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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-1
(AMENDMENT NO. 3)
TENDER OFFER STATEMENT
PURSUANT TO SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
AND
SCHEDULE 13D/A
(AMENDMENT NO. 5)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
FUISZ TECHNOLOGIES LTD.
(Name of Subject Company)
ABCI ACQUISITION SUB. CORPORATION
BIOVAIL CORPORATION INTERNATIONAL
(Bidders)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
359536109
(CUSIP Number of Class of Securities)
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KENNETH C. CANCELLARA, ESQ.
SENIOR VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
2488 DUNWIN DRIVE
MISSISSAUGA, ONTARIO
CANADA, L5L 1J9
(905) 608-8008
COPY TO:
ROGER ANDRUS, ESQ.
CAHILL GORDON & REINDEL
80 PINE STREET
NEW YORK, NEW YORK 10005
(212) 701-3000
(Name, Address; and Telephone Numbers of Person Authorized
to Receive Notices and Communications on Behalf of Bidders)
CALCULATION OF FILING FEE
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TRANSACTION VALUATION* AMOUNT OF FILING FEE
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$46,096,575 $0
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* For purposes of calculating the filing fee only. The filing fee was
calculated, pursuant to Section 13(e)(3) of the Securities Exchange Act of
1934, as amended and Rule 0-11 thereunder, on the basis of 22,030,723 shares
of Common Stock (the number of shares of Common Stock outstanding on the
date hereof, including vested options to acquire Common Stock, but excluding
unvested options to acquire Common Stock and excluding 4,209,829 Common
Stock owned by Biovail Corporation International, multiplied by the proposed
acquisition price U.S. $7.00 per share.
/X/ Check 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 date of its filing.
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Amount Previously Paid: $9,219.32 Filing ABCI Acquisition Sub. Corporation
Party: and Biovail Corporation
International
Form or Registration Schedule 14D-1 and Schedule 13D/A Date Filed: 7/30/99
No.: Amendment No. 2
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(CONTINUED ON FOLLOWING PAGE(S))
(Page 1 of 4 Pages)
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This Amendment No. 3 to Schedule 14D-1 and Amendment No. 5 to the Schedule
13D/A (the "Schedule 14D-1 and Schedule 13D/A") relate to the offer by ABCI
Acquisition Sub. Corporation, a newly organized Delaware corporation (the
"Purchaser") and a wholly owned subsidiary of Biovail Corporation International,
an Ontario, Canada corporation ("Parent"), to purchase for cash up to 6,585,225
of the outstanding shares of common stock, par value $0.01 per share (the
"Shares"), of Fuisz Technologies Ltd., a Delaware corporation (the "Company"),
at a purchase price of $7.00 per Share, net to the seller in cash, upon the
terms and subject to the conditions set forth in the Offer to Purchase dated
July 30, 1999 (the "Offer to Purchase") and in the related Letter of Transmittal
(the "Letter of Transmittal", together with the Offer to Purchase, the "Offer").
The Offer is conditioned upon, among other things, there being validly tendered
and not withdrawn prior to the expiration date of the Offer (the "Expiration
Date") at least 4,602,460 Shares (the "Minimum Condition"). This Schedule 14D-1
and 13D/A are being filed on behalf of the Purchaser and Parent.
The purpose of this Amendment No. 3 to the Schedule 14D-1 and Amendment No.
5 to the Schedule 13D is to amend and supplement items 6 and 11 of the Schedule
14D-1 as described below.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
Item 6. is hereby amended and supplemented by addition of the following
information:
At 12:00 midnight, New York City time on August 26, 1999, the Offer expired.
A total of approximately 13,402,974 Shares were tendered pursuant to the Offer,
which number includes 1,302,257 shares tendered by guaranteed delivery.
Pursuant to the terms of the Offer, Parent and Purchaser intend to delay
acceptance for payment of, and payment for, the tendered Shares pending the
expiration or termination of the Hart-Scott-Rodino waiting period, which is
currently scheduled to expire at 11:59 p.m., New York City time on September 3,
1999, and clearance under applicable Irish antitrust laws. The Parent and
Purchaser intend to accept tendered shares as soon as possible following receipt
of such approvals.
