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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE TO
AMENDMENT NO. 2
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) or 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
SYBRON DENTAL SPECIALTIES, INC.
(Name of Subject Company)
DANAHER CORPORATION
SMILE ACQUISITION CORP.
(Name of Filing Persons--Offerors)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
(Title of Class of Securities)
871142105
(CUSIP Number of Class of Securities)
Daniel L. Comas
Executive Vice President and Chief Financial Officer
Danaher Corporation
2099 Pennsylvania Avenue, NW
12th Floor
Washington, D.C. 20006
(202) 828-0850
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Filing Persons)
-Copies to-
Trevor S. Norwitz, Esq.
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
(212) 403-1000
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CALCULATION OF FILING FEE
Transaction Valuation Amount of Filing Fee
------------------------------------- ----------------------------------
2,046,908,434* $219,019*
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* Estimated for purposes of calculating the amount of the filing fee only.
The calculation of the filing fee is described on the cover page to the
Schedule TO filed on April 18, 2006.
[X] Check the box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
Amount Previously Paid: $219,019 Filing Party: Danaher Corporation
Form or Registration No.: Schedule TO Date Filed: April 18, 2006
[_] Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer. Check the appropriate boxes
below to designate any transactions to which the statement relates:
[X] third-party tender offer subject to Rule 14d-1.
[_] issuer tender offer subject to Rule 13e-4.
[_] going-private transaction subject to Rule 13e-3.
[_] amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the results
of the tender offer: [_]
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This Amendment No. 2 amends and supplements the Tender Offer
Statement on Schedule TO, as amended, (the "SCHEDULE TO"), originally filed with
the Securities and Exchange Commission on April 18, 2006 and as amended and
supplemented by Amendment No. 1 on April 21, 2006, by Danaher Corporation
("DANAHER"), a Delaware corporation, and Smile Acquisition Corp. ("PURCHASER"),
a Delaware corporation and an indirect wholly owned subsidiary of Danaher. The
Schedule TO relates to the offer by Purchaser to purchase any and all of the
outstanding shares of common stock, par value $0.01 per share (the "Shares"), of
Sybron Dental Specialties, Inc., a Delaware corporation ("SYBRON"), for $47.00
per Share, net to the seller in cash, upon the terms and subject to the
conditions set forth in the Offer to Purchase, dated April 18, 2006 (the "OFFER
TO PURCHASE"), and in the related Letter of Transmittal. Copies of the Offer to
Purchase and the related Letter of Transmittal are filed with the Schedule TO as
exhibits (a)(1)(A) and (a)(1)(B), respectively. Capitalized terms used and not
defined herein shall have the meanings assigned such terms in the Offer to
Purchase and Schedule TO.
ITEMS 1 THROUGH 9 AND 11.
Items 1 through 9 and 11 of the Schedule TO, which incorporate by reference
the information contained in the Offer to Purchase, are hereby amended and
supplemented as follows:
The Complaint titled Dolphin Limited Partnership I, L.P., et al. v. Sybron
Dental Specialties, Inc., et al., filed on April 24, 2006, in the Superior Court
of the State of California, County of Orange, Case No. 06CC00082, is filed as
Exhibit (a)(6)(A) hereto and is incorporated herein by reference.
The Credit Agreement, dated as of April 25, 2006, among Danaher Corporation
and Bank of America, N.A., et al., is filed as Exhibit (b)(1) hereto and is
incorporated herein by reference.
The commitment letter with respect to a US$700,000,000 364 Day Revolving
Credit Facility for Danaher Corporation, dated April 11, 2006, by UBS Loan
Finance LLC., is filed as Exhibit (b)(2) hereto and is incorporated herein by
reference.
ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON.
Item 3 entitled "Identity and Background of Filing Person"
is hereby deleted and replaced in its entirety with the
following sentence:
"None of Danaher, the Purchaser or, to the best knowledge of
such corporations after reasonable inquiry, any of the
persons listed on Schedule I to the Offer of Purchase, has
during the last five years (i) been convicted in a criminal
proceeding (excluding traffic violations or similar
misdemeanors) or (ii) been a party to any judicial or
administrative proceeding (except for matters that were
dismissed without sanction or settlement) that resulted in a
judgment, decree or final order enjoining the person from
future
violations of, or prohibiting activities subject to, federal
or state securities laws or finding any violation of such
laws.
