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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-1
(AMENDMENT NO. 4) (FINAL AMENDMENT)
TENDER OFFER STATEMENT
PURSUANT TO SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
AND
SCHEDULE 13D/A
(AMENDMENT NO. 6)
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)
--------------------------
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 6 Pages)
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SCHEDULE 14D-1 AND 13D
CUSIP NO. 359536109
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(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
BIOVAIL CORPORATION INTERNATIONAL
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS
WC
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(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)
/ /
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Ontario, Canada
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(7) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
10,795,054
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(8) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN SHARES
/ /
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(9) PERCENT OF CLASS REPRESENTED TO AMOUNT IN ROW (7)
49.0%
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(10) TYPE OF REPORTING PERSON
CO
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(Page 2 of 6 Pages)
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SCHEDULE 14D-1
CUSIP NO. 359536109
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(1) NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
ABCI ACQUISITION SUB. CORPORATION
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(A) / /
(B) / /
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS
AF
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(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(D) OR 2(E)
/ /
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
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(7) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,585,225 SHARES
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(8) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN SHARES
/ /
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(9) PERCENT OF CLASS REPRESENTED TO AMOUNT IN ROW (7)
29.9%
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(10) TYPE OF REPORTING PERSON
CO
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Page 3 of 6 Pages
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This Amendment No. 4 to Schedule 14D-1 and Amendment No. 6 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. 4 to the Schedule 14D-1 and Amendment No.
6 to the Schedule 13D is to amend and supplement items 6 and 11 of the Schedule
14D-1 as described below. This Amendment No. 4 to Schedule 14D-1 constitutes the
final amendment to the Schedule 14D-1.
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.
Parent and Purchaser have received the requisite regulatory approvals and
have accepted for payment 6,585,225 of the Shares tendered pursuant to the Offer
and have notified the depositary, Chase Mellon Shareholder Services, L.L.C., to
promptly pay for the validly tendered and accepted Shares, in accordance with
the Offer.
The Parent and the Purchaser, in the manner and on the terms set forth in
the Merger Agreement described in the Offer to Purchase, intend to complete the
acquisition of the remaining outstanding Shares by merging Purchaser into the
Company following satisfaction of the conditions to the Merger set forth in the
Merger Agreement, including approval of the shareholders of the Company.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
(a)-(11) Press Release issued by Parent on September 3, 1999.
(Page 4 of 6 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: September 3, 1999 BIOVAIL CORPORATION INTERNATIONAL
By: /s/ KENNETH C. CANCELLARA
--------------------------------------
Kenneth C. Cancellara
Name: Senior Vice President, General Counsel and
Title: Secretary
ABCI ACQUISITION SUB. CORPORATION
By: /s/ KENNETH C. CANCELLARA
--------------------------------------
Name: Kenneth C. Cancellara
Title: Senior Vice President and Secretary
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(Page 5 of 6 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.
(a)(11) Press Release issued by Parent, dated September 3, 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.
******* Filed previously on Amendment No. 3 to Schedule 14D-1 and Amendment No.
5 to Schedule 13D on August 30, 1999.
(Page 6 of 6 Pages)
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Exhibit (a)(11)
"BIOVAIL AND FUISZ ANNOUNCE RESULTS OF TENDER OFFER"
TORONTO, Canada and CHANTILLY, Va.--(BW Health Wire)-- Sept. 3,
1999--Biovail Corporation International (NYSE: BVF) (TSE: BVF) and Fuisz
Technologies Ltd. (Nasdaq: FUSE) announced today that Biovail and ABCI
Acquisition Sub. Corporation, its wholly-owned merger subsidiary, have received
the requisite regulatory approvals and have instructed ChaseMellon Shareholder
Services, L.L.C., the depositary under ABCI Aquisition's tender offer for up to
6,585,225 outstanding shares of Fuisz, to accept for payment the shares tendered
pursuant to the tender offer.
Biovail and Fuisz were notified that the waiting period under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, was terminated
as of Thursday, September 2, 1999. Biovail has also received clearance from the
Department of Enterprise, Trade and Employment in Ireland.
Pursuant to the terms of the offer, Biovail and its subsidiary have accepted
for payment 6,585,225 of the 13,101,667 shares of Fuisz common stock which have
been validly tendered pursuant to the tender offer.
As specified in the Offer to Purchase relating to the tender offer, because
more than the maximum number of shares to be purchased were tendered, tendered
shares will be purchased 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. The final proration factor is
approximately 50%. Tendered shares not accepted for payment due to proration
will be returned to the tendering shareholder.
Biovail has instructed the depositary, ChaseMellon Shareholder Services,
L.L.C., to commence payment as soon as possible. Biovail expects that
shareholders will begin receiving payments for shares purchased pursuant to the
tender offer on Friday, September 3, 1999.
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, NY 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.
CONTACT: Biovail Corporation International
Eugene Melnyk or Kenneth Howling, 416/285-6000
Web Page: www.biovail.com
Investor Relations e-mail: [email protected]
or
Fuisz Technologies Ltd.
Dr. Richard C. Fuisz or John Redd, 703/995-2400
"SAFE HARBOR" STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM ACT OF
1995: STATEMENTS IN THIS PRESS RELEASE REGARDING BIOVAIL CORPORATION
INTERNATIONAL'S BUSINESS WHICH ARE NOT HISTORICAL FACTS ARE "FORWARD-LOOKING
STATEMENTS" THAT INVOLVE RISKS AND UNCERTAINTIES. FOR A DISCUSSION OF SUCH RISKS
AND UNCERTAINTIES, WHICH COULD CAUSE ACTUAL RESULTS TO DIFFER FROM THOSE
CONTAINED IN THE FORWARD-LOOKING STATEMENTS, SEE "RISK FACTORS" IN THE COMPANY'S
ANNUAL REPORT OR FORM 10-K FOR THE MOST RECENTLY ENDED FISCAL YEAR.