Parent and Purchaser expect to be able to announce the final results of
proration between five to seven Nasdaq National Market trading days after the
expiration date.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
(a)-(10) Press Release issued by Parent on August 27, 1999.
(Page 2 of 4 Pages)
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that
the information set forth in this statement is true, complete and correct.
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Dated: August 30, 1999 BIOVAIL CORPORATION INTERNATIONAL
By: /s/ KENNETH C. CANCELLARA
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Kenneth C. Cancellara
Name: Senior Vice President, General Counsel and
Title: Secretary
ABCI ACQUISITION SUB. CORPORATION
By: /s/ KENNETH C. CANCELLARA
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Name: Kenneth C. Cancellara
Title: Senior Vice President and Secretary
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(Page 3 of 4 Pages)
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EXHIBIT INDEX
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EXHIBIT PAGE
NO. EXHIBIT NAME NUMBER
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(a)(1) *** Offer to Purchase.
(a)(2) *** Letter of Transmittal (including Guidelines for Certification of Taxpayer
Identification Number on Form W-9).
(a)(3) *** Letter to brokers, dealers, commercial banks, trust companies and nominees.
(a)(4) *** Letter to be used by brokers, dealers, commercial banks, trust companies and nominees
to their clients.
(a)(5) *** Notice of Guaranteed Delivery.
(a)(6) * Press Release issued by Parent, dated July 26, 1999.
(a)(7) *** Press Release issued by Parent, dated July 28, 1999.
(a)(8) *** Form of newspaper advertisement, dated July 30, 1999.
(a)(9) *** Press Release issued by Parent, dated August 19, 1999.
(a)(10) Press Release issued by Parent, dated August 27, 1999.
(b) Not applicable.
(c)(1) *** Agreement and Plan of Merger (the "Merger Agreement"), dated July 25, 1999 by and among
Parent, the Purchaser and the Company.
(c)(2) ** Option Agreement, dated as of July 13, 1999, by and between Richard C. Fuisz, M.D. and
Biovail Corporation International.
(c)(3) ** Escrow Agreement, dated as of July 13, 1999, by and between Richard C. Fuisz, M.D.,
Biovail Corporation International and U.S. Trust Company, National Association.
(c)(4) *** Letter of Commitment, dated as of July 23, 1999, between Salisbury Ltd. and Biovail
Corporation International.
(c)(5) *** Letter of Commitment, dated as of July 23, 1999, between Westbury Ltd. and Biovail
Corporation International.
(c)(6) *** Letter of Acceptance, dated as of July 25, 1999, between Biovail Corporation
International and Salisbury Ltd.
(c)(7) *** Letter of Acceptance, dated as of July 25, 1999, between Biovail Corporation
International and Westbury Ltd.
(c)(8) *** Letter Agreement dated as of July 13, 1999, between Biovail Corporation International
and Richard C. Fuisz, M.D. regarding the Consulting Agreement.
(d) Not applicable.
(e) Not applicable.
(f) Not applicable.
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* Incorporated by reference from Parent's Report on Form 6-K, dated July
28, 1999.
** Incorporated by reference from the Parent's statement on Schedule 13D,
dated July 23, 1999.
*** Incorporated by reference from the Parent's statement on Schedule 13D/A
(Amendment No. 1), dated July 26, 1999.
**** Filed previously on Schedule 14D-1 and Amendment No. 2 to Schedule 13D on
July 30, 1999.
***** Filed previously on Amendment No. 1 to Schedule 14D-1 and Amendment No. 3
to Schedule 13D on August 3, 1999.
****** Filed previously on Amendment No. 2 to Schedule 14D-1 and Amendment No. 4
to Schedule 13D on August 19, 1999.
