SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
BIOVAIL CORPORATION
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(Exact name of registrant as specified in its charter)
Canada [Not Applicable]
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(Jurisdiction of incorporation) (I.R.S. Employer Identification No.)
2488 Dunwin Drive
Mississauga, Ontario, Canada L5L 1J9
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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Convertible Subordinated New York Stock Exchange, Inc.
Preferred Equivalent Debentures
If this form relates to the registration of a class of securities pursuant
to Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [ x ]
If this form relates to the registration of a class of securities pursuant
to Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [ ]
Securities Act registration statement file number to which this form
relates:
N/A
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(if applicable)
Securities to be registered pursuant to Section 12(g) of the Act:
None
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(Title of class)
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Item 1. Description of Registrant's Securities to Be Registered.
DESCRIPTION OF THE SECURITIES
Set forth below is a description of the principal terms of the Company's
6.75% Convertible Subordinated Preferred Equivalent Debentures (the
"Securities"). The following description does not purport to be complete and is
subject to, and is qualified in its entirety by reference to, the indenture
dated as of March 22, 2000 (the "Indenture") between the Company and Firstar
Bank N.A. (the "Trustee"). The Indenture is qualified as an indenture under the
U.S. Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and
the Trustee is eligible to act as trustee for purposes of compliance with the
Trust Indenture Act. A copy of the form of the Indenture has been filed with the
SEC as an exhibit to the Company's Registration Statement on Form F-10
(Registration No. 333-11580). The following summary of certain material
provisions of the Indenture does not purport to be complete. Where reference is
made to particular provisions of the Indenture, such provisions, including the
definitions of certain terms, are incorporated by reference as a part of such
summary or terms, which are qualified in their entirety by such reference. As
used under this heading "Description of the Securities", all references to the
"Company" refer to Biovail Corporation excluding, unless otherwise expressly
stated or the context otherwise requires, its subsidiaries. Other capitalized
terms used without definition are defined in the Indenture.
General
The Securities will be issued as unsecured convertible junior subordinated
debentures under the Indenture and were initially issued in the principal amount
of $300,000,000 ($345,000,000 if the Over-allotment Option is exercised in
full). The Company may from time to time, and without the consent of the holders
of the Securities, create and issue additional Securities so as to form a single
issue with the Securities.
The Securities are not subject to a sinking fund provision. The principal
amount of the Securities plus accrued and unpaid interest thereon will become
due on March 31, 2025 and will be payable by cash or, at the option of the
Company, by delivery of Shares to the Trustee and subsequent sale of the Shares
and delivery of cash equal to the principal amount of the Securities and accrued
and unpaid interest thereon to the holders of the Securities. See "--Share
Payment Election" below.
The Securities will be issued in fully-registered form only in
denominations of $50 and integral multiples thereof. The Securities were
initially issued as global fully-registered securities ("Global Securities").
Beneficial interests in the Global Securities representing the Securities will
be shown on, and transfers thereof will be effected only through, records
maintained by DTC and its participants. See "--The Depository, Book-Entry and
Settlement" below. As described herein, under certain limited circumstances, the
Securities may be issued in certificated non-book-entry form in exchange for a
Global Security. See "--Discontinuance of Depository's Services" below. Payments
on Securities issued as a Global Security will be made to DTC or a successor
depository.
In the event that the Securities are issued in certificated non-book-entry
form, principal and interest will be payable, the transfer of such Securities
will be registerable and such Securities will be exchangeable for Securities of
such series in other denominations of a like aggregate principal amount at the
corporate trust office of the Trustee, 101 East 5th Street, 12th floor, St.
Paul, Minnesota 55101 or its designated agent. Payment of principal and interest
will be made by check mailed to the address of the holder entitled thereto. Any
holder of $1 million or more aggregate principal amount of Securities may elect
to receive payments of principal and interest by wire transfer to an account
designated by such holder.
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Subordination
The Indenture provides that the Securities are subordinated and junior in
right of payment to all present and future Senior Indebtedness of the Company.
No payment of principal (including redemption payments) or interest on the
Securities may be made (1) if any Senior Indebtedness is not paid when due and
any applicable grace period with respect to such payment default on Senior
Indebtedness has ended and such default has not been cured or waived or ceased
to exist, or (2) if the maturity of any Senior Indebtedness has been accelerated
because of a default and either such acceleration has not been rescinded or such
Senior Indebtedness has not been repaid. Upon any distribution of assets of the
Company to creditors upon any dissolution, winding-up, liquidation or
reorganization, whether voluntary or involuntary, or in bankruptcy, insolvency,
receivership or other proceedings, all principal, premium, if any, and interest
due on all Senior Indebtedness of the Company must be paid in full before the
holders of the Securities are entitled to receive or retain any payment.
The term "Senior Indebtedness" means, with respect to the Company:
(1) the principal (including redemption payments), premium, if any,
interest and other payment obligations in respect of (A) indebtedness
of the Company for money borrowed and (B) indebtedness evidenced by
securities, debentures, bonds, notes or other similar instruments
issued by the Company, including any such securities issued under any
deed, indenture or other instrument to which the Company is a party
(including, for the avoidance of doubt, indentures pursuant to which
subordinated debentures have been or may be issued),
(2) all capital lease obligations of the Company,
(3) all obligations of the Company issued or assumed as the deferred
purchase price of property, all conditional sale obligations of the
Company, all hedging agreements and agreements of a similar nature
thereto and all agreements relating to any such agreements, and all
obligations of the Company under any title retention agreement (but
excluding trade accounts payable arising in the ordinary course of
business),
(4) all obligations of the Company for reimbursement on any letter of
credit, banker's acceptance, security purchase facility or similar
credit transaction,
(5) all obligations of the type referred to in clauses (1) through (4)
above of other persons for the payment of which the Company is
responsible or liable as obligor, guarantor or otherwise, and
(6) all obligations of the type referred to in clauses (1) through (5)
above of other persons secured by any lien on any property or asset of
the Company (whether or not such obligation is assumed by the
Company), in each case whether outstanding at the date of the
Indenture or thereafter incurred,
except for (A) the Securities, (B) any such indebtedness that contains express
terms, or is issued under a deed, indenture or other instrument which contains
express terms, providing that it is subordinate to or ranks pari passu with the
Securities and (C) any indebtedness between the Company and its affiliates.
Such Senior Indebtedness shall continue to be Senior Indebtedness and be
entitled to the benefits of the subordination provisions of the Indenture
irrespective of any amendment, modification or waiver of any term of such Senior
Indebtedness notwithstanding that no express written subordination agreement may
have been entered into between the holders of such Senior Indebtedness and the
Trustee or any of the holders of the Securities.
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The Securities are also be effectively subordinate to all present and
future indebtedness and other liabilities of the Company's subsidiaries, except
to the extent the Company is a creditor of such subsidiaries ranking at least
pari passu with such other creditors. The Indenture does not limit the aggregate
amount of indebtedness, including Senior Indebtedness and indebtedness ranking
pari passu with the Securities, that may be incurred by the Company or its
subsidiaries.
The Indenture and the Securities do not contain any covenants or other
provisions designed to afford holders of the Securities protection in the event
of a highly leveraged transaction involving the Company or any of its
subsidiaries or partnerships.
Optional Redemption
Except as provided under "--Special Redemption" and "--Redemption for
Changes in Canadian Tax Law," the Company may not redeem the Securities prior to
March 31, 2003. On and after such date, the Securities are redeemable, in whole
or in part, at any time other than during an Extension Period (as defined below)
and from time to time on not less than 30 days' and not more than 60 days' prior
written notice, at the following percentages of the principal amount of the
Securities to be redeemed plus accrued and unpaid interest thereon to the date
of such redemption if redeemed during the twelve-month period commencing on
March 31, in each of the following years indicated:
Year Redemption Year Redemption
Price Price
2003............. 104.725% 2007.................... 102.025%
2004............. 104.050% 2008.................... 101.350%
2005............. 103.375% 2009 ................... 100.675%
2006............. 102.700% 2010 and thereafter..... 100.000%
The principal and interest payable on any redemption date are payable in
cash by the Company, or at the option of the Company, by the delivery of
preferred shares of the Company that are not redeemable at the option of the
holder thereof ("Preferred Shares") or Common Shares of the Company or other
equity securities of the Company ("Equity Securities"), or any combination
thereof as the Company shall determine, in which event the holders of the
Securities shall be entitled to receive cash payments equal to the applicable
redemption price of the Securities from the proceeds of the sale by the Trustee
of the requisite Preferred Shares, Common Shares or Equity Securities, as the
case may be. In this prospectus, the Preferred Shares, Common Shares or Equity
Securities, as the case may be, will be referred to as the "Shares." See
"--Share Payment Election" below.
