertson Ceco, an international construction products and engineering company. From 1986 to 1991, he was Executive Vice President of HMK Group Inc., a diversified manufacturing and services company. Mr. O'Malley is also a director of GS Industries, Inc., Medical Specialties Group, Inc., Biosource Technologies, Inc. and Chroma Graphics, Inc. Stephen G. Pagliuca has been a Director of WJ since its incorporation in May 1995. Mr. Pagliuca served as Chairman of the Board from April 1995 to February 1999. Mr. Pagliuca has been a Managing Director of Bain Capital since May 1993 and a general partner of Bain Venture Capital since 1989, where he founded Information Partners. Prior to joining Bain Venture Capital, Mr. Pagliuca was a partner at Bain & Company, where he provided strategic and operational advice for clients in the healthcare and information industries. He also worked as a senior accountant and international tax specialist for Peat Marwick Mitchell & Company in the Netherlands. Mr. Pagliuca also serves as director of Dade Berhing Inc., Coram Healthcare Corporation, Gartner Group, Inc. and The Corporate Executive Board Company. Our executive officers are duly elected by the board of directors to serve until their respective successors are elected and qualified. There are no family relationships between any of the directors or executive officers of WJ. Our board is divided into three classes, as nearly equal in number as possible, with each director serving a three-year term and one class being elected at each year's annual meeting of stockholders. Our by-laws provide that directors shall be elected by a plurality vote, with no cumulative voting. Messrs. Maki and D'Amato are in the class of directors whose term expires at the 2001 annual meeting of our stockholders. Messrs. Kirsch, Kelley and Levine are in the class of directors whose term expires at the 1999 annual meeting of our stockholders. Messrs. Pagliuca, Ryan and O'Malley are in the class of directors whose term expires at the 2000 annual meeting of our stockholders. At each annual meeting of our stockholders, successors to the class of directors whose term expires at such meeting will be elected to serve for three-year terms and until their respective successors are elected and qualified. 44 Executive Compensation General The following table sets forth information concerning the compensation paid or accrued for the years ended December 31, 1998, 1997 and 1996 for our chief executive officer and each of the four other most highly compensated executive officers of WJ as of the end of the last fiscal year. We collectively refer to these five executive officers as our "named executives." Summary Compensation Table
Long Term Compensation Annual Compensation Awards ---------------------------------------- ------------ Other Securities Annual Underlying All Other Name and Principal Position Year Salary Bonus (a) Compensation (b) Options Compensation (c) - --------------------------- ---- -------- --------- ---------------- ------------ ---------------- Kevin J. Ryan........... 1998 $250,008 $584,625 $-- 25,000 $4,466 Chairman, President 1997 250,008 477,125 -- 32,000 2,275 and Chief Executive 1996 250,008 590,000 -- 126,398 1,800 Officer Edward J. Kelley........ 1998 $175,000 $414,038 $-- 15,000 $2,018 Chief Financial 1997 175,000 338,713 -- 25,000 717 Officer and Vice 1996 175,000 417,500 -- 35,800 688 President, Finance Lawrence L. Chapoy...... 1998 $146,100 $213,993 $-- 5,000 $2,423 Vice President, 1997 146,100 176,888 -- 5,000 1,143 Research & Development 1996 146,100 216,228 -- 5,592 841 Daniel M. Roussel....... 1998 $134,341 $179,308 $-- 6,000 $ -- Vice President, 1997 120,622 144,432 -- 5,000 -- Europe 1996 133,843 184,703 -- 15,621 -- Thomas F. Steiner....... 1998 $140,000 $205,058 $-- 6,000 $1,557 Vice President, 1997 140,000 169,502 -- 5,000 746 Marketing 1996 120,000 177,600 -- 16,103 668
- -------- (a) Reflects bonuses received by such named executives under our management bonus plan as a result of our meeting certain performance targets in such fiscal year. Bonuses for 1998 also include payments made under our profit sharing plan in the following amounts: Mr. Ryan--$16,000; Mr. Kelley-- $16,000; Mr.Chapoy--$14,610; and Mr. Steiner--$14,000. In 1997, such payments were as follows: Mr. Ryan--$15,750; Mr.Kelley--$15,750; Mr. Chapoy--$14,610; and Mr. Steiner--$14,000. In 1996, such payments were as follows: Mr. Ryan--$15,000; Mr. Kelley--$15,000; Mr. Chapoy--$14,610; and Mr. Steiner--$12,000. Mr. Roussel is not eligible to participate in such plan. (b) None of the perquisites and other benefits paid to each named executive in 1998, 1997 or 1996 exceeded the lesser of $50,000 or 10% of the total annual salary and bonus received by such named executive during that year. (c) Reflects premium payments made by us on behalf of such named executives for life and long-term disability insurance as follows:
Long-term Life Disability Name Year Insurance Insurance ---- ---- --------- ---------- Kevin J. Ryan................................... 1998 $4,050 $416 1997 1,800 475 1996 1,800 -- Edward J. Kelley................................ 1998 $1,728 $290 1997 435 282 1996 435 253 Lawrence L. Chapoy.............................. 1998 $2,180 $243 1997 865 278 1996 554 282 Thomas F. Steiner............................... 1998 $1,325 $232 1997 518 228 1996 403 265
45 Option Grants in Last Fiscal Year The following table sets forth information regarding stock options granted by us to the named executives in our last fiscal year:
Potential Realizable Value at Assumed Number of Annual Rates of Stock Securities Exercise Market Price Appreciation for Underlying % of Total or Base Price on Option Term(d) Options Options Granted Price Date of Expiration ----------------------- Granted(a) in Fiscal Year ($/Share) Grant(b) Date(c) 5% 10% ---------- --------------- --------- -------- ---------- ----------- ----------- Kevin J. Ryan .......... 25,000 4.5% $20.50 $20.50 11/9/08 $ 322,250 $ 811,750 Edward J. Kelley........ 15,000 2.7% 20.50 20.50 11/9/08 193,350 490,050 Lawrence L. Chapoy...... 5,000 0.9% 20.50 20.50 11/9/08 64,450 163,350 Daniel M. Roussel....... 6,000 1.1% 20.50 20.50 11/9/08 77,340 196,020 Thomas F. Steiner....... 6,000 1.1% 20.50 20.50 11/9/08 77,340 196,020
- -------- (a) Options vest in four equal annual installments beginning on the first anniversary of the date of grant. The grant date of such options was November 9, 1998. (b) Market price was determined based on the last reported sale price of the common stock as reported by Nasdaq. (c) Options will expire the earlier of 30 days after the date of termination or November 9, 2008. (d) Amounts reflect certain assumed rates of appreciation set forth in the executive compensation disclosure rules of the SEC. Actual gains, if any, on stock option exercises depend on future performance of our stock and overall market conditions. At an annual rate of appreciation of 5% per year for the option term, the price of the common stock would be approximately $33.39 per share. At an annual rate of appreciation of 10% per year for the option term, the price of the common stock would be approximately $53.17 per share. 46 Aggregated Option Exercises in Last Fiscal Year and Fiscal Year End Option Values The following table sets forth information for the named executives concerning stock option exercises during our last fiscal year and options outstanding at the end of the last fiscal year:
Number of Securities . Value of Unexercised Underlying Unexercised In-the-Money Options at Options at FY-End FY-End (a) Shares Acquired on Value ------------------------- ------------------------- Name Exercise Realized Unexercisable/Exercisable Unexercisable/Exercisable - ---- ------------------ ---------- ------------------------- ------------------------- Kevin J. Ryan........... 50,000 $1,683,014 146,904/979,696 $ 4,076,586/$27,186,564 Edward J. Kelley........ 41,000 1,268,954 53,331/156,439 $ 1,479,935/$ 4,341,182 Lawrence J. Chapoy...... 8,952 301,245 17,702/56,076 $ 491,231/$ 1,556,109 Daniel M. Roussel....... 0 0 27,652/133,238 $ 767,343/$ 3,697,355 Thomas F. Steiner....... 7,000 216,039 23,176/90,624 $ 643,134/$ 2,514,816
- -------- (a) Fair market value of the common stock was determined based on the last reported sale price of the common stock as reported by Nasdaq on December 31, 1998 which was $27.75 per share. Employment Agreements On June 28, 1995, WJ and Kevin J. Ryan entered into an employment agreement, pursuant to which Mr. Ryan agreed to serve as President and Chief Executive Officer of WJ for a period that will end with Mr. Ryan's resignation, death or disability, or upon termination by WJ, with or without cause. Under the employment agreement, Mr. Ryan will receive: .an annual base salary equal to at least $250,000; .an annual bonus based on our achievement of certain targeted operating results; and .certain fringe benefits. If Mr. Ryan's employment is terminated by us without cause (as defined therein), he will be entitled to receive his base salary and fringe benefits for 12 months following such termination in addition to his bonus for the year in which his employment was terminated, pro rated based on the number of days elapsed in the year, if he would have otherwise been entitled to receive such bonus had he not been terminated. Mr. Ryan has agreed not to compete with us for a period of one year following his termination of employment with us and not to disclose any confidential information at any time without the prior written consent of WJ. On June 28, 1995, Edward J. Kelley entered into an employment agreement with us containing substantially similar terms as those described above. Under such agreement, Mr. Kelley has agreed to serve as the Chief Financial Officer of WJ for: .an annual base salary equal to at least $175,000; .an annual bonus based on our achievement of certain targeted operating results; and .certain fringe benefits. Management Bonus Plan In November 1997, the board adopted the Wesley Jessen Corporation Professional Incentive Plan for calendar year 1998 (the "Bonus Plan"). Under the Bonus Plan, participants are eligible to earn an annual bonus upon the achievement by WJ of a specified level of earnings per share. The annual bonus is equal to a specified percentage of a participant's annual salary, subject to increase based on achievement beyond targeted levels. Bonuses under the Bonus Plan are not subject to any cap. Approximately 140 employees participated in the Bonus Plan for 1998, including each of the named executives. 47 Director Compensation Directors who are employees of WJ or are affiliated with our significant stockholders do not receive a salary or an annual retainer for their services. We pay non-employee directors not otherwise affiliated with us or our significant stockholders an annual cash retainer of $10,000. In addition, we reimburse all directors for reasonable expenses incurred in attending board meetings. Pursuant to our 1997 Non-Employee Director Stock Option Plan (the "Director Option Plan"), non-employee directors are granted options to purchase 10,000 shares of common stock upon their initial election or appointment to the board (or upon the adoption of the Director Option Plan for those directors in office on the date of such adoption) and will be entitled to options to purchase an additional 2,000 shares of common stock on an annual basis on each anniversary of such director's election or appointment to the board (which will be granted on the date of our next annual meeting of stockholders following such anniversary). See "Non-Employee Director Stock Option Plan." Messrs. Pagliuca, Kirsch, Maki, O'Malley, Levine and D'Amato will be granted annual options on the date of our 1999 annual meeting. The directors do not receive any additional compensation for committee participation. Committees of the Board of Directors The board has two standing committees: the audit committee and the compensation committee. The compensation committee is authorized to provide a general review of our compensation and benefit plans to ensure that they meet corporate objectives. In addition, the compensation committee reviews our chief executive officer's recommendations on (1) compensation of all officers of WJ and (2) adopting and changing major compensation policies and practices, and reports its recommendations to the whole board for approval and authorization. The compensation committee administers our stock plans (subject to approval by the full board of any awards made thereunder) and is currently comprised of Messrs. Levine, Pagliuca and Ryan. The compensation committee held one meeting in 1998. The audit committee is authorized to make recommendations to the board regarding the independent auditors to be nominated for election by the stockholders and to review the independence of such auditors, approve the scope of the annual audit activities of the independent auditors, approve the audit fee payable to the independent auditors and review such audit results. PricewaterhouseCoopers LLP presently serves as the independent accountants of WJ. The audit committee is currently comprised of Messrs. D'Amato, Levine and Maki. The audit committee held one meeting in 1998. Compensation Committee Interlocks and Insider Participation The compensation committee is currently comprised of Messrs. Pagliuca, Levine and Ryan. Mr. Pagliuca is a Managing Director of Bain Capital, which is a party to the Advisory Agreement with WJ. Mr. Ryan is the Chairman of the board, President and Chief Executive Officer of WJ. The compensation for employees who are also directors of WJ (Messrs. Ryan and Kelley) for the years ended 1996, 1997 and 1998 was established pursuant to the terms of their respective employment agreements with WJ. See "Certain Relationships and Related Transactions." Stock Incentive Plan In connection with the IPO, the board and stockholders of WJ approved the Wesley Jessen VisionCare, Inc. Stock Incentive Plan (the "Stock Plan"). The Stock Plan is administered by our 48 compensation committee, composed of at least two Non-Employee Directors (as that term is defined in Rule 16b-3 under the Exchange Act). Certain employees, advisors and consultants of WJ are eligible to participate in the Stock Plan. The compensation committee is authorized under the Stock Plan to select the participants and determine the terms and conditions of the awards under the Stock Plan. The Stock Plan provides for the issuance of the following types of incentive awards: stock options, stock appreciation rights, restricted stock, performance grants and other types of awards that the compensation committee deems consistent with the purposes of the Stock Plan. An aggregate of 800,000 shares of our common stock have been reserved for issuance under the Stock Plan, subject to certain adjustments reflecting changes in our capitalization. As of May 26, 1999, our stockholders have approved an amendment to the Stock Plan that increased the number of shares reserved for issuance by 1,000,000. The Stock Plan provides that participants will be limited to receiving awards relating to no more than 50,000 shares of common stock per year. As of March 31, 1999, options to purchase an aggregate of 537,200 shares were outstanding under the Stock Plan. Options granted under the Stock Plan may be either incentive stock options ("ISOs") or such other forms of non-qualified stock options ("NQOs") as the committee may determine. ISOs are intended to qualify as "incentive stock options" within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"). The exercise price of (i) an ISO granted to an individual who owns shares possessing more than 10% of the total combined voting power of all classes of stock of WJ (a "10% Owner") will be at least 110% of the fair market value of a share of common stock on the date of grant and (ii) an ISO granted to an individual other than a 10% Owner and an NQO will be at least 100% of the fair market value of a share of common stock on the date of grant. Options granted under the Stock Plan may be subject to time vesting and certain other restrictions at the sole discretion of the committee. Subject to certain exceptions, the right to exercise an option generally will terminate at the earlier of (i) the first date on which the initial grantee of such option is not employed by us for any reason other than termination without cause, death or permanent disability or (ii) the expiration date of the option. If the holder of an option dies or suffers a permanent disability while still employed by us, the right to exercise all unexpired installments of such option shall be accelerated and shall vest as of the latest of the date of such death, the date of such permanent disability and the date of the discovery of such permanent disability, and such option shall be exercisable, subject to certain exceptions, for 180 days after such date. If the holder of an option is terminated without cause, to the extent the option has vested, such option will be exercisable for 30 days after such date. All outstanding awards under the Stock Plan will terminate immediately prior to consummation of a liquidation or dissolution of WJ, unless otherwise provided by the board. In the event of the sale of all or substantially all of the assets of WJ or the merger of WJ with another corporation, all restrictions on any outstanding awards will terminate and participants will be entitled to the full benefit of their awards immediately prior to the closing date of such sale or merger, unless otherwise provided by the board. The board generally will have the power and authority to amend the Stock Plan at any time without approval of our stockholders, subject to applicable federal securities and tax laws limitations (including regulations of Nasdaq). Employee Stock Discount Purchase Plan The Wesley Jessen VisionCare, Inc. Employee Stock Discount Purchase Plan, including a substantially identical plan for international employees (the "Employee Stock Purchase Plan") was established to give employees desiring to do so a convenient means of purchasing shares of common 49 stock through payroll deductions. The Employee Stock Purchase Plan provides an incentive to participate by permitting purchases at a discounted price. We believe that ownership of stock by employees will foster greater employee interest in the success, growth and development of WJ. As of March 1, 1999, an aggregate of 93,458 shares of common stock have been issued under the Employee Stock Purchase Plan. Subject to certain restrictions, each employee of WJ is eligible to participate in the Employee Stock Purchase Plan. Participation is discretionary with each eligible employee. We have reserved 500,000 shares of common stock for issuance in connection with the Employee Stock Purchase Plan. Each eligible employee is entitled to purchase a maximum of 125 shares per quarter. Elections to participate can be made at any time and purchases of stock are made on a quarterly basis. Each participating employee contributes to the Employee Stock Purchase Plan by choosing a payroll deduction in any specified amount, with a minimum deduction of $10 per payroll period. A participating employee may increase or decrease the amount of such employee's payroll deduction, including a change to a zero deduction at any time. Elected contributions are credited to participants' accounts at the end of each calendar month. In addition, employees may make lump sum contributions at the end of the quarter to enable them to purchase the maximum number of shares available for purchase during the plan year. Each participating employee's contributions are used to purchase shares for the employee's share account within 15 days after the last day of each calendar month. The cost per share is 85% of the lower of the closing price of our common stock on the Nasdaq National Market on the first or the last day of the calendar month. The number of shares purchased on each employee's behalf and deposited in his/her share account is based on the amount accumulated in such participant's cash account and the purchase price for shares with respect to any month. Shares purchased under the Employee Stock Purchase Plan carry full rights to receive dividends declared from time to time. Under the Employee Stock Purchase Plan, any dividends attributable to shares in the employee's share account are automatically used to purchase additional shares for such employee's share account. Share distributions and share splits are credited to the participating employee's share account as of the record date and effective date, respectively. A participating employee has full ownership of all shares in such employee's share account and may withdraw them for sale or otherwise at any time. Subject to applicable federal securities and tax laws, the board has the right to amend or to terminate the Employee Stock Purchase Plan. Amendments to the Employee Stock Purchase Plan will not affect a participating employee's right to the benefit of the contributions made by such employee prior to the date of any such amendment. In the event the Employee Stock Purchase Plan is terminated, the Committee is required to distribute all shares held in each participating employee's share account plus an amount of cash equal to the balance in each participating employee's cash account. Non-Employee Director Stock Option Plan The Director Option Plan was established to encourage stock ownership by certain directors of WJ and to provide those individuals with an additional incentive to manage WJ in the shareholders' best interests and to provide a form of compensation that will attract and retain highly qualified individuals as members of the board. The Director Option Plan provides for the granting of options to non-employee directors, as defined, covering an aggregate of 250,000 shares of common stock of WJ, subject to certain adjustments reflecting changes in our capitalization. To date, options to purchase an aggregate of 68,000 shares of common stock have been granted under the Director Option Plan. Options to acquire an additional 12,000 shares of common stock were granted on May 26, 1999. The committee or the full board is authorized under the Director Option Plan to make discretionary grants of options and determine the terms and conditions of such options. In addition, 50 the Director Option Plan provides for an initial one-time grant of options to purchase 10,000 shares of common stock to each non-employee director serving as a member of the board upon the effectiveness of the Director Option Plan or to any new non-employee director upon being elected to the board. The Director Option Plan also provides that each non-employee director shall automatically be entitled to options to purchase 2,000 shares of common stock upon each anniversary of such director's election to the board (which will be granted at our next annual meeting of stockholders following such anniversary). The Director Option Plan requires that the exercise price for each option granted under the plan must equal 100% of the fair market value of our common stock on the date the option is granted. The initial one-time grants are immediately exercisable and the annual grants will vest in three equal installments commencing on the first anniversary of the grant date. Nothing contained in the Director Option Plan or any agreement to be executed pursuant to the Director Option Plan will obligate us, our board or our stockholders to retain an optionee as a director of WJ. Wesley Jessen Retirement Plan Substantially all full-time United States and Puerto Rico employees of WJ participate in the Wesley Jessen Cash Balance Pension Plan (the "Retirement Plan"), a defined benefit plan intended to qualify under Section 401(a) of the Code. The Retirement Plan became effective on January 1, 1996. The Retirement Plan is a cash balance plan whereby each participant's benefits are determined based on annual pay credits and interest credits made to each participant's account. In general, a participant becomes vested under the Retirement Plan upon completion of five years of service. Annual pay credits range from 3.0% to 8.0% of compensation, depending on a participant's length of service with WJ. Compensation refers to pension eligible earnings of a participant under the Retirement Plan (up to $160,000 for 1998, as limited by the Code), including all direct compensation paid to participants plus any pretax deferrals. Interest credits are based on a participant's account balance on the first day of each calendar year and the plans interest credit rate. This interest credit rate is determined for each calendar year and equals the value as of December of the immediately preceding calendar year of the average yield on 1- year Treasury bills. No pay or interest credits are granted under the Retirement Plan for periods of employment prior to June 29, 1995. However, service is calculated from date of hire for the purpose of determining the level of pay credit for the plan year, subject to bridging service for participants from certain acquired entities. The normal retirement age under the plan is age 65. Benefits are computed on a straight line basis. We contribute actuarially determined amounts to fund benefits under the Retirement Plan within regulatory minimum requirements and maximum tax deductible limits. The aggregate estimated annual benefits payable from the Retirement Plan to Messrs. Ryan, Kelley, Chapoy and Steiner upon normal retirement age is $23,395, $54,637, $14,672 and $38,125, respectively. Mr. Roussel is not eligible to participate in the Retirement Plan. Messrs. Ryan, Kelley, Chapoy and Steiner currently have approximately 15 (including 12 years of service with acquired entities), 20 (including 17 years of service with acquired entities), 5 and 15 years of credited service, respectively, under the Retirement Plan. There is a supplemental benefit payable to Mr. Ryan pursuant to a Supplemental Executive Retirement Plan (SERP) earned during his employment with Barnes-Hind and Revlon VisionCare, the obligation for which was assumed by us as a result of the acquisition of PBH. The estimated annual benefit payable to Ryan upon normal retirement age is equal to $30,480. 51 PRINCIPAL STOCKHOLDERS The table below sets forth certain information regarding our equity ownership as of March 31, 1999 by: (1) each person or entity who beneficially owns five percent or more of our common stock; (2) each director and the named executives; and (3) all directors and executive officers of WJ as a group. Unless otherwise stated, each of the persons named in the table has sole voting and investment power with respect to the securities beneficially owned by it or him as set forth opposite its or his name. Beneficial ownership of our common stock listed in the table has been determined in accordance with the applicable rules and regulations promulgated under the Exchange Act.
