-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TheV29KCCsBevOPWTjiW2uHMsOHCAU+KB9D9hnKaFr2xhO3lKmP49wmEk74Cd37a eSvvEQOqXKRXeuXrJfHLdA== 0001047469-99-034132.txt : 19990831 0001047469-99-034132.hdr.sgml : 19990831 ACCESSION NUMBER: 0001047469-99-034132 CONFORMED SUBMISSION TYPE: SC 14D1/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19990830 GROUP MEMBERS: ABCI ACQUISITION SUB. CORPORATION GROUP MEMBERS: BIOVAIL CORPORATION INTERNATIONAL SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: FUISZ TECHNOLOGIES LTD CENTRAL INDEX KEY: 0000873064 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 521579474 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-45785 FILM NUMBER: 99702985 BUSINESS ADDRESS: STREET 1: 14555 AVION PKWY STE 250 CITY: CHANTILLY STATE: VA ZIP: 20151 BUSINESS PHONE: 7039952400 MAIL ADDRESS: STREET 1: GIBSON DUNN GRUTCHER STREET 2: 1050 CONNECTICUT AVE NW SUITE 900 CITY: CHWASHINGTON STATE: DC ZIP: 20036 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: FUISZ TECHNOLOGIES LTD CENTRAL INDEX KEY: 0000873064 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 521579474 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1/A SEC ACT: SEC FILE NUMBER: 005-45785 FILM NUMBER: 99702986 BUSINESS ADDRESS: STREET 1: 14555 AVION PKWY STE 250 CITY: CHANTILLY STATE: VA ZIP: 20151 BUSINESS PHONE: 7039952400 MAIL ADDRESS: STREET 1: GIBSON DUNN GRUTCHER STREET 2: 1050 CONNECTICUT AVE NW SUITE 900 CITY: CHWASHINGTON STATE: DC ZIP: 20036 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BIOVAIL CORPORATION INTERNATIONAL CENTRAL INDEX KEY: 0000885590 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 000000000 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1/A BUSINESS ADDRESS: STREET 1: 2488 DUNWIN DR STREET 2: MISSISSIAUGA CITY: ONTARIO STATE: A6 BUSINESS PHONE: 4162856000 MAIL ADDRESS: STREET 1: 2488 DUNWIN DR STREET 2: MISSISSAUGA CITY: ONTARIO STATE: A6 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BIOVAIL CORPORATION INTERNATIONAL CENTRAL INDEX KEY: 0000885590 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 000000000 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1/A BUSINESS ADDRESS: STREET 1: 2488 DUNWIN DR STREET 2: MISSISSIAUGA CITY: ONTARIO STATE: A6 BUSINESS PHONE: 4162856000 MAIL ADDRESS: STREET 1: 2488 DUNWIN DR STREET 2: MISSISSAUGA CITY: ONTARIO STATE: A6 SC 14D1/A 1 SC 14D1/A - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ SCHEDULE 14D-1 (AMENDMENT NO. 3) TENDER OFFER STATEMENT PURSUANT TO SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934 AND SCHEDULE 13D/A (AMENDMENT NO. 5) UNDER THE SECURITIES EXCHANGE ACT OF 1934 FUISZ TECHNOLOGIES LTD. (Name of Subject Company) ABCI ACQUISITION SUB. CORPORATION BIOVAIL CORPORATION INTERNATIONAL (Bidders) COMMON STOCK, PAR VALUE $0.01 PER SHARE (Title of Class of Securities) 359536109 (CUSIP Number of Class of Securities) -------------------------- KENNETH C. CANCELLARA, ESQ. SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY 2488 DUNWIN DRIVE MISSISSAUGA, ONTARIO CANADA, L5L 1J9 (905) 608-8008 COPY TO: ROGER ANDRUS, ESQ. CAHILL GORDON & REINDEL 80 PINE STREET NEW YORK, NEW YORK 10005 (212) 701-3000 (Name, Address; and Telephone Numbers of Person Authorized to Receive Notices and Communications on Behalf of Bidders) CALCULATION OF FILING FEE
TRANSACTION VALUATION* AMOUNT OF FILING FEE $46,096,575 $0
* For purposes of calculating the filing fee only. The filing fee was calculated, pursuant to Section 13(e)(3) of the Securities Exchange Act of 1934, as amended and Rule 0-11 thereunder, on the basis of 22,030,723 shares of Common Stock (the number of shares of Common Stock outstanding on the date hereof, including vested options to acquire Common Stock, but excluding unvested options to acquire Common Stock and excluding 4,209,829 Common Stock owned by Biovail Corporation International, multiplied by the proposed acquisition price U.S. $7.00 per share. /X/ Check box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and date of its filing. Amount Previously Paid: $9,219.32 Filing ABCI Acquisition Sub. Corporation Party: and Biovail Corporation International Form or Registration Schedule 14D-1 and Schedule 13D/A Date Filed: 7/30/99 No.: Amendment No. 2