Special Redemption
At any time other than during an Extension Period, and from time to time
prior to March 31, 2003, the Company may redeem the Securities at its option, in
whole or in part, at a redemption price of 106.75% of the principal amount of
the Securities, plus accrued and unpaid interest to the redemption date, if any
("special redemption"), if the trading price of Common Shares equals or exceeds
$91.01 per share on the NYSE for 20 trading days within any 30 consecutive
trading days ending one day prior to the day on which the Company sends out a
special redemption notice. If the Company undertakes a special redemption,
holders of Securities called for redemption will, in addition to the payments
required by the preceding sentence, receive an "additional payment" in an amount
equal to the present value of the aggregate amount of the interest that would
thereafter have been payable on the Securities from the special redemption date
to March 31, 2003, called the "additional period." The Company is obligated to
make the additional payment on all Securities called for special redemption,
whether or not those Securities are converted into Common Shares prior to the
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special redemption date. The present value will be calculated using the bond
equivalent yield on U.S. Treasury notes or bills having a term nearest in length
to that of the additional period on the day immediately preceding the date on
which a notice of special redemption is mailed.
Redemption for Changes in Canadian Tax Law
The Securities also may be redeemed, at the option of the Company, in whole
but not in part, at any time other than during an Extension Period following the
occurrence of a Redemption Tax Event, on not less than 30 days and not more than
60 days prior written notice, on a redemption date falling on or after the 91st
day following the occurrence and during the continuance of a Redemption Tax
Event if, within the 90-day period following such Redemption Tax Event, the
Company is unable to avoid the adverse effect of such Redemption Tax Event by
taking some Ministerial Action (as defined in the Indenture) or pursuing some
other reasonable measure that will have no adverse effect on the Company or the
holders of the Securities. The redemption price for the Securities in such
circumstance shall be 100% of the principal amount thereof plus accrued and
unpaid interest to the date of redemption. The redemption price is payable in
cash or, at the option of the Company, by delivery of Shares to the Trustee. See
"--Share Payment Election."
A "Redemption Tax Event" means that the Company shall have delivered to the
Trustee an opinion of a nationally recognized independent Canadian tax counsel
experienced in such matters to the effect that a relevant tax law change has
occurred. A "relevant tax law change" is (1) any amendment to or change
(including any announced prospective change) in the laws (or any regulations
thereunder) of Canada or any political subdivision or taxing authority thereof
or therein, as applicable, or (2) any amendment to or change in an
interpretation or application of such laws or regulations by any legislative
body, court, governmental agency or regulatory authority including, for greater
certainty, an assessment or reassessment of the Company by the Canada Customs
and Revenue Agency or any federal or provincial taxation authority (and also
including the enactment of any legislation and the publication of any judicial
decision or regulatory determination), in either case, which amendment or change
occurs after the date of this prospectus and as a result of which (assuming that
such amendment or change is enacted or is applied to the Company) there is more
than an insubstantial risk that (A) the Company could become liable to pay, on
the next date on which any amount would be payable with respect to the
Securities, any Additional Amounts (as defined herein) (which are more than a de
minimis amount), or (B) the Company could be denied the deduction of interest
paid or payable in respect of the Securities in computing its income for the
purposes of the Income Tax Act (Canada) (the "ITA") or a provincial or
territorial income tax statute in Canada.
Canadian Withholding Taxes
All payments made by or on behalf of the Company under or with respect to
the Securities will be made free and clear of and without withholding or
deduction for or on account of any present or future tax, duty, levy, impost,
assessment or other government charge (including penalties, interest and other
liabilities related thereto) imposed or levied by or on behalf of the Government
of Canada or of any province or territory thereof or by any authority or agency
therein or thereof having power to tax ("Canadian Taxes") unless the Company is
required to withhold or deduct Canadian Taxes by law or by the interpretation or
administration thereof by the relevant government authority or agency.
If the Company is so required to withhold or deduct any amount for or on
account of Canadian Taxes from any payment made under or with respect to the
Securities, the Company will pay as additional interest such additional amounts
("Additional Amounts") as may be necessary so that the net amount received by
each holder of Securities after such withholding or deduction (including with
respect to Additional Amounts) will not be less than the amount the holder of
Securities would have received if such Canadian Taxes had not been withheld or
deducted (a similar payment will also be made to holders of Securities (other
than Excluded Holders as defined herein) that are exempt from withholding but
required to pay tax under Part XIII of the ITA
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directly on amounts otherwise subject to withholding); provided, however, that
no Additional Amounts will be payable with respect to a payment made to a holder
of Securities (an "Excluded Holder") in respect of the beneficial owner thereof:
(1) with which the Company does not deal at arm's length (for purposes of
the ITA) at the time of the making of such payment,
(2) which is subject to such Canadian Taxes by reason of its failure to
comply with any certification, identification, information,
documentation or other reporting requirement if compliance is required
by law, regulation, administrative practice or an applicable treaty as
a precondition to exemption from, or a reduction in the rate of
deduction or withholding of, such Canadian Taxes or
(3) which is subject to such Canadian Taxes by reason of its carrying on
business in or being connected with Canada or any province or
territory thereof otherwise than by the mere holding of Securities or
the receipt of payment thereunder.
The Company will make such withholding or deduction and remit the full
amount deducted or withheld to the relevant authority as and when required in
accordance with applicable law. The Company will pay all taxes, interest and
other liabilities which arise by virtue of any failure of the Company to
withhold, deduct and remit to the relevant authority on a timely basis the full
amounts required in accordance with applicable law. The Company will furnish to
the holder of the Securities, within 30 days after the date the payment of any
Canadian Taxes is due pursuant to applicable law, certified copies of tax
receipts evidencing such payment by the Company.
The foregoing obligations shall survive any termination, defeasance or
discharge of the Indenture.
Interest
Each Security shall bear interest from March 22, 2000 payable in U.S.
dollars, at the rate of 6.75% per annum payable quarterly in arrears except as
provided below, on March 31, June 30, September 30 and December 31 of each year,
commencing June 30, 2000 (each an "Interest Payment Date"), to the person in
whose name such Security is registered at the close of business on the relevant
record date (the "Record Date"), subject to certain exceptions. The relevant
record date for the payment of interest on an Interest Payment Date for such
Securities will be the preceding March 15, June 15, September 15 or December 15,
as applicable.
The amount of interest payable for any period will be computed on the basis
of a 360-day year of twelve 30-day months. In the event that any date on which
interest is payable on the Securities is not a Business Day (a day other than
Saturday, Sunday or any other day on which banking institutions in New York City
are permitted or required by applicable law, regulation or executive order to
close), then payment of the interest otherwise due on such date will be made on
the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay), except that, if such Business Day
is in the next succeeding calendar year, then such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date.
Interest payments will be made in an amount equal to the interest accrued
from and including the immediately preceding Interest Payment Date in respect of
which interest has been paid or duly made available for payment (or from and
including the date of issue, if no interest has been paid or duly made available
for payment) to but excluding the applicable Interest Payment Date or Maturity
Date, as the case may be.
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Option to Extend Interest Payment Periods
The Company shall have the right, at any time and from time to time,
subject to certain conditions, to defer payments of interest on the Securities
by extending the interest payment periods on the Securities for periods (each
such period, an "Extension Period"), each not exceeding 20 consecutive quarterly
periods; provided that during any Extension Period:
(1) the Company shall not declare or pay dividends on, or make a
distribution with respect to, or redeem, purchase or acquire, or make
a liquidation payment with respect to, any of its capital stock, other
than:
(A) as a result of an exchange or conversion of any class or series
of the Company's capital stock or rights to acquire such stock
for any other class or series of the Company's capital stock or
rights to acquire such stock,
(B) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or
exchanged,
(C) dividends or distributions made with respect to either the
Company's capital stock or rights to acquire such capital stock,
payable in either the Company's capital stock or rights to
acquire such capital stock,
(D) purchases of Common Shares related to the issuance of Common
Shares or rights or options under any of the Company's benefit
plans for its directors, officers, employees or other persons
within the definition of "employee" under any employee benefit
plan of the Company, or related to the issuance of Common Shares
or rights under a dividend reinvestment plan or stock purchase
plan, provided that such benefit, dividend reinvestment or stock
purchase plan shall have been in existence for at least 180 days
prior to any such purchase (such purchases and issuances being
referred to collectively as, "exchanges under the Employee
Benefit Plans"),
(E) redemptions or repurchases of any rights outstanding under a
shareholder rights plan, and
(2) the Company shall not make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities
or indebtedness for money borrowed (excluding, for the avoidance of
doubt, Senior Indebtedness in respect of which such payments,
repayments, repurchases and redemptions may be made and also excluding
trade payables arising in the ordinary course of business) issued or
incurred by the Company that ranks pari passu with or junior to the
Securities.
Prior to the termination of any Extension Period, the Company may further
defer payments of interest by extending the Extension Period of the Securities;
provided, however, that no Extension Period may exceed 20 consecutive quarterly
periods or extend beyond the stated maturity of the Securities. Upon the
termination of any Extension Period and the payment of all Deferred Interest,
the Company may commence a new Extension Period for up to 20 consecutive
quarterly periods, subject to the terms described herein. There may be multiple
Extension Periods of various lengths, each of up to 20 consecutive quarterly
periods, throughout the term of the Securities, but none of the Extension
Periods may extend beyond the stated maturity of the Securities.
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During an Extension Period, interest will accrue and will compound
quarterly. Each Extension Period shall end on an Interest Payment Date. All
interest accrued during an Extension Period ("Deferred Interest") shall be paid
on the Interest Payment Date at the end of such Extension Period. No interest
payments will be required to be made during an Extension Period except at the
end thereof.