Number Name and Address of Shares Percent - ---------------- --------- ------- Directors and Executive Officers: Kevin J. Ryan(l)(2)......................................... 1,033,938 5.7% Edward J. Kelley(3)......................................... 234,261 1.4% Lawrence L. Chapoy(4)....................................... 75,196 * Daniel M. Roussel(5)........................................ 156,002 * Thomas F. Steiner(6)........................................ 104,514 * Michael A. D'Amato(7)....................................... 15,000 * Adam W. Kirsch(7)(8)........................................ 5,298,095 31.0% Sol Levine(7)............................................... 25,000 * John W. Maki(7)(8).......................................... 738,629 4.3% John J. O'Malley(7)(8)...................................... 738,629 4.3% Stephen G. Pagliuca(7)(8)................................... 5,298,095 31.0% All directors and executive officers as a group (16 persons)(9)................................................ 7,252,768 38.5% 5% Stockholders: Bain Capital Funds(10)...................................... 5,287,428 30.9% c/o Bain Capital, Inc. Two Copley Place Boston, Massachusetts 02116 Putnam Investments, Inc.(11)................................ 1,594,200 9.3% One Post Office Square Boston, Massachusetts 02109 Suzanne Zak(12)............................................. 1,176,190 6.9% 100 N. Sixth Street, Ste. 476A Minneapolis, Minnesota 55403 The Northwestern Mutual Life Insurance Company(13).......... 1,029,300 6.0% 720 East Wisconsin Avenue Milwaukee, Wisconsin 53202
- -------- * Represents less than one percent. (1) The address of such person is c/o WJ, 333 East Howard Avenue, Des Plaines, Illinois 60018-5903. (2) Includes 987,696 shares of common stock that can be acquired through currently exercisable options. (3) Includes 147,689 shares of common stock that can be acquired through currently exercisable options. Certain of Mr. Kelley's shares are held by an individual retirement account for his sole benefit. (4) Includes 61,802 shares of common stock that can be acquired through currently exercisable options. (5) Includes 143,439 shares of common stock that can be acquired through currently exercisable options. (6) Includes 98,587 shares of common stock that can be acquired through currently exercisable options. 52 (7) Includes currently exercisable options to purchase 10,667 shares of common stock issued to such person pursuant to the Director Option Plan. (8) Messrs. Pagliuca, Kirsch, Maki and O'Malley are each Directors of WJ. Messrs. Pagliuca and Kirsch are each Managing Directors of Bain Capital Investors, Inc. ("BCII") and limited partners of Bain Capital Partners IV, L.P. ("BCPIV"). BCPIV is the sole general partner of Bain Capital Fund IV, L.P. ("Fund IV") and Bain Capital Fund IV-B, L.P. ("Fund IV-B"). BCII is the sole general partner of BCPIV. Accordingly, Messrs. Pagliuca and Kirsch may be deemed to beneficially own shares owned by Fund IV and Fund IV-B. In addition, Messrs. Pagliuca, Kirsch, Maki and O'Malley are each general partners of BCIP Associates ("BCIP") and BCIP Trust Associates, L.P. ("BCIP Trust" and collectively with Fund IV, Fund IV-B and BCIP, the "Bain Capital Funds") and, accordingly, may be deemed to beneficially own shares owned by such funds. Each such person disclaims beneficial ownership of any such shares in which he does not have a pecuniary interest. The address for Messrs. Pagliuca and Kirsch is c/o Bain Capital, Inc., Two Copley Place, Boston, Massachusetts 02116. Messrs. Maki and O'Malley are no longer employed by Bain Capital. (9) Includes an aggregate of 1,748,942 shares of common stock that can be acquired through currently exercisable options held by the Directors and executive officers of WJ. Excluding the shares owned by the Bain Capital Funds that are attributed to Messrs. Pagliuca, Kirsch, Maki and O'Malley, the Directors and executive officers of WJ as a group would beneficially own 1,965,340 shares of common stock, representing approximately 10.4% of the outstanding common stock. (10) Pursuant to an Amendment No. 1 to Schedule 13G filed with the SEC on February 16, 1999, each of the following entities reported the shared power to vote and to dispose of that number of shares as listed: (i) Fund IV--2,126,215 shares of common stock; (ii) Fund IV-B--2,433,251 shares of common stock; (iii) BCIP--340,285 shares of common stock; (iv) BCIP Trust--387,677 shares of common stock; (v) each of BCPIV and BCII-- 4,559,466 of the shares of common stock; (vi) W. Mitt Romney, as the sole stockholder of BCPIV and as a member of the Management Committee of BCIP and BCIP Trust--5,287,428 shares of common stock; and (vii) Mr. Joshua Bekenstein, as the other member of the Management Committee of BCIP and BCIP Trust--727,962 shares of common stock. Certain other Managing Directors of BCII may also be deemed to have shared voting and dispositive power with respect to the shares held by BCIP and BCIP Trust. The address for each of these reporting persons is Two Copley Place, Boston, Massachusetts 02116. (11) Pursuant to an Amendment No. 1 to Schedule 13G filed with the SEC on February 11, 1999: (i) Putnam Investments, Inc. ("PI") reported shared voting power with respect to 266,900 shares and shared dispositive power with respect to 1,513,400 shares; (ii) Putnam Investment Management, Inc. ("PIM") reported shared dispositive power with respect to 1,099,800 shares; (iii) The Putnam Advisory Company, Inc. ("PAC") reported shared voting power with respect to 266,900 shares and shared dispositive power with respect to 413,600 shares; (iv) Putnam Health Services Trust ("PHST") reported shared dispositive power with respect to 984,370 shares; and (v) Marsh & McLennan Companies, Inc. ("MMC"), as the parent holding company of PI, was listed as a reporting person in the Schedule 13G but did not report beneficial ownership with respect to any shares. The address for PIM, PAC and PHST is the same as the address for PI listed in the table above. The address for MMC is 1166 Avenue of the Americas, New York, New York 10036. (12) Pursuant to a Schedule 13G filed with the SEC on February 12, 1999: (i) Suzanne Zak, the chief executive officer of Zak Capital, Inc. and the managing member of the general partner of Zak Minotaur Fund, L.P., reported the shared power to vote and to dispose of 1,176,190 shares; (ii) Zak Capital, Inc. reported the shared power to vote and to dispose of 1,150,490 shares; and (iii) Zak Minotaur Fund, L.P. reported the shared power to vote and to dispose of 25,700 shares. The address for Zak Capital, Inc. and Zak Minotaur Fund, L.P. is the same as the address listed for Suzanne Zak in the table above. (13) Pursuant to a Schedule 13G filed with the SEC on February 8, 1999, The Northwestern Mutual Life Insurance Company reported the sole power to vote and to dispose of 422,200 shares and the shared power to vote and to dispose of 607,100 shares. Robert W. Baird & Co. Incorporated is a subsidiary of The Northwestern Mutual Life Insurance Company. 53 SELLING STOCKHOLDERS The following table sets forth certain information regarding the beneficial ownership of common stock by the selling stockholders as of June 10, 1999 and as adjusted to reflect the sale of the common stock being offered hereby by the selling stockholders. Beneficial ownership of the common stock listed in the table has been determined in accordance with the applicable rules and regulations promulgated by the SEC under the Exchange Act.
Shares Shares Shares Beneficially Owned Number of Beneficially Owned Subject Selling Stockholders Prior to Offering Shares After Offering(1) to Over- -------------------- --------------------- Being --------------------- Allotment Number Percent Offered Number Percent Option ----------- --------- --------- ----------- --------- --------- Bain Capital Fund IV, L.P.... 1,855,115 10.8% 1,578,682 276,433 1.9% 276,433 Bain Capital Fund IV-B, L.P.. 2,433,251 14.2 2,116,900 316,351 2.1 316,351 BCIP Trust Associates, L.P... 387,677 2.3 337,274 50,403 * 50,403 BCIP Associates.............. 223,585 1.3 179,344 44,241 * 44,241 Combined Jewish Plilanthropies (2).......... 198,850 1.2 198,850 -- -- -- Fidelity Investments Charitable Gifts Fund (2)... 138,950 * 138,950 -- -- -- The Webster Charitable Trust (2)......................... 50,000 * 50,000 -- -- --
- -------- *Indicates less than 1% (1)Assumes the over-allotment option granted to the underwriters by the selling stockholders are not exercised. (2)Represents shares received by such entities as a result of charitable contributions by certain employees of Bain Capital. For a description of the material relationships between us and the selling stockholders, see "Principal Stockholders" and "Certain Transactions." 54 CERTAIN TRANSACTIONS Advisory Agreement In June 1995, we entered into an Advisory Agreement with Bain Capital, which was amended and restated in October 1996 (the "Advisory Agreement"), pursuant to which Bain Capital agreed to provide management consulting, advisory services and support, negotiation and analysis of financial alternatives, acquisitions and dispositions and other services agreed upon by us and Bain Capital. In exchange for such services, Bain Capital receives: (i) a quarterly management fee of not more than $500,000, plus reasonable out-of-pocket expenses, and (ii) a transaction fee in connection with the consummation of each acquisition, divestiture or financing by us or our subsidiaries in an amount equal to 1.0% of the aggregate value of such transaction. For the year ended December 31, 1998, we paid Bain Capital fees of $2,000,000 under the Advisory Agreement. The Advisory Agreement has an initial term ending on January 31, 2004, subject to automatic one-year extensions unless WJ or Bain Capital provides written notice of its desire not to extend such term. Registration Agreement WJ, certain investment funds controlled by Bain Capital (the "Bain Capital Funds") and their related investors and BT Investment Partners, Inc. are parties to a registration agreement. Under the registration agreement, the holders of a majority of the registrable securities owned by the Bain Capital Funds and their related investors have the right at any time, subject to certain conditions, to require us to register any or all of their shares of common stock under the Securities Act on Form S-1 (a "Long-Form Registration") or on Form S-2 or Form S-3 (a "Short-Form Registration") each on an unlimited number of occasions at our expense. We are not required, however, to effect any such Long-Form Registration or Short-Form Registration within six months after the effective date of a prior demand registration and may postpone the filing of such registration for up to six months if the holders of a majority of the registrable securities agree that such a registration would reasonably be expected to have an adverse effect on any proposal or plan by us or any of our subsidiaries to engage in an acquisition, merger or similar transaction. In addition, all holders of registrable securities are entitled to request the inclusion of any shares of common stock subject to the registration agreement in any registration statement at our expense whenever we propose to register any of our securities under the Securities Act, subject to certain conditions. In connection with all such registrations, we have agreed to indemnify all holders of registrable securities against certain liabilities, including liabilities under the Securities Act. The holders of an aggregate of 5,250,481 shares of common stock have certain demand registration rights pursuant to the registration agreement. This offering is being conducted pursuant to a demand registration by the Bain Capital Funds pursuant to the registration agreement. Indebtedness of Management On May 7, 1997, we loaned Mr. Ryan, our Chairman, President and Chief Executive Officer, $1.2 million pursuant to the terms of an unsecured promissory note bearing interest at an annual rate of 8%, payable quarterly. The note is due on the earlier of (i) May 9, 2002, or (ii) the date Mr. Ryan ceases to be employed by us. As of March 15, 1999, an aggregate of $1.2 million in principal was outstanding under the note. Indemnification Agreements Prior to the completion of our IPO, we entered into agreements to provide indemnification for our directors and executive officers in addition to the indemnification provided for in our restated certificate and by-laws. 55 DESCRIPTION OF CAPITAL STOCK General Matters Our total amount of authorized capital stock consists of 50,000,000 shares of common stock, par value $0.01 per share, and 5,000,000 shares of preferred stock, par value $0.01 per share. As of May 24, 1999, we had 17,172,219 shares of common stock issued and outstanding and no shares of preferred stock issued and outstanding. The following summary of certain provisions of our capital stock describes all material provisions of, but does not purport to be complete and is subject to, and qualified in its entirety by, our restated certificate of incorporation and our amended and restated by-laws, which are included as exhibits to the registration statement of which this prospectus forms a part and by the provisions of applicable law. See "Where You Can Find More Information." Our restated certificate of incorporation and by-laws contain certain provisions that are intended to enhance the likelihood of continuity and stability in the composition of the board of directors and which may have the effect of delaying, deferring or preventing a future takeover or change in control of WJ unless such takeover or change in control is approved by the board of directors. Common Stock The issued and outstanding shares of common stock are validly issued, fully paid and nonassessable. Subject to the prior rights of the holders of any preferred stock, the holders of outstanding shares of common stock are entitled to receive such dividends as may be lawfully declared at such time and in such amounts as the board of directors may from time to time determine. See "Dividend Policy." The shares of common stock are not convertible and the holders thereof have no preemptive or subscription rights to purchase any securities of WJ. Upon any liquidation, dissolution or winding up of WJ, the holders of common stock are entitled to receive on a pro rata basis the assets of WJ which are legally available for distribution, after payment of all debts and other liabilities and subject to the prior rights of any holders of preferred stock then outstanding. Each outstanding share of common stock is entitled to one vote on all matters submitted to a vote of stockholders. There is no cumulative voting. Additional shares of authorized common stock may be issued, as determined by the WJ board from time to time, without stockholder approval, except as may be required by applicable stock exchange requirements. Our common stock is included for trading on Nasdaq under the symbol "WJCO." Preferred Stock Our board of directors may, without further action by our stockholders, from time to time, direct the issuance of shares of preferred stock in series and may, at the time of issuance, determine the rights, preferences and limitations of each series. Satisfaction of any dividend preferences of outstanding shares of preferred stock would reduce the amount of funds available for the payment of dividends on shares of common stock. Holders of shares of preferred stock maybe entitled to receive a preference payment in the event of any liquidation, dissolution or winding-up of WJ before any payment is made to the holders of shares of common stock. Under certain circumstances, the issuance of shares of preferred stock may render more difficult or tend to discourage a merger, tender offer or proxy contest, the assumption of control by a holder of a large block of our securities or the removal of incumbent management. Upon the affirmative vote of a majority of the total number of directors then in office, the board of directors of WJ, without stockholder approval, may issue shares of preferred stock with voting and conversion rights which could adversely affect the holders of shares of common stock. There are no shares of preferred stock outstanding, and we have no present intention to issue any shares of preferred stock. 56 Certain Provisions of the Restated Certificate of Incorporation and By-laws Classified Board. The restated certificate provides for the board to be divided into three classes, as nearly equal in number as possible, serving staggered terms. Approximately one-third of the board will be elected each year. See "Management." Under the Delaware General Corporation Law, directors serving on a classified board can only be removed for cause. The provision for a classified board could prevent a party who acquires control of a majority of the outstanding voting stock from obtaining control of the board until the second annual stockholders meeting following the date the acquiror obtains the controlling stock interest. The classified board provision could have the effect of discouraging a potential acquiror from making a tender offer or otherwise attempting to obtain control of WJ and could increase the likelihood that incumbent directors will retain their positions. Elimination of Stockholder Action Through Written Consents. The restated certificate provides that stockholder action can be taken only at an annual or special meeting of stockholders and cannot be taken by written consent in lieu of a meeting. Elimination of the Ability to Call Special Meetings. The restated certificate and the by-laws provide that, except as otherwise required by law, special meetings of the stockholders can only be called pursuant to a resolution adopted by a majority of the board of directors or by our chief executive officer. Stockholders are not permitted to call a special meeting or to require the board to call a special meeting. Advanced Notice Procedures For Stockholder Proposals. The by-laws establish an advance notice procedure for stockholder proposals to be brought before an annual meeting of our stockholders, including proposed nominations of persons for election to the board. Stockholders at our annual meeting may only consider proposals or nominations specified in the notice of meeting or brought before the meeting by or at the direction of the board or by a stockholder who was a stockholder of record on the record date for the meeting, who is entitled to vote at the meeting and who has given to our secretary timely written notice, in proper form, of the stockholder's intention to bring that business before the meeting. Although the by-laws do not give the board the power to approve or disapprove stockholder nominations of candidates or proposals regarding other business to be conducted at a special or annual meeting, the by-laws may have the effect of precluding the conduct of certain business at a meeting if the proper procedures are not followed or may discourage or defer a potential acquiror from conducting a solicitation of proxies to elect its own slate of directors or otherwise attempting to obtain control of WJ. Amendments to the Restated Certificate and By-laws. The restated certificate and by-laws provide that the affirmative vote of holders of at least 66 2/3% of the total votes eligible to be cast in the election of directors is required to amend, alter, change or repeal certain of their provisions. This requirement of a super-majority vote to approve amendments to the restated certificate and by- laws could enable a minority of our stockholders to exercise veto power over any such amendments. Certain Provisions of Delaware Law We are subject to the "Business Combination" provisions of the Delaware General Corporation Law. In general, such provisions prohibit a publicly held Delaware corporation from engaging in various "business combination" transactions with any "interested stockholder" for a period of three years after the date of the transaction which the person became an "interested stockholder," unless: . the transaction is approved by the board of directors prior to the date the "interested stockholder" obtained such status; 57 . upon consummation of the transaction which resulted in the stockholder becoming an "interested stockholder," the "interested stockholder" owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the number of shares outstanding those shares owned by (a) persons who are directors and also officers and (b) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or . on or subsequent to such date the "business combination" is approved by the board of directors and authorized at an annual or special meeting of stockholders by the affirmative vote of at least 66 2/3% of the outstanding voting stock which is not owned by the "interested stockholder." A "business combination" is defined to include mergers, asset sales and other transactions resulting in financial benefit to a stockholder. In general, an "interested stockholder" is a person who, together with affiliates and associates, owns (or within three years, did own) 15% or more of a corporation's voting stock. The statute could prohibit or delay mergers or other takeover or change in control attempts with respect to WJ and, accordingly, may discourage attempts to acquire us. Limitations on Liability and Indemnification of Officers and Directors The restated certificate limits the liability of directors to the fullest extent permitted by the Delaware General Corporation Law. In addition, the restated certificate provides that we shall indemnify our directors and officers to the fullest extent permitted by such law. We have entered into indemnification agreements with all our current directors and executive officers. We expect that we will enter into a similar agreement with any new directors or executive officers. We obtained director's and officer's insurance prior to the completion of the IPO. Transfer Agent and Registrar The Transfer Agent and Registrar for our common stock is American Stock Transfer & Trust Company. 58 UNDERWRITING Subject to the terms and conditions of the underwriting agreement with the underwriters named below in which they have severally agreed to purchase from the selling stockholders the number of shares of common stock set forth beside their names below. Deutsche Bank Securities Inc., Bear, Stearns & Co. Inc., Robert W. Baird & Co. Incorporated, A.G. Edwards & Sons, Inc., and Merrill Lynch, Pierce, Fenner & Smith Incorporated are the representatives of the underwriters.