The Offer to Purchase is hereby amended and supplemented as follows:
TERMS OF THE OFFER
The following language is hereby inserted as an additional
paragraph on page 2 following the second paragraph of
Section 1 entitled "Terms of the Offer" on such page:
"In accordance with Exchange Act Rule 14d-11 and the Merger
Agreement, Purchaser expressly reserves the right to provide
a subsequent offering period of between three and twenty
business days (as such term is defined under Exchange Act
Rule 14d-1(g)(3)) following the Expiration Date. If
included, a subsequent offering period would be an
additional period of time, following the expiration of the
Offer and the purchase of Shares in the Offer, during which
stockholders may tender any Shares not tendered in the
Offer. A subsequent offering period, if one is included, is
not an extension of the Offer, which already would have been
completed."
The following sentence is hereby inserted after the first
sentence in the third paragraph of Section 1 entitled "Terms
of the Offer" on page 2:
"Notwithstanding the foregoing, all conditions, other than
conditions subject to government approval or applicable law,
will be satisfied or waived on or before the Expiration
Date."
ACCEPTANCE FOR PAYMENT AND PAYMENT
In the seventh paragraph of Section 2 entitled "Acceptance
for Payment and Payment" on page 4, the words "as promptly
as practicable" are hereby deleted and replaced with the
word "promptly".
WITHDRAWAL RIGHTS
The second paragraph of Section 4 entitled "Withdrawal
Rights" on page 7 is hereby deleted and replaced with the
following:
"If, for any reason, acceptance for payment of any Shares
tendered in the Offer is delayed, or we are unable to accept
for payment or pay for Shares tendered in the Offer, then,
without prejudice to our rights set forth in this Offer to
Purchase, the Depositary may, nevertheless, on our behalf,
retain Shares that you have tendered,
and you may not withdraw your Shares, except to the extent
that you duly exercise withdrawal rights as described in
this section 4 before the Expiration Date or at any time
after June 16, 2006, unless theretofore accepted for payment
as provided herein."
MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES
The third paragraph of Section 5 entitled "Material U.S.
Federal Income Tax Consequences" on page 8 is hereby deleted
and replaced with the following:
"WE RECOMMEND THAT YOU CONSULT YOUR TAX ADVISOR WITH RESPECT
TO THE SPECIFIC TAX CONSEQUENCES TO YOU OF THE OFFER AND THE
MERGER, INCLUDING U.S. FEDERAL, STATE, LOCAL AND FOREIGN TAX
CONSEQUENCES."
INFORMATION CONCERNING SYBRON
The second sentence of the sixth paragraph in Section 8
entitled "Information Concerning Sybron" on page 10 is
hereby deleted and replaced with the following:
"You may read and copy any reports, statements or other
information filed at the SEC's public reference room at 450
Fifth Street, N.W., Washington, D.C. 20549."
INFORMATION CONCERNING DANAHER AND THE PURCHASER
In the fifth and sixth paragraphs of Section 9 entitled
"Information Concerning Danaher and the Purchaser", the
references on page 11 "to our knowledge" are hereby deleted
and replaced with the phrase:
"to our knowledge after reasonable inquiry."
SOURCE AND AMOUNT OF FUNDS
In the first paragraph of Section 12 entitled "Source and
Amount of Funds" on page 22, the last sentence is hereby
deleted and replaced with the following language:
"Danaher intends to fund the cash purchase price and related
expenses of the Offer with the proceeds of the issuance of
commercial paper of up to $2.2 billion, in the aggregate,
and from available cash. Danaher anticipates that the
commercial paper program will be backstopped by Danaher's
$1.5 billion bank credit facility (the "Bank Facility") and
a new 364 Day Revolving Credit Facility (the "New Revolving
Facility") in an aggregate principal
amount up to $700 million. The Bank Facility has a maturity
date of April 25, 2011, subject to a one-year extension at
the request of Danaher and with the consent of the lenders.