The Company shall give the holders of the Securities notice of its
initiation of any Extension Period at least 20 Business Days prior to the
earlier of (1) the next succeeding Interest Payment Date or (2) the date upon
which the Company is required to give notice to any applicable self-regulatory
organization or holders of the Securities of the record date or payment date, in
each such case with respect to interest payments the payment of which is being
deferred.
The Company has no current intention of invoking an Extension Period.
Conversion Rights
The Securities are convertible at any time prior to maturity (the
"Conversion Expiration Date") at the option of the holder thereof and in the
manner described below, into Common Shares at $60.674 per share (equal to an
initial conversion ratio of .8241 Common Shares per Security, subject to
adjustment as described under the caption "--Conversion Price Adjustments"
below.) The conversion rights of the Securities called for redemption will be
terminated at the close of business on the Business Day immediately preceding
the date fixed for redemption. Prior to March 31, 2005, upon the occurrence of a
Transaction (as defined below) in which 100% of the value of the consideration
received by holders of Common Shares consists of cash (an "All Cash
Transaction"), the conversion rights of the Securities will be terminated on the
date upon which the holders of Common Shares shall have the right to receive
such cash. Holders who exercise their conditional conversion rights (as
described below) after the announcement of an All Cash Transaction will receive
accrued and unpaid interest to the Entitlement Date (as defined below) on such
converted Securities.
A holder of Securities wishing to exercise its conversion right shall
surrender such Securities, together with an irrevocable conversion notice to the
Trustee, as conversion agent or to such other agent appointed for such purpose
(the "Conversion Agent"). The conversion date will be the date on which the
Securities and the duly signed and completed notice of conversion are so
delivered. As promptly as practicable on or after the conversion date, the
Company will deliver to the Conversion Agent certificates for the number of
Common Shares issuable upon conversion with any fractional shares rounded up to
full shares or, at the Company's option, payment in cash in lieu of any
fractional share. Notwithstanding the foregoing, in the event of a proposed All
Cash Transaction, a holder of Securities may conditionally exercise its
conversion right prior to the Entitlement Date with respect to such All Cash
Transaction. If such All Cash Transaction is not consummated, the Conversion
Agent shall return the Securities subject to such conditional conversion to the
holder.
Except in the case of an All Cash Transaction as described above, accrued
and unpaid interest will not be paid on Securities that are converted; provided,
however, that holders of Securities at the close of business on a Record Date
will be entitled to receive the interest payable, in cash, on such Securities on
the corresponding Interest Payment Date notwithstanding the conversion of such
Securities on or subsequent to such a Record Date but prior to such Interest
Payment Date. Except as provided in the immediately preceding sentence, the
Company will make no payment or allowance for accrued and unpaid interest,
whether or not in arrears, on converted Securities. As described above under
"--Special Redemption" any additional payment payable on Securities called for
redemption will be payable whether or not those Securities are converted into
Common Shares prior to the special redemption date. Each conversion will be
deemed to have been effected immediately prior to the close of business on the
day on which proper notice was received by the Conversion Agent.
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The Common Shares issued upon conversion of Securities will be validly
issued, fully paid and non-assessable. No fractional shares will be issued as a
result of conversion, but in lieu thereof such fractional interest, at the
Company's option, will be paid in cash. See "Description of Capital Stock."
Conversion Price Adjustments
General. The conversion price will be subject to adjustment in certain
events including, without duplication: (i) the payment of dividends (and other
distributions) payable exclusively in Common Shares on Common Shares; (ii) the
issuance to all holders of Common Shares of rights or warrants entitling holders
of such rights or warrants (for a period not exceeding 45 days) to subscribe for
or purchase Common Shares at less than 100% of the then Current Market Price;
(iii) subdivisions and combinations of its outstanding Common Shares; (iv)
reclassification of the Common Shares into Common Shares and securities other
than Common Shares not constituting a Fundamental Change; (v) the payment of
dividends (and other distributions) to all holders of Common Shares consisting
of evidences of indebtedness of the Company, securities or capital stock, cash
or assets (but excluding those rights or warrants referred to above in clause
(ii) and dividends and distributions paid exclusively in cash); (vi) the payment
of dividends (and other distributions) on Common Shares paid exclusively in
cash, excluding cash dividends if the annualized per share amount thereof does
not exceed 10% of the last sale price of Common Shares, as reported on the NYSE,
on the trading day immediately preceding the date of declaration of such
dividend (such adjustment being limited to the amount in excess of 10% of such
Current Market Price); and (vii) payment in respect of a tender or exchange
offer (other than an odd-lot offer) by the Company or any subsidiary of the
Company for Common Shares in excess of 110% of the Current Market Price of
Common Shares on the trading day next succeeding the last date tenders or
exchanges may be made pursuant to such tender or exchange offer.
The Company from time to time may reduce the conversion price of the
Securities by any amount selected by the Company (and determined by the
Company's Board of Directors to be in the Company's best interests) for any
period of at least 20 days, in which case the Company shall give at least 15
days' notice of such reduction. The Company may, at its option, also make such
reductions in the conversion price, in addition to those set forth above, as the
Board of Directors of the Company deems advisable to avoid or diminish any
income tax to holders of Common Shares resulting from any dividend or
distribution of stock (or rights to acquire stock) or from any event treated as
such for income tax purposes.
No adjustment of the conversion price will be made upon the issuance of any
Common Shares pursuant to any present or future plan providing for the
reinvestment of dividends or interest payable on securities of the Company and
the investment of additional optional amounts in Common Shares under any such
plan, or the issuance of any Common Shares or options or rights to purchase such
shares pursuant to any present or future employee benefit plan or program of the
Company or pursuant to any option, warrant, right, or exercisable, exchangeable
or convertible security which does not constitute an issuance to all holders of
Common Shares (or a class thereof) of rights or warrants entitling holders of
such rights or warrants to subscribe for or purchase Common Shares at less than
100% of the Current Market Price. There shall also be no adjustment of the
conversion price in case of the issuance of any Common Shares (or securities
convertible into or exchangeable for Common Shares), except as specifically
described above. If any action would require adjustment of the conversion price
pursuant to more than one of the anti-dilution provisions, only one adjustment
shall be made and such adjustment shall be the amount of adjustment that has the
highest absolute value to holders of the Securities. No adjustment in the
conversion price will be required unless such adjustment would require an
increase or decrease of at least 1% of the conversion price, but any adjustment
that would otherwise be required to be made shall be carried forward and taken
into account in any subsequent adjustment.
Merger, Amalgamation, Arrangement, Consolidation or Sale of Assets of the
Company. In the event that the Company is a party to any transaction (including,
without limitation, a merger other than a merger that does not result in a
reclassification, conversion, exchange or cancellation of Common Shares),
amalgamation,
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arrangement, consolidation, continuance, sale of all or substantially all of the
assets of the Company, recapitalization, holding company reorganization or
reclassification of Common Shares or any compulsory share exchange (each of the
foregoing being referred to as a "Transaction"), in each case, as a result of
which Common Shares shall be converted into the right to receive, or shall be
exchanged for, (i) in the case of any Transaction other than a Transaction
involving a Stock Fundamental Change (and subject to funds being legally
available for such purpose under applicable law at the time of such conversion),
securities, cash or other property, each Security shall thereafter be
convertible into the kind and, in the case of a Transaction which does not
involve a Fundamental Change, amount of securities, cash and other property
receivable upon the consummation of such Transaction by a holder of that number
of Common Shares into which a Security was convertible immediately prior to such
Transaction (and subject to funds being legally available for such purpose under
applicable law at the time of such conversion), or (ii) in the case of a
Transaction involving a Stock Fundamental Change, each Security shall thereafter
be convertible (in the manner described herein) into common stock of the kind
received by holders of Common Shares (but in each case after giving effect to
any adjustment discussed below relating to a Fundamental Change if such
Transaction constitutes a Fundamental Change). The holders of Securities have no
voting rights with respect to any Transaction described in this section. The
Company has agreed in the Indenture that until March 31, 2005 it will not enter
into any Transaction unless provision is made that upon conversion the holders
of the Securities will receive only Common Shares of the Company or common
shares of a successor obligor of the Company which for each of the 10
consecutive days prior to the Entitlement Date have been admitted for listing or
admitted for listing subject to notice of issuance on a U.S. national securities
exchange or quoted on the Nasdaq National Market or any other quotation system
on which such common shares are admitted to trading or quoted. In addition,
prior to March 31, 2005, the Company shall not enter into a Transaction, other
than an All Cash Transaction, unless the person into whose common stock the
Securities will thereafter be convertible shall expressly assume, by a
supplemental indenture executed and delivered to the Trustee, all of the
obligations of the Company on all of the Securities and under the Indenture.
Upon execution of such supplemental indenture, the Company's obligations on the
Securities and under the Indenture will be released.
In a Non-Stock Fundamental Change where the initial value received per
Common Share (measured as described in the definition of Applicable Price) is
lower than the then applicable conversion price of a Security but greater than
or equal to the Reference Market Price, the conversion price will be adjusted as
described below with the effect that each Security will be convertible into
securities, cash or property of the same type received by the holders of Common
Shares in the Transaction but in an amount per Security that would at the time
of the Transaction have had a value equal to the then applicable redemption
price per Security set forth under the caption "--Optional Redemption" above.