Number of Underwriter Shares - ----------- --------- Deutsche Bank Securities Inc.......................................... Bear, Stearns & Co. Inc............................................... Robert W. Baird & Co. Incorporated.................................... A.G. Edwards & Sons, Inc.............................................. Merrill Lynch, Pierce, Fenner & Smith Incorporated................................................. --------- Total............................................................... 4,600,000 =========
The underwriting agreement provides that the obligations of the underwriters to purchase the common stock is subject to the terms and conditions set forth in the underwriting agreement. The underwriting agreement requires the underwriters to purchase all of the shares of the common stock offered by this prospectus, if any are purchased. The shares of common stock offered by the underwriters pursuant to this prospectus are subject to prior sale, when, as and if delivered to and accepted by the underwriters, and subject to the underwriters' right to reject any order in whole or in part. The underwriters have advised the selling stockholders that they propose to offer the shares of common stock to the public at the public offering price of $ per share. Any shares sold by the underwriters to securities dealers may be sold at a discount of up to $ per share from the public offering price. Any such securities dealers may resell any shares purchased from the underwriters to certain other brokers or dealers at a discount of up to $ per share from the public offering price. The underwriters may change the public offering price after the common stock is released for sale to the public. The underwriters may sell more shares than the total number set forth in the table above. To cover these sales, certain of the selling stockholders have granted the underwriters an option to purchase up to an aggregate of 687,428 additional shares of common stock at the public offering price, less the underwriting discounts and commissions. The underwriters may exercise this option at any time within 30 days after the date of this prospectus only to cover these sales. To the extent the underwriters exercise this option, each of the underwriters will purchase shares in approximately the same proportion as the number of shares of common stock to be purchased by it shown in the above table bears to 687,428, and the selling stockholders will be obligated, pursuant to the option, to sell those shares to the underwriters. If purchased, the underwriters will offer the additional shares on the same terms as those on which the 4,600,000 shares are being offered. If the underwriters exercise their over-allotment option in full, the total public offering price will be $ , the total underwriting discount will be $ , and the total proceeds to the selling stockholders will be $ . We and the selling stockholders have agreed to indemnify the underwriters with respect to certain liabilities, including liabilities under the Securities Act. To facilitate the offering of the common stock, the underwriters may engage in transactions that stabilize, maintain or otherwise affect the market price of the common stock. Specifically, the underwriters may over-allot shares of our common stock in connection with this offering, thereby creating a short position in the underwriters' account. A short position results when an underwriter 59 sells more shares of common stock than such underwriter is committed to purchase. Additionally, to cover over-allotments or to stabilize the market price of the common stock, the underwriters may bid for, and purchase, shares of our common stock at a level above that which might otherwise prevail in the open market. The underwriters are not required to engage in these activities, and, if they do, they may discontinue doing so at any time. The underwriters also may reclaim selling concessions allowed to an underwriter or dealer, if the underwriters repurchase shares distributed by such underwriter or dealer. We have agreed not to offer, sell or make any other disposition of any shares of our common stock or other securities convertible into or exchangeable or exercisable for shares of our common stock or derivatives of our common stock for a period of 90 days after the date of this prospectus, directly or indirectly, without the prior written consent of Deutsche Bank Securities Inc. We may, however, without this consent, (1) issue options under our stock option plan, issue shares upon exercise of options granted under the stock option plan or sell shares under our stock purchase plan or (2) in connection with acquisitions of businesses. In connection with this offering, certain underwriters and other selling group members or their affiliates may engage in passive market making transactions in our common stock on the Nasdaq in accordance with Rule 103 of Regulation M under the Exchange Act. Rule 103 permits passive market making during the period when Regulation M would otherwise prohibit market making activity by the participants in this offering. Passive market making consists of displaying bids on the Nasdaq limited by the bid prices of independent market makers and making purchases limited by such prices and effected in response to order flow. Rule 103 limits the net purchases by a passive market maker on each day to a specified percentage of the passive market maker's average daily trading volume in our common stock during a specified period. The passive market maker must stop its passive market making transactions for the rest of that day when such limit is reached. Certain of the representatives of the underwriters have provided investment banking and other financial services to us and to our subsidiaries from time to time. BT Investment Partners, Inc., an affiliate of Deutsche Bank Securities Inc., is a limited partner in Fund IV of the Bain Capital Funds. Bankers Trust Company, also an affiliate of Deutsche Bank Securities Inc., is the administrative agent and lender under our bank credit agreement. We estimate that the total expenses of the offering, excluding underwriting discounts and commissions, will be approximately $350,000. EXPERTS The consolidated financial statements of WJ as of December 31, 1998 and 1997 and for each of the three years in the period ended December 31, 1998 included in this prospectus have been so included in reliance upon the report of PricewaterhouseCoopers LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting. LEGAL MATTERS The validity of the common stock offered hereby will be passed upon for us by Kirkland & Ellis, Chicago, Illinois, a partnership which includes professional corporations. Certain legal matters will be passed upon for the underwriters by Ropes & Gray, Boston, Massachusetts. Kirkland & Ellis and Ropes & Gray have from time to time represented, and may continue to represent, certain of the underwriters in connection with various legal matters and Bain Capital and certain of its affiliates, including WJ, in connection with certain legal matters. 60 WHERE YOU CAN FIND MORE INFORMATION We file annual, quarterly and special reports, proxy statements and other information with the SEC. You may read and copy any reports, statements or other information we file at the SEC's public reference rooms at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, as well as at the SEC's regional offices at 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and 7 World Trade Center, Suite 1300, New York, New York 10048. Copies of these materials may also be obtained from the SEC at prescribed rates by writing to the Public Reference Section of the SEC, 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference rooms. Our filings are also available to the public from commercial document retrieval services and at the web site maintained by the SEC at "http://www.sec.gov." We have filed with the SEC a registration statement on form S-3 with respect to our common stock being offered hereby. This prospectus is a part of that registration statement. Other parts of the registration statement are omitted from this prospectus in accordance with the rules and regulations of the SEC. Copies of the registration statement, including exhibits, may be inspected, without charge, at the offices of the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549, and copies may be obtained from the SEC at prescribed rates. The SEC permits us to "incorporate by reference" information into this prospectus, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The following documents previously filed with the SEC by us (SEC File Number 0-22033) are incorporated by reference into this prospectus: 1. Annual Report on Form 10-K for the fiscal year ended December 31, 1998; 2. Proxy Statement relating to the Annual Meeting of Stockholders of WJ held on May 26, 1999; 3. Current Report on Form 8-K, dated May 5, 1999 (announcing our results for the three month period ended April 3, 1999); 4. Quarterly Report on Form 10-Q for the quarterly period ended April 3, 1999; and 5. The description of our common stock contained in our Registration Statement on Form 8-A filed with the SEC on January 22, 1997. We are also incorporating by reference additional documents that we file with the SEC between the date of this prospectus and the date of the completion of the offering. You can obtain any of the documents incorporated by reference through us or the SEC. Documents incorporated by reference are available from us without charge, excluding all exhibits unless we have specifically incorporated by reference an exhibit in this prospectus. You may obtain documents incorporated by reference in this prospectus by requesting them in writing or by telephone from the appropriate party at the following address or telephone number: Ronald J. Artale, Vice President and Controller, Wesley Jessen VisionCare, Inc., 333 East Howard Avenue, Des Plaines, Illinois 60018-5903, telephone number: (847) 294-3000. 61 INDEX TO FINANCIAL STATEMENTS WESLEY JESSEN VISIONCARE, INC. Report of Independent Accountants........................................ F-2 Consolidated Statements of Operations for the years ended December 31, 1998, 1997 and 1996..................................................... F-3 Consolidated Balance Sheets at December 31, 1998 and 1997................ F-4 Consolidated Statements of Cash Flows for the years ended December 31, 1998, 1997 and 1996..................................................... F-5 Consolidated Statements of Changes in Stockholders' Equity for the years ended December 31, 1998, 1997 and 1996.................................. F-6 Notes to Consolidated Financial Statements............................... F-7 UNAUDITED INTERIM FINANCIAL DATA Condensed Consolidated Balance Sheets at April 3, 1999 (unaudited) and December 31, 1998....................................................... F-26 Condensed Consolidated Statements of Operations for the three months ended April 3, 1999 and March 28, 1998 (unaudited)...................... F-27 Condensed Consolidated Statements of Cash Flows for the three months ended April 3, 1999 and March 28, 1998 (unaudited)...................... F-28 Notes to Condensed Consolidated Financial Statements (unaudited)......... F-29
F-1 REPORT OF INDEPENDENT ACCOUNTANTS To the Board of Directors and Stockholders of Wesley Jessen VisionCare, Inc. In our opinion, the accompanying consolidated balance sheets and the related consolidated statements of operations, of cash flows and of changes in stockholders' equity present fairly, in all material respects, the financial position of Wesley Jessen VisionCare, Inc. and its subsidiaries (the "Company") at December 31, 1998 and 1997 and the results of their operations and their cash flows for each of the three years in the period ended December 31, 1998 in conformity with generally accepted accounting principles. These financial statements are the responsibility of the Company's management; our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits of these statements in accordance with generally accepted auditing standards which require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for the opinion expressed above. PRICEWATERHOUSECOOPERS LLP Chicago, Illinois February 23, 1999 F-2 WESLEY JESSEN VISIONCARE, INC. CONSOLIDATED STATEMENTS OF OPERATIONS (in thousands, except per share amounts)
Twelve Months Ended -------------------------------------- December 31, December 31, December 31, 1998 1997 1996 ------------ ------------ ------------ Net sales.............................. $292,259 $282,178 $156,752 Operating costs and expenses: Cost of goods sold................... 90,471 92,780 43,152 Cost of goods sold--inventory step- up.................................. -- 22,666 20,706 Marketing and administrative......... 143,309 137,650 88,274 Research and development............. 10,818 11,997 7,178 Amortization of goodwill, net........ (997) (862) (784) -------- -------- -------- Income (loss) from operations.......... 48,658 17,947 (1,774) Other (income) expense: Interest income...................... (633) (522) -- Interest expense..................... 5,444 6,081 5,385 Other income, net.................... -- -- (3,051) -------- -------- -------- Income (loss) before income taxes and extraordinary loss.................... 43,847 12,388 (4,108) Income tax benefit (expense)........... (14,250) (4,188) 3,037 -------- -------- -------- Income (loss) before extraordinary loss.................................. 29,597 8,200 (1,071) Extraordinary loss, net of related income tax benefit of $2,526 in 1997 and $1,093 in 1996.................... -- (4,902) (1,671) -------- -------- -------- Net income (loss)...................... $ 29,597 $ 3,298 $ (2,742) ======== ======== ======== Income (loss) per common share: Basic Income (loss) before extraordinary loss................................ $ 1.70 $ 0.49 $ (0.07) Extraordinary loss, net of income tax benefit............................. $ -- $ (0.29) $ (0.12) Net income (loss).................... $ 1.70 $ 0.20 $ (0.19) Diluted Income (loss) before extraordinary loss................................ $ 1.57 $ 0.45 $ (0.07) Extraordinary loss, net of income tax benefit............................. $ -- $ (0.27) $ (0.12) Net income (loss).................... $ 1.57 $ 0.18 $ (0.19) Weighted average common shares outstanding Basic................................. 17,432 16,898 14,638 Diluted............................... 18,904 18,451 14,638
The accompanying notes are an integral part of these financial statements. F-3 WESLEY JESSEN VISIONCARE, INC. CONSOLIDATED BALANCE SHEETS (in thousands, except share amounts)
December 31, ------------------ 1998 1997 -------- -------- ASSETS Current assets: Cash and cash equivalents................................ $ 8,859 $ 4,759 Accounts receivable--trade, net (Note 5)................. 47,363 42,642 Other receivables........................................ 6,840 4,773 Inventories.............................................. 62,055 49,262 Deferred income taxes.................................... 18,602 18,102 Prepaid expenses......................................... 6,977 7,675 Assets held for sale..................................... 1,222 1,222 -------- -------- Total current assets.................................... 151,918 128,435 -------- -------- Property, plant and equipment, net......................... 36,338 21,480 Other assets............................................... 6,011 6,894 Deferred income taxes...................................... 3,528 10,838 Notes receivable........................................... 1,803 2,773 Goodwill, net.............................................. 2,569 -- Capitalized financing fees, net............................ 2,351 2,656 -------- -------- Total assets............................................ $204,518 $173,076 ======== ======== LIABILITIES AND STOCKHOLDERS' EQUITY Current liabilities: Trade accounts payable................................... $ 17,689 $ 14,229 Accrued compensation and benefits........................ 25,565 19,806 Accrued advertising...................................... 4,060 4,113 Other accrued liabilities................................ 9,744 11,212 Transition reserve....................................... 7,886 11,225 Income taxes payable..................................... 3,257 2,015 -------- -------- Total current liabilities............................... 68,201 62,600 -------- -------- Negative goodwill, net..................................... 12,587 13,681 Long term debt............................................. 69,000 57,000 Other liabilities.......................................... 4,778 2,949 -------- -------- Total liabilities....................................... 154,566 136,230 -------- -------- Commitments and contingencies (Note 13) -- -- Stockholders' equity Common stock, $.01 par value, 50,000,000 shares authorized, 16,994,884 and 17,736,011 issued and outstanding at December 31, 1998 and December 31, 1997, respectively............................................ 180 177 Additional paid in capital............................... 60,847 56,390 Accumulated earnings (deficit)........................... 10,438 (19,159) Treasury stock, 1,000,000 shares at December 31, 1998, at cost.................................................... (21,306) -- Accumulated other comprehensive loss..................... (207) (562) -------- -------- Total stockholders' equity.............................. 49,952 36,846 -------- -------- Total liabilities and stockholders' equity.............. $204,518 $173,076 ======== ========
The accompanying notes are an integral part of these financial statements. F-4 WESLEY JESSEN VISIONCARE, INC. CONSOLIDATED STATEMENTS OF CASH FLOWS (in thousands)
Twelve Months Ended -------------------------------------- December 31, December 31, December 31, 1998 1997 1996 ------------ ------------ ------------ Operating activities: Net income (loss)...................... $29,597 $ 3,298 $(2,742) Adjustments to reconcile net income (loss) to net cash provided by operating activities: Extraordinary loss on early extinguishment of debt.............. -- 7,428 2,764 Depreciation expense................. 2,121 901 462 Purchased inventory step-up.......... -- 22,666 20,706 Amortization of capitalized financing fees................................ 584 508 699 Amortization of goodwill............. (997) (862) (784) (Gain) loss on disposal of property, plant, and equipment................ 17 (120) 187 Deferred income tax.................. 7,772 (1,622) (6,087) Stock compensation................... -- 257 -- Changes in balance sheet items: Accounts receivable--trade, net...... (3,057) (3,941) 5,625 Other receivables.................... (1,716) (545) 799 Inventories.......................... (11,198) (3,723) 402 Prepaid expenses..................... 750 (1,192) (1,664) Other assets......................... 882 (491) 83 Notes receivable..................... (30) (1,227) -- Trade accounts payable............... 2,458 2,179 (4,690) Accrued liabilities.................. (562) (14,139) 1,883 Other liabilities.................... 1,740 2,181 145 Income taxes payable................. 2,807 (4,679) 1,450 ------- -------- ------- Cash provided by operating activities........................ 31,168 6,877 19,238 ------- -------- ------- Investing activities: Cash paid for assets acquired.......... (2,994) -- (61,816) Proceeds from Natural Touch sale....... 1,000 6,000 -- Capital expenditures................... (17,238) (16,298) (6,617) Proceeds from the sale of property, plant and equipment................... 133 417 427 ------- -------- ------- Cash used in investing activities.. (19,099) (9,881) (68,006) ------- -------- ------- Financing activities: Issuance of stock...................... 2,150 48,513 272 Repurchase of shares................... (21,306) -- -- Proceeds from long term debt........... 43,000 150,000 122,255 Payments of long term debt............. (31,000) (194,375) (61,380) Payment of financing fees.............. (279) (3,076) (7,778) ------- -------- ------- Cash provided by (used in) financing activities.............. (7,435) 1,062 53,369 ------- -------- ------- Effect of exchange rates on cash and cash equivalents...................... (534) (372) (50) Net increase (decrease) in cash and cash equivalents...................... 4,100 (2,314) 4,551 Cash and cash equivalents: Beginning of period.................... 4,759 7,073 2,522 ------- -------- ------- End of period.......................... $ 8,859 $ 4,759 $ 7,073 ======= ======== ======= Supplemental disclosure of cash flow information Cash paid during the period for interest.............................. $ 4,074 $ 6,287 $ 4,359 ======= ======== ======= Cash paid during the period for taxes, net................................... $ 3,316 $ 7,474 $ 744 ======= ======== =======
The accompanying notes are an integral part of these financial statements. F-5 WESLEY JESSEN VISIONCARE, INC. CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY (in thousands)
Class L Common Stock Accumulated Common Stock Common Stock Repurchase Additional Accumulated Other ------------- ------------- --------------- Paid in Earnings Comprehensive Comprehensive Shares Amount Shares Amount Shares Amount Capital (Deficit) Income (Loss) Income (Loss) ------ ------ ------ ------ ------ -------- ---------- ----------- ------------- ------------- Balance at December 31, 1995.............. 429 $ 4 3,862 $ 38 -- $ -- $ 7,483 $(19,715) $ -- $ -- Issuance of stock..... 1 -- 7 -- -- -- 15 -- -- -- Stock subscription receivable............ -- -- -- 1 -- -- 256 -- -- -- Exchange of stock..... (109) (1) 221 2 -- -- -- -- -- -- Retroactive effect of February 12, 1997 Class L Common Stock Reclassification...... (321) (3) 1,461 15 -- -- -- -- -- -- Retroactive effect of February 12, 1997 Class L Common Stock split................. -- -- 8,725 87 -- -- (100) -- -- -- Comprehensive income Net income........... -- -- -- -- -- -- -- (2,742) -- (2,742) Other comprehensive income Currency translation adjustment........... -- -- -- -- -- -- -- -- 1,368 1,368 ---- ---- ------ ---- ----- -------- ------- -------- ------- ------- Balance at December 31, 1996.............. -- $-- 14,276 $143 -- $ -- $ 7,654 $(22,457) $ 1,368 $(1,374) ======= Issuance of stock..... -- -- 3,460 34 -- -- 47,261 -- -- -- Stock compensation.... -- -- -- -- -- -- 257 -- -- -- Stock option related tax benefit........... -- -- -- -- -- -- 1,218 -- -- -- Comprehensive income Net income........... -- -- -- -- -- -- -- 3,298 -- 3,298 Other comprehensive income Currency translation adjustment........... -- -- -- -- -- -- -- -- (1,930) (1,930) ---- ---- ------ ---- ----- -------- ------- -------- ------- ------- Balance at December 31, 1997.............. -- $-- 17,736 $177 -- $ -- $56,390 $(19,159) $ (562) $ 1,368 ======= Issuance of stock..... -- -- 259 3 -- -- 2,147 -- -- -- Repurchase of common stock................. -- -- -- -- 1,000 (21,306) -- -- -- -- Stock option related tax benefit........... -- -- -- -- -- -- 2,310 -- -- -- Comprehensive income Net income........... -- -- -- -- -- -- -- 29,597 -- 29,597 Other comprehensive income Currency translation adjustment........... -- -- -- -- -- -- -- -- 355 355 ---- ---- ------ ---- ----- -------- ------- -------- ------- ------- Balance at December 31, 1998.............. -- $-- 17,995 $180 1,000 $(21,306) $60,847 $ 10,438 $ (207) $29,952 ==== ==== ====== ==== ===== ======== ======= ======== ======= =======
The accompanying notes are an integral part of these financial statements. F-6 WESLEY JESSEN VISIONCARE, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 1. Basis of presentation and description of business Basis of presentation The consolidated financial statements include the accounts of Wesley Jessen VisionCare, Inc., its wholly owned subsidiary, Wesley Jessen Corporation, and Wesley Jessen Corporation's wholly owned subsidiaries (collectively, the "Company"). Description of business The Company's primary business activity is the research, development, manufacture, marketing and sale of conventional and disposable soft contact lenses in the United States and certain other countries. The Company is headquartered in Des Plaines, Illinois and operates in one business segment. The IPO In February 1997 and March 1997 the Company completed an initial public offering ("IPO") of 2,821,000 shares of common stock at $15.00 per share. Concurrent with the offering, the board of directors declared a 4.549-to-one conversion of Class L Common Stock into Common Stock (the "Conversion") and a 3.133-to-one split of the Common Stock (the "Split"). For balance sheet presentation purposes the Conversion and the Split have been given effect as if they had occurred on December 31, 1996. All per share data have been presented as if the Conversion and Split had occurred on June 29, 1995. Additionally, concurrent with the IPO, the board of directors amended the Company's Articles of Incorporation, authorizing 5,000,000 and 50,000,000 shares of Serial Preferred Stock and Common Stock, respectively. The Offering In August 1997 and September 1997, the Company completed a public offering of 4,300,000 shares of common stock at $23.50 per share (the "Offering"). Of the 4,300,000 shares, 500,000 were offered by the Company and the remaining 3,800,000 shares were offered by certain selling stockholders. Net proceeds received by the Company, after deducting underwriting discounts, commissions and offering expenses, were used to repay certain outstanding debt from the Barnes-Hind Acquisition (Note 3) and to reduce the Company's indebtedness under it's bank credit agreement. 2. Summary of significant accounting policies Use of estimates The preparation of financial statements in accordance with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the period. Actual results could differ from those estimates. Principles of consolidation All significant intercompany accounts and transactions have been eliminated in consolidation. F-7 WESLEY JESSEN VISIONCARE, INC. NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) Revenue recognition Revenue is recognized when product is shipped. Net sales include estimates for returns and allowances. The Company grants credit terms to its customers consistent with normal industry practices and does not require collateral. No individual customer accounts for more than 10 percent of sales or accounts receivable. Other income Other income for the year ended December 31, 1996 includes income of $3.7 million relating to licensing of a patent by the Company. Cash and cash equivalents All highly liquid investments with an original maturity of three months or less are considered to be cash equivalents. These amounts are stated at cost which approximates fair value. Inventories Inventories are stated at the lower of cost, determined by the first-in, first- out method, or market value. Market value for raw materials is based on replacement costs and for other inventory classifications on net realizable value. Consideration is given to deterioration, obsolescence and other factors in evaluating net realizable value. Prepaid expenses Prepaid expenses include sample inventory to be used for promotional purposes. The sample value is charged to promotional expense during the period in which the samples are shipped. Property, plant and equipment Property, plant and equipment is recorded at cost. Depreciation is determined using the straight-line method over the estimated useful lives of the assets, which are as follows (in years): Buildings and improvements........................................ 5 to 25 Machinery and equipment........................................... 7 Furniture and fixtures............................................ 7 Automobiles....................................................... 3
Expenditures for renewals and betterments are capitalized. Maintenance and repairs are charged to operations. Goodwill Goodwill resulting from the Argentina PCL Acquisition (Note 3) and the Eycon Lens Laboratories Acquisition (Note 3) is being amortized on a straight line basis over a period of fifteen years. Goodwill was $2.6 million, net of $0.1 million of accumulated amortization at December 31, 1998. F-8 WESLEY JESSEN VISIONCARE, INC. NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) Negative goodwill resulting from the Wesley Jessen Acquisition (Note 3) and the Barnes-Hind Acquisition (Note 3) is being amortized on a straight-line basis as a credit to income over a period of fifteen years. Negative goodwill was $12.6 million, $13.7 million and $10.6 million, net of $3.1 million, $2.0 million and $1.2 million of accumulated amortization, at December 31, 1998, 1997 and 1996, respectively. Capitalized financing fees Capitalized financing fees are amortized over the term of the underlying debt utilizing the effective interest method. Research and development costs Expenditures related to the development of new products and processes, including significant improvements and refinements of existing products, are expensed as incurred. Foreign currency translation The functional currency of each of the Company's foreign subsidiaries is the local currency of its respective country. Asset and liability accounts of each entity are translated at the exchange rate in effect at each period-end, and income and expense accounts are translated at average exchange rates prevailing during the period. Gains and losses resulting from the translation of these foreign currency financial statements are included in the other comprehensive loss in stockholders' equity. Concentration of credit risk The Company provides credit, in the normal course of business, to distributors, optical store chains and physicians' offices. The Company performs ongoing credit evaluations of its customers and maintains reserves for potential credit losses. Fair value of financial instruments Cash, accounts receivable, accounts payable, and accrued liabilities are reflected in the financial statements at cost which approximates fair value, primarily because of the short-term maturity of those instruments. The Company believes that due to the adjustable interest rates applicable to its long-term debt, the fair value approximates the carrying value of the obligations. Earnings per share The Company calculates earnings per share in accordance with Statement of Financial Accounting Standards No. 128, "Earnings per Share." The difference between the weighted average shares used in the computations of basic and diluted earnings per share for the years ended December 31, 1998 and 1997 is the dilutive effect of outstanding stock options, using the treasury stock method from the date of grant. Weighted average shares used in the computations for the year ended December 31, 1996 does not include the effect of these stock options, as the effect would be antidilutive. 3. Acquisitions On June 29, 1995, Bain Capital, together with new and certain then-existing members of management, acquired the Wesley Jessen contact lens business from Schering-Plough Corporation (the "Wesley F-9 WESLEY JESSEN VISIONCARE, INC. NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) Jessen Acquisition"). The Wesley Jessen Acquisition was completed for a total purchase price of $76.6 million, consisting of cash paid of $47.0 million and liabilities assumed of $29.6 million. As a result of the Wesley Jessen Acquisition, Wesley-Jessen Corporation acquired certain assets from Schering- Plough, consisting of manufacturing facilities in Des Plaines, Illinois and Cidra, Puerto Rico, a distribution facility in Chicago, Illinois, and a number of non-U.S. sales and service offices, assumed certain liabilities and paid certain acquisition costs directly attributable to the Wesley Jessen Acquisition. The Wesley Jessen Acquisition was financed by $43.0 million of bank debt and $7.5 million of proceeds from the issuance of the Company's common stock. On October 2, 1996, the Company acquired the contact lens business of Pilkington plc, operating as the Pilkington Barnes-Hind Group (the "Barnes-Hind Acquisition"). The Barnes-Hind Acquisition was completed for a total purchase price of $117.6 million, consisting of cash paid of $62.3 million and liabilities assumed of $55.3 million. In addition, the Company paid acquisition-related fees and expenses of $4.4 million. The acquisition was financed through borrowings on the Company's then-existing credit agreement and a $5.0 million seller note. The purchase method of accounting was used to record the acquisitions. The results of operations of the acquired companies have been included in the results of operations of the Company since the acquisition date. The excess of the estimated fair values of the net assets acquired over the purchase prices paid for the Wesley Jessen Acquisition of $11.8 million and the Barnes-Hind Acquisition of $4.0 million have been recorded as negative goodwill (Note 2). The Company's total inventories were written up to fair value at the date of acquisition for the Wesley Jessen Acquisition and the Barnes-Hind Acquisition by $40.6 million and $36.7 million, respectively. Of these amounts, $22.7 million and $20.7 million was charged to cost of goods sold during the years ended December 31, 1997 and 1996, respectively. In connection with the Barnes-Hind Acquisition, the Company entered into a voluntary consent order with the Federal Trade Commission which provided, among other things, that the Company divest Barnes-Hind's U.S. Natural Touch Product Line. On March 17, 1997, the Company completed the sale of the product line, for which it received aggregate consideration of $7.5 million, consisting of $3.0 million in cash and a four-year $4.5 million promissory note. The promissory note accrues compounded interest at a rate of 12% per annum, 8% of which is paid currently and 4% of which is payable-in-kind. As part of the sale, the Company entered into a supply agreement pursuant to which the Company will supply the purchaser with Natural Touch lenses for sale in the United States. On July 31, 1997, the purchaser made a voluntary prepayment of $3.0 million on the promissory note. On May 7, 1998, the purchaser made an additional voluntary prepayment of $1.0 million. Also in connection with the Barnes-Hind Acquisition, the Company undertook a plan to integrate the acquired operations with those of the Company and to restructure the Company's pre-existing operations (Note 4). On June 26, 1998, the Company acquired the operations of Plastic Contact Lens Argentina SAIC (PCL) from its sole shareholder. On July 31, 1998, the Company, through its Australian subsidiary, executed a purchase agreement to acquire certain assets and assume certain liabilities of Eycon Lens Laboratories, Pty, Ltd. from its shareholders. The total adjusted purchase price for both acquisitions of approximately $2.7 million (plus additional fees and expenses of $0.3 million) was funded with existing liquidity. The Company has accounted for the acquisitions under the purchase method of accounting. F-10 WESLEY JESSEN VISIONCARE, INC. NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) 4. Transition reserve and restructuring charge In connection with the Barnes-Hind Acquisition, management approved a plan to integrate the acquired operations, for which an accrual of $20.4 million ("transition reserve") was established in purchase accounting. The transition reserve includes costs related to the closure of the Barnes-Hind corporate offices in Sunnyvale, California which was completed in the third quarter of 1997 and resulted in the termination of 123 employees. The Company announced the closing of its manufacturing operations in San Diego, California, expected to be substantially complete by March 2000, with a shift of conventional lens production to its plant in Cidra, Puerto Rico. The plant closing will result in the termination of 471 employees (of whom 199 had been terminated as of December 31, 1998). Payments related to the transition reserve are as follows (in thousands):