(Page 4 of 4 Pages)
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Exhibit 99.1
CONTACT: Eugene Melnyk
Chairman of the Board
Robert Podruzny
President
Kenneth Howling
Chief Financial Officer
(416) 285-6000
Web Page: www.biovail.com
Investor Relations e-mail:
[email protected]
"FOR IMMEDIATE RELEASE"
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"BIOVAIL ANNOUNCES EXPIRATION OF TENDER OFFER FOR FUISZ TECHNOLOGIES LTD."
TORONTO, CANADA, August 27, 1999--Biovail Corporation International (NYSE,
TSE: BVF) ("Biovail") announced today that the offer to purchase for $7.00 cash
per share up to 6,585,225 outstanding shares of Fuisz Technologies Ltd. (Nasdaq:
FUSE) ("Fuisz") by ABCI Acquisition Sub. Corporation, its wholly-owned merger
subsidiary, expired as scheduled at 12:00 midnight, New York City time, on
Thursday, August 26, 1999.
At the time of expiration, approximately 13,402,974 shares of Fuisz common
stock had been tendered pursuant to the tender offer, which number includes
1,302,257 shares tendered by guaranteed delivery.
Pursuant to the terms of the offer, Biovail and its subsidiary must await
the expiration or termination of the waiting period under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, before acceptance for payment
of, and payment for, validly tendered shares which may be affected. Biovail
expects such expiration or termination to be no later than 11:59 p.m., Friday,
September 3, 1999. Biovail has also filed a notification with the Department of
Enterprise, Trade and Employment in Ireland. Biovail hopes to receive this
clearance early next week. Biovail and its subsidiary intend to accept tendered
shares as soon as possible following receipt of such approvals.
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Because more than the maximum number of shares to be purchased were
tendered, Biovail and its subsidiary will be required to accept tendered shares
for payment on a pro rata basis, with adjustments to avoid purchases of
fractional shares, based upon the number of shares validly tendered prior to the
expiration date and not withdrawn.
Because of the difficulty of determining precisely the number of shares
validly tendered and not withdrawn, Biovail and its subsidiary do not expect to
be able to announce the final results of such proration, acceptance of shares
for payment and resultant payment thereof for between five to seven Nasdaq
National Market trading days after the expiration date. Tendered shares not
accepted for payment due to proration will be returned to the tendering
shareholder.
Tendered shares may not be withdrawn. However, if the tendered shares have
not been accepted for payment by September 27, 1999, they may be withdrawn at
any time after such date.
The information agent for the offer is MacKenzie Partners, Inc. 156 Fifth
Avenue, New York, NY 10010, telephone (212) 929-5500 or (800) 322-2885. The
Dealer Manager for the offer is Donaldson, Lufkin & Jenrette Securities
Corporation, 277 Park Avenue, New York, New York 10172, telephone (877)
233-9567.
Biovail Corporation International is an international full-service
pharmaceutical company, engaged in the formulation, clinical testing,
registration and manufacture of drug products utilizing advanced drug delivery
technologies.
"SAFE HARBOR" STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM ACT OF
1995.
TO THE EXTENT ANY STATEMENTS MADE IN THIS RELEASE CONTAIN INFORMATION THAT
IS NOT HISTORICAL, THESE STATEMENTS ARE ESSENTIALLY FORWARD LOOKING AND ARE
SUBJECT TO RISKS AND UNCERTAINTIES, INCLUDING THE DIFFICULTY OF PREDICTING FDA
APPROVALS, ACCEPTANCE AND DEMAND FOR NEW PHARMACEUTICAL PRODUCTS, THE IMPACT OF
COMPETITIVE PRODUCTS AND PRICING, NEW PRODUCT DEVELOPMENT AND LAUNCH, RELIANCE
ON KEY STRATEGIC ALLIANCES, AVAILABILITY OF RAW MATERIALS, THE REGULATORY
ENVIRONMENT, FLUCTUATIONS IN OPERATING RESULTS AND OTHER RISKS DETAILED FROM
TIME TO TIME IN THE COMPANY'S FILINGS WITH THE SECURITIES AND EXCHANGE
COMMISSION.