In a Non-Stock Fundamental Change where the initial value received per
Common Share (measured as described in the definition of Applicable Price) is
lower than both the conversion price of a Security in effect prior to any
adjustment described below and the Reference Market Price, the conversion price
will be adjusted as described below but calculated as though such initial value
had been the Reference Market Price.
A Transaction that would have been a Non-Stock Fundamental Change will be
treated differently during the first five years. In a transaction where the
holders of Common Shares receive only cash, the conversion rights on the
Securities will be terminated upon consummation of the Transaction and the
Company will be obligated, within 30 days of the consummation of the
Transaction, to make an offer to purchase the Securities at 100% of the
principal amount, plus accrued and unpaid interest to the purchase date. If a
Holder elects to convert its Securities after announcement of a cash tender
offer to participate in such Transaction, the Holder will receive accrued and
unpaid interest to the conversion date. In a Transaction where the holders of
Common Shares receive common stock but its value represents not more than 50% of
the value of the consideration received, the Transaction will be treated like a
Stock Fundamental Change and the Company will be obligated, within 30 days of
the consummation of the Transaction, to make an offer to purchase the Securities
at 100% of the principal amount, plus accrued and unpaid interest to the
purchase date.
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In a Stock Fundamental Change, the following adjustments are designed to
provide in effect that (a) where Common Shares are converted partly into such
common stock and partly into other securities, cash, or property, each Security
will be convertible solely into a number of shares determined so that the
initial value of such shares (measured as described in the definition of
Purchaser Stock Price) equals the value of the Common Shares into which such
Security was convertible immediately before the Transaction (measured as
aforesaid) and (b) where the Common Shares are converted solely into such common
stock, each Security will be convertible into the same number of shares
receivable by a holder of the number of Common Shares into which such Security
was convertible immediately before such Transaction.
If any Fundamental Change occurs, then the conversion price in effect will
be adjusted immediately after such Fundamental Change as described below.
The conversion price in the case of any Fundamental Change will be adjusted
immediately after such Fundamental Change:
(i) in the case of a Non-Stock Fundamental Change, the conversion price of
the Securities immediately following such Non-Stock Fundamental Change
will be the lower of (A) the conversion price in effect immediately
prior to such Non-Stock Fundamental Change (after giving effect to any
other adjustments effected pursuant to the preceding paragraphs) and
(B) the product of (1) the greater of the Applicable Price and the
then applicable Reference Market Price and (2) a fraction, of which
the numerator is 100.0% and of which the denominator will be an amount
based on the date such Non-Stock Fundamental Change occurs. For the
12-month period beginning March 31, 2000 (and during the period from
March 22, 2000 to March 31, 2000) the denominator will be 106.75%, and
the denominator will decrease by .675% during each successive 12-month
period; provided, that the denominator shall in no event be less than
100.0%.
(ii) in the case of a Stock Fundamental Change, the conversion price of the
Securities immediately following such Stock Fundamental Change will be
the conversion price in effect immediately prior to such Stock
Fundamental Change (after giving effect to any adjustments effected
pursuant to the preceding paragraphs) as adjusted by multiplying such
conversion price by a fraction, of which the numerator will be the
Purchaser Stock Price and of which the denominator will be the
Applicable Price; provided, however, that in the event of a holding
company reorganization of the Company or in the event of a Stock
Fundamental Change in which (A) 100% of the value of the consideration
received by a holder of Common Shares is common stock of the
successor, acquiror, or other third party (and cash, if any, is paid
only with respect to any fractional interests in such common stock
resulting from such Stock Fundamental Change) and (B) all Common
Shares will have been exchanged for, converted into, or acquired for
common stock (and cash with respect to fractional interests) of the
successor, acquiror, or other third party, the conversion price of the
Securities immediately following such Stock Fundamental Change will be
the conversion price in effect immediately prior to such Stock
Fundamental Change as adjusted by multiplying such conversion price by
a fraction, of which the numerator will be one and of which the
denominator will be the number of shares of the successor, acquiror,
or other third party received by a holder of one Common Share as a
result of such Stock Fundamental Change.
The term "Applicable Price" means, (i) in the case of a Non-Stock
Fundamental Change in which the holders of the Common Shares receive only cash,
the amount of cash received by the holder of one Common Share and (ii) in the
event of any other Non-Stock Fundamental Change or any Stock Fundamental Change,
the average of the Closing Prices for the Common Shares during the 10 trading
days prior to the record date
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for determination of the holders of Common Shares entitled to receive such
securities, cash, or other property in connection with such Non-Stock
Fundamental Change or Stock Fundamental Change or, if there is no such record
date, the date upon which the holders of the Common Shares shall have the right
to receive such securities, cash, or other property (such record date or
distribution date being hereinafter referred to as the "Entitlement Date"), in
each case as adjusted in good faith by the Company to appropriately reflect any
of the events referred to in clauses (i) through (vii) of the first paragraph
under "--Conversion Price Adjustments--General."
The term "Closing Price" means on any day the reported last sale price on
such day or, in case no sale takes place on such day, the average of the
reported closing bid and asked prices in each case on the NYSE Composite Tape
or, if the stock is not traded on the NYSE, on the principal national securities
exchange or quotation system on which such stock is listed or admitted to
trading, or, if not listed or admitted to trading or quoted on any national
securities exchange or quotation system, the average of the closing bid and
asked prices of such stock in the over-the-counter market on the day in question
as reported by the National Quotation Bureau Incorporated, or a similar
generally accepted reporting service, or, if not so available in such manner, as
furnished by the NASD member firm, selected from time to time by the Board of
Directors of the Company for that purpose or, if not so available in such
manner, as otherwise determined in good faith by the Board of Directors of the
Company.
The term "Current Market Price" of Common Shares means the average of the
last reported sale prices, regular way, for the 10 consecutive trading-day
period ending on the date of such determination, or if no sale takes place on
any such day, the average of the reported closing bid and asked prices on such
days, regular way, in either case as reported on the NYSE Composite Tape, or, if
the Common Shares are not listed or admitted to trading on the NYSE on such day,
on the principal national securities exchange or quotation system on which the
Common Shares are listed or admitted to trading, or, if not listed or admitted
to trading or quoted on any national securities exchange or quotation system,
the average closing bid and asked prices of the Common Shares in the
over-the-counter market for such 10 consecutive trading-day period as reported
by the National Quotation Bureau Incorporated, or a similar generally accepted
reporting service, or, if not so available, in such manner, as furnished by the
NASD member firm selected from time to time by the Board of Directors of the
Company for that purpose or, if not so available in such manner, as otherwise
determined in good faith by the Board of Directors of the Company.
The term "Fundamental Change" means the occurrence of any Transaction or
event in connection with a plan pursuant to which all or substantially all of
the Common Shares shall be exchanged for, converted into, acquired for, or
constitute solely the right to receive securities, cash or other property
(whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, amalgamation, arrangement, continuance, combination,
reclassification, recapitalization, or otherwise), provided that, in the case of
a plan involving more than one such Transaction or event, for purposes of
adjustment on the conversion price, such Fundamental Change shall be deemed to
have occurred when substantially all of the Common Shares shall be exchanged
for, converted into, or acquired for or constitute solely the right to receive
securities, cash or other property, but the adjustment shall be based upon the
consideration that a holder of Common Shares received in such Transaction or
event as a result of which more than 50% of the Common Shares shall have been
exchanged for, converted into, or acquired for or constitute solely the right to
receive securities, cash, or other property.
The term "Non-Stock Fundamental Change" means any Fundamental Change other
than a Stock Fundamental Change.
The term "Purchaser Stock Price" means, with respect to any Stock
Fundamental Change, the average of the Closing Prices for the common stock
received in such Stock Fundamental Change for the 10 consecutive trading days
prior to and including the Entitlement Date, as adjusted in good faith by the
Company to
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appropriately reflect any of the events referred to in clauses (i) through (vii)
of the first paragraph under "--Conversion Price Adjustments--General."
The term "Reference Market Price" shall initially mean $33.71 (which is an
amount equal to 66 2/3% of the last reported sale price for Common Shares on the
NYSE on March 16, 2000) and in the event of any adjustment of the conversion
price other than as a result of a Non-Stock Fundamental Change, the Reference
Market Price shall also be adjusted so that the ratio of the Reference Market
Price to the conversion price after giving effect to any such adjustment shall
always be the same as the ratio of the initial Reference Market Price to the
initial conversion price of the Securities.
The term "Stock Fundamental Change" means either (i) any Fundamental Change
that is a holding company reorganization provided that immediately after such
Fundamental Change the Common Shares of the holding company in such Transaction
are admitted for listing on a national securities exchange or for quotation on
the Nasdaq National Market, (ii) any Fundamental Change in which more than 50%
of the value (as determined in good faith by the Board of Directors of the
Company) of the consideration received by holders of Common Shares consists of
common stock that for each of the 10 consecutive trading days prior to the
Entitlement Date has been admitted for listing or admitted for listing subject
to notice of issuance on a national securities exchange or quoted on the Nasdaq
National Market or (iii) any Transaction prior to March 31, 2005.