Lease Facility Employee Termination Restoration Related Costs Costs and Other Costs Total ------------- ----------- --------------- ------- Transition reserve at October 2, 1996........... $16,772 $ 2,243 $1,385 $20,400 Charges against reserve.... (1,149) (223) (134) (1,506) ------- ------- ------ ------- Transition reserve at December 31, 1996......... 15,623 2,020 1,251 18,894 Charges against reserve.... (6,072) (1,323) (274) (7,669) ------- ------- ------ ------- Transition reserve at December 31, 1997......... 9,551 697 977 11,225 Charges against reserve.... (2,382) (155) (802) (3,339) ------- ------- ------ ------- Transition reserve at December 31, 1998......... $ 7,169 $ 542 $ 175 $ 7,886 ======= ======= ====== =======
In addition to the transition plan, the Company committed to a plan to restructure the Wesley Jessen operations following the Barnes-Hind Acquisition, resulting in a $3.4 million charge in the fourth quarter of 1996 ("restructuring reserve"). Pursuant to the restructuring plan, the Chicago distribution facilities were consolidated with those at Des Plaines, Illinois in October 1997. The restructuring reserve, totaling $0.6 million at December 31, 1998, consists of costs related to employee termination, lease termination and other restructuring costs associated with the consolidation of certain Wesley Jessen facilities in Europe with facilities acquired in the Barnes-Hind Acquisition. Usage of the restructuring reserve is as follows (in thousands):
Employee Lease Related Termination Other Costs Costs Costs Total -------- ----------- ------- ------- Restructuring reserve at December 31, 1996.................................. $ 813 $ 897 $ 1,690 $ 3,400 Charges against reserve................ (437) (235) (1,480) (2,152) ----- ----- ------- ------- Restructuring reserve at December 31, 1997.................................. 376 662 210 1,248 Charges against the reserve............ (189) (374) (96) (659) ----- ----- ------- ------- Restructuring reserve at December 31, 1998.................................. $ 187 $ 288 $ 114 $ 589 ===== ===== ======= =======
F-11 WESLEY JESSEN VISIONCARE, INC. NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) 5. Accounts receivable-trade, net Accounts receivable-trade, net consist of the following (in thousands):
December 31, December 31, 1998 1997 ------------ ------------ Trade receivables..................................... $ 62,968 $ 59,293 Less allowances: Doubtful accounts................................... (4,992) (6,290) Sales returns and adjustments....................... (10,613) (10,361) -------- -------- $ 47,363 $ 42,642 ======== ========
6. Inventories Inventories consist of the following (in thousands):
December 31, December 31, 1998 1997 ------------ ------------ Raw materials......................................... $ 5,934 $ 3,558 Work-in-process....................................... 6,463 7,613 Finished goods........................................ 49,658 38,091 ------- ------- $62,055 $49,262 ======= =======
7. Property, plant and equipment Property, plant and equipment consist of the following (in thousands):
December 31, December 31, 1998 1997 ------------ ------------ Buildings and improvements............................ $ 9,449 $ 8,369 Machinery, equipment, furniture and fixtures.......... 19,638 10,246 Construction-in-progress.............................. 11,450 4,159 ------- ------- 40,537 22,774 Less accumulated depreciation......................... (4,199) (1,294) ------- ------- $36,338 $21,480 ======= =======
8. Advertising costs The Company participates in several cooperative advertising programs with customers. The costs incurred under these programs are accrued and expensed at the inception of the contract. All of the Company's other production costs of advertising are expensed the first time the advertising takes place. Advertising expense for the years ended December 31, 1998, 1997, and 1996 was $23.2 million, $17.9 million and $14.0 million, respectively. 9. Long-term debt At December 31, 1998 the Company maintained a $170 million credit facility, the availability of which will be reduced by $20 million in September 2000 and $20 million in September 2001. The facility matures on September 11, 2002. This agreement became effective on July 29, 1998 when the then-existing bank credit agreement was amended to increase the borrowing availability to permit the F-12 WESLEY JESSEN VISIONCARE, INC. NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) repurchase of a maximum of $35 million of the Company's common stock. Relating to this agreement, the Company incurred $3.4 million of financing fees, which are being amortized through September 2002. As part of the Barnes-Hind Acquisition (Note 3) refinancing, the Company recognized an extraordinary loss of $2.8 million ($1.7 million net of tax benefit) in 1996, relating to the write-off of capitalized financing fees incurred in connection with the Wesley Jessen Acquisition (Note 3). In connection with a refinancing of the Company's credit arrangements as part of the IPO (Note 1), the Company recognized an extraordinary loss of $7.4 million ($4.9 million, net of income tax benefit) in 1997, relating to the write off of capitalized financing fees incurred in connection with the Barnes- Hind Acquisition. At December 31, 1998, the weighted average borrowing rate was 6.008%. Additionally, the Company is required to pay a commitment fee on the unutilized revolving loan commitments, as defined in the credit agreement, ranging from 0.175% to 0.400% based on leverage ratios calculated as of certain dates. The unutilized portion of the credit facilities at December 31, 1998 was $101.0 million. The credit facilities are guaranteed by each of the Company's domestic subsidiaries and secured by essentially all assets of the domestic subsidiaries. Amounts borrowed under the amended bank credit agreement bear interest at either the Base Rate (higher of (i) 0.5% in excess of the Federal Reserve reported adjusted certificate of deposit rate and (ii) the lender's prime lending rate plus a margin up to 0.5% based on leverage ratios calculated as of certain dates) or the Eurodollar Rate as determined by the lenders plus a margin of 0.375% to 1.500% based on the type of loan and leverage ratios calculated as of certain dates as defined in the credit agreement. The amended bank credit agreement contains a number of covenants restricting the Company and its subsidiaries with respect to the incurrence of indebtedness, the creation of liens, the consummation of certain transactions such as sales of substantial assets, mergers or consolidations, the making of certain investments, capital expenditures, and payment of dividends. In addition, the Company is required to maintain certain financial covenants and ratios. Interest rate instrument The Company has purchased an interest rate cap on $35.0 million of notional principal amount at 8.5%, which expires on December 31, 1999. The cap is intended to provide partial protection to the Company from potential exposure relating to its variable rate debt instruments. 10. Stockholders' equity Pre-IPO capital structure The Company's authorized capital stock consisted of 600,000 shares of Class L Common Stock, par value $.01 per share ("Class L Common"), and 5,400,000 shares of Common Stock, par value $.01 per share ("Common Stock"). Concurrent with the Wesley Jessen Acquisition, the Company issued 415,000 shares of Class L Common (issued at $17.41 per share) and 3,735,000 shares of Common Stock (issued at $0.081 per share). Holders of Class L Common and Common Stock were entitled to one vote per share on all matters to be voted on by the Company's stockholders, and the holders of both classes of stock vote together as a single class. The outstanding shares of one class of stock could not be the subject of a stock split or a stock dividend unless the outstanding shares of the other class were similarly affected. F-13 WESLEY JESSEN VISIONCARE, INC. NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) Holders of Class L Common were entitled to a preferential payment ("Yield") in the amount of 12.5% per year on the original cost paid for the shares ($17.41 per share) plus any accumulated and unpaid Yield thereon. The Yield accumulated until such time as distributions were made by the Company. No distributions were made by the Company during the periods ended December 31, 1995 and 1996 and the accumulated and unpaid Yield at December 31, 1995 and 1996, amounted to $0.5 million and $1.5 million, respectively. As part of the Conversion this unpaid Yield was converted to Common Stock. Post-IPO capital structure Since February 1997, the Company's authorized capital stock has consisted of 50,000,000 shares of Common Stock and 5,000,000 shares of Serial Preferred Stock. Holders of the Common Stock shares, subject to the prior rights of the Serial Preferred Stock, are entitled to receive dividends, are entitled to one vote per share and are entitled to receive, pro rata, the assets of the Company which are legally available for distribution, after payment of all debts and other liabilities and subject to the prior rights of any holders of Serial Preferred Stock then outstanding. The Company's board of directors may, without further action by the Company's stockholders, direct the issuance of shares of Serial Preferred Stock and may at the time of issuance, determine the rights, preferences and limitations of each series. Stock options The Company applies Accounting Principles Board Opinion 25 and related Interpretations in accounting for its stock-based compensation plans, and recognized expense of $0.3 million for the year ended December 31, 1996. Had compensation cost for the Company's stock-based compensation plans been determined based on the fair value of the options at the grant dates for the awards under the plan consistent with the alternative method of Statement of Financial Accounting Standards No. 123, "Accounting for Stock-Based Compensation," the pro forma effect on the Company's net income (loss) and income (loss) per share for the periods presented would have been as follows (in thousands, except per share data):
Year ended Year ended Year ended December 31, December 31, December 31, 1998 1997 1996 ------------ ------------ ------------ Pro forma income (loss) Income (loss) before extraordinary loss................................. $29,253 $ 7,785 $(1,447) Extraordinary loss, net of income tax benefit.............................. -- (4,902) (1,671) Net income (loss)..................... 29,253 2,883 (3,118) Pro forma basic income (loss) per share Income (loss) before extraordinary loss................................. $ 1.68 $ 0.46 $ (0.10) Extraordinary loss, net of income tax benefit.............................. -- (0.29) (0.12) Net income (loss)..................... 1.68 0.17 (0.22) Pro forma diluted income (loss) per share Income (loss) before extraordinary loss................................. $ 1.55 $ 0.42 $ (0.10) Extraordinary loss, net of income tax benefit.............................. -- (0.27) (0.12) Net income (loss)..................... 1.55 0.15 (0.22)
F-14 WESLEY JESSEN VISIONCARE, INC. NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) The fair value of each option is estimated on the date of grant using the Black-Scholes option-pricing model with the following weighted average assumptions for options granted in 1998, 1997 and 1996, respectively: expected volatility of 26.37%, 31.29% and 22.69%; risk-free interest rate of 4.69%, 6.38% and 6.36%; and expected lives of 3 years, 3 years and 7 years. 1995 and 1996 stock option plans The board of directors granted non-qualified stock options to certain members of management for an aggregate of 2,193,051 shares of Common Stock pursuant to the Company's 1995 Stock Purchase and Option Plan. The stock option grants are of two types: time options and target options. Of the 783,233 time option grants, 469,940 vest in four equal annual installments beginning on June 28, 1996 and 313,293 vest in five equal annual installments beginning on April 5, 1996. The time options were granted at the fair market value of the Common Stock on the date of grant. The 1,409,818 target option grants are exercisable immediately and were granted at prices that were in excess of fair market value of the Common Stock on the date of grant. All options expire in 10 years and include certain repurchase and participation rights which cease upon (1) a sale of the Company or (2) sale of its Common Stock by the Company pursuant to a Registration Statement under the Securities Act of 1933 in connection with which Bain Capital, Inc. and affiliated investors cease to own at least 20% of the Company. In October 1996, pursuant to the 1996 Stock Option Plan, the board of directors authorized and granted options to purchase an aggregate of 424,519 shares of Common Stock at an exercise price which approximates fair market value at the date of grant. Options to purchase 267,872 shares were immediately exercisable, and options to purchase 156,647 shares vest in five equal annual installments beginning October 22, 1997. 1997 Stock Incentive Plan The Wesley Jessen VisionCare, Inc. 1997 Stock Incentive Plan (the "1997 Stock Plan") was approved by the board of directors in February 1997. The 1997 Stock Plan provides for the issuance of the following types of incentive awards: stock options, stock appreciation rights, restricted stock, performance grants and other types of awards. An aggregate of 800,000 shares of Common Stock of the Company have been reserved for issuance under the 1997 Stock Plan, subject to certain adjustments reflecting changes in the Company's capitalization. The 1997 Stock Plan provides that individual participants will be limited to receiving awards of no more than 50,000 shares of Common Stock per year. Options granted under the 1997 Stock Plan may be subject to time vesting and certain other restrictions. Subject to certain exceptions, the right to exercise an option generally will terminate at the earlier of (i) the first date on which the initial grantee of such option is not employed by the Company for any reason other than termination without cause, death or permanent disability or (ii) the expiration date of the option. All outstanding awards under the 1997 Stock Plan will terminate immediately prior to consummation of a liquidation or dissolution of the Company, unless otherwise provided by the board. In the event of the sale of all or substantially all of the assets of the Company or the merger of the Company with another corporation, all restrictions on any outstanding awards will terminate and participants will be entitled to the full benefit of their awards immediately prior to the closing date of such sale or merger, unless otherwise provided by the board. F-15 WESLEY JESSEN VISIONCARE, INC. NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) Non-Employee Director Stock Option Plan The 1997 Non-Employee Director Stock Option Plan (the "Director Option Plan") was approved by the board of directors in February 1997. The Director Option Plan provides for the granting of options to non-employee Directors, as defined, covering an aggregate of 250,000 shares of Common Stock of the Company. The board of directors is authorized under the Director Option Plan to make discretionary grants of options and determine the terms and conditions of such options. In addition, the Director Option Plan provides for an initial one-time grant of options to purchase 10,000 shares of Common Stock to each non-employee director serving as a member of the board or to any new non-employee director upon being elected to the board. The Director Option Plan also provides that each non-employee director shall automatically be granted options to purchase 2,000 shares of Common Stock upon each anniversary of the director's election to the board. The Director Option Plan requires that the exercise price for each option granted under the plan must equal 100% of the fair market value of the Company's Common Stock on the date the option is granted. The initial one- time grants will be immediately exercisable and the annual grants will vest in three equal installments commencing on the first anniversary of the grant date. A summary of the Company's stock option plans as of December 31, 1998, 1997 and 1996, and changes during the periods then ended is presented below:
1998 1997 1996 ------------------------- ------------------------- ------------------------ Weighted- Weighted- Weighted- Average Average Average Shares Exercise Price Shares Exercise Price Shares Exercise Price --------- -------------- --------- -------------- --------- -------------- Outstanding at beginning of period.............. 2,816,658 $ 3.97 2,617,570 $ 2.13 2,038,658 $1.14 Granted................. 294,100 20.72 326,700 17.24 578,912 5.63 Exercised............... (203,786) 2.13 (127,612) 0.27 -- -- Forfeited............... (11,615) 11.60 -- -- -- -- --------- --------- --------- Outstanding at end of year................... 2,895,357 $ 5.76 2,816,658 $ 3.97 2,617,570 $2.13 ========= ========= ========= Options exercisable at year-end............... 2,075,143 $ 3.22 2,001,695 $ 2.89 1,857,841 $2.38 ========= ========= ========= Weighted-average fair value of options granted during the year................... $ 5.02 $ 5.23 $ 2.36 ========= ========= =========
F-16 WESLEY JESSEN VISIONCARE, INC. NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) The following table summarizes information about stock options outstanding at December 31, 1998:
Options Outstanding Options Exercisable -------------------------------- --------------------- Weighted- Average Weighted Weighted- Number Remaining Average Number Average Outstanding Contractual Exercise Exercisable Exercise Exercise Prices at 12/31/98 Life Price at 12/31/98 Price - --------------- ----------- ----------- -------- ----------- --------- $0.03.................... 584,384 6.49 $ 0.03 345,157 $ 0.03 $1.18.................... 614,797 6.46 1.18 614,797 1.18 $2.34.................... 703,905 6.47 2.34 703,905 2.34 $7.24.................... 382,471 7.83 7.24 288,484 7.24 $15.00................... 40,000 8.17 15.00 40,000 15.00 $16.75................... 255,700 8.33 16.75 62,800 16.75 $28.25................... 20,000 8.75 28.25 20,000 28.25 $28.44................... 8,000 9.42 28.44 -- 28.44 $20.50................... 286,100 9.83 20.50 -- 20.50 --------- ---- ------ --------- ------ 2,895,357 7.20 $ 5.76 2,075,143 $ 3.22 ========= ==== ====== ========= ======
Stock Purchase Plan The Wesley Jessen VisionCare, Inc. Employee Stock Discount Purchase Plan and International Employee Stock Discount Purchase Plan (the "Stock Purchase Plans") were approved by the board of directors in 1997 and provide that, subject to certain restrictions, each employee of the Company will be eligible to participate in the Stock Purchase Plans. The Company has reserved 500,000 shares of Common Stock for issuance in connection with the Stock Purchase Plans and each eligible employee is entitled to purchase a maximum of 125 shares per quarter. Each participating employee contributes to the Stock Purchase Plans by choosing a payroll deduction in any specified amount, with a minimum deduction of $10.00 per payroll period. Each participating employee's contributions will be used to purchase shares for the employee's share account, and the cost per share will be 85% of the price of the Company's Common Stock on the Nasdaq National Market on specified dates. 11. Income taxes Income (loss) before income tax benefit (expense) and extraordinary loss is as follows (in thousands):
Year ended Year ended Year ended December 31, December 31, December 31, 1998 1997 1996 ------------ ------------ ------------ Domestic (including Puerto Rico)........ $34,498 $20,088 $(7,721) International........................... 9,349 (7,700) 3,613 ------- ------- ------- $43,847 $12,388 $(4,108) ======= ======= =======
F-17 WESLEY JESSEN VISIONCARE, INC. NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) Income tax benefit (expense) is as follows (in thousands):
Year ended Year ended Year ended December 31, December 31, December 31, 1998 1997 1996 ------------ ------------ ------------ Current income tax benefit (expense): Domestic federal...................... $ (3,853) $(2,694) $(2,126) Domestic state and local (including Puerto Rico)......................... (1,293) (1,359) (922) International......................... (1,332) (1,757) (116) -------- ------- ------- (6,478) (5,810) (3,164) -------- ------- ------- Deferred income tax benefit (expense): Domestic federal...................... (2,017) 328 4,307 Domestic state and local (including Puerto Rico)......................... (1,006) (994) (1,237) International......................... (4,749) 2,288 3,131 -------- ------- ------- (7,772) 1,622 6,201 -------- ------- ------- $(14,250) $(4,188) $ 3,037 ======== ======= =======
Differences between the U.S. federal income tax statutory rates and the income tax benefit (expense) recorded are attributable to the following:
Year ended Year ended Year ended December 31, December 31, December 31, 1998 1997 1996 ------------ ------------ ------------ Income tax at statutory rate............ (35.0)% (35.0)% 35.0 % State and local taxes (including Puerto Rico), net of federal tax benefit.............................. 5.9 20.5 39.4 Effect of international operations.... (11.2) (17.5) (4.5) Amortization of negative goodwill..... 0.9 2.4 6.8 Recognition of net operating loss benefits............................. 8.7 -- -- Other................................. (1.8) (4.2) (2.8) ----- ----- ---- (32.5)% (33.8)% 73.9 % ===== ===== ====
F-18 WESLEY JESSEN VISIONCARE, INC. NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) Deferred tax assets and liabilities are comprised of the following (in thousands):
December 31, December 31, 1998 1997 ------------ ------------ Deferred tax assets: Accounts receivable valuation allowances........... $ 5,653 $ 6,179 Inventory reserves................................. 4,826 4,746 Fixed assets....................................... 8,242 10,143 Accrued expenses................................... 8,122 7,177 Domestic net operating losses and AMT credit....... 689 4,716 Other deductible temporary differences............. 659 934 International net operating losses................. 5,963 6,297 ------- ------- 34,154 40,192 ======= ======= Deferred tax liabilities: Prepaid pension cost............................... (2,485) (2,485) Puerto Rico tollgate tax........................... (4,677) (2,470) ------- ------- Total deferred tax liabilities..................... (7,162) (4,955) ------- ------- Valuation allowance for international net operating losses............................................ (4,862) (6,297) ------- ------- $22,130 $28,940 ======= =======
The Company has certain foreign net operating losses ("NOLs") which expire in one to seven years from December 31, 1998. All other foreign NOLs are available to the Company indefinitely. The Company has domestic net operating losses which expire through the year 2012. At December 31, 1998 and 1997, the Company has not provided a valuation allowance against its deferred tax assets except for certain assets relating to foreign NOLs because, based upon its current operating plans, the Company believes that it is more likely than not that the assets will be realized through future profitable operations. During 1998, income tax expense was reduced by $3,823 due to the reversal of valuation allowances. Estimated taxes have been provided for the Company's international operations assuming repatriation of all available earnings. The Company's manufacturing operations in Puerto Rico qualify for income tax credit available under Section 936 of the Internal Revenue Code. Current legislation will phase out the income tax credit allowed under Section 936 over a period ending in 2005. The phase out period will allow a tax credit under present law through December 31, 2001. The credit will be subject to further limitation through December 31, 2005, and thereafter the credit is eliminated. 12. Retirement benefits Defined benefit pension plans The Wesley Jessen Plan is a defined benefit plan, effective as of January 1, 1996, covering substantially all domestic employees (including Puerto Rico). Under the Wesley Jessen Plan, the Company allocates a percentage of compensation for each participant (annual pay credits) based upon years of service, beginning after December 31, 1995. Additionally, the Wesley Jessen Plan provides for a specified F-19 WESLEY JESSEN VISIONCARE, INC. NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) return (interest credits) on participants' account balances. Under the Wesley Jessen Plan, annual pay credits and interest credits will be accumulated in participants' accounts as the basis for their Wesley Jessen Plan benefits. The Company will contribute actuarially determined amounts to fund Wesley Jessen Plan benefits within regulatory minimum requirements and maximum tax deductible limits. Vesting occurs after five years of service and includes service during the period June 29, 1995 to December 31, 1995. In connection with the Barnes-Hind Acquisition the Company acquired a fully funded portion of the Pilkington VisionCare Pension Plan, a non-contributory defined benefit pension plan, which covers substantially all Barnes-Hind domestic employees. Additionally, the Company acquired an international fully- funded contributory single-employer defined benefit pension plan covering certain Barnes-Hind employees in the United Kingdom. Under the plans acquired in the Barnes-Hind Acquisition, benefit payments for domestic employees are based principally on earnings during the last five-year period prior to retirement and length of service. Employees are eligible to participate in domestic plans within one year of employment and are vested after five years of service. For the international employees, benefits are based on length of service and on compensation during the last ten years of service prior to retirement. Funding is on an actuarially determined basis, to provide for the plans' current service costs and the plans' prior service cost over their amortization periods. F-20 WESLEY JESSEN VISIONCARE, INC. NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) Information regarding the domestic pension plan is as follows (in thousands):
Year ended Year ended Year ended December 31, December 31, December 31, 1998 1997 1996 ------------ ------------ ------------ Change in benefit obligation Benefit obligation at beginning of year.................................. $15,942 $15,016 $ 4,986 Service cost........................... 1,878 1,676 659 Interest cost.......................... 1,093 1,227 585 Amendments............................. 236 -- -- Actuarial (gains) losses............... 289 (1,909) (346) Acquisitions........................... -- -- 9,148 Benefits paid........................ (2,052) (68) (16) ------- ------- ------- Benefit obligation at end of year...... $17,386 $15,942 $15,016 ------- ------- ------- Change in plan assets Fair value of plan assets at beginning of year............................... $20,611 $21,190 $ 4,500 Actual return on plan assets........... 2,597 (36) 1,173 Acquisitions........................... -- -- 15,533 Employer contributions................. (1,657) (475) -- Benefits paid.......................... (2,052) (68) (16) ------- ------- ------- Fair value of plan assets at end of year................................ $19,499 $20,611 $21,190 ======= ======= ======= Funded status.......................... 2,113 4,669 6,174 Unrecognized prior service cost........ 777 621 681 Unrecognized net actuarial (gain) loss.................................. (1,573) (1,127) (1,110) ------- ------- ------- Prepaid benefit cost................. $ 1,317 $ 4,163 $ 5,745 ------- ------- ------- Components of net periodic benefit cost Service cost........................... 1,878 1,676 659 Interest cost.......................... 1,093 1,227 585 Expected return on plan assets......... (1,863) (1,793) (664) Amortization of prior service cost..... 80 60 60 Amortization of actuarial (gains) losses................................ -- (63) -- ------- ------- ------- Net periodic benefit cost............ $ 1,188 $ 1,107 $ 640 ------- ------- ------- Weighted average assumptions as of December 31, Discount rate.......................... 6.50% 6.75% 7.50% Rate of compensation increase.......... 5.00% 5.00% 5.00% Expected return on plan assets......... 9.00% 9.00% 7.00%