- -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (CONTINUED ON FOLLOWING PAGE(S)) (Page 1 of 4 Pages) This Amendment No. 3 to Schedule 14D-1 and Amendment No. 5 to the Schedule 13D/A (the "Schedule 14D-1 and Schedule 13D/A") relate to the offer by ABCI Acquisition Sub. Corporation, a newly organized Delaware corporation (the "Purchaser") and a wholly owned subsidiary of Biovail Corporation International, an Ontario, Canada corporation ("Parent"), to purchase for cash up to 6,585,225 of the outstanding shares of common stock, par value $0.01 per share (the "Shares"), of Fuisz Technologies Ltd., a Delaware corporation (the "Company"), at a purchase price of $7.00 per Share, net to the seller in cash, upon the terms and subject to the conditions set forth in the Offer to Purchase dated July 30, 1999 (the "Offer to Purchase") and in the related Letter of Transmittal (the "Letter of Transmittal", together with the Offer to Purchase, the "Offer"). The Offer is conditioned upon, among other things, there being validly tendered and not withdrawn prior to the expiration date of the Offer (the "Expiration Date") at least 4,602,460 Shares (the "Minimum Condition"). This Schedule 14D-1 and 13D/A are being filed on behalf of the Purchaser and Parent. The purpose of this Amendment No. 3 to the Schedule 14D-1 and Amendment No. 5 to the Schedule 13D is to amend and supplement items 6 and 11 of the Schedule 14D-1 as described below. ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY. Item 6. is hereby amended and supplemented by addition of the following information: At 12:00 midnight, New York City time on August 26, 1999, the Offer expired. A total of approximately 13,402,974 Shares were tendered pursuant to the Offer, which number includes 1,302,257 shares tendered by guaranteed delivery. Pursuant to the terms of the Offer, Parent and Purchaser intend to delay acceptance for payment of, and payment for, the tendered Shares pending the expiration or termination of the Hart-Scott-Rodino waiting period, which is currently scheduled to expire at 11:59 p.m., New York City time on September 3, 1999, and clearance under applicable Irish antitrust laws. The Parent and Purchaser intend to accept tendered shares as soon as possible following receipt of such approvals. Parent and Purchaser expect to be able to announce the final results of proration between five to seven Nasdaq National Market trading days after the expiration date. ITEM 11. MATERIAL TO BE FILED AS EXHIBITS. (a)-(10) Press Release issued by Parent on August 27, 1999. (Page 2 of 4 Pages) SIGNATURE After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: August 30, 1999 BIOVAIL CORPORATION INTERNATIONAL By: /s/ KENNETH C. CANCELLARA -------------------------------------- Kenneth C. Cancellara Name: Senior Vice President, General Counsel and Title: Secretary ABCI ACQUISITION SUB. CORPORATION By: /s/ KENNETH C. CANCELLARA -------------------------------------- Name: Kenneth C. Cancellara Title: Senior Vice President and Secretary
(Page 3 of 4 Pages) EXHIBIT INDEX
EXHIBIT PAGE NO. EXHIBIT NAME NUMBER - --------- --------------------------------------------------------------------------------------- --------- (a)(1) *** Offer to Purchase. (a)(2) *** Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number on Form W-9). (a)(3) *** Letter to brokers, dealers, commercial banks, trust companies and nominees. (a)(4) *** Letter to be used by brokers, dealers, commercial banks, trust companies and nominees to their clients. (a)(5) *** Notice of Guaranteed Delivery. (a)(6) * Press Release issued by Parent, dated July 26, 1999. (a)(7) *** Press Release issued by Parent, dated July 28, 1999. (a)(8) *** Form of newspaper advertisement, dated July 30, 1999. (a)(9) *** Press Release issued by Parent, dated August 19, 1999. (a)(10) Press Release issued by Parent, dated August 27, 1999. (b) Not applicable. (c)(1) *** Agreement and Plan of Merger (the "Merger Agreement"), dated July 25, 1999 by and among Parent, the Purchaser and the Company. (c)(2) ** Option Agreement, dated as of July 13, 1999, by and between Richard C. Fuisz, M.D. and Biovail Corporation International. (c)(3) ** Escrow Agreement, dated as of July 13, 1999, by and between Richard C. Fuisz, M.D., Biovail Corporation International and U.S. Trust Company, National Association. (c)(4) *** Letter of Commitment, dated as of July 23, 1999, between Salisbury Ltd. and Biovail Corporation International. (c)(5) *** Letter of Commitment, dated as of July 23, 1999, between Westbury Ltd. and Biovail Corporation International. (c)(6) *** Letter of Acceptance, dated as of July 25, 1999, between Biovail Corporation International and Salisbury Ltd. (c)(7) *** Letter of Acceptance, dated as of July 25, 1999, between Biovail Corporation International and Westbury Ltd. (c)(8) *** Letter Agreement dated as of July 13, 1999, between Biovail Corporation International and Richard C. Fuisz, M.D. regarding the Consulting Agreement. (d) Not applicable. (e) Not applicable. (f) Not applicable.