Change of Control
Prior to March 31, 2005, upon the occurrence of a Change of Control
Triggering Event that is a Stock Fundamental Change by virtue of only clause
(iii) of the definition of Stock Fundamental Change (a "Change of Control"),
each holder has the right to require the Company to repurchase all of such
holder's Securities in whole or in part (equal to $50 or an integral multiple
thereof) (the "Change of Control Offer") at a purchase price (the "Change of
Control Purchase Price") in cash equal to 100% of the aggregate principal amount
thereof, plus accrued and unpaid interest, if any, to the Change of Control
Payment Date (as defined below) on the terms described below.
Within 30 days following any Change of Control, the Company or the Trustee
(at the expense of the Company) will mail a notice to each holder and to the
Trustee stating, among other things:
(i) that a Change of Control has occurred and a Change of Control Offer is
being made as provided for in the Indenture, and that, although
holders are not required to tender their Securities, all Securities
that are timely tendered will be accepted for payment;
(ii) the Change of Control Purchase Price and the repurchase date, which
will be no earlier than 30 days and no later than 60 days after the
date such notice is mailed (the "Change of Control Payment Date");
(iii) that any Security accepted for payment pursuant to the Change of
Control Offer (and duly paid for on the Change of Control Payment
Date) will cease to accrue interest after the Change of Control
Payment Date; and
(iv) the instructions and any other information necessary to enable holders
to tender their Securities and have such Securities purchased pursuant
to the Change of Control Offer.
The Company will comply with any applicable tender offer rules (including,
without limitation, any applicable requirements of Rule 14e-1 under the Exchange
Act) in the event that the Change of Control Offer is triggered under the
circumstances described herein.
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The existence of the holders' rights to require, subject to certain
conditions, the Company to repurchase Securities upon a Change of Control may
deter a third party from acquiring the Company in a transaction that constitutes
a Change of Control. The source of funds for the repurchase of Securities upon a
Change of Control will be the Company's cash or cash generated from operations
or other sources, including borrowings or sales of assets. There can be no
assurance that the Company will have sufficient funds at the time of any Change
of Control to make any debt payment (including repurchases of Securities)
required by the foregoing covenant (as well as may be contained in other
securities of the Company which might be outstanding at the time). Future credit
agreements or other agreements relating to indebtedness to which the Company
becomes a party may prohibit the Company from purchasing any Securities as a
result of a Change of Control and/or provide that certain change of control
events with respect to the Company would constitute a default thereunder. In the
event that a Change of Control Offer occurs at a time when the Company does not
have sufficient available funds to pay the Change of Control Purchase Price for
all Securities timely tendered pursuant to such offer or at a time when the
Company is prohibited from purchasing the Securities (and the Company is unable
either to obtain the consent of the holders of the relevant indebtedness or to
repay such indebtedness), an Event of Default would occur under the Indenture.
The Company is not required to make a Change of Control Offer upon a Change
of Control if a third party makes the Change of Control Offer in the manner, at
the times and otherwise in compliance with the requirements set forth in the
Indenture applicable to a Change of Control Offer made by the Company and
repurchases all Securities validly tendered and not withdrawn under such Change
of Control Offer.
"Change of Control Triggering Event" means: (i) a determination by the
Company that any person or group (as defined in Section 13(d)(3) or 14(d)(2) of
the Exchange Act) has become the direct or beneficial owner (as defined in Rule
13d-3 under the Exchange Act) of more than 50% of the Voting Stock of the
Company; (ii) the Company is merged with or into or amalgamated or consolidated
with another corporation and, immediately after giving effect to the merger,
amalgamation or consolidation, less than 50% of the outstanding Voting Stock of
the surviving or resulting entity is then beneficially owned (within the meaning
of Rule 13d-3 of the Exchange Act) in the aggregate by: (x) the stockholders of
the Company immediately prior to such merger, amalgamation or consolidation, or
(y) if the record date has been set to determine the stockholders of the Company
entitled to vote on such merger, amalgamation or consolidation, the stockholders
of the Company as of such a record date; (iii) the sale, lease, transfer,
conveyance or other distribution (other than by way of merger, amalgamation or
consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Company and its subsidiaries, taken as a
whole, including Capital Stock of subsidiaries of the Company, to any person or
group of related persons for purposes of Section 13(d) of the Exchange Act; (iv)
the adoption of a plan relating to the liquidation or dissolution of the
Company; or (v) the first day on which a majority of the individuals who
constitute the board of directors of the Company are not Continuing Directors.
"Capital Stock" in any Person means any and all shares, interests,
partnership interests, participations or other equivalents however designated in
the equity interest in such person and any rights (other than debt securities
convertible into an equity interest), warrants or options to acquire any equity
interest in such person.
"Continuing Director" means an individual who: (i) is a member of the board
of directors of the Company and (ii) either: (A) was a member of the board of
directors of the Company on the date of the Indenture, or (B) whose nomination
for election or election to the board of directors of the Company was approved
by vote of a majority of the Continuing Directors who were members of such board
at the time of such election or nomination.
"Voting Stock" means with respect to any Person, securities of any class or
classes of Capital Stock in such Person entitling the holder thereof (whether at
all times or at the times that such class of Capital Stock
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has voting power by reason of the happening of any contingency) to vote in the
election of members of the board of directors or comparable body of such Person.
Share Payment Election
The Company may elect, from time to time, to satisfy its obligation to pay
any Deferred Interest on any Interest Payment Date or to pay the applicable
redemption price or the principal amount of the Securities plus accrued and
unpaid interest thereon on the date it is payable under the Indenture (the
"Maturity Date") by delivering Shares in accordance with the Indenture (the
"Share Payment Election"). The Indenture provides that, upon such election, the
Trustee shall:
(1) accept delivery of Shares from the Company plus cash in an amount
equal to the value of any fractional Share,
(2) accept bids with respect to, and consummate sales of, such Shares,
each as the Company shall direct in its absolute discretion,
(3) invest the proceeds of such sales in short-term United States
Government Obligations (as defined in the Indenture) specified by the
Company which mature prior to the applicable Interest Payment Date or
Maturity Date, and use such proceeds to pay the Deferred Interest or
applicable redemption price or principal amount of the Securities plus
accrued and unpaid interest thereon, as the case may be, and
(4) perform any other action necessarily incidental thereto.
Neither the Company's making of the Share Payment Election nor the
consummation of sales of Shares on the Share Delivery Date will (1) result in
the holders of the Securities not being entitled to receive, in accordance with
the foregoing procedures, on the applicable Interest Payment Date cash in an
aggregate amount equal to the Deferred Interest payable on such Interest Payment
Date or redemption price or principal amount of the Securities plus accrued and
unpaid interest thereon on the Maturity Date, as the case may be, or (2) entitle
such holders to receive any Shares in satisfaction of the Company's obligation
to pay such Deferred Interest or redemption price or principal amount of the
Securities plus accrued and unpaid interest thereon, as the case may be.
The Company shall make a Share Payment Election by delivering written
notice (the "Share Election Notice") to the Trustee no later than the earlier of
(1) the date required by applicable law or the rules of any stock exchange on
which the Securities are then listed or (2) 15 days prior to the applicable
Interest Payment Date or Maturity Date to which the Share Payment Election
relates.
The Trustee shall, in accordance with such notice, deliver requests for
bids (each a "Share Bid Request") to investment banks, brokers or dealers
selected by the Company. Such notice shall direct the Trustee to solicit and
accept only such bids, and the Share Bid Request shall make the acceptance of
any bid conditional on the acceptance of such bids, that together shall provide
for the delivery and sale of Shares against payment of the Share Election Amount
on the date (the "Share Delivery Date") that is no earlier than 90 days and no
later than one Business Day prior to the applicable Interest Payment Date or
Maturity Date.
The "Share Election Amount" means an amount of aggregate proceeds, based on
the bids obtained pursuant to the Share Bid Request, of the sale of Shares on
the Share Delivery Date, equal to the Deferred Interest or redemption price or
principal amount of the Securities plus accrued and unpaid interest thereon, as
the case may be, payable on such Interest Payment Date or Maturity Date less any
amount attributable to any fractional Share. The Share Election Notice shall
provide for, and all such bids shall be subject to, the right of
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<PAGE>
the Company, by delivering written notice to the Trustee at any time prior to
the consummation of such delivery and sale on the Share Delivery Date, to
withdraw the Share Payment Election (which will have the effect of withdrawing
the Share Bid Request), whereupon the Company shall be obligated to pay in cash
the Deferred Interest or redemption price or principal amount of the Securities
plus accrued and unpaid interest thereon, as applicable.
The Trustee shall inform the Company promptly following the receipt of any
bid or bids for Shares. The Trustee shall accept such bid or bids as the Company
(in its absolute discretion) shall direct, provided that the aggregate proceeds
of all such sales on the Share Delivery Date must equal the Share Election
Amount. In connection with any bids so accepted, the Company, the Trustee and
the applicable bidders shall, not later than the Share Delivery Date, enter into
customary purchase agreements (in each case, a "Share Purchase Agreement") and
shall comply with all applicable laws, including the securities laws of the
United States and Canada, the rules and regulations of any stock exchange on
which the Shares are then listed and the laws, rules and regulations of any
jurisdiction in which the Shares may be offered for sale. The Company shall pay
all fees and expenses in connection with the Share Purchase Agreements.
