As filed with the Securities and Exchange Commission on February 27, 2009
Registration No. 333-138697
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
POST-EFFECTIVE AMENDMENT NO. 1
TO
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BIOVAIL CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Canada (State
or Other Jurisdiction of |
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Not Applicable (I.R.S. Employer Identification No.) |
7150 Mississauga Road |
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L5N 8M5 |
(Address of Principal Executive Offices) |
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(Zip Code) |
Biovail Corporation 2007 Equity Compensation Plan
(formerly known as the Biovail Corporation 2006 Stock Option Plan)
(Full Title of the Plan)
CT Corporation System
111 Eighth Avenue
New