-----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, UeFaDm7pGh2FW+LYTRc7jOxuRvQg+TH5WfHfOiUEsFUmiZnUW394/EUhQBNcCb7i k1b8pPfGng+3PD1yoRd3uw== 0001047469-99-034761.txt : 19990906 0001047469-99-034761.hdr.sgml : 19990906 ACCESSION NUMBER: 0001047469-99-034761 CONFORMED SUBMISSION TYPE: SC 14D1/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19990903 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: 99706282 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: 99706283 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. 4) (FINAL AMENDMENT) TENDER OFFER STATEMENT PURSUANT TO SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934 AND SCHEDULE 13D/A (AMENDMENT NO. 6) UNDER THE SECURITIES EXCHANGE ACT OF 1934 FUISZ TECHNOLOGIES LTD. (Name of Subject Company) ABCI ACQUISITION SUB. CORPORATION BIOVAIL CORPORATION INTERNATIONAL (Bidders) COMMON STOCK, PAR VALUE $0.01 PER SHARE (Title of Class of Securities) 359536109 (CUSIP Number of Class of Securities) -------------------------- KENNETH C. CANCELLARA, ESQ. SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY 2488 DUNWIN DRIVE MISSISSAUGA, ONTARIO CANADA, L5L 1J9 (905) 608-8008 COPY TO: ROGER ANDRUS, ESQ. CAHILL GORDON & REINDEL 80 PINE STREET NEW YORK, NEW YORK 10005 (212) 701-3000 (Name, Address; and Telephone Numbers of Person Authorized to Receive Notices and Communications on Behalf of Bidders) CALCULATION OF FILING FEE
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 6 Pages) SCHEDULE 14D-1 AND 13D CUSIP NO. 359536109 - -------------------------------------------------------------------------------- (1) NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON BIOVAIL CORPORATION INTERNATIONAL - -------------------------------------------------------------------------------- (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / / (b) / / - -------------------------------------------------------------------------------- (3) SEC USE ONLY - -------------------------------------------------------------------------------- (4) SOURCE OF FUNDS WC - -------------------------------------------------------------------------------- (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / - -------------------------------------------------------------------------------- (6) CITIZENSHIP OR PLACE OF ORGANIZATION Ontario, Canada - -------------------------------------------------------------------------------- (7) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 10,795,054 - -------------------------------------------------------------------------------- (8) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN SHARES / / - -------------------------------------------------------------------------------- (9) PERCENT OF CLASS REPRESENTED TO AMOUNT IN ROW (7) 49.0% - -------------------------------------------------------------------------------- (10) TYPE OF REPORTING PERSON CO - -------------------------------------------------------------------------------- (Page 2 of 6 Pages) SCHEDULE 14D-1 CUSIP NO. 359536109 - -------------------------------------------------------------------------------- (1) NAMES OF REPORTING PERSONS S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS ABCI ACQUISITION SUB. CORPORATION - -------------------------------------------------------------------------------- (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A) / / (B) / / - -------------------------------------------------------------------------------- (3) SEC USE ONLY - -------------------------------------------------------------------------------- (4) SOURCE OF FUNDS AF - -------------------------------------------------------------------------------- (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) / / - -------------------------------------------------------------------------------- (6) CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE - -------------------------------------------------------------------------------- (7) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 6,585,225 SHARES - -------------------------------------------------------------------------------- (8) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN SHARES / / - -------------------------------------------------------------------------------- (9) PERCENT OF CLASS REPRESENTED TO AMOUNT IN ROW (7) 29.9% - -------------------------------------------------------------------------------- (10) TYPE OF REPORTING PERSON CO - -------------------------------------------------------------------------------- Page 3 of 6 Pages This Amendment No. 4 to Schedule 14D-1 and Amendment No. 6 to the Schedule 13D/A (the "Schedule 14D-1 and Schedule 13D/A") relate to the offer by ABCI Acquisition Sub. Corporation, a newly organized Delaware corporation (the "Purchaser") and a wholly owned subsidiary of Biovail Corporation International, an Ontario, Canada corporation ("Parent"), to purchase for cash up to 6,585,225 of the outstanding shares of common stock, par value $0.01 per share (the "Shares"), of Fuisz Technologies Ltd., a Delaware corporation (the "Company"), at a purchase price of $7.00 per Share, net to the seller in cash, upon the terms and subject to the conditions set forth in the Offer to Purchase dated July 30, 1999 (the "Offer to Purchase") and in the related Letter of Transmittal (the "Letter of Transmittal", together with the Offer to Purchase, the "Offer"). The Offer is conditioned upon, among other things, there being validly tendered and not withdrawn prior to the expiration date of the Offer (the "Expiration Date") at least 4,602,460 Shares (the "Minimum Condition"). This Schedule 14D-1 and 13D/A are being filed on behalf of the Purchaser and Parent. The purpose of this Amendment No. 4 to the Schedule 14D-1 and Amendment No. 6 to the Schedule 13D is to amend and supplement items 6 and 11 of the Schedule 14D-1 as described below. This Amendment No. 4 to Schedule 14D-1 constitutes the final amendment to the Schedule 14D-1. ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY. Item 6. is hereby amended and supplemented by addition of the following information: At 12:00 midnight, New York City time on August 26, 1999, the Offer expired. A total of approximately 13,402,974 Shares were tendered pursuant to the Offer, which number includes 1,302,257 shares tendered by guaranteed delivery. Parent and Purchaser have received the requisite regulatory approvals and have accepted for payment 6,585,225 of the Shares tendered pursuant to the Offer and have notified the depositary, Chase Mellon Shareholder Services, L.L.C., to promptly pay for the validly tendered and accepted Shares, in accordance with the Offer. The Parent and the Purchaser, in the manner and on the terms set forth in the Merger Agreement described in the Offer to Purchase, intend to complete the acquisition of the remaining outstanding Shares by merging Purchaser into the Company following satisfaction of the conditions to the Merger set forth in the Merger Agreement, including approval of the shareholders of the Company. ITEM 11. MATERIAL TO BE FILED AS EXHIBITS. (a)-(11) Press Release issued by Parent on September 3, 1999. (Page 4 of 6 Pages) 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: September 3, 1999 BIOVAIL CORPORATION INTERNATIONAL By: /s/ KENNETH C. CANCELLARA -------------------------------------- Kenneth C. Cancellara Name: Senior Vice President, General Counsel and Title: Secretary ABCI ACQUISITION SUB. CORPORATION By: /s/ KENNETH C. CANCELLARA -------------------------------------- Name: Kenneth C. Cancellara Title: Senior Vice President and Secretary
(Page 5 of 6 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. (a)(11) Press Release issued by Parent, dated September 3, 1999. (b) Not applicable. (c)(1) *** Agreement and Plan of Merger (the "Merger Agreement"), dated July 25, 1999 by and among Parent, the Purchaser and the Company. (c)(2) ** Option Agreement, dated as of July 13, 1999, by and between Richard C. Fuisz, M.D. and Biovail Corporation International. (c)(3) ** Escrow Agreement, dated as of July 13, 1999, by and between Richard C. Fuisz, M.D., Biovail Corporation International and U.S. Trust Company, National Association. (c)(4) *** Letter of Commitment, dated as of July 23, 1999, between Salisbury Ltd. and Biovail Corporation International. (c)(5) *** Letter of Commitment, dated as of July 23, 1999, between Westbury Ltd. and Biovail Corporation International. (c)(6) *** Letter of Acceptance, dated as of July 25, 1999, between Biovail Corporation International and Salisbury Ltd. (c)(7) *** Letter of Acceptance, dated as of July 25, 1999, between Biovail Corporation International and Westbury Ltd. (c)(8) *** Letter Agreement dated as of July 13, 1999, between Biovail Corporation International and Richard C. Fuisz, M.D. regarding the Consulting Agreement. (d) Not applicable. (e) Not applicable. (f) Not applicable.
- ------------------------ * Incorporated by reference from Parent's Report on Form 6-K, dated July 28, 1999. ** Incorporated by reference from the Parent's statement on Schedule 13D, dated July 23, 1999. *** Incorporated by reference from the Parent's statement on Schedule 13D/A (Amendment No. 1), dated July 26, 1999. **** Filed previously on Schedule 14D-1 and Amendment No. 2 to Schedule 13D on July 30, 1999. ***** Filed previously on Amendment No. 1 to Schedule 14D-1 and Amendment No. 3 to Schedule 13D on August 3, 1999. ****** Filed previously on Amendment No. 2 to Schedule 14D-1 and Amendment No. 4 to Schedule 13D on August 19, 1999. ******* Filed previously on Amendment No. 3 to Schedule 14D-1 and Amendment No. 5 to Schedule 13D on August 30, 1999. (Page 6 of 6 Pages) EX-99.(A)(11) 2 PRESS RELEASE Exhibit (a)(11) "BIOVAIL AND FUISZ ANNOUNCE RESULTS OF TENDER OFFER" TORONTO, Canada and CHANTILLY, Va.--(BW Health Wire)-- Sept. 3, 1999--Biovail Corporation International (NYSE: BVF) (TSE: BVF) and Fuisz Technologies Ltd. (Nasdaq: FUSE) announced today that Biovail and ABCI Acquisition Sub. Corporation, its wholly-owned merger subsidiary, have received the requisite regulatory approvals and have instructed ChaseMellon Shareholder Services, L.L.C., the depositary under ABCI Aquisition's tender offer for up to 6,585,225 outstanding shares of Fuisz, to accept for payment the shares tendered pursuant to the tender offer. Biovail and Fuisz were notified that the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, was terminated as of Thursday, September 2, 1999. Biovail has also received clearance from the Department of Enterprise, Trade and Employment in Ireland. Pursuant to the terms of the offer, Biovail and its subsidiary have accepted for payment 6,585,225 of the 13,101,667 shares of Fuisz common stock which have been validly tendered pursuant to the tender offer. As specified in the Offer to Purchase relating to the tender offer, because more than the maximum number of shares to be purchased were tendered, tendered shares will be purchased on a pro rata basis, with adjustments to avoid purchases of fractional shares, based upon the number of shares validly tendered prior to the expiration date and not withdrawn. The final proration factor is approximately 50%. Tendered shares not accepted for payment due to proration will be returned to the tendering shareholder. Biovail has instructed the depositary, ChaseMellon Shareholder Services, L.L.C., to commence payment as soon as possible. Biovail expects that shareholders will begin receiving payments for shares purchased pursuant to the tender offer on Friday, September 3, 1999. The information agent for the offer is MacKenzie Partners, Inc. 156 Fifth Avenue, New York, NY 10010, telephone (212) 929-5500 or (800) 322-2885. The Dealer Manager for the offer is Donaldson, Lufkin & Jenrette Securities Corporation, 277 Park Avenue, New York, NY 10172, telephone (877) 233-9567. Biovail Corporation International is an international full-service pharmaceutical company, engaged in the formulation, clinical testing, registration and manufacture of drug products utilizing advanced drug delivery technologies. "Safe Harbor" statement under the Private Securities Litigation Reform Act of 1995. To the extent any statements made in this release contain information that is not historical, these statements are essentially forward looking and are subject to risks and uncertainties, including the difficulty of predicting FDA approvals, acceptance and demand for new pharmaceutical products, the impact of competitive products and pricing, new product development and launch, reliance on key strategic alliances, availability of raw materials, the regulatory environment, fluctuations in operating results and other risks detailed from time to time in the company's filings with the Securities and Exchange Commission. CONTACT: Biovail Corporation International Eugene Melnyk or Kenneth Howling, 416/285-6000 Web Page: www.biovail.com Investor Relations e-mail: ir@biovail.com or Fuisz Technologies Ltd. Dr. Richard C. Fuisz or John Redd, 703/995-2400 "SAFE HARBOR" STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995: STATEMENTS IN THIS PRESS RELEASE REGARDING BIOVAIL CORPORATION INTERNATIONAL'S BUSINESS WHICH ARE NOT HISTORICAL FACTS ARE "FORWARD-LOOKING STATEMENTS" THAT INVOLVE RISKS AND UNCERTAINTIES. FOR A DISCUSSION OF SUCH RISKS AND UNCERTAINTIES, WHICH COULD CAUSE ACTUAL RESULTS TO DIFFER FROM THOSE CONTAINED IN THE FORWARD-LOOKING STATEMENTS, SEE "RISK FACTORS" IN THE COMPANY'S ANNUAL REPORT OR FORM 10-K FOR THE MOST RECENTLY ENDED FISCAL YEAR. -----END PRIVACY-ENHANCED MESSAGE-----