Provided that (1) all conditions specified in each Share Purchase Agreement
to the closing of all sales thereunder have been satisfied, other than the
delivery of the Shares to be sold thereunder against payment of the Share
Election Amount, and (2) the purchasers under the Share Purchase Agreements
shall be ready, willing and able to perform thereunder, in each case on the
Share Delivery Date, the Company shall, on the Share Delivery Date, deliver to
the Trustee the Shares to be sold on such date, cash in an amount equal to the
value of any fractional Shares and an officer's certificate to the effect that
all conditions precedent to such sales, including those set forth in the
Indenture and in each Share Purchase Agreement, have been satisfied.
Upon such deliveries, the Trustee shall consummate such sales on such Share
Delivery Date by delivery of the Shares to such purchasers against payment to
the Trustee in immediately available funds of the purchase price therefor in an
aggregate amount equal to the Share Election Amount, whereupon the sole right of
a holder of a Security in respect of such Deferred Interest or redemption price
or principal amount of the Security plus accrued and unpaid interest thereon, as
the case may be, will be to receive cash from the Trustee from the proceeds of
the sale of the Shares plus any amount received by the Trustee from the Company
in respect of any fractional Share in full satisfaction of such Deferred
Interest or redemption price or principal amount of the Security plus accrued
and unpaid interest thereon, as the case may be, and the holder of such Security
will have no further recourse to the Company in respect of such Deferred
Interest or redemption price or principal amount of the Security plus accrued
and unpaid interest thereon, as the case may be.
The Trustee shall use the sale proceeds of the Shares (together with any
cash received from the Company in respect of any fractional Share) to purchase
short-term United States Government Obligations specified by the Company which
mature prior to the applicable Interest Payment Date or Maturity Date, and which
the Trustee is required to hold until maturity (the "Share Proceeds Investment")
on the Share Delivery Date and shall on such date deposit the balance, if any,
in the Property Account (as defined in the Indenture), together with any portion
or all of such sales proceeds to the extent the Trustee is unable for any reason
whatsoever to use such sale proceeds to purchase the short-term United States
Government Obligations on the Share Delivery Date for such Securities.
The Trustee shall hold the Share Proceeds Investment under its exclusive
control and shall hold such investments (but not income earned thereon) in an
irrevocable trust for the benefit of the holders of the Securities. One Business
Day prior to the applicable Interest Payment Date or Maturity Date, the Trustee
shall deposit amounts from the proceeds of the Share Proceeds Investment in the
Property Account to bring the balance of the Property Account to the Share
Election Amount (plus the value of any fractional Share). On such Interest
Payment Date or Maturity Date, the Trustee shall apply the funds held in the
Property Account to payment of Deferred Interest or redemption price or
principal amount of the Securities plus accrued and un-
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paid interest thereon, as the case may be, to the holders of record of the
Securities on the applicable record date and shall remit amounts, if any, in
respect of income earned on the Share Proceeds Investment or otherwise in excess
of the Share Election Amount (plus the value of any fractional Share) to the
Company.
The Company shall indemnify and hold harmless the Trustee and (on an
after-tax basis) the holders of Securities, and any person who controls any such
holder within the meaning of any applicable securities laws, from and against
any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred by any such person
in connection with defending or investigating any such action or claim) caused
by or arising in connection with any Share Payment Election or any withdrawal
thereof, except in each case for any losses, claims, damages or liabilities
caused by any such person's negligence or misconduct. If the indemnification
provided for in this paragraph shall be unavailable to an indemnified person or
insufficient in respect of any losses, claims, damages or liabilities referred
to herein, then the Company shall contribute to the amount paid or payable by
such indemnified person as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative fault
of the Company and such indemnified person and any other equitable
considerations.
Mergers, Consolidations or Amalgamations
The Indenture provides that the Company may not consolidate or amalgamate
with or merge with or into any other company or other body or convey, transfer
or lease its properties and assets substantially as an entirety to any other
Person, unless, among other things, (1) the entity formed by such consolidation
or amalgamation or into which the Company is merged or the Person which shall
have acquired or leased such properties or assets shall be a company,
partnership or trust organized under the laws of Canada or any province or
territory thereof or the United States, any state thereof or the District of
Columbia, and, unless the Company is the continuing company, such entity shall
expressly assume the Company's obligation for the due and punctual payment of
the principal of and interest on all the Securities and the performance and
observance of every covenant of the Indenture on the part of the Company to be
performed or observed and (2) immediately after giving effect to such
transaction, no Event of Default (as herein defined) or event that after notice
or passage of time or both would be an Event of Default shall have occurred and
be continuing. The Company shall be considered to be the continuing Company in
the event of an amalgamation by the Company with any wholly-owned subsidiary.
Events of Default
The Indenture provides that any one or more of the following described
events which has occurred and is continuing constitutes an "Event of Default"
with respect to the Securities:
(1) failure for 30 days to pay interest on the Securities in cash or
pursuant to the Share Payment Election when due; provided that a valid
extension of an interest payment period by the Company shall not
constitute a default in the payment of interest for this purpose;
(2) failure to pay principal on the Securities in cash or pursuant to the
Share Payment Election when due whether at maturity, upon redemption,
by declaration or otherwise;
(3) failure to observe or perform any other covenant contained in the
Indenture or the Securities for 60 days after written notice thereof
to the Company from the Trustee or the holders of at least 25% in
principal amount of the outstanding Securities;
(4) the Company fails to comply with any of the covenants or agreements
contained in "Change of Control"; or
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(5) certain events of bankruptcy, insolvency or reorganization of the
Company under a bankruptcy or insolvency law.
The holders of a majority in aggregate principal amount of the outstanding
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee. The Trustee or the holders
of not less than 25% in aggregate principal amount of the outstanding Securities
may declare the principal of and the interest on the Securities (including
accrued interest, if any), and any other amounts payable under the Indenture to
be forthwith due and payable immediately upon an Event of Default, but the
holders of a majority in aggregate principal amount of the outstanding
Securities may annul such declaration and waive the default if the default has
been cured and a sum sufficient to pay all matured installments of interest and
principal due with respect to the Securities otherwise than by acceleration has
been deposited with the Trustee.
The holders of a majority in aggregate principal amount of the outstanding
Securities may, on behalf of the holders of all Securities, waive any past
default and its consequences, except (1) a default in the payment of principal
or interest (unless such default has been cured and a sum sufficient to pay all
matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Trustee) or (2) a default in respect of
a covenant or provision of the Indenture which cannot be modified or amended
without the consent of the holder of each outstanding Security.
The Indenture provides that no holder of the Securities may institute any
proceeding with respect to the Indenture unless: (1) such holder shall have
previously given to the Trustee written notice of any Event of Default and
continuance thereof, (2) the holders of not less than 25% in aggregate principal
amount of the outstanding Securities shall have requested the Trustee to
institute such proceeding and shall have offered the Trustee reasonable
indemnity in respect thereof, (3) the Trustee shall not have instituted such
proceeding within 60 days of such request, and (4) the Trustee shall not have
received directions inconsistent with such written request by the holders of a
majority in aggregate principal amount of the outstanding Securities.
Notwithstanding the foregoing, the holder of any Security has the right,
which is absolute and unconditional, to receive payment of the principal of and
interest on such Security on the due date thereof (as the same may be deferred
in accordance with the provisions of the Indenture) and to institute suit for
the enforcement of such payment, and such rights shall not be impaired without
the consent of such holder.
Limitation on Transactions
The Indenture provides that if (1) the Company shall exercise its right to
defer payment of interest as provided in the Indenture and so long as any
Extension Period with respect thereto is continuing, or (2) there shall have
occurred and be continuing any Event of Default, then:
(A) the Company shall not declare or pay dividends on, or make a
distribution with respect to, or redeem, purchase or acquire, or make
a liquidation payment with respect to, any of its capital stock, other
than
(i) as a result of an exchange or conversion of any class or series
of the Company's capital stock or rights to acquire such stock
for any other class or series of the Company's capital stock or
rights to acquire such stock,
(ii) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or
exchanged,
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(iii) dividends or distributions made with respect to either the
Company's capital stock or rights to acquire such capital stock,
payable in either the Company's capital stock or rights to
acquire such capital stock,
(iv) exchanges under the Employee Benefit Plans, or
(v) redemptions or repurchases of any rights outstanding under a
shareholder rights plan, and
(B) the Company shall not make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities
or indebtedness for borrowed money (excluding, for the avoidance of
doubt, Senior Indebtedness, in respect of which such payments,
repayments, repurchases and redemptions may be made and also excluding
trade payables arising in the ordinary course of business) issued or
incurred by the Company that rank pari passu with or junior to the
Securities.
The Depository, Book-Entry and Settlement
DTC will act as securities depository for the Securities. The Securities
will be issued only as Global Securities registered in the name of Cede & Co.
(DTC's partnership nominee).