- ------------------------ * Incorporated by reference from Parent's Report on Form 6-K, dated July 28, 1999. ** Incorporated by reference from the Parent's statement on Schedule 13D, dated July 23, 1999. *** Incorporated by reference from the Parent's statement on Schedule 13D/A (Amendment No. 1), dated July 26, 1999. **** Filed previously on Schedule 14D-1 and Amendment No. 2 to Schedule 13D on July 30, 1999. ***** Filed previously on Amendment No. 1 to Schedule 14D-1 and Amendment No. 3 to Schedule 13D on August 3, 1999. ****** Filed previously on Amendment No. 2 to Schedule 14D-1 and Amendment No. 4 to Schedule 13D on August 19, 1999. (Page 4 of 4 Pages) EX-99.1 2 PRESS RELEASE Exhibit 99.1 CONTACT: Eugene Melnyk Chairman of the Board Robert Podruzny President Kenneth Howling Chief Financial Officer (416) 285-6000 Web Page: www.biovail.com Investor Relations e-mail: ir@biovail.com "FOR IMMEDIATE RELEASE" - ----------------------- "BIOVAIL ANNOUNCES EXPIRATION OF TENDER OFFER FOR FUISZ TECHNOLOGIES LTD." TORONTO, CANADA, August 27, 1999--Biovail Corporation International (NYSE, TSE: BVF) ("Biovail") announced today that the offer to purchase for $7.00 cash per share up to 6,585,225 outstanding shares of Fuisz Technologies Ltd. (Nasdaq: FUSE) ("Fuisz") by ABCI Acquisition Sub. Corporation, its wholly-owned merger subsidiary, expired as scheduled at 12:00 midnight, New York City time, on Thursday, August 26, 1999. At the time of expiration, approximately 13,402,974 shares of Fuisz common stock had been tendered pursuant to the tender offer, which number includes 1,302,257 shares tendered by guaranteed delivery. Pursuant to the terms of the offer, Biovail and its subsidiary must await the expiration or termination of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, before acceptance for payment of, and payment for, validly tendered shares which may be affected. Biovail expects such expiration or termination to be no later than 11:59 p.m., Friday, September 3, 1999. Biovail has also filed a notification with the Department of Enterprise, Trade and Employment in Ireland. Biovail hopes to receive this clearance early next week. Biovail and its subsidiary intend to accept tendered shares as soon as possible following receipt of such approvals. - more - Because more than the maximum number of shares to be purchased were tendered, Biovail and its subsidiary will be required to accept tendered shares for payment on a pro rata basis, with adjustments to avoid purchases of fractional shares, based upon the number of shares validly tendered prior to the expiration date and not withdrawn. Because of the difficulty of determining precisely the number of shares validly tendered and not withdrawn, Biovail and its subsidiary do not expect to be able to announce the final results of such proration, acceptance of shares for payment and resultant payment thereof for between five to seven Nasdaq National Market trading days after the expiration date. Tendered shares not accepted for payment due to proration will be returned to the tendering shareholder. Tendered shares may not be withdrawn. However, if the tendered shares have not been accepted for payment by September 27, 1999, they may be withdrawn at any time after such date. The information agent for the offer is MacKenzie Partners, Inc. 156 Fifth Avenue, New York, NY 10010, telephone (212) 929-5500 or (800) 322-2885. The Dealer Manager for the offer is Donaldson, Lufkin & Jenrette Securities Corporation, 277 Park Avenue, New York, New York 10172, telephone (877) 233-9567. Biovail Corporation International is an international full-service pharmaceutical company, engaged in the formulation, clinical testing, registration and manufacture of drug products utilizing advanced drug delivery technologies. "SAFE HARBOR" STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995. TO THE EXTENT ANY STATEMENTS MADE IN THIS RELEASE CONTAIN INFORMATION THAT IS NOT HISTORICAL, THESE STATEMENTS ARE ESSENTIALLY FORWARD LOOKING AND ARE SUBJECT TO RISKS AND UNCERTAINTIES, INCLUDING THE DIFFICULTY OF PREDICTING FDA APPROVALS, ACCEPTANCE AND DEMAND FOR NEW PHARMACEUTICAL PRODUCTS, THE IMPACT OF COMPETITIVE PRODUCTS AND PRICING, NEW PRODUCT DEVELOPMENT AND LAUNCH, RELIANCE ON KEY STRATEGIC ALLIANCES, AVAILABILITY OF RAW MATERIALS, THE REGULATORY ENVIRONMENT, FLUCTUATIONS IN OPERATING RESULTS AND OTHER RISKS DETAILED FROM TIME TO TIME IN THE COMPANY'S FILINGS WITH THE SECURITIES AND EXCHANGE COMMISSION. -----END PRIVACY-ENHANCED MESSAGE-----