F-21 WESLEY JESSEN VISIONCARE, INC. NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) Information regarding the United Kingdom pension plan is as follows (in thousands):
Year ended Year ended Year ended December 31, December 31, December 31, 1998 1997 1996 ------------ ------------ ------------ Change in benefit obligation Benefit obligation at beginning of year.................................. $12,213 $ 8,410 $7,324 Service cost........................... 844 704 136 Interest cost.......................... 1,042 685 153 Actuarial (gains) losses............... 2,344 2,950 83 Benefits paid.......................... (186) (256) (67) Transfer from other pension plan....... 1,218 -- -- Effect of exchange rates............... 82 (280) 781 ------- ------- ------ Benefit obligation at end of year.... $17,557 $12,213 $8,410 ------- ------- ------ Change in plan assets Fair value of plan assets at beginning of year............................... $11,685 $ 8,646 $7,442 Actual return on plan assets........... 1,901 2,445 239 Employer contributions................. 921 762 153 Employee contributions................. 461 381 77 Benefits paid.......................... (186) (256) (67) Transfer from other pension plan....... 1,218 -- -- Effect of exchange rates............... 78 (293) 802 ------- ------- ------ Fair value of plan assets at end of year................................ $16,078 $11,685 $8,646 ------- ------- ------ Funded status.......................... (1,479) (528) 236 Unrecognized net actuarial (gain) loss.................................. 2,445 1,038 (94) ------- ------- ------ Prepaid benefit cost................. $ 966 $ 510 $ 142 ------- ------- ------ Components of net periodic benefit cost Service cost........................... 844 704 136 Interest cost.......................... 1,042 685 153 Expected return on plan assets......... (1,114) (787) (239) Amortization of actuarial (gains) losses................................ 150 160 83 ------- ------- ------ Net periodic benefit cost............ $ 922 $ 762 $ 133 ------- ------- ------ Weighted average assumptions as of December 31, Discount rate.......................... 5.75% 8.5% 8.5% Rate of compensation increase.......... 4.25% 6.5% 6.5% Expected return on plan assets......... 7.00% 8.5% 8.5%
Defined contribution plans The Company sponsors defined contribution plans covering substantially all U.S. employees. The plans provide for specified Company matching of participants' contributions. Contributions charged to operations for the years ended December 31, 1998, 1997 and 1996 totaled $1.5 million, $1.5 million and $0.7 million, respectively. F-22 WESLEY JESSEN VISIONCARE, INC. NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) 13. Commitments and contingencies Leases The Company leases certain facilities and computer and other equipment under operating leases. Total rent expense under these leases was as follows (in thousands): Year ended December 31, 1998............................................ $3,322 Year ended December 31, 1997............................................ 3,269 Year ended December 31, 1996............................................ 2,554
Future minimum lease payments under non-cancelable operating leases at December 31, 1998 were as follows (in thousands):
Year Ending ----------- December 31, 1999.................................... $2,968 December 31, 2000.................................... 2,505 December 31, 2001.................................... 2,250 December 31, 2002.................................... 1,996 December 31, 2003.................................... 1,784 Thereafter........................................... 6,225
Litigation The Company has certain patent infringement, product liability, personal injury and employment related litigation and claims pending in the normal course of its business. Management believes that any uninsured losses resulting from the resolution of such litigation and claims would not have a material adverse impact on the Company's financial position or results of operations as presented in the accompanying financial statements. 14. Related party transactions Management and advisory fees In connection with the Wesley Jessen Acquisition, the Company entered into an agreement with Bain Capital, Inc., an affiliate of the Company's major stockholder, for the provision of management and advisory services. Included in marketing and administrative expense for the years ended December 31, 1998, 1997 and 1996 are $2.0 million, $2.1 million and $1.3 million, respectively, of management fees paid for the services provided pursuant to this agreement. In addition, if the Company enters into any acquisition transactions, it must pay specified fees to Bain Capital, Inc. based upon the purchase price. The Company paid Bain Capital, Inc. fees of $3.0 million in connection with the structuring of the Bank Credit Agreement used to finance the Barnes-Hind Acquisition. Promissory Note On May 7, 1997, Wesley Jessen Corporation, a wholly owned subsidiary of the Company, loaned the Company's Chief Executive Officer ("CEO") $1.2 million in exchange for an unsecured promissory F-23 WESLEY JESSEN VISIONCARE, INC. NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) note bearing interest at the rate of 8%, interest payable quarterly. The note is due at the earlier of (i) May 9, 2002, (ii) the date the CEO ceases to be employed by the Company, or (iii) the date the CEO disposes of any of his common stock holdings in the Company. The Company waived the requirement that the CEO repay such loan pursuant to clause (iii) above. 15. Business segments and geographical information The Company operates in one product segment--the development, manufacture and marketing of contact lenses. The aggregation criteria for sales are based on point of production and shipment while the aggregation criteria for assets are based on their physical location. Financial information by geographic area is as follows (in thousands):
December 31, December 31, December 31, 1998 1997 1996 ------------ ------------ ------------ Net sales: United States (including Puerto Rico)........... $194,321 $190,329 $121,687 United Kingdom.......... 36,155 41,383 11,697 Rest of the world....... 61,783 50,466 23,368 -------- -------- -------- $292,259 $282,178 $156,752 ======== ======== ======== Total assets: United States (including Puerto Rico)........... $124,536 $112,210 $104,220 United Kingdom.......... 42,649 36,763 49,968 Rest of the world....... 37,333 24,103 26,412 -------- -------- -------- $204,518 $173,076 $180,600 ======== ======== ========
16. Treasury stock purchase plan The board of directors approved a share repurchase plan on June 10, 1998 and the Company completed the program on September 18, 1998. Under the plan, the Company repurchased one million shares of its outstanding common stock. Repurchases were made periodically in normal market trading at prevailing prices. The funding of the program came from operating cash flow and the existing bank facility. F-24 WESLEY JESSEN VISIONCARE, INC. NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(Continued) WESLEY JESSEN VISIONCARE, INC. QUARTERLY INFORMATION--Unaudited (in thousands, except per share amounts)
For the Year Ended December 31, 1998 --------------------------------------------------------- First Quarter Second Quarter Third Quarter Fourth Quarter ------------- -------------- ------------- -------------- Net Sales............... $ 70,595 $73,417 $75,254 $72,992 Operating income........ 8,981 12,840 13,535 13,300 Net income.............. 5,270 7,727 8,051 8,547 Basic earnings per share.................. 0.30 0.43 0.47 0.50 Diluted earnings per share.................. 0.27 0.40 0.43 0.47 Market price per share: High.................... $ 40.25 $ 34.94 $ 25.75 $ 27.75 Low..................... $ 32.13 $ 18.38 $ 17.00 $ 16.88 For the Year Ended December 31, 1997 --------------------------------------------------------- First Quarter Second Quarter Third Quarter Fourth Quarter ------------- -------------- ------------- -------------- Net Sales............... $ 64,071 $72,083 $75,235 $70,789 Operating income (loss)................. (6,972) 710 11,989 12,220 Net income (loss)....... (10,731) (371) 7,095 7,305 Basic earnings (loss) per share.............. (0.70) (0.02) 0.41 0.42 Diluted earnings (loss) per share.............. (0.70) (0.02) 0.37 0.38 Market price per share: High.................... $ 16.75 $ 25.88 $ 31.00 $ 39.00 Low..................... $ 14.63 $ 13.00 $ 22.50 $ 26.75
F-25 WESLEY JESSEN VISIONCARE, INC. CONDENSED CONSOLIDATED BALANCE SHEETS (in thousands except share amounts)
April 3, December 31, 1999 1998 ---------- ------------ (Unaudited) ASSETS ------ Current assets: Cash and cash equivalents............................ $ 7,557 $ 8,859 Accounts receivable--trade, net...................... 43,178 47,363 Other receivables.................................... 6,828 6,840 Inventories.......................................... 59,949 62,055 Deferred income taxes................................ 18,583 18,602 Prepaid expenses..................................... 6,148 6,977 Assets held for sale................................. 1,222 1,222 -------- -------- Total current assets.............................. 143,465 151,918 -------- -------- Property, plant and equipment, net.................... 42,340 36,338 Other assets.......................................... 6,302 6,011 Deferred income taxes................................. 3,528 3,528 Notes receivable...................................... 1,846 1,803 Goodwill, net......................................... 2,560 2,569 Capitalized financing fees, net....................... 2,194 2,351 -------- -------- Total assets...................................... $202,235 $204,518 ======== ======== LIABILITIES AND STOCKHOLDERS' EQUITY ------------------------------------ Current liabilities: Trade accounts payable............................... $ 17,910 $ 17,689 Accrued compensation and benefits.................... 15,456 25,565 Accrued advertising.................................. 4,030 4,060 Other accrued liabilities............................ 8,435 9,744 Transition reserve................................... 6,663 7,886 Income taxes payable................................. 4,232 3,257 -------- -------- Total current liabilities......................... 56,726 68,201 -------- -------- Negative goodwill, net................................ 12,313 12,587 Long term debt........................................ 72,000 69,000 Other liabilities..................................... 5,869 4,778 -------- -------- Total liabilities................................. 146,908 154,566 -------- -------- Stockholders' equity Common stock, $.01 par value, 50,000,000 shares authorized, 17,093,699 and 16,994,884 issued and outstanding at April 3, 1999 and December 31, 1998, respectively............ 181 180 Additional paid in capital........................... 62,077 60,847 Accumulated earnings ................................ 16,642 10,438 Treasury stock, 1,000,000 shares at April 3, 1999 and December 31, 1998, at cost....................................... (21,306) (21,306) Accumulated other comprehensive loss................. (2,267) (207) -------- -------- Total stockholders' equity........................ 55,327 49,952 -------- -------- Total liabilities and stockholders' equity........ $202,235 $204,518 ======== ========
The accompanying notes are an integral part of these financial statements. F-26 WESLEY JESSEN VISIONCARE, INC. CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS (in thousands, except per share amounts)
Three Months Ended ---------------------- April 3, March 28, 1999 1998 ----------- ---------- (Unaudited) (Unaudited) Net sales............................................... $76,311 $70,595 Operating costs and expenses: Cost of goods sold..................................... 25,118 21,939 Marketing and administrative........................... 38,403 37,563 Research and development............................... 2,873 2,386 Amortization of goodwill............................... (229) (274) ------- ------- Income from operations.................................. 10,146 8,981 Other (income) expense: Interest income........................................ (188) (124) Interest expense....................................... 1,211 1,120 ------- ------- Income before income taxes.............................. 9,123 7,985 Income tax expense...................................... (2,919) (2,715) ------- ------- Net income.............................................. $ 6,204 $ 5,270 ======= ======= Net income per common share: Basic.................................................. $ 0.36 $ 0.30 Diluted................................................ $ 0.34 $ 0.27 Weighted average common shares outstanding Basic.................................................. 17,039 17,784 Diluted................................................ 18,455 19,396
The accompanying notes are an integral part of these financial statements. F-27 WESLEY JESSEN VISIONCARE, INC. CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (in thousands)
Three Months Ended ---------------------- April 3, March 28, 1999 1998 ----------- ---------- (Unaudited) (Unaudited) Operating activities: Net income............................................ $ 6,204 $5,270 Adjustments to reconcile net income to net cash provided by (used in) operating activities: Depreciation expense................................. 1,135 475 Amortization of capitalized financing fees........... 156 141 Amortization of goodwill............................. (229) (274) Gain (loss) on disposal of property, plant, and equipment........................................... 8 (20) Deferred income tax.................................. (11) 2,187 Changes in balance sheet items: Accounts receivable--trade, net...................... 3,086 (4,002) Other receivables.................................... (130) (1,060) Inventories.......................................... 919 (2,882) Prepaid expenses..................................... 794 824 Other assets......................................... (305) 166 Notes receivable..................................... (43) -- Trade accounts payable............................... 529 1,329 Accrued liabilities.................................. (12,354) (5,649) Other liabilities.................................... 1,188 (678) Income taxes payable................................. 1,747 (1,884) -------- ------ Cash provided by (used in) operating activities.... 2,694 (6,057) -------- ------ Investing activities: Capital expenditures.................................. (7,783) (1,972) Proceeds from the sale of property, plant and equipment............................................ 9 -- -------- ------ Cash used in investing activities.................. (7,774) (1,972) -------- ------ Financing activities: Issuance of stock..................................... 685 2,776 Proceeds from long term debt.......................... 8,000 5,000 Payments of long term debt............................ (5,000) -- -------- ------ Cash provided by financing activities.............. 3,685 7,776 -------- ------ Effect of exchange rates on cash and cash equivalents.......................................... 93 171 Net decrease in cash and cash equivalents............. (1,302) (82) Cash and cash equivalents: Beginning of period................................... 8,859 4,759 -------- ------ End of period......................................... $ 7,557 $4,677 ======== ====== Supplemental disclosure of cash flow information Cash paid during the period for interest.............. $ 1,079 $ 977 ======== ====== Cash paid during the period for taxes, net............ $ 371 $1,582 ======== ======
The accompanying notes are an integral part of these financial statements. F-28 WESLEY JESSEN VISIONCARE, INC. NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) 1. Basis of Presentation and Description of Business Basis of presentation The consolidated financial statements include the accounts of Wesley Jessen VisionCare, Inc., its wholly owned subsidiary, Wesley Jessen Corporation, and Wesley Jessen Corporation's wholly owned subsidiaries (collectively, the "Company"). The unaudited financial information presented reflects all adjustments which are, in the opinion of management, necessary for a fair presentation of the consolidated financial statements for an interim period. All such adjustments are of a normal, recurring nature. Results of operations for an interim period are not necessarily indicative of results for the full year. These interim financial statements should be read in conjunction with the financial statements and related notes contained in the Annual Report on Form 10-K for the year ended December 31, 1998. The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the period. Actual results could differ from those estimates. Description of business The Company's primary business activity is the research, development, manufacture, marketing and sale of conventional and disposable soft contact lenses in the United States and certain other countries. The Company is headquartered in Des Plaines, Illinois and operates in one business segment. 2. Net Income Per Common Share The Company calculates net income per common share in accordance with Statement of Financial Accounting Standards No. 128, "Earnings per Share." The difference between the weighted average shares used in the computation of basic and diluted earnings per share of 1,416 and 1,612 for the three months ended April 3, 1999 and March 28, 1998, respectively, is the dilutive effect of outstanding stock options, using the treasury stock method from the date of grant. F-29 WESLEY JESSEN VISIONCARE, INC. NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS--(Continued) (Unaudited) 3. Transition Reserve and Restructuring Charge On October 2, 1996, the Company acquired the contact lens business of Pilkington plc, operating as the Pilkington Barnes-Hind Group ("the Barnes-Hind Acquisition"). In connection with the Barnes-Hind Acquisition, management approved a plan to integrate the acquired operations, for which an accrual of $20.4 million ("transition reserve") was established in purchase accounting. The transition reserve included costs related to the closure of the Barnes-Hind corporate offices in Sunnyvale, California which was completed in the third quarter of 1997 and resulted in the termination of 123 employees. The Company announced the closing of its manufacturing operations in San Diego, California expected to be substantially complete by March 2000, with a shift of conventional lens production to its plant in Cidra, Puerto Rico. The plant closing will result in the termination of 471 employees (of whom 261 had been terminated as of April 3, 1999). Payments related to the transition reserve are as follows (in thousands):
Facility Employee Lease Restoration Related Termination and Other Costs Costs Costs Total -------- ----------- ----------- ------- Transition reserve at December 31, 1998............................... $7,169 $ 542 $ 175 $ 7,886 Charges against reserve............. (885) (235) (103) (1,223) ------ ----- ----- ------- Transition reserve at April 3, 1999............................... $6,284 $ 307 $ 72 $ 6,663 ====== ===== ===== ======= In addition to the transition plan, the Company committed to a plan to restructure the Wesley Jessen operations following the Barnes-Hind Acquisition. Pursuant to the restructuring plan, the Chicago distribution facilities were consolidated with those at Des Plaines, Illinois in October 1997. The restructuring reserve of $0.3 million at April 3, 1999, consists of costs related to employee termination, lease termination and other restructuring costs associated with the consolidation of certain Wesley Jessen facilities in Europe with facilities acquired in the Barnes-Hind Acquisition. Usage of the restructuring reserve is as follows (in thousands): Employee Lease Related Termination Costs Costs Other Costs Total -------- ----------- ----------- ------- Restructuring reserve at December 31, 1998........................... $ 187 $ 288 $ 114 $ 589 Charges against reserve............. (65) (55) (4) (124) Reversed to income.................. -- (165) -- (165) ------ ----- ----- ------- Restructuring reserve at April 3, 1999............................... $ 122 $ 68 $ 110 $ 300 ====== ===== ===== =======
F-30 WESLEY JESSEN VISIONCARE, INC. NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS--(Continued) (Unaudited) 4. Accounts Receivable--Trade, Net Accounts receivable--trade, net consist of the following (in thousands):
April December 31, 3, 1999 1998 ------- ------------ Trade receivables...................................... $58,175 $ 62,968 Less allowances: Doubtful accounts.................................... (5,042) (4,992) Sales returns and adjustments........................ (9,955) (10,613) ------- -------- $43,178 $ 47,363 ======= ========
5. Inventories Inventories consist of the following (in thousands):
April December 31, 3, 1999 1998 ------- ------------ Raw materials........................................ $ 5,929 $ 5,934 Work-in-process...................................... 5,914 6,463 Finished goods....................................... 48,106 49,658 ------- ------- $59,949 $62,055 ======= =======
6. Property, Plant and Equipment, Net Property, plant and equipment, net consist of the following (in thousands):
April 3, December 31, 1999 1998 -------- ------------ Buildings and improvements......................... $ 9,411 $ 9,449 Machinery, equipment, furniture and fixtures....... 19,403 19,638 Construction-in-progress........................... 18,178 11,450 -------- ------- 46,992 40,537 Less accumulated depreciation...................... (4,652) (4,199) -------- ------- $ 42,340 $36,338 ======== =======
7. Long-Term Debt The Company's credit agreement consists of a $170.0 million revolving loan facility, the availability of which will be reduced by $20.0 million on September 11, 2000 and $20.0 million on September 11, 2001. The facility matures on September 11, 2002. The agreement became effective on July 29, 1998 when the then-existing bank credit agreement was amended to increase the borrowing availability to permit the repurchase of a maximum of $35.0 million of the Company's common stock. Amounts F-31 WESLEY JESSEN VISIONCARE, INC. NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS--(Continued) (Unaudited) borrowed under the amended bank credit agreement bear interest at either the Base Rate (higher of (i) 0.5% in excess of the Federal Reserve reported adjusted certificate of deposit rate and (ii) the lender's prime lending rate plus a margin up to 0.5% based on leverage ratios calculated as of certain dates) or the Eurodollar Rate as determined by the lenders plus a margin of 0.375% to 1.500% based on the type of loan and leverage ratios calculated as of certain dates as defined in the credit agreement. Additionally, the Company is required to pay a commitment fee on the unutilized revolving loan commitment, as defined in the credit agreement, ranging from 0.175% to 0.400% based on leverage ratios calculated as of certain dates. The unutilized portion of the credit facility at April 3, 1999 was $98.0 million. The credit facility is guaranteed by each of the Company's domestic subsidiaries and secured by essentially all assets of the domestic subsidiaries. The amended bank credit agreement contains a number of covenants restricting the Company and its subsidiaries with respect to the incurrence of indebtedness, the creation of liens, the consummation of certain transactions such as sales of substantial assets, mergers or consolidations, the making of certain investments, capital expenditures and payment of dividends. In addition, the Company is required to maintain certain financial covenants and ratios. 8. Comprehensive Income Effective January 1, 1998, the Company adopted Statement of Financial Accounting Standards No. 130, "Reporting Comprehensive Income," which requires the disclosure of all non-owner changes in equity. The components of comprehensive income for the three months ended April 3, 1999 and March 28, 1998 are as follows (in thousands):
Three Months Ended ------------------- April 3, March 28, 1999 1998 -------- --------- Net income............................................ $ 6,204 $5,270 Foreign currency translation adjustments.............. (2,060) (603) ------- ------ Comprehensive income.................................. $ 4,144 $4,667 ======= ======
9. Treasury Stock Purchase Plan The board of directors approved a share repurchase plan on June 10, 1998 and the Company completed the program on September 18, 1998. Under the plan, the Company repurchased one million shares of its outstanding common stock. Repurchases were made periodically in normal market trading at prevailing prices. The funding of the program came from operating cash flow and the existing bank facility. F-32 WESLEY JESSEN VISIONCARE, INC. NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS--(Continued) (Unaudited) 10. Acquisitions In May 1999, the Company, through its Hong Kong subsidiary, executed a purchase agreement to acquire certain assets of Eycon Lens (Hong Kong) Co., Ltd. from its sole shareholder. In June 1998 and July 1998, the Company completed two other international acquisitions. The total adjusted purchase price for the three acquisitions, including related fees and expenses of approximately $3.2 million was funded with existing liquidity. The Company accounted for the acquisitions under the purchase method of accounting. None of these acquisitions were material to the Company's financial statements. 11. Business segments and geographical information The Company operates in one product segment--the development, manufacture and marketing of contact lenses. The aggregation criteria for sales are based on point of production and shipment. Financial information by geographic area is as follows (in thousands):
For the Three months Ended ----------------- April March 28, 3, 1999 1998 ------- --------- Net sales: United States (including Puerto Rico)................... $50,198 $50,228 United Kingdom.......................................... 8,661 7,049 Rest of the world....................................... 17,452 13,318 ------- ------- $76,311 $70,595 ======= =======
F-33 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- You may rely on the information contained in this prospectus. We have not authorized anyone to provide information different from that contained in this prospectus. Neither the delivery of this prospectus nor sale of common stock means that information contained in this prospectus is correct after the date of this prospectus. This prospectus is not an offer to sell or solicitation of an offer to buy these shares of common stock in any circumstances under which the offer or solicitation is unlawful. ---------- TABLE OF CONTENTS
Page ---- Prospectus Summary....................................................... 1 Risk Factors............................................................. 6 Use of Proceeds.......................................................... 12 Market Price for Common Stock............................................ 12 Dividend Policy.......................................................... 12 Management's Discussion and Analysis of Financial Condition and Results of Operations........................................................... 15 Business................................................................. 25 Management............................................................... 42 Principal Stockholders................................................... 52 Selling Stockholders..................................................... 54 Certain Transactions..................................................... 55 Description of Capital Stock............................................. 56 Underwriting............................................................. 59 Experts.................................................................. 60 Legal Matters............................................................ 60 Where You Can Find More Information...................................... 61 Index to Financial Statements............................................ F-1
- -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 4,600,000 Shares Common Stock ------------- PROSPECTUS ------------- Deutsche Banc Alex. Brown Bear, Stearns & Co. Inc. Robert W. Baird & Co. Incorporated A.G. Edwards & Sons, Inc. Merrill Lynch & Co. , 1999 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 14. Other Expenses of Issuance and Distribution. The following is a statement of estimated expenses of the issuance and distribution of the securities being registered: Securities and Exchange Commission registration fee............... $ 49,701 NASD filing fee.................................................. 18,378 Blue Sky fees and expenses (including attorneys' fees and expenses)........................................................ 10,000 Printing expenses................................................. 100,000 Accounting fees and expenses...................................... 50,000 Transfer agent's fees and expenses................................ 2,000 Legal fees and expenses........................................... 100,000 Miscellaneous expenses............................................ 19,921 -------- Total........................................................... $350,000 ========
Item 15. Indemnification of Directors and Officers. The Company is incorporated under the laws of the State of Delaware. Section 145 of the General Corporation Law of the State of Delaware ("Section 145") provides that a Delaware corporation may indemnify any persons who are, or are threatened to be made, parties to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person was an officer, director, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation's best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his conduct was illegal. A Delaware corporation may indemnify any persons who are, or are threatened to be made, a party to any threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact that such person was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys' fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation's best interests except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against the expenses which such officer or director has actually and reasonably incurred. The Company's Certificate of Incorporation and By-laws provide for the indemnification of directors and officers of the Company to the fullest extent permitted by Section 145. In that regard, the By-laws provide that the Company shall indemnify any person whom it has the power to indemnify by Section 145 from or against any and all of the expenses, liabilities or other matters referred to or covered in Section 145, and such indemnification is not exclusive of other rights II-1 to which such person shall be entitled under any By-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person's official capacity for or in behalf of the Company and/or any subsidiary of the Company and as to action in another capacity while holding such office and shall continue as to such person who has ceased to be a director, officer, employee, or agent of the Company and/or subsidiary of the Company and shall inure to the benefit of the heirs, executors, and administrators of such person. The Company has entered into indemnification agreements with each of its executive officers and directors. Item 16. Exhibits. (a) Exhibits.