The laws of some jurisdictions may require that certain purchasers of
securities take physical delivery of securities in definitive form. Such laws
may impair the ability to transfer beneficial interests in the Global Securities
as represented by a global certificate.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing company" within the meaning of
the New York Uniform Commercial Code and a "clearing agency" registered pursuant
to the provisions of Section 17A of the Exchange Act (as defined herein). DTC
holds securities that its participants ("Participants") deposit with DTC. DTC
also facilitates the settlement among Participants of securities transactions,
such as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates. Direct Participants
include securities brokers and dealers, banks, trust companies, clearing
companies and certain other organizations ("Direct Participants").
DTC is owned by a number of its Direct Participants and by the NYSE, the
American Stock Exchange, Inc. and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others, such as
securities brokers and dealers, banks and trust companies that clear
transactions through or maintain a custodial relationship with a Direct
Participant either directly or indirectly ("Indirect Participants"). The rules
applicable to DTC and its Participants are on file with the SEC.
Purchases of Securities within the DTC system must be made by or through
Direct Participants, which will receive a credit for the Securities on DTC's
records. The ownership interest of each actual purchaser of each Security
("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchases, but Beneficial Owners are expected to receive
written confirmation providing details of the transactions, as well as periodic
statements of their holdings, from the Direct or Indirect Participants through
which the Beneficial Owners hold Securities. Transfers of ownership interests in
the Securities will be accomplished by entries made on the books of Participants
acting on behalf of Beneficial Owners. Beneficial Owners will not receive
certificates representing their ownership interests in the Securities, except in
the event that use of the book-entry system for the Securities is discontinued.
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To facilitate subsequent transfers, all the Securities deposited by
Participants with DTC will be registered in the name of DTC's partnership
nominee, Cede & Co. The deposit of Securities with DTC and their registration in
the name of Cede & Co. will effect no change in beneficial ownership. DTC will
have no knowledge of the actual Beneficial Owners of the Securities. DTC's
records will reflect only the identity of the Direct Participants to whose
accounts such Securities are credited, which may or may not be the Beneficial
Owners. The Participants will remain responsible for keeping account of their
holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements
that may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. If less than all of the
Securities are being redeemed, DTC's practice is to determine by lot the amount
of the interest of each Direct Participant in such Securities to be redeemed.
Neither DTC nor Cede & Co. will itself consent or vote with respect to the
Securities. Under its usual procedures, DTC will mail an omnibus proxy to the
Direct Participants as soon as possible after the relevant record date. The
omnibus proxy assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts the Securities are credited on the record date
(identified in a listing attached to the omnibus proxy). The Company believes
that the arrangements among DTC, Direct and Indirect Participants, and
Beneficial Owners will enable the Beneficial Owners to exercise rights
equivalent in substance to the rights that can be directly exercised by a holder
of a Security.
Payments of interest on the Securities will be made to DTC. DTC's practice
is to credit Direct Participants' accounts on the relevant payment date in
accordance with their respective holdings shown on DTC's records unless DTC has
reason to believe that it will not receive payments on such payment date.
Payments by Participants to Beneficial Owners will be governed by standing
instructions and customary practices, as is the case with securities held for
the account of customers in bearer form or registered in "street name", and such
payments will be the responsibility of such Participants and not of DTC or the
Company, subject to any statutory or regulatory requirements to the contrary
that may be in effect from time to time. Payment of interest to DTC is the
responsibility of the Company, disbursements of such payments to Direct
Participants is the responsibility of DTC, and disbursement of such payments to
the Beneficial Owners is the responsibility of Direct and Indirect Participants.
Except as provided herein, a Beneficial Owner of an interest in a Global
Security will not be entitled to receive physical delivery of Securities.
Accordingly, each Beneficial Owner must rely on the procedures of DTC, the
Direct Participants and the Indirect Participants to exercise any rights under
the Securities.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that the Company believes to be reliable, but the
Company takes no responsibility for the accuracy thereof.
Neither the Company nor the Trustee will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests in a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
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Discontinuance of Depository's Services
A Global Security shall be exchangeable for Securities registered in the
names of persons other than DTC or its nominee or a successor depository or its
nominee only if:
(1) DTC or such successor depository, as applicable, notifies the Company
that it is unwilling or unable to continue as a depository for such
Global Security and no successor depository shall have been appointed
by the Company within 90 days of such notice,
(2) DTC or such successor depository, as applicable, at any time, ceases
to be a clearing agency registered under the Exchange Act at which
time DTC or such successor depository, as applicable, is required to
be so registered to act as such depository and no successor depository
shall have been appointed by the Company within 90 days,
(3) the Company, in its sole discretion, determines that such Global
Security shall be so exchangeable or
(4) there shall have occurred and shall be continuing an Event of Default
with respect to the Securities.
Any Global Security that is exchangeable pursuant to the preceding
paragraph shall be exchangeable for Securities registered in such names as DTC
or such successor depository, as applicable, shall direct. Such instructions
will be based upon directions received by DTC from its Participants or such
successor depository from its participants with respect to ownership of
beneficial interests in such Global Security.
Defeasance and Discharge
Under the terms of the Indenture, the Company will be discharged from any
and all obligations in respect of the Securities (except for, among other
things, certain obligations with respect to denominations and provisions for
payment of the Securities and obligations to register the transfer or exchange
of the Securities, to replace stolen, lost or mutilated Securities, to maintain
paying agencies, to hold moneys for payment in trust and to pay any Additional
Amounts), if:
(1) the Company deposits with the Trustee, in trust, monies or United
States Government Obligations in an amount sufficient to pay all the
principal of and interest on the Securities on the dates such payments
are due in accordance with the terms of such Securities,
(2) no Default or Event of Default shall have occurred and be continuing
on the date of deposit or, with respect to certain events of
bankruptcy or insolvency, at any time during the period ending on the
91st day after such deposit,
(3) the defeasance would not result in a breach or violation of the
Indenture or any other material agreement by which the Company is
bound,
(4) the Company shall have delivered to the Trustee an opinion of
nationally recognized counsel experienced in such matters to the
effect that, based upon a change in applicable United States federal
income tax law after the date of the Indenture or the Company's
receipt from, or the publication by, the Internal Revenue Service of a
ruling, the holders of such Securities will not recognize income, gain
or loss for United States federal income tax purposes as a result of
such defeasance and will be subject to United States federal income
tax on the same amounts and in the same manner and at the same times
as would have been the case if such defeasance had not occurred and
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(5) the Company has delivered to the Trustee an opinion of counsel
qualified to practice in Ontario or a ruling from the Canada Customs
and Revenue Agency to the effect that the holders of the Securities
will not recognize income, gain or loss for Canadian federal or
Ontario income tax or other tax purposes and will not be subject to
witholding tax as a result of such defeasance and will be subject to
Canadian federal and Ontario income tax and other tax on the same
amounts and in the same manner and at the same times as would have
been the case had such defeasance not occurred (and for the purposes
of such opinion, such Canadian counsel shall assume that holders of
the Securities are not resident in Canada).
Prior to depositing such amounts, the Company may give the Trustee notice,
which shall be irrevocable, of its election to redeem any or all of the
Securities at a future date.
Modification of the Indenture and Securities
Without the consent of any holder of Securities, the Company and the
Trustee may amend or supplement the Indenture or the Securities, among other
things, to cure any ambiguity, defect or inconsistency or to make any change
that does not adversely affect the rights of any holder of the Securities in any
material aspect. Other modifications and amendments of the Indenture may be made
by the Company and the Trustee with the consent of the holders of not less than
a majority in aggregate principal amount of the Securities; provided, however,
that no such modification or amendment may, without the consent of the holder of
each outstanding Security affected thereby, be made to:
(1) change the stated maturity of the principal of, or any installment of
principal of, or interest on any Security, including any requirement
of the Company to pay Additional Amounts,
(2) reduce the principal amount of Securities or the accrued and unpaid
interest thereon, or the rate of interest, if any, on any Security or
alter the provisions with respect to the price to be paid upon
redemption of any Security;
(3) change the place or currency of payment of principal of or interest on
the Securities;
(4) impair the right to institute suit for the enforcement of any payment
on or with respect to the Securities on or after the due date thereof;
(5) modify the conversion or subordination provisions applicable to the
Securities or the definition of "Senior Indebtedness" in a manner
adverse to the holders thereof;
(6) reduce the percentage in principal amount of Outstanding Securities
the consent of the holders of which is required for modification or
amendment of the Indenture or for waiver of compliance with certain
provisions of the Indenture or for waiver of certain defaults; or
(7) modify any of the provisions of certain sections as specified in the
Indenture including the provisions summarized in this paragraph.
Governing Law
The Indenture and the Securities are governed by and construed in
accordance with the laws of the State of New York.
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Consent to Service
In connection with the Indenture, the Company designated and appointed CT
Corporation System, as its authorized agent upon which process may be served in
any suit or proceeding arising out of or relating to the Indenture or the
Securities that may be instituted in any federal or New York state court located
in the Borough of Manhattan, in The City of New York, or brought by the Trustee
(whether in its individual capacity or in its capacity as Trustee under the
Indenture), and has irrevocably submited to the non-exclusive jurisdiction of
such courts.
Enforceability of Judgments
Since substantially all of the assets of the Company, as well as the assets
of most of the directors and officers of the Company, are outside the United
States, any judgment obtained in the United States against the Company or
certain of the directors or officers thereof, including judgments with respect
to the payment of principal on the Securities, may not be collectible within the
United States.