Danaher has received a commitment letter from UBS Loan
Finance LLC, dated April 11, 2006, which provides that the
New Revolving Facility will have a term of 364 days from its
effective date and will otherwise have terms substantially
similar to those of the Bank Facility.
Loans under Danaher's commercial paper program are expected
to be made on customary market terms. Interest expense is
expected to be paid on maturity, and is expected to be based
on prevailing market rates measured by reference to the
London inter-bank offered rate.
The Bank Facility is between Danaher and certain of its
subsidiaries and Bank of America, N.A., as Administrative
Agent and Swing Line Lender, Banc of America Securities LLC
and Citigroup Global Markets Inc. as Joint Lead Arrangers
and Joint Book Managers, Citibank, N.A., as Syndication
Agent, The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York
Branch, JPMorgan Chase Bank, N.A. and Wachovia Bank,
National Association, as Documentation Agents, and the other
lenders party thereto, and provides Danaher with a revolving
credit facility of up to $1.5 billion.
At Danaher's election, the interest rates per annum
applicable to borrowings under the Bank Facility are based
on a fluctuating rate of interest measured by reference to
either (a) the London inter-bank offered rate plus a
borrowing margin, or (b) a base rate. The Bank Facility also
provides for Bid Loans (as defined in the Bank Facility),
which bear interest at the rate bid by the particular lender
providing such loan. Danaher has agreed to pay to Bank of
America, as Administrative Agent, for the account of the
Lenders, a quarterly facility fee and a quarterly
utilization fee, the amount of each of which fluctuate based
on Danaher's credit rating at the time. The amount of the
utilization fee will also fluctuate with the aggregate
amount of borrowings under the Bank Facility. The Bank
Facility is prepayable in whole or in part without premium
or penalty, subject to the payment of an additional fee,
under certain circumstances.
Danaher's obligations under the Bank Facility are unsecured.
Danaher has unconditionally and irrevocably guaranteed the
obligations of each of its subsidiaries in the event a
subsidiary is named as a borrower under the Bank Facility.
The Bank Facility contains customary representations and
warranties, conditions
precedent, covenants, events of default, indemnities and
other provisions.
Copies of each of the Bank Facility and the New Revolving
Facility commitment letter are included as exhibits to
Danaher's Tender Offer Statement on Schedule TO filed with
the SEC. Reference is made to such exhibits for a more
complete description of the terms and conditions of the
credit facilities.
Danaher plans to repay the outstanding commercial paper
program and drawings under the Bank Facility and New
Revolving Facility over time with new financing and
available cash.
Danaher reserves the right to fund the purchase of the
securities under the Offer from one or a combination of the
above discussed sources or other sources."
CONDITIONS OF THE OFFER
The following language is hereby inserted as an additional
paragraph on page 24 following the last paragraph of Section
14 entitled "Conditions of the Offer" and prior to the
Section 15 entitled "Legal Matters; Required Regulatory
Approvals":
"For information with respect to the applicable waiting
periods for the review to be undertaken by the US and
foreign governmental agencies please see the discussion on
Section 15 entitled "Legal Matters; Required Regulatory
Approvals."
LEGAL MATTERS; REQUIRED REGULATORY APPROVALS
The following language is hereby inserted as an additional
paragraph on page 26 following the eighth paragraph of
Section 15 entitled "Legal Matters; Required Regulatory
Approvals":
"In addition to the United States, the transaction has been
notified in certain other jurisdictions, of which Danaher
considers Germany and Austria to be material. Notifications
were filed in Germany on April 20 and in Austria on April
21. The initial waiting periods for Austria and Germany
expire on May 19 and June 1 respectively. However, in each
jurisdiction the parties have sought expedited treatment
which would permit the relevant authorities in those
jurisdictions to terminate their review and end the relevant
waiting periods in each jurisdiction prior to May 15 and the
parties believe this transaction is consistent with the
standards for receipt of expedited treatment, although the
provision and timing of that treatment is within the
discretion of the relevant authorities. As in the United
States, each jurisdiction also has the authority to extend
the waiting periods if the relevant authority determines
that further investigation of the transaction is required."
LEGAL PROCEEDINGS
The following language is hereby inserted as an additional
Section on page 26 following the last paragraph of Section
17 entitled "Miscellaneous":
"18. LEGAL PROCEEDINGS.
On April 24, 2006, Dolphin Limited Partnership I, L.P. and
City of Pontiac General Employees' Retirement System,
purported holders of Shares, filed a class action complaint
in the Superior Court of the State of California, County of
Orange, purportedly on behalf of themselves and all others
similarly situated, against Sybron, Sybron's directors,
Purchaser and Danaher. The complaint alleges breach of
fiduciary duties of loyalty, due care, independence, good
faith, and fair dealing; failure to maximize shareholder
value; impermissibly locking up the proposed acquisition
through allegedly improper illegal defensive measures; and
failing to disclose material information to shareholders in
connection with the proposed acquisition. According to the
complaint, the plaintiffs seek, among other things,
preliminary and permanent equitable relief, including an
injunction against consummation of the proposed acquisition
and an unspecified amount for the costs and disbursements of
the lawsuit, including reasonable attorneys' and experts'
fees. Danaher believes the allegations of the complaint to
be without merit. The complaint is filed as an exhibit to
the Tender Offer Statement on Schedule TO that has been
filed with the SEC; please refer to that Exhibit for
additional information."
ITEM 12. EXHIBITS
Item 12 of the Schedule TO is hereby amended by adding
thereto the following:
(a)(6)(A) Complaint titled Dolphin Limited Partnership
I, L.P., et al. v. Sybron Dental
Specialties, Inc., et al., filed on April
24, 2006, in the Superior Court of the State
of California, County of Orange, Case No.
06CC00082.
(b)(1) Credit Agreement, dated as of April 25,
2006, among Danaher Corporation and Bank of
America, N.A., et al.
(b)(2) Commitment letter with respect to a
US$700,000,000 364 Day Revolving Credit
Facility for Danaher Corporation, dated
April 11, 2006, by UBS Loan Finance LLC.
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Dated: April 26, 2006
DANAHER CORPORATION
By: /s/ Daniel L. Comas
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Name: Daniel L. Comas
Title: Executive Vice President and
Chief Financial Officer
SMILE ACQUISITION CORP.
By: /s/ Daniel L. Comas
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Name: Daniel L. Comas
Title: President
EXHIBIT INDEX
*(a)(1)(A) Offer to Purchase, dated April 18, 2006.
*(a)(1)(B) Form of Letter of Transmittal.
*(a)(1)(C) Form of Notice of Guaranteed Delivery.
*(a)(1)(D) Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees.
*(a)(1)(E) Form of Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.
*(a)(1)(F) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
(a)(2) Not applicable.
(a)(3) Not applicable.
(a)(4) Not applicable.
*(a)(5)(A) Text of press release issued by Danaher dated April 12, 2006.
*(a)(5)(B) Form of summary advertisement dated April 18, 2006.
*(a)(5)(C) Excerpt from transcript of Danaher's first quarter 2006 earnings
call, dated April 20, 2006.
(a)(6)(A) Complaint titled Dolphin Limited Partnership I, L.P. et al. v. Sybron
Dental Specialties, Inc. et al., filed on April 24, 2006, in the
Superior Court of the State of California, County of Orange, Case No.
06CC00082.
(b)(1) Credit Agreement, dated as of April 25, 2006, among Danaher
Corporation and Bank of America, N.A., et al.
(b)(2) Commitment letter with respect to a US$700,000,000 364 Day
Revolving Credit Facility for Danaher Corporation, dated April 11,
2006, by UBS Loan Finance LLC.
*(d)(1) Agreement and Plan of Merger, dated as of April 12, 2006, between
Danaher, the Purchaser and Sybron.
*(d)(2) Confidentiality Agreement, dated as of March 13, 2006, between Danaher
and Sybron.
(g) None.
(h) Not applicable.
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* Previously filed.