Number Description ------ ----------- *1.1 Form of Underwriting Agreement. Certificate representing shares of Common Stock, $0.01 par value per 4.1 share (1). 4.2 Amended and Restated Certificate of Incorporation (2). 4.3 Amended and Restated By-laws (2). *5.1 Opinion and consent of Kirkland & Ellis. *23.1 Consent of PricewaterhouseCoopers LLP. *23.2 Consent of Kirkland & Ellis (included in Exhibit 5.1). 24.1 Powers of Attorney (included in signature page).
- -------- * Filed herewith. (1) Incorporated by reference to applicable exhibit to Registrant's Registration Statement on Form S-1, File No. 333-17353, dated February 10, 1997. (2) Incorporated by reference to the applicable exhibit to the Registrant's Quarterly Report on Form 10-Q for the quarterly period ended March 31, 1997. Item 17. Undertakings. (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; II-2 provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) The undersigned Registrant hereby undertakes to deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim financial information required to be presented by Article 3 of Regulation S-X are to set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information. (d) The undersigned Registrant hereby undertakes that for the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (e) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe it meets all the requirements for filing on Form S-3 and has duly caused this Pre-Effective Amendment No. 1 to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Chicago, State of Illinois, on June 11, 1999. Wesley Jessen Visioncare, Inc. /s/ Kevin J. Ryan By: _________________________________ Kevin J. Ryan President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Pre- Effective Amendment No. 1 to Registration Statement have been signed by the following persons in the capacities and on the dates indicated:
Signature Capacity Date --------- -------- ---- /s/ Kevin J. Ryan Chairman of the Board, June 11, 1999 ______________________________________ President and Chief Kevin J. Ryan Executive Officer (principal executive officer) * Chief Financial Officer, June 11, 1999 ______________________________________ Treasurer and Director Edward J. Kelley (principal financial officer) * Vice President and June 11, 1999 ______________________________________ Controller (principal Ronald J. Artale accounting officer) * Director June 11, 1999 ______________________________________ Michael A. D'Amato * Director June 11, 1999 ______________________________________ Adam W. Kirsch * Director June 11, 1999 ______________________________________ Sol Levine * Director June 11, 1999 ______________________________________ John W. Maki * Director June 11, 1999 ______________________________________ John J. O'Malley
II-4 * Director June 11, 1999 ______________________________________ Stephen G. Pagliuca
*The undersigned, by signing his name hereto, does hereby sign and execute this Pre-Effective Amendment No. 1 to Registration Statement on Form S-3 on behalf of the above named officers and directors of Wesley Jessen VisionCare, Inc. pursuant to the Power of Attorney executed by such officer and/or director and previously filed with the Commission. /s/ Kevin J. Ryan By:_____________________________ Kevin J. Ryan, Attorney-in-Fact II-5 EX-1.1 2 FORM OF UNDERWRITING AGREEMENT 4,600,000 Shares WESLEY JESSEN VISIONCARE, INC. Common Stock ($.01 Par Value) UNDERWRITING AGREEMENT ---------------------- June __, 1999 [BT Alex. Brown Incorporated] Bear, Stearns & Co. Inc. Robert W. Baird & Co. Incorporated A. G. Edwards & Sons, Inc. Merrill Lynch & Co. Merrill Lynch, Pierce, Fenner & Smith Incorporated As Representatives of the Several Underwriters c/o [BT Alex. Brown Incorporated] One South Street Baltimore, Maryland 21202 Ladies and Gentlemen: Wesley Jessen VisionCare, Inc., a Delaware corporation (the "Company"), Wesley Jessen Corporation, a Delaware corporation, (the "Principal Operating Subsidiary" and together with each subsidiary of the Company, collectively, the "Subsidiaries") and certain stockholders of the Company listed on Schedule III hereto (the "Selling Shareholders"), confirm their respective agreements with [BT Alex. Brown Incorporated] ("Alex. Brown") and each of the other underwriters named in Schedule I hereto (collectively, the "Underwriters," which term shall also include any underwriter substituted as hereinafter provided in Section 9 hereof), for whom Alex. Brown, Bear, Stearns & Co. Inc., Robert W. Baird & Co. Incorporated, A. G. Edwards & Sons, Inc., Merrill Lynch & Co., and Merrill Lynch, Pierce, Fenner & Smith Incorporated are acting as representatives (in such capacity, the "Representatives"), with respect to the sale by the Selling Shareholders and the purchase by the Underwriters, acting severally and not jointly, of the respective numbers of shares of Common Stock, par value $.01 per share, of the Company ("Common Stock") set forth in said Schedule I hereto (the "Firm Shares"), and with respect to the grant by the Selling Shareholders to the Underwriters, acting severally and not jointly, of the option described in Section 2(c) hereof to purchase all or any part of 687,428 additional shares of Common Stock to cover over-allotments, if any, as set forth in Schedule II hereto (the "Option Shares"). The Firm Shares and the Option Shares (to the extent the aforementioned option is exercised) are herein collectively called the "Shares." Any capitalized term used but not otherwise defined herein is used herein with the meaning ascribed to such term in the Registration Statement. The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-1 (No. 333-79293) covering the registration of the Shares under the Securities Act of 1933, as amended (the "1933 Act"), including the related preliminary prospectus or prospectuses. Promptly after execution and delivery of this Agreement, the Company will either (i) prepare and file a prospectus in accordance with the provisions of Rule 430A ("Rule 430A") of the rules and regulations of the Commission under the 1933 Act (the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule 434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a "Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). The information included in such prospectus or in such Term Sheet, as the case may be, that was omitted from such registration statement at the time it became effective but that is deemed to be part of such registration statement at the time it became effective (a) pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A Information" or (b) pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434 Information." Each prospectus used before such registration statement became effective, and any prospectus that omitted, as applicable, the Rule 430A Information or the Rule 434 Information, that was used after such effectiveness and prior to the execution and delivery of this Agreement, is herein called a "preliminary prospectus." Such registration statement, including the exhibits thereto and schedules thereto at the time it became effective and including the Rule 430A Information and the Rule 434 Information, as applicable, is herein called the "Registration Statement." Any registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b) Registration Statement," and after such filing the term "Registration Statement" shall include the Rule 462(b) Registration Statement. The final prospectus in the form first furnished to the Underwriters for use in connection with the offering of the Shares is herein called the "Prospectus." If Rule 434 is relied on, the term "Prospectus" shall refer to the preliminary prospectus dated June [__], 1999 together with the Term Sheet and all references in this Agreement to the date of the Prospectus shall mean the date of the Term Sheet. For purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus, the Prospectus or any Term Sheet or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system ("EDGAR"). As the Representatives, you have advised the Company and the Selling Shareholders (a) that you are authorized to enter into this Agreement on behalf of the several Underwriters, and (b) that the several Underwriters are willing, acting severally and not jointly, to purchase the numbers of Firm Shares set forth opposite their respective names in Schedule I hereto, plus their pro rata portion of the Option Shares if you elect to exercise the over-allotment option in whole or in part for the accounts of the several Underwriters. -2- In consideration of the mutual agreements contained herein and of the interests of the parties in the transactions contemplated hereby, the parties hereto agree as follows: 1. Representations and Warranties. (a) Representations and Warranties of the Company and the Principal Operating Subsidiary. The Company and the Principal Operating Subsidiary each jointly and severally represent and warrant to each Underwriter as of the date hereof, as of the Closing Date referred to in Section 2(b) hereof, and as of each Option Closing Date (if any) referred to in Section 2(c) hereof, and agrees with each Underwriter, as follows: (i) Compliance with Registration Requirements. Each of the Registration Statement and any Rule 462(b) Registration Statement has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with. The Registration Statement, the Rule 462(b) Registration Statement and any amendments and supplements thereto complies in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations and does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Neither the Prospectus nor any amendments or supplements thereto (including any prospectus wrapper), includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If Rule 434 is used, the Company will comply with the requirements of Rule 434 and the Prospectus shall not be "materially different", as such term is used in Rule 434, from the prospectus included in the Registration Statement at the time it became effective. The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement, Prospectus or preliminary prospectus made in reliance upon and in conformity with information furnished to the Company in writing by any Underwriter through Alex. Brown expressly for use in the Registration Statement, Prospectus or preliminary prospectus. Each preliminary prospectus and the prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all material respects with the 1933 Act Regulations and each preliminary prospectus and the Prospectus delivered to the Underwriters for use in connection with this offering was identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. -3- (ii) Independent Accountants. The accountants who certified the financial statements and supporting schedules included in the Registration Statement are independent public accountants as required by the 1933 Act and the 1933 Act Regulations. (iii) Financial Statements. The financial statements included in the Registration Statement and the Prospectus, together with the related schedules and notes, present fairly the financial position of the Company, its consolidated subsidiaries, its Predecessor (as defined in the Registration Statement) and, to the best of the Company's knowledge, Barnes-Hind (as defined in the Registration Statement) at the dates indicated and the statement of operations, stockholders' equity and cash flows of the Company, its consolidated subsidiaries, its Predecessor and Barnes-Hind for the periods specified; said financial statements have been prepared in conformity with generally accepted accounting principles ("GAAP") applied on a consistent basis throughout the periods involved. The supporting schedules included in the Registration Statement present fairly in accordance with GAAP the information required to be stated therein. The selected financial data and the summary financial information included in the Prospectus present fairly the information shown therein and have been compiled on a basis consistent with that of the audited financial statements included in the Registration Statement. The pro forma financial statements and the related notes thereto included in the Registration Statement and the Prospectus present fairly the information shown therein, have been prepared in accordance with the Commission's rules and guidelines with respect to pro forma financial statements and have been properly compiled on the bases described therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. (iv) No Material Adverse Change in Business. Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (A) there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its Subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (a "Material Adverse Effect"), (B) there have been no transactions entered into by the Company or any of its Subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company and its Subsidiaries considered as one enterprise, and (C) since June 28, 1995 there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock. (v) Good Standing of the Company and the Principal Operating Subsidiary. Each of the Company and the Principal Operating Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware and each has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under this Agreement; and each of the Company and the Principal Operating Subsidiary is duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether -4- by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not reasonably be expected to result in a Material Adverse Effect. (vi) Good Standing of Subsidiaries. Each Subsidiary of the Company has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not reasonably be expected to result in a Material Adverse Effect; except as otherwise disclosed in the Registration Statement, all of the issued and outstanding capital stock of each such Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Company, directly or through Subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding shares of capital stock of any Subsidiary was issued in violation of the preemptive or similar rights of any securityholder of such Subsidiary. The only Subsidiaries of the Company are the Subsidiaries listed on Exhibit 21.1 to the Registration Statement. (vii) Capitalization. The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus (except for subsequent issuances, if any, pursuant to this Agreement or pursuant to reservations, agreements or employee benefit plans referred to in the Prospectus). The shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any securityholder of the Company. (viii) Authorization of Agreement. This Agreement has been duly authorized, executed and delivered by the Company and the Principal Operating Subsidiary. (ix) Authorization and Description of Shares. The Shares have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth herein, will be validly issued, fully paid and non-assessable; the Common Stock conforms in all material respects to all statements relating thereto contained in the Prospectus and such description conforms in all material respects to the rights set forth in the instruments defining the same; no holder of the Shares will be subject to personal liability by reason of being such a holder; and the issuance of the Shares is not subject to the preemptive or other similar rights of any securityholder of the Company. (x) Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries is in violation of its charter or by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, -5- indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary is subject (collectively, "Agreements and Instruments") except for such defaults that would not reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement (including compliance by the Company and the Principal Operating Subsidiary with its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not reasonably be expected to result in a Material Adverse Effect) or under any employee benefit plan of the Company, nor will such action result in any material violation of the provisions of the charter or by-laws of the Company or any Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary or any of their assets, properties or operations. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any Subsidiary. (xi) Compliance with Laws. The Company and each of the Subsidiaries are conducting their business in compliance with all the local, state, federal and foreign laws, rules and regulations of the jurisdictions in which each of the Company and the Subsidiaries is conducting business, including, without limitation, those of the United States Food and Drug Administration and the Federal Trade Commission, except where failure to be so in compliance, singly or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on the business or financial condition of the Company or any of its Subsidiaries. (xii) Absence of Labor Dispute. No labor dispute with the employees of the Company or any Subsidiary exists or, to the knowledge of the Company or the Principal Operating Subsidiary, is imminent, and neither the Company nor the Principal Operating Subsidiary is aware of any existing or imminent labor disturbance by the employees of any of its or any Subsidiary's principal suppliers, manufacturers, customers or contractors, which, in either case, may reasonably be expected to result in a Material Adverse Effect. (xiii) Absence of Proceedings. There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Company or the Principal Operating Subsidiary, threatened, against or affecting the Company or any Subsidiary, which is -6- required to be disclosed in the Registration Statement (other than as disclosed therein), or which might reasonably be expected to result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect the properties or assets thereof or the consummation of the transactions contemplated in this Agreement or the performance by the Company or the Principal Operating Subsidiary of its obligations hereunder; the aggregate of all pending legal or governmental proceedings to which the Company or any Subsidiary is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, would not reasonably be expected to result in a Material Adverse Effect. (xiv) Accuracy of Exhibits. There are no contracts or documents which are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits thereto which have not been so described and filed as required. (xv) Possession of Intellectual Property. The Company and its Subsidiaries own or possess, or can acquire on reasonable terms, adequate patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, trade names or other intellectual property, including specifically but without limitation the patents listed on Schedule IV hereto, (collectively, "Intellectual Property") necessary to carry on the business now operated by them, and neither the Company nor any of its Subsidiaries has received any notice or is otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect the interest of the Company or any of its Subsidiaries therein, and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, singly or in the aggregate, would reasonably be expected to result in a Material Adverse Effect. (xvi) Absence of Further Requirements. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by each of the Company and the Principal Operating Subsidiary of its obligations hereunder, in connection with the offering, issuance or sale of the Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as have been already obtained or as may be required under the 1933 Act or the 1933 Act Regulations or state securities laws. (xvii) Possession of Licenses and Permits. The Company and its Subsidiaries possess such permits, licenses, approvals, consents and other authorizations (collectively, "Governmental Licenses") issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by them; the Company and its Subsidiaries are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the -7- aggregate, have a Material Adverse Effect; all of the Governmental Licenses are valid and in full force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not reasonably be expected to have a Material Adverse Effect; and neither the Company nor any of its Subsidiaries has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in a Material Adverse Effect. (xviii) Title to Property. The Company and its Subsidiaries have good and marketable title to all real property owned by the Company and its Subsidiaries and good title to all other properties owned by them, in each case, free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or encumbrances of any kind except such as (A) are described in the Prospectus, or (B) do not, singly or in the aggregate, materially affect the value of such property and do not interfere with the use made or proposed to be made of such property by the Company or any of its Subsidiaries; and all of the leases and subleases material to the business of the Company and its Subsidiaries, considered as one enterprise, and under which the Company or any of its Subsidiaries holds properties described in the Prospectus, are in full force and effect, and neither the Company nor any Subsidiary has any notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Company or any Subsidiary under any of the leases or subleases mentioned above, or affecting or questioning the rights of the Company or such Subsidiary to the continued possession of the leased or subleased premises under any such lease or sublease. (xix) Compliance with Cuba Act. The Company has complied with, and is and will be in compliance with, the provisions of that certain Florida act relating to disclosure of doing business with Cuba, codified as Section 517.075 of the Florida statutes, and the rules and regulations thereunder (collectively, the "Cuba Act") or is exempt therefrom. (xx) Investment Company Act. The Company is not, and upon the sale of the Shares as herein contemplated and the application of the net proceeds therefrom as described in the Prospectus will not be, an "investment company" or, to the best of the Company's knowledge, an entity "controlled" by an "investment company" as such terms are defined in the Investment Company Act of 1940, as amended (the "1940 Act"). (xxi) Environmental Laws. Except as described in the Registration Statement and except as would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect, (A) neither the Company nor any of its Subsidiaries is in violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened -8- release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products (collectively, "Hazardous Materials") or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, "Environmental Laws"), (B) the Company and its Subsidiaries have all permits, authorizations and approvals required under any applicable Environmental Laws and are each in material compliance with their requirements, (C) there are no pending or threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigation or proceedings relating to any Environmental Law against the Company or any of its Subsidiaries and (D) there are no events or circumstances that might reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or governmental body or agency, against or affecting the Company or any of its Subsidiaries relating to Hazardous Materials or any Environmental Laws. (xxii) Year 2000. The Company has not incurred significant operating expenses or costs to ensure that its information systems will be Year 2000 Compliant (as defined below), other than as disclosed in the Prospectus, and: (A) All (I) the systems used in the business, products, services or operations of the Company and its subsidiaries, including without limitation any manufacturing systems, communications systems, operational facilities, computer hardware systems, software, applications, firmware, and any other system, equipment or device containing or interfacing to any electronic component; and (II) the software, hardware, firmware and other technology that constitute any part of the products and services manufactured, marketed, licensed or sold in the past, present and future by the Company or any of its subsidiaries to third parties are (or in the case of future products, will be) Year 2000 Compliant; (B) The Company is not aware of any failure to be Year 2000 Compliant of any third-party system used in connection with the business, products, services or operations of the Company or any of its subsidiaries, including without limitation any system belonging to any of the Company's or its subsidiaries vendors, co-venturers, service providers or customers. The Company and its subsidiaries have received satisfactory written assurances, representations and warranties from all of their respective vendors, co-venturers, service providers and customers that are material to the ongoing operation of the business of the Company and its subsidiaries that past, present and future products, software, equipment, components or systems provided by such parties are (or in the case of future products, will be) Year 2000 Compliant; and (C) The Company has conducted "year 2000" audits with respect to (I) each system used in the business, products, services and operations of the Company and its subsidiaries, including without limitation any manufacturing systems, communications systems, operational facilities, computer hardware systems, -9- software, applications, firmware, and any other system, equipment or device containing or interfacing to any electronic component; and (II) all of the software, applications, hardware, firmware and other technology which constitute part of the products and services manufactured, marketed, performed or sold by the Company or any of its subsidiaries or licensed by the Company or any of its subsidiaries to third parties. The Company has obtained "year 2000" certifications with respect to all material third-party systems used in connection with the business or operations of the Company and its subsidiaries, including without limitation systems belonging to the vendors, co- venturers, service providers and customers of the Company or any of its subsidiaries. The Company has furnished to the Buyer true and correct copies of all "year 2000" audits, certifications, reports and other similar documents that have been prepared or performed by or on behalf of the Company or any third party with respect to the systems, business, operations, products or services of the Company or any of its subsidiaries. For purposes of this Agreement, "Year 2000 Compliant" means that, without human intervention, the applicable system, application, product, service or item: (A) will accurately receive, record, store, provide, recognize, recall and process all date and time data; (B) will accurately perform all date- or time-dependent calculations and operations; and (C) will not malfunction, cease to function or provide invalid or incorrect results as a result of (I) any calendar change; (II) any date or time data; or (III) the occurrence of any particular date. (xxiii) Registration Rights. Other than as described in the Prospectus under the heading "Registration Agreement", there are no persons with registration rights or other similar rights to have any securities registered pursuant to the Registration Statement or otherwise registered by the Company under the 1933 Act. The Company has complied and is in compliance in all material respects with the terms of the Registration Rights Agreement dated as of October 22, 1996, between the Company, certain of the Selling Shareholders and the other parties named therein (the "Registration Rights Agreement"). Except for the Selling Shareholders with respect to the Shares to be sold pursuant to the Registration Statement and except for the other parties to the Registration Rights Agreement, each of whom have duly waived any registration or similar rights to include securities owned by such person in the Registration Statement, no person has any right to require the Company to file a registration statement under the 1933 Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement or otherwise. No further approval or authority of the stockholders or Board of Directors of the Company is required for the transfer and sale of the Shares to be sold by the Selling Shareholders. On the Closing Date, the Shares will be free of any restrictions on transfer imposed by the Company and will not be subject to any preemptive or similar rights. (b) Representations and Warranties of the Selling Shareholders. Each Selling Shareholder, severally and not jointly, represents and warrants to each Underwriter as of -10- the date hereof, as of the Closing Date, and, if the Selling Shareholder is selling Option Shares on an Option Closing Date, as of each such Option Closing Date, and agrees with each Underwriter, as follows: (i) Accurate Disclosure. The information furnished in writing by or on behalf of such Selling Shareholder expressly for use in the Registration Statement and any amendments and supplements thereto does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements regarding such Selling Shareholder therein not misleading, and the information furnished in writing on behalf of such Selling Shareholder expressly for use in the Prospectus does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements regarding such Selling Shareholder therein, in the light of the circumstances under which they were made, not misleading. (ii) Good and Marketable Title. Such Selling Shareholder has good and marketable title to the Shares to be sold by such Selling Shareholder hereunder, free and clear of any security interest, mortgage, pledge, lien, charge, claim, equity or encumbrance of any kind, other than pursuant to this Agreement; and upon delivery of such Shares and payment of the purchase price therefor as herein contemplated, assuming each such Underwriter has no notice of any adverse claim, each of the Underwriters will receive good and marketable title to the Shares purchased by it from such Selling Shareholder, free and clear of any security interest, mortgage, pledge, lien, charge, claim, equity or encumbrance of any kind. The sale of the Shares pursuant to this Agreement is not prohibited by any law or governmental regulation applicable to such Selling Shareholder. (iii) Authorization of Agreements. Each Selling Shareholder has the full right, power and authority to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder hereunder. The execution and delivery of this Agreement and the sale and delivery of the Shares to be sold by such Selling Shareholder and the consummation of the transactions contemplated herein and compliance by such Selling Shareholder with its obligations hereunder have been duly authorized by such Selling Shareholder and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any tax, lien, charge or encumbrance upon the Shares to be sold by such Selling Shareholder or any property or assets of such Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, license, lease or other agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder may be bound, or to which any of the property or assets of such Selling Shareholder is subject, nor will such action result in any violation of the provisions of the charter or by-laws or other organizational instrument of such Selling Shareholder, if applicable, or any applicable treaty, law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over such Selling Shareholder or any of its properties. -11- (iv) Absence of Manipulation. Such Selling Shareholder has not taken, and will not take, directly or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares. (v) Absence of Further Requirements. No filing with, or consent, approval, authorization, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, is necessary or required for the performance by each Selling Shareholder of its obligations hereunder or in connection with the sale and delivery of the Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as may have previously been made or obtained or as may be required under the 1933 Act or the 1933 Act Regulations or state securities laws. (vi) Certificates Suitable for Transfer. As of the date hereof, certificates for all of the Shares to be sold by such Selling Shareholder pursuant to this Agreement, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed, have been delivered to Kirkland & Ellis, counsel to the Company. (vii) No Association with NASD. Except as previously disclosed to the Underwriters, neither such Selling Shareholder nor any of his or its affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, or has any other association with, any member firm of the National Association of Securities Dealers, Inc. (the "NASD") within the meaning of Article I, Section 1(m) of the By-laws of the NASD. (viii) Other Information. The sale of the Shares by such Selling Shareholder pursuant hereto is not prompted by any information concerning the Company or any of the Subsidiaries which is not set forth in the Registration Statement. The information pertaining to such Selling Shareholder under the captions "Principal Stockholders" and "Selling Stockholders" in the Prospectus is complete and accurate in all material respects. (c) Officer's Certificates. Any certificate signed by any officer of the Company or any of its Subsidiaries delivered to the Representatives or to counsel for the Underwriters shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered thereby; and any certificate signed by or on behalf of the Selling Shareholders as such and delivered to the Representatives or to counsel for the Underwriters pursuant to the terms of this Agreement shall be deemed a representation and warranty by each such Selling Shareholder to the Underwriters as to the matters covered thereby. -12- 2. Purchase, Sale and Delivery of the Shares. ----------------------------------------- (a) Firm Shares. On the basis of the representations, warranties and covenants herein contained, and subject to the conditions herein set forth, the Selling Shareholders agree to sell to the Underwriters and each Underwriter agrees, severally and not jointly, to purchase, at a price of $[____] per share, being an amount equal to the public offering price set forth above less the underwriting discount of $[____] per share, the number of Firm Shares set forth opposite the name of each Underwriter in Schedule I hereto (the number of Shares to be sold by each Selling Shareholder is set forth opposite the name of each Selling Shareholder on Schedule III hereto under the heading "Number of Firm Shares to be Sold"), subject to adjustments in accordance with Section 9 hereof. The number of Firm Shares to be purchased by each Underwriter from each Selling Shareholder shall be as nearly as practicable in the same proportion to the total number of Firm Shares being sold by each Selling Shareholder as the number of Firm Shares being purchased by each Underwriter bears to the total number of Firm Shares to be sold hereunder. The obligations of the Company and of each of the Selling Shareholders shall be several and not joint. (b) Payment for Firm Shares. Payment for the Firm Shares to be sold hereunder is to be made by wire transfer of same-day funds to an account of the Company for the Shares to be sold by it and to an account of, or by check made payable to, each Selling Shareholder for the Shares to be sold by such Selling Shareholder, in each case against delivery of certificates therefor to the Representatives for the several accounts of the Underwriters. Such payment and delivery is to be made at the offices of Alex. Brown, One South Street, Baltimore, Maryland, or such other place as shall be agreed upon by the Representatives and the Company, at 9:00 a.m., Baltimore time, on the third (fourth, if pricing occurs after 4:30 p.m. (Eastern Time) on any given day) business day after the date of this Agreement or at such other time and date not later than five business days thereafter as you and the Company shall agree upon (such time and date being herein referred to as the "Closing Date"). As used herein, "business day" means a day on which the New York Stock Exchange is open for trading and on which banks in New York are open for business and not permitted by law or executive order to be closed. The certificates for the Firm Shares will be delivered in such denominations and in such registrations as the Representatives request in writing not later than the second full business day prior to the Closing Date, and will be made available for inspection by the Representatives at least one business day prior to the Closing Date. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Firm Shares, which it has agreed to purchase. Alex. Brown, individually and not as a Representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Firm Shares to be purchased by any Underwriter whose funds have not been received by the Closing Date, but such payment shall not relieve such Underwriter from its obligations hereunder. (c) Option Shares. In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, certain Selling -13- Shareholders (marked with an "+" in Schedule III hereto) hereby grant an option to the several Underwriters to purchase up to the number of Option Shares set forth opposite the name of each Selling Shareholder in Schedule III hereto under the heading "Number of Option Shares to be Sold", subject to adjustments as set forth herein, at the price per share as set forth in the first paragraph of this Section 2. The option granted hereby may be exercised in whole or in part by giving written notice (i) at any time before the Closing Date and (ii) only once thereafter within 30 days after the date of this Agreement, by you, as Representatives of the several Underwriters, to the Company and such certain Selling Shareholders, setting forth the number of Option Shares as to which the several Underwriters are exercising the option, the names and denominations in which the Option Shares are to be registered and the time and date at which such certificates are to be delivered. The time and date at which certificates for Option Shares are to be delivered shall be determined by the Representatives but shall not be earlier than three nor later than 10 full business days after the exercise of such option, nor in any event prior to the Closing Date (such time and date being herein referred to as the "Option Closing Date"). If the date of exercise of the option is three or more days before the Closing Date, the notice of exercise shall set the Closing Date as the Option Closing Date. The number of Option Shares to be purchased by each Underwriter shall be in the same proportion to the total number of Option Shares being purchased as the number of Firm Shares being purchased by such Underwriter bears to the total number of Firm Shares, adjusted by you in such manner as to avoid fractional shares. The option with respect to the Option Shares granted hereunder may be exercised only to cover over-allotments in the sale of the Firm Shares by the Underwriters. You, as Representatives of the several Underwriters, may cancel such option at any time prior to its expiration by giving written notice of such cancellation to the Company. To the extent, if any, that the option is exercised, payment for the Option Shares shall be made on the Option Closing Date by wire transfer of same-day funds to an account of, or by check made payable to, the Selling Shareholder for the Option Shares to be sold by such Selling Shareholder, in each case against delivery of certificates therefor at the offices of Alex. Brown, One South Street, Baltimore, Maryland, or at such other place as shall be agreed upon by the Representatives and the Company. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Option Shares, if any, which it has agreed to purchase. Alex. Brown, individually and not as representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Option Shares, if any, to be purchased by any Underwriter whose funds have not been received by the Option Closing Date, but such payment shall not relieve such Underwriter from its obligations hereunder. (d) Failure to Deliver the Shares. If on the Closing Date or the Option Closing Date, as the case may be, any Selling Shareholder fails to sell the Shares which such Selling Shareholder has agreed to sell on such date as set forth in Schedule III hereto, the Company agrees that it will sell or arrange for the sale of that number of shares of Common Stock to the Underwriters which represents the Shares which such Selling Shareholder has failed to so sell as set forth in Schedule III hereto, or such lesser number as may be requested by the Representatives. -14- 3. Offering by the Underwriters. ---------------------------- (a) Public Offering. It is understood that the several Underwriters are to make a public offering of the Firm Shares as soon as the Representatives deem it advisable to do so. The Firm Shares are to be initially offered to the public at the public offering price set forth in the Prospectus. The Representatives may from time to time thereafter change the public offering price and other selling terms. To the extent, if at all, that any Option Shares are purchased pursuant to Section 2 hereof, the Underwriters will offer them to the public on the foregoing terms. (b) Agreement Among Underwriters. It is further understood that you will act as the Representatives for the Underwriters in the offering and sale of the Shares in accordance with a Master Agreement Among Underwriters entered into by you and the several other Underwriters. 4. Covenants. --------- (a) Covenants of the Company. The Company covenants and agrees with the several Underwriters that: (i) Compliance with Securities Regulations. The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations. To the extent applicable, the copies of the Registration Statement (including all exhibits filed therewith), any preliminary prospectus or Prospectus furnished to the Underwriters shall be identical to the copies thereof electronically filed with the Commission on EDGAR, except to the extent permitted by Regulation S-T. (ii) Notice of Action by the Commission. The Company will advise the Representatives promptly (A) when the Registration Statement or any post- effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution or threatening of any proceedings for that purpose. The Company will use its best efforts to prevent the -15- issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued. (iii) Blue Sky Qualification. The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (iv) Delivery of Prospectuses. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any preliminary prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives, at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request. (v) Continued Compliance with Securities Regulations. The Company will comply with the 1933 Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended (the "1934 Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law and the Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request. -16- (vi) Rule 158. The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the 1933 Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available. (vii) Delivery of Reports. The Company will, for a period of three years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the 1933 Act or the 1934 Act. To the extent applicable, such reports and documents shall be identical to the copies thereof electronically filed with the Commission on EDGAR, except to the extent permitted by Regulation S-T. (viii) Restriction on the Sale of Securities. During a period of 90 days from the date of the Prospectus, the Company will not, without the prior written consent of Alex. Brown, (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any share of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or file any registration statement under the 1933 Act with respect to any of the foregoing or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) any shares of Common Stock issued by the Company upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof or options to purchase Common Stock granted pursuant to existing employee benefit plans of the Company referred to in the Prospectus, or (C) any shares of Common Stock issued pursuant to any non-employee director stock plan or employee stock purchase plan. (ix) Listing. The Company will use its best efforts to list, subject to notice of issuance, the Shares to be sold by the Company on the Nasdaq National Market. The Company will use its best efforts to effect and maintain the quotation of the Shares on the Nasdaq National Market and will file with the Nasdaq National Market all documents and notices required by the Nasdaq National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the Nasdaq National Market. -17- (x) Year 2000. The Company will not incur significant operating expenses or costs to ensure that its information systems will be Year 2000 Complaint, other than as disclosed in the Prospectus. (xi) Transfer Agent. The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (xii) Absence of Manipulation. The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company in violation of the 1933 Act or the Rules and Regulations, including without limitation, Regulation M, or the 1934 Act and the rules and regulations of the Commission thereunder. (b) Covenants of the Selling Shareholders. Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) Form W-9. In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (ii) Absence of Manipulation. Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company in violation of the 1933 Act or the Rules and Regulations or the 1934 Act and the rules and regulations of the Commission thereunder. 5. Costs and Expenses. The Company will pay all costs, expenses and fees incident to the performance of the obligations of the Company and the Selling Shareholders under this Agreement, including, without limiting the generality of the foregoing, the following: accounting fees of the Company; the fees and disbursements of counsel for the Company; the cost of preparation, printing, filing, and delivering to, or as requested by, the Underwriters copies of the Registration Statement, preliminary prospectuses, the Prospectus, this Agreement, any agreement among Underwriters, the Nasdaq National Market Listing Application, the Blue Sky Survey and any supplements or amendments thereto, and such other documents as may be required in connection with the offering, purchase, sale, issuance or delivery of the Shares; the filing fees of the Commission; (iii) the preparation, issuance and delivery of the certificates for the Shares to the Underwriters, including any stock or other transfer taxes and any stamp or other duties payable upon the sale, -18- issuance or delivery of the Shares to the Underwriters; the filing fees incident to securing any required review by the NASD of the terms of the sale of the Shares; the Listing Fee of the Nasdaq National Market and the inclusion of the Shares to be sold by the Company on the Nasdaq National Market; the fees and expenses of any transfer agent or registrar for the Shares; and the expenses, including the reasonable fees and disbursements of counsel for the Underwriters, incurred in connection with the qualification of the Shares under State securities or Blue Sky laws. The Company shall not, however, be required to pay for any of the Underwriters expenses (other than those related to qualification under NASD regulation and State securities or Blue Sky laws) except that, if this Agreement shall not be consummated because the conditions in Section 6 hereof are not satisfied, or because this Agreement is terminated by the Representatives pursuant to Section 10 hereof or paragraphs (A) or (E) of Section 12(a)(i) hereof, or by reason of any failure, refusal or inability on the part of the Company or the Selling Shareholders to perform any undertaking or satisfy any condition of this Agreement or to comply with any of the terms hereof on their part to be performed, unless such failure to satisfy said condition or to comply with said terms be due to the default or omission of any Underwriter, then the Company shall reimburse the several Underwriters for reasonable out-of-pocket expenses, including reasonable fees and disbursements of counsel for the Underwriters, reasonably incurred in connection with investigating, marketing and proposing to market the Shares or in contemplation of performing their obligations hereunder. 6. Conditions of Obligations of the Underwriters. (a) Accuracy of Representations and Warranties; Performance of Covenants; Other Conditions. The several obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares, if any, on the Option Closing Date are subject to the accuracy, as of the Closing Date or the Option Closing Date, as the case may be, of the representations and warranties of the Company, the Principal Operating Subsidiary and the Selling Shareholders contained herein, and to the performance by the Company and the Selling Shareholders of their covenants and obligations hereunder and to the following additional conditions: (i) Effectiveness of the Registration Statement. The Registration Statement, including any Rule 462(b) Registration Statement, and all post- effective amendments thereto shall have become effective and any and all filings required by Rule 424 and Rule 430A of the Rules and Regulations shall have been made, or, if the Company has elected to rely upon Rule 434, a Term Sheet shall have been filed with the Commission in accordance with Rule 424(b), and any request of the Commission for additional information (to be included in the Registration Statement or otherwise) shall have been disclosed to the Representatives and complied with to their reasonable satisfaction. No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been taken or, to the knowledge of the Company, shall be contemplated by the Commission and no injunction, restraining order, or order of any nature by a Federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance of the Shares. -19- (ii) Opinions of Counsel for the Company. The Representatives shall have received on the Closing Date or the Option Closing Date, as the case may be, the opinions of: (A) Kirkland & Ellis, counsel for the Company; (B) Sweeney, Lev & Blinkoff, counsel for the Company; and (C) Brinks Hofer Gilson & Lione P.C., Intellectual Property counsel for the Company, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Underwriters in form and substance satisfactory to counsel for the Underwriters and substantially in the forms set forth in Exhibit 1, Exhibit 2 and Exhibit 3, respectively, and to such further effect as counsel to the Underwriters may reasonably request. (iii) Opinion of Counsel for the Underwriters. The Representatives shall have received from Ropes & Gray, counsel for the Underwriters, an opinion dated the Closing Date or the Option Closing Date, as the case may be, together with signed or reproduced copies of such letter for each of the other Underwriters. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the Commonwealth of Massachusetts and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Representatives. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its Subsidiaries and certificates of public officials. (iv) Opinions of Counsel for the Selling Shareholders. On the Closing Date or the Option Closing Date, as the case may be, the Representatives shall have received the favorable opinion, dated as of the Closing Date or the Option Closing Date, as the case may be, of Kirkland & Ellis, counsel for the Selling Shareholders, or such other counsel as is reasonably acceptable to counsel for the Underwriters, in each case in form and substance satisfactory to counsel for the Underwriters together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit 4 hereto and to such further effect as counsel to the Underwriters may reasonably request. (v) Blue Sky Survey. The Representatives shall have received at or prior to the Closing Date from Ropes & Gray a memorandum or summary, in form and substance satisfactory to the Representatives, with respect to the qualification for offering and sale by the Underwriters of the Shares under the State securities or Blue Sky laws of such jurisdictions as the Representatives may reasonably have designated to the Company. (vi) Accountant's Comfort Letter. You shall have received, on each of the dates hereof, the Closing Date and the Option Closing Date, if applicable, a letter from PricewaterhouseCoopers LLP dated the date hereof, the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to you and PricewaterhouseCoopers LLP, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial -20- statements and certain financial information contained in the Registration Statement and the Prospectus. (vii) Officers' Certificate. The Representatives shall have received on the Closing Date or the Option Closing Date, as the case may be, a certificate or certificates of the Chief Executive Officer and the Chief Financial Officer of the Company and the Principal Operating Subsidiary to the effect that, as of the Closing Date or the Option Closing Date, as the case may be, each of them severally represents in their capacity as an officer of the Company as follows: (A) The Registration Statement has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement or any part thereof has been received by the Company, and to our knowledge no such stop order has been issued under the 1933 Act and no proceedings for that purpose have been initiated or threatened by the Commission and any request of the Commission for inclusion of additional information in the Registration Statement has been complied with; (B) The representations and warranties of the Company and the Principal Operating Subsidiary contained in Section 1(a) of the Underwriting Agreement are true and correct, on and as of the Closing Date or the Option Closing Date, as the case may be, with the same force and effect as if expressly made on and as of the Closing Date or the Option Closing Date, as the case may be; (C) All filings required to have been made pursuant to Rules 424 or 430A under the 1933 Act have been made; (D) The Company and the Principal Operating Subsidiary has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be; (E) The Registration Statement of the Company on Form S-3 (Registration No. 333-79293), in the form in which it was declared effective by the Commission on [June __, 1999], and the Prospectus dated [June __, 1999], contain all statements which are required to be stated therein in accordance with the 1933 Act and the rules and regulations of the Commission thereunder and neither the Registration Statement nor the Prospectus contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (F) Since the time the Registration Statement was declared effective, no event has occurred which should have been set forth in a supplement to or -21- amendment of the Registration Statement or the Prospectus which has not been so set forth in such supplement or amendment; (G) Since the respective dates as of which information is given in the Registration Statement and Prospectus, there has not been any material adverse change or any development involving a prospective material adverse change in or affecting the condition, financial or otherwise, of the Company and its Subsidiaries taken as a whole or the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries taken as a whole, whether or not arising in the ordinary course of business; (H) No action, suit or proceeding at law or in equity is pending or, to the knowledge of the Company, threatened against the Company or any Subsidiary that would be required to be set forth in the Prospectus other than as set forth therein and no proceedings are pending or, to the knowledge of the Company, threatened against the Company before or by any government, governmental instrumentality or court, domestic or foreign, that could result in any material adverse change in the condition (financial or otherwise), earnings, business affairs or business prospects of the Company and its subsidiaries, considered as one enterprise, other than as set forth in the Prospectus; and (I) No event of default exists under any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary is a party or to which the Company or any Subsidiary is subject, except where such default would not reasonably be expected to result in a Material Adverse Effect. (viii) Secretary's Certificate. The Representatives shall have received on the Closing Date or the Option Closing Date, as the case may be, a certificate or certificates of the Secretary of the Company and the Principal Operating Subsidiary in form and substance reasonably satisfactory to the Representatives. (ix) Certificates of the Selling Shareholders. On the Closing Date or the Option Closing Date, as the case may be, the Representatives shall have received a certificate from each of the Selling Shareholders, dated as of the Closing Date or the Option Closing Date, as the case may be, to the effect that (i) the representations and warranties of such Selling Shareholder contained in Section 1(b) hereof are true and correct in all respects with the same force and effect as though expressly made at and as of the Closing Date or the Option Closing Date, as the case may be, and (ii) such Selling Shareholder has complied in all material respects with all agreements and all conditions on its part to be performed under this Agreement at or prior to the Closing Date or the Option Closing Date, as the case may be. -22- (x) Approval of Listing. At Closing Date and the Option Closing Date, as the case may be, the Shares shall have been approved for listing on the Nasdaq National Market. (xi) No Objection. The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements. (b) Compliance with Requirements. The opinions and certificates mentioned in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in all material respects reasonably satisfactory to the Representatives and to Ropes & Gray, counsel for the Underwriters. (c) Additional Documents. At the Closing Date or the Option Closing Date, as the case may be, counsel for the Underwriters shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the sale of the Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters. (d) Termination of Agreement. If any of the conditions hereinabove provided for in this Section 6 shall not have been fulfilled when and as required by this Agreement to be fulfilled, the obligations of the Underwriters hereunder may be terminated by the Representatives by notifying the Company and the Selling Shareholders of such termination in writing or by telegram at or prior to the Closing Date or the Option Closing Date, as the case may be. In such event, the Selling Shareholders, the Company and the Underwriters shall not be under any obligation to each other (except to the extent provided in Sections 5 and 8 hereof and except that Sections 1, 8 and 14 shall survive any such termination and remain in full force and effect). 7. Conditions of the Obligations of the Selling Shareholders. The obligations of the Selling Shareholders to sell and deliver the portion of the Shares required to be delivered as and when specified in this Agreement are subject to the conditions that at the Closing Date or the Option Closing Date, as the case may be, no stop order suspending the effectiveness of the Registration Statement shall have been issued and in effect or proceedings therefor initiated or threatened. 8. Indemnification. (a) Indemnification of Underwriters by the Company and the Principal Operating Subsidiary. The Company and the Principal Operating Subsidiary agree, in connection with the satisfaction of the Company's obligations under the Registration Rights Agreement -23- and in order to benefit of the Company by increasing the public float and liquidity of the Company's shares of Common Stock, to indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all losses, claims, expenses, damages or liabilities to which such Underwriter or any such controlling person may become subject under the 1933 Act or otherwise, insofar as such losses, claims, expenses, damages or liabilities (or actions or proceedings in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement (or any amendment thereto), including the Rule 430A Information and the Rule 434 Information, if applicable, any preliminary prospectus, the Prospectus or any amendment or supplement thereto, or (ii) the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; and will reimburse each Underwriter and each such controlling person on demand for any amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, provided that (subject to Section 8(c) below) any such settlement is effected with the written consent of the Company; and will reimburse each Underwriter and each such controlling person upon demand for any legal or other expenses reasonably incurred by such Underwriter or such controlling person in connection with investigating or defending any such loss, claim, expense, damage or liability, action or proceeding or in responding to a subpoena or governmental inquiry related to the offering of the Shares, whether or not such Underwriter or controlling person is a party to any action or proceeding; provided that the Company and the Principal Operating Subsidiary will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement, or omission or alleged omission made in the Registration Statement, any preliminary prospectus, the Prospectus, or such amendment or supplement, in reliance upon and in conformity with written information furnished to the Company by or through the Representatives specifically for use in the preparation thereof; provided, further, that such indemnity with respect to any preliminary prospectus shall not inure to the benefit of any Underwriter from whom the person asserting such loss, claim, damage or liability purchased the Shares which are the subject thereof if such person did not receive a copy of the Prospectus (as supplemented or amended) at or prior to the confirmation of the sale of the Shares to such person in any case where such delivery is required by the 1933 Act and the untrue statement or omission or alleged untrue statement or omission of material fact contained in the preliminary prospectus was corrected in the Prospectus. This indemnity agreement will be in addition to any liability which the Company or the Principal Operating Subsidiary may otherwise have. (b) Indemnification of the Underwriters by the Selling Shareholders. Each Selling Shareholder severally and not jointly will indemnify and hold harmless each Underwriter, and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any losses, claims, damages or -24- liabilities to which any Underwriter or any person who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act may become subject under the 1933 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement thereto, or (ii) the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made; and will reimburse any legal or other expenses reasonably incurred by any Underwriter or any person who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act in connection with investigating or defending any such loss, claim, damage, liability, action or proceeding; provided, however, that each Selling Shareholder will be liable in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission has been made in the Registration Statement, any preliminary prospectus, the Prospectus or such amendment or supplement, in reliance upon and in conformity with written information furnished to the Company or any Underwriter by or through the Selling Shareholder specifically for use in the preparation thereof; provided, further, that such indemnity with respect to any preliminary prospectus shall not inure to the benefit of any Underwriter from whom the person asserting such loss, claim, damage or liability purchased the Shares which are the subject thereof if such person did not receive a copy of the Prospectus (as supplemented or amended) at or prior to the confirmation of the sale of the Shares to such person in any case where such delivery is required by the 1933 Act and the untrue statement or omission or alleged untrue statement or omission of material fact contained in the preliminary prospectus was corrected in the Prospectus. In no event, however, shall the liability of any Selling Shareholder for indemnification under this Section 8(b) exceed the proceeds received by such Selling Shareholder from the Underwriters hereunder. This indemnity agreement will be in addition to any liability which the Selling Shareholders may otherwise have. The Company agrees that the Selling Shareholders may implead the Company in any action in which the Underwriters or any such controlling person is seeking indemnification from the Selling Shareholders. The Company, the Principal Operating Subsidiary, the Selling Shareholders and the Underwriters acknowledge and agree that the only information furnished or to be furnished to the Company for inclusion in any prospectus or the Registration Statement by any Selling Shareholder consists of the information set forth under the captions "Principal Stockholders" and "Selling Stockholders" (including the notes thereto) in the Registration Statement, any preliminary prospectus, the Prospectus and any amendment or supplement thereto. (c) Indemnification of the Company, Directors, Officers and Selling Shareholders. Each Underwriter severally and not jointly will indemnify and hold harmless the Company, each of its directors, each of its officers who have signed the Registration Statement, the Selling Shareholders, and each person, if any, who controls the Company or the Selling Shareholders within the meaning of the 1933 Act, against any losses, claims, damages or liabilities to which the Company or any such director, officer, Selling Shareholder or -25- controlling person may become subject under the 1933 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement thereto, or (ii) the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made; and will reimburse any legal or other expenses reasonably incurred by the Company or any such director, officer, Selling Shareholder or controlling person in connection with investigating or defending any such loss, claim, damage, liability, action or proceeding; provided, however, that each Underwriter will be liable in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission has been made in the Registration Statement, any preliminary prospectus, the Prospectus or such amendment or supplement, in reliance upon and in conformity with written information furnished to the Company by or through the Representatives specifically for use in the preparation thereof. This indemnity agreement will be in addition to any liability which such Underwriter may otherwise have. (d) Actions Against Parties; Notification; Settlement Without Consent. In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to this Section 8, such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing. No indemnification provided for in Section 8(a), (b) or (c) shall be available to any party who shall fail to give notice as provided in this Section 8(d) if the party to whom notice was not given was unaware of the proceeding to which such notice would have related and was materially prejudiced by the failure to give such notice, but the failure to give such notice shall not relieve the indemnifying party or parties from any liability which it or they may have to the indemnified party for contribution or otherwise than on account of the provisions of Section 8(a), (b) or (c). In case any such proceeding shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party and shall pay as incurred the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel at its own expense. Notwithstanding the foregoing, the indemnifying party shall pay as incurred (or within 30 days of presentation) the reasonable fees and expenses of the counsel retained by the indemnified party in the event (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, or (iii) the indemnifying party shall have failed to assume the defense and employ counsel acceptable to the indemnified party within a reasonable period of time after notice of commencement -26- of the action. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm for all such indemnified parties. Such firm shall be designated in writing by you in the case of parties indemnified pursuant to Section 8(a) or (b) and by the Company and the Selling Shareholders in the case of parties indemnified pursuant to Section 8(c). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment (provided that such indemnified party is entitled to indemnification under Section 8(a), (b) or (c) hereunder). In addition, the indemnifying party will not, without the prior written consent of the indemnified party, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding of which indemnification may be sought hereunder (whether or not any indemnified party is an actual or potential party to such claim, action or proceeding) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action or proceeding and does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party. If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 8(a), (b) or (c) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into, (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement, and (iv) the indemnifying party has not delivered a notice to the indemnified party at least 30 days prior to such settlement being entered into setting forth its reasonable objections to such request. (e) Contribution. If the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless an indemnified party under Section 8(a), (b) or (c) above in respect of any losses, claims, expenses, damages or liabilities (or actions or proceedings in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, expenses, damages or liabilities (or actions or proceedings in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company, the Principal Operating Subsidiary and the Selling Shareholders on the one hand and the Underwriters on the other from the offering of the Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company, the Principal Operating Subsidiary and the Selling Shareholders on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or -27- liabilities, (or actions or proceedings in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company, the Principal Operating Subsidiary and the Selling Shareholders on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company, the Principal Operating Subsidiary and the Selling Shareholders and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus or, if Rule 434 is used, the corresponding location on the Term Sheet, bear to the aggregate public offering price of the Shares as set forth on such cover. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company, the Principal Operating Subsidiary or the Selling Shareholders on the one hand or the Underwriters on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. Notwithstanding the provisions of this Section 8(e), (i) no Selling Shareholder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Selling Shareholder from the Shares purchased from such Selling Shareholder, and (ii) no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission. (f) Limitation on Contribution. The Company, the Selling Shareholders and the Underwriters agree that it would not be just and equitable if contributions pursuant to Section 8(e) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in Section 8(e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to above in Section 8(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of subsection (e), (i) no Underwriter shall be required to contribute any amount in excess of the underwriting discounts and commissions applicable to the Shares purchased by such Underwriter, (ii) no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation, and (iii) no Selling Shareholder shall be required to contribute any amount in excess of the proceeds received by such Selling Shareholder from the Underwriters in the Offering. The Underwriters' obligations in Section 8(e) to contribute are several in proportion to their respective underwriting obligations and not joint. (g) Rights of Controlling Persons. For purposes of this Section 8, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section -28- 20 of the 1934 Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and any Selling Shareholder shall have the same rights to contribution as the Company, the Principal Operating Subsidiary or such Selling Shareholders, as the case may be. (h) Consent to Jurisdiction. In any proceeding relating to the Registration Statement, any preliminary prospectus, the Prospectus or any supplement or amendment thereto, each party against whom contribution may be sought under this Section 8 hereby consents to the jurisdiction of any court having jurisdiction over any other contributing party, agrees that process issuing from such court may be served upon him or it by any other contributing party and consents to the service of such process and agrees that any other contributing party may join him or it as an additional defendant in any such proceeding in which such other contributing party is a party. (i) Payments. Any losses, claims, damages, liabilities or expenses for which an indemnified party is entitled to indemnification or contribution under this Section 8 shall be paid by the indemnifying party to the indemnified party as such losses, claims, damages, liabilities or expenses are incurred. The indemnity and contribution agreements contained in this Section 8 and the representations and warranties of the Company, the Principal Operating Subsidiary or the Selling Stockholders set forth in this Agreement or in certificates shall remain operative and in full force and effect, regardless of (i) any investigation made by or on behalf of any Underwriter or any person controlling any Underwriter, the Company, its directors or officers or any persons controlling the Company, (ii) acceptance of any Shares and payment therefor hereunder, and (iii) any termination of this Agreement. A successor to any Underwriter, or to the Company, its directors or officers, or any person controlling the Company, shall be entitled to the benefits of the indemnity, contribution and reimbursement agreements contained in this Section 8. (j) Effect on Other Agreements. The provisions of this Section shall not amend, alter or otherwise affect any agreement among the Company and the Selling Shareholders with respect to indemnification, including the Registration Rights Agreement. 9. Default by Underwriters. If on the Closing Date or the Option Closing Date, as the case may be, any Underwriter shall fail to purchase and pay for the portion of the Shares which such Underwriter has agreed to purchase and pay for on such date (otherwise than by reason of any default on the part of the Company or a Selling Shareholder), you, as Representatives of the Underwriters, shall use your reasonable efforts to procure within 36 hours thereafter one or more of the other Underwriters, or any others, to purchase from the Selling Shareholders such amounts as may be agreed upon and upon the terms set forth herein, the Firm Shares or Option Shares, as the case may be, which the defaulting Underwriter or Underwriters failed to purchase. If during such 36 hours you, as such -29- Representatives, shall not have procured such other Underwriters, or any others, to purchase the Firm Shares or Option Shares, as the case may be, agreed to be purchased by the defaulting Underwriter or Underwriters, then (a) if the aggregate number of shares with respect to which such default shall occur does not exceed 10% of the Firm Shares or Option Shares, as the case may be, covered hereby, the other Underwriters shall be obligated, severally, in proportion to the respective numbers of Firm Shares or Option Shares, as the case may be, which they are obligated to purchase hereunder, to purchase the Firm Shares or Option Shares, as the case may be, which such defaulting Underwriter or Underwriters failed to purchase, or (b) if the aggregate number of shares of Firm Shares or Option Shares, as the case may be, with respect to which such default shall occur exceeds 10% of the Firm Shares or Option Shares, as the case may be, covered hereby, the Company or you as the Representatives of the Underwriters will have the right, by written notice given within the next 36- hour period to the parties to this Agreement, to terminate this Agreement without liability on the part of the non-defaulting Underwriters or of the Company or of the Selling Shareholders except to the extent provided in Section 8 hereof. In the event of a default by any Underwriter or Underwriters, as set forth in this Section 9, the Closing Date or Option Closing Date, as the case may be, may be postponed for such period, not exceeding seven days, as you, as Representatives, may determine in order that the required changes in the Registration Statement or in the Prospectus or in any other documents or arrangements may be effected. The term "Underwriter" includes any person substituted for a defaulting Underwriter. Any action taken under this Section 9 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement. 10. Default by Selling Shareholders or the Company. (a) Default by Selling Shareholders. If any Selling Shareholder shall fail at the Closing Date or the Option Closing Date, as the case may be, to sell and deliver the number of Shares which such Selling Shareholders are obligated to sell hereunder and the Company does not sell or arrange for the sale of that number of Shares in accordance with Section 2(d), then the Underwriters may, at the option of the Representatives, by notice from the Representatives to the non-defaulting Selling Shareholders, either (a) terminate this Agreement without any liability on the fault of any non- defaulting party except that the provisions of Sections 1, 5 and 8 shall remain in full force and effect or (b) elect to purchase the Shares which the non-defaulting Selling Shareholders have agreed to sell hereunder. No action taken pursuant to this Section 10 shall relieve any Selling Shareholder so defaulting from liability, if any, in respect of such default. (b) Delay of Closing Dates. In the event of a default by any Selling Shareholder as referred to in this Section 10, each of the Representatives and the non-defaulting Selling Shareholders shall have the right to postpone the Closing Date or the Option Closing Date, as the case may be, for a period not exceeding seven days in order to effect any required change in the Registration Statement or Prospectus or in any other documents or arrangements. 11. Notices. -30- All communications hereunder shall be in writing and, except as otherwise provided herein, will be mailed, delivered, telecopied or telegraphed and confirmed as follows: if to the Underwriters, to [BT Alex. Brown Incorporated], One South Street, Baltimore, Maryland 21202, Attention: Syndicate; with a copy to Alex. Brown & Sons Incorporated, One South Street, Baltimore, Maryland 21202, Attention: General Counsel; with a copy to Ropes & Gray, One International Place, Boston, Massachusetts 02110, Attention: David B. Walek, Esq.; if to the Company or the Selling Shareholders, to Wesley Jessen VisionCare, Inc., 333 East Howard Avenue, Des Plaines, Illinois 60018; Attention: Chief Executive Officer; with a copy to Kirkland & Ellis, 200 East Randolph Street, Chicago, Illinois 60601, Attention: Dennis M. Myers, Esq. 12. Termination. (a) Termination; General. This Agreement may be terminated by you by notice to the Company and the Selling Shareholders as follows: (i) at any time prior to the Closing Date if any of the following has occurred: (A) since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change or any development involving a prospective material adverse change in or affecting the condition, financial or otherwise, of the Company and its Subsidiaries taken as a whole or the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company and its Subsidiaries taken as a whole, whether or not arising in the ordinary course of business; (B) any outbreak or escalation of hostilities or declaration of war or national emergency or other national or international calamity or crisis or change in economic or political conditions if the effect of such outbreak, escalation, declaration, emergency, calamity, crisis or change on the financial markets of the United States would, in your reasonable judgment, make it impracticable to market the Shares or to enforce contracts for the sale of the Shares; (C) suspension of trading in securities generally on the New York Stock Exchange or the American Stock Exchange or in the Nasdaq National Market or limitation on prices (other than limitations on hours or numbers of days of trading) for securities on either such exchange or the Nasdaq National Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority; (D) declaration of a banking moratorium by United States or New York State authorities; (E) the suspension, or the material limitation, of trading of the Company's common stock by the Commission on The Nasdaq National Market; or (vii) the taking of any action by any governmental body or agency in respect of its monetary or fiscal affairs which in your reasonable opinion has a material adverse effect on the securities markets in the United States; or (ii) as provided in Sections 6, 9 and 10 of this Agreement. -31- 13. Successors. This Agreement has been and is made solely for the benefit of the Underwriters, the Company, the Principal Operating Subsidiary and the Selling Shareholders and their respective successors, executors, administrators, heirs and assigns, and the officers, directors and controlling persons referred to herein, and no other person will have any right or obligation hereunder. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters, the Company and the Principal Operating Subsidiary and their respective successors and the controlling persons and officers and directors referred to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters, the Company and the Principal Operating Subsidiary and their respective successors, and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of any of the Shares from any Underwriter shall be deemed a successor or assign merely because of such purchase. 14. Information Provided by Underwriters. The Company, the Principal Operating Subsidiary, the Selling Shareholders and the Underwriters acknowledge and agree that the only information furnished or to be furnished by any Underwriter to the Company for inclusion in any Prospectus or the Registration Statement consists of the information set forth in the last paragraph on the front cover page of the Prospectus (insofar as such information relates to the Underwriters), the legends required by Item 502(d) of Regulation S-K under the 1933 Act on the inside front cover page of the Prospectus, and the information under the caption "Underwriting" in the Prospectus. 15. Miscellaneous. (a) Survival of Agreements. The reimbursement, indemnification and contribution agreements contained in this Agreement and the representations, warranties and covenants in this Agreement or in certificates of officers of the Company or any of its Subsidiaries submitted pursuant hereto shall remain in full force and effect regardless of (a) any termination of this Agreement, (b) any investigation made by or on behalf of any Underwriter or controlling person thereof, or by or on behalf of the Company or its directors or officers, and (c) delivery of and payment for the Shares under this Agreement. (b) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Maryland. (c) Section Headings. The Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. -32- If the foregoing letter is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicates hereof, whereupon it will become a binding agreement among the Company, the Principal Operating Subsidiary, the Selling Shareholders and the several Underwriters in accordance with its terms. Very truly yours, WESLEY JESSEN VISIONCARE, INC. By: ------------------------------- Name: Title: WESLEY JESSEN VISIONCARE, INC. By: ------------------------------- Name: Title: BAIN CAPITAL FUND IV, L.P. By: Bain Capital Partners IV, L.P. Its General Partner By: Bain Capital Investors, Inc. Its General Partner By: ------------------------------- Name: Title: Managing Director BAIN CAPITAL FUND IV-B, L.P. By: Bain Capital Partners IV, L.P. Its General Partner By: Bain Capital Investors, Inc. Its General Partner By: ------------------------------- Name: Title: Managing Director BCIP ASSOCIATES By: ------------------------------- Name: Title: General Partner BCIP TRUST ASSOCIATES, L.P. By: ------------------------------- Name: Title: General Partner COMBINED JEWISH PHILANTHROPIES By: ------------------------------- Name: Title: THE WEBSTER CHARITABLE TRUST By: ------------------------------- Name: Title: FIDELITY INVESTMENTS CHARITABLE GIFTS FUND By: ------------------------------- Name: Title: The foregoing Underwriting Agreement is hereby confirmed and accepted as of the date first above written. [BT ALEX. BROWN INCORPORATED] Bear, Stearns & Co. Inc. Robert W. Baird & Co. Incorporated A. G. Edwards & Sons, Inc. Merrill Lynch & Co. Merrill Lynch, Pierce, Fenner & Smith Incorporated As Representatives of the several Underwriters listed on Schedule I By: [BT Alex. Brown Incorporated] By: ------------------------------- Name: Title: SCHEDULE I Schedule of Underwriters Number of Firm Shares Underwriter to be Purchased [BT Alex. Brown Incorporated]....................... Bear, Stearns & Co. Inc............................. Robert W. Baird & Co. Incorporated.............................. A. G. Edwards & Sons, Inc........................... Merrill Lynch, Pierce, Fenner & Smith Incorporated.............................. --------------- 4,600,000 TOTAL UNDERWRITERS ([5]) -39- SCHEDULE II Schedule of Option Shares Number of Option Shares Underwriter to be Purchased [BT Alex. Brown Incorporated]........................ Bear, Stearns & Co. Inc.............................. Robert W. Baird & Co. Incorporated............................... A. G. Edwards & Sons, Inc............................ Merrill Lynch, Pierce, Fenner & Smith Incorporated............................... --------------- 687,428 TOTAL UNDERWRITERS ([5]) -40- SCHEDULE III Schedule of Selling Shareholders
Number of Number of Firm Shares Option Shares Selling Shareholder To be Sold To be Sold - ------------------- ---------- ---------- Bain Capital Fund IV, L.P./+/ [1,849,782] 276,433 Bain Capital Fund IV-B, L.P./+/ [2,116,900] 316,351 BCIP Trust Associates, L.P./+/ [337,274] 50,403 BCIP Associates/+/ [296,044] 44,241 Combined Jewish Philanthropies [_____] [_____] Fidelity Investments Charitable Gifts Fund [_____] [_____] The Webster Charitable Trust [_____] [_____] ----------- ------- TOTAL 4,600,000 687,428 =========== =======
_______________ +Selling Shareholders who have granted an option to the Underwriters for the sale of Option Shares. See Section 2(c). SCHEDULE IV Schedule of Patents EXHIBIT 1 Form of Opinion of Counsel for the Company EXHIBIT 2 Form of Opinion of Counsel for the Company EXHIBIT 3 Form of Opinion of Intellectual Property Counsel for the Company EXHIBIT 4 Form of Opinion of Counsel for the Selling Shareholders EX-5.1 3 OPINION AND CONSENT OF KIRKLAND & ELLIS Exhibit 5.1 ----------- KIRKLAND & ELLIS PARTNERSHIPS INCLUDING PROFESSIONAL CORPORATIONS 200 East Randolph Drive Chicago, Illinois 60601 To Call Writer Direct: 312 861-2000 Facsimile: 312 861-2000 312 861-2200 June 11, 1999 Wesley Jessen VisionCare, Inc. 333 East Howard Avenue Des Plaines, Illinois 60018-5903 Re: Wesley Jessen VisionCare, Inc. Registration Statement on Form S-3 Registration No. 333-79293 ---------------------------------- Ladies and Gentlemen: We are acting as special counsel to Wesley Jessen VisionCare, Inc., a Delaware corporation (the "Company"), in connection with the proposed registration by the Company of 4,600,000 shares of its Common Stock, par value $.01 per share (the "Common Stock"), plus up to an additional 687,428 shares (all such shares, together with any additional shares registered pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the "Act"), the "Shares") of its Common Stock to cover over-allotments, if any, pursuant to a Registration Statement on Form S-3 (Registration No. 333-79293), filed with the Securities and Exchange Commission (the "Commission") under the Act (such Registration Statement, as amended or supplemented, is hereinafter referred to as the "Registration Statement"). The Shares are to be sold pursuant to an Underwriting Agreement between the Company and BT Alex. Brown Incorporated, Bear, Stearns & Co. Inc., Robert W. Baird & Co. Incorporated, A.G. Edwards & Sons, Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as representatives of the several Underwriters. In that connection, we have examined such corporate proceedings, documents, records and matters of law as we have deemed necessary to enable us to render this opinion. For purposes of this opinion, we have assumed the authenticity of all documents submitted to us as originals, the conformity to the originals of all documents submitted to us as copies and the authenticity of the originals of all documents submitted to us as copies. We have also assumed the legal capacity of all natural persons, the genuineness of the signatures of persons signing all documents in connection with which this opinion is rendered, the authority of such persons signing on behalf of the parties thereto other than the Company and the due authorization, execution and delivery of all documents by the parties thereto other than the Company. As to any facts material to the opinions expressed herein, we have relied upon the statements and representations of officers and other representations of the Company and others. London Los Angeles New York Washington D.C. KIRKLAND & ELLIS Wesley Jessen VisionCare, Inc. June 11, 1999 Page 2 Our opinion expressed below is subject to the qualifications that we express no opinion as to the applicability of, compliance with, or effect of any laws except the internal laws of the State of New York, the General Corporation Law of the State of Delaware (the "DGCL") and the federal law of the United States of America. Based upon and subject to the foregoing qualifications, assumptions and limitations and the further limitations set forth below, we hereby advise you that, in our opinion, the Shares are duly authorized, validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Registration Statement. We also consent to the reference to our firm under the heading "Legal Matters" in the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission. This opinion and consent may be incorporated by reference in a subsequent registration statement on Form S-3 filed pursuant to Rule 462(b) under the Act with respect to the registration of additional securities for sale in the offering contemplated by the Registration Statement. We do not find it necessary for the purposes of this opinion, and accordingly we do not purport to cover herein, the application of the securities or "Blue Sky" laws of the various states to the issuance and sale of the Shares. This opinion is limited to the specific issues addressed herein, and no opinion may be inferred or implied beyond that expressly stated herein. We assume no obligation to revise or supplement this opinion should the present laws of the State of New York, the DGCL or the federal law of the United States be changed by legislative action, judicial decision or otherwise. This opinion is furnished to you pursuant to the applicable rules and regulations promulgated under the Act in connection with the filing of the Registration Statement. Very truly yours, /s/ Kirkland & Ellis KIRKLAND & ELLIS EX-23.1 4 CONSENT OF PRICEWATERHOUSECOOPERS LLP EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated February 23, 1999 relating to the financial statements and our report dated February 23, 1999 relating to the financial statement schedules, which appear in Wesley Jessen VisionCare, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1998. We also consent to the references to us under the headings "Experts" and "Selected Historical Consolidated Financial Data" in such Registration Statement. /s/ PricewaterhouseCoopers LLP PricewaterhouseCoopers LLP Chicago, Illinois June 10, 1999 -----END PRIVACY-ENHANCED MESSAGE-----