The Company has been informed by Stikeman Elliott, Canadian counsel for the
Company, that the laws of the Province of Ontario and the federal laws of Canada
applicable therein permit an action to be brought in a court of competent
jurisdiction in the Province of Ontario on any final and conclusive judgment in
personam of any federal or state court located in the State of New York (a "New
York Court") against the Company, which judgment is subsisting and unsatisfied
for a sum certain with respect to the enforcement of the Indenture and the
Securities that is not impeachable as void or voidable under the internal laws
of the State of New York if (1) the New York Court rendering such judgment had
jurisdiction over the judgment debtor, as recognized by the courts of the
Province of Ontario (and submission by the Company in the Indenture to the
jurisdiction of the New York Court will be sufficient for that purpose); (2)
such judgment was not obtained by fraud or in a manner contrary to natural
justice and the enforcement thereof would not be inconsistent with public
policy, as such terms are understood under the laws of the Province of Ontario
or contrary to any order made by the Attorney General of Canada under the
Foreign Extraterritorial Measures Act (Canada) or by the Competition Tribunal
under the Competition Act (Canada); (3) the enforcement of such judgment would
not be contrary to the laws of general application limiting the enforcement of
creditors' rights and does not constitute, directly or indirectly, the
enforcement of foreign revenue, expropriatory or penal laws in the Province of
Ontario; (4) no new admissible evidence relevant to the action is discovered
prior to the rendering of judgment by the court in the Province of Ontario; (5)
interest payable on the Securities is not characterized by a court in the
Province of Ontario as interest payable at a criminal rate within the meaning of
Section 347 of the Criminal Code (Canada); and (6) the action to enforce such
judgment is commenced within the appropriate limitation period; except that any
court in the Province of Ontario may only give judgment in Canadian dollars. In
the opinion of such counsel, there are no reasons under present laws of the
Province of Ontario for avoiding recognition of such judgments of New York
Courts under the Indenture or on the Securities based upon public policy.
The Company has been advised by such counsel that there is doubt as to the
enforceability in Canada by a court in original actions, or in actions to
enforce judgments of United States courts, of civil liabilities predicated
solely upon the United States federal securities laws.
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DESCRIPTION OF CAPITAL STOCK
The following includes information concerning our common shares, based on
Canadian law and a summary of certain provisions of our Articles of Amalgamation
("Articles") and by-laws, each as amended. This information and summary do not
purport to be complete and are qualified in their entirety by reference to the
full Articles of Amalgamation.
General
As a result of the filing of articles of amendment on December 31, 1999,
our authorized capital stock now consists of an unlimited number of common
shares and an unlimited number of class A special shares (the "Class A Special
Shares").
Capital Stock
Each holder of common shares is entitled to one vote per share, which may
be given in person or by proxy, in the election of directors of the Company and
on all other matters submitted to a vote of our shareholders. The holders of
common shares are entitled to share pro rata in any dividends declared by our
board of directors out of funds legally available therefor, subject to
preferential rights of the Class A Special Shares. In the event of liquidation,
dissolution or winding up, whether voluntary or involuntary, of the Company, the
holders of common shares are entitled to receive all of our assets remaining
after the payment of all of our liabilities, subject to the preferential right
of Class A Special Shares or any other shares which may rank prior to the common
shares. There are no preemptive or conversion rights, and the common shares are
not subject to redemption. All common shares now outstanding and to be
outstanding upon exercise of the outstanding options and warrants are, or will
be, fully paid and non-assessable.
Our by-laws provide for certain rights of our shareholders in accordance
with the provisions of the Business Corporations Act (Ontario). Such by-laws may
be amended either by a majority vote of the shareholders or by a majority vote
of the board of directors. Any amendment of the by-laws by action of the board
of directors must be submitted to the next meeting of the shareholders whereupon
the by-law amendment must be confirmed, confirmed as amended or repealed by a
majority vote of the shareholders voting on such matter.
Shareholders do not have cumulative voting rights for the election of
directors. Therefore, the holders of more than 50% of the shares voting for the
election of directors could, if they choose to do so, elect all of the directors
and, in such event, the holders of the remaining shares would not be able to
elect any director.
While the payment of dividends rests within the discretion of the board of
directors, we presently intend to retain all earnings, if any, in the
foreseeable future for use in the development of our business.
ChaseMellon Shareholder Services, LLC and CIBC Mellon Trust Company are the
principal transfer agents and registrars for the common shares in the United
States and Canada, respectively.
There is no provision in our Articles or by-laws that would have the effect
of delaying, deferring or preventing a change in control in the Company or that
would operate only with respect to an extraordinary corporate transaction
involving the Company, such as a merger, reorganization, tender offer, sale or
transfer of substantially all of our assets or liquidation. However, certain
special requirements apply to the acquisition by a non-Canadian of control of a
Canadian business.
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Class A Special Shares
The Class A Special Shares may be issued from time to time in one or more
series, each series comprising the number of shares, designation, rights,
privileges, restrictions and conditions, including, without limitation, the rate
or amount of dividends or the method of calculating dividends, the dates of
payment, the redemption, purchase and/or conversion, and any sinking fund or
other provisions, subject to regulatory approval, if applicable, which the board
of directors determines by resolution. The Class A Special Shares rank prior to
the common shares with respect to payment of dividends and distributions in the
event of the liquidation, dissolution or winding-up, whether voluntary or
involuntary, of the Company. The Class A Special Shares of any series may also
be given such other preferences, not inconsistent with our Articles, over the
common shares and any other shares ranking junior to such Class A Special Shares
as may be fixed by the directors. The Class A Special Shares of any series may
be made convertible into common shares. Unless the directors otherwise
determine, or except as otherwise required by law, the holder of each share of a
series of Class A Special Shares shall not be entitled to vote at any meeting of
shareholders of the Company. No Class A Special Shares have been issued to date.
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Item 2. Exhibits
1. Form of Indenture (incorporated by reference to Exhibit 7.2 to Amendment
No. 2 to Biovail Corporation's Registration Statement on Form F-10, Registration
No. 333-11580).
2. Form of Debenture (included in immediately preceding exhibit).
3. Specimen Stock Certificate for Biovail Corporation International Common
Shares (incorporated by reference to Biovail's Registration Statement on Form
F-4, Registration No. 33-74120).
4. Form of Warrant Agreement between Biovail Corporation International and
Chase Mellon Shareholder Services, L.L.C., as Warrant Agent (incorporated by
reference to Exhibit 4.2 to the F-1/F-3 Registration Statement, Reg. No.
333-10860).
5. Form of Warrant (incorporated by reference to Exhibit 4.3 to the F-1/F-3
Registration Statement, Reg. No. 333-10860).
6. Articles of Amalgamation of Biovail Corporation International
(incorporated by reference to Biovail Corporation International's Registration
Statement on Form F-4, Registration No. 33-74120).
7. Articles of Amendment of Biovail Corporation International (incorporated
by reference to Biovail's Registration Statement on Form 8-A, Registration No.
001-14956, filed on March 17, 2000).
8. Articles of Amalgamation of Biovail Corporation (incorporated by
reference to Biovail's Registration Statement on Form 8-A, Registration No.
001-14956, filed on March 17, 2000).
9. By-Law No. A of Biovail Corporation International (incorporated by
reference to Biovail's Registration Statement on Form 8-A, Registration No.
001-14956, filed on March 17, 2000).
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized.
BIOVAIL CORPORATION
Date: June 5, 2000 By: /s/ John Miszuk
---------------------------------
Name: John Miszuk
Title: Vice President, Controller
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EXHIBIT INDEX
Number Description
1. Form of Indenture (incorporated by reference to Exhibit 7.2 to Amendment
No. 2 to Biovail Corporation's Registration Statement on Form F-10,
Registration No. 333-11580).
2. Form of Debenture (included in immediately preceding exhibit).
3. Specimen Stock Certificate for Biovail Corporation International Common
Shares (incorporated by reference to Biovail's Registration Statement on
Form F-4, Registration No. 33-74120).
4. Form of Warrant Agreement between Biovail Corporation International and
Chase Mellon Shareholder Services, L.L.C., as Warrant Agent (incorporated
by reference to Exhibit 4.2 to the F-1/F-3 Registration Statement, Reg. No.
333-10860).
5. Form of Warrant (incorporated by reference to Exhibit 4.3 to the F-1/F-3
Registration Statement, Reg. No. 333-10860).
6. Articles of Amalgamation of Biovail Corporation International (incorporated
by reference to Biovail's Registration Statement on Form F-4, Registration
No. 33-74120).
7. Articles of Amendment of Biovail Corporation International (incorporated by
reference to Biovail's Registration Statement on Form 8-A, Registration No.
001-14956, filed on March 17, 2000).
8. Articles of Amalgamation of Biovail Corporation (incorporated by reference
to Biovail's Registration Statement on Form 8-A, Registration No.
001-14956, filed on March 17, 2000).
9. By-Law No. A of Biovail Corporation International (incorporated by
reference to Biovail's Registration Statement on Form 8-A, Registration No.
001-14956, filed on March 17, 2000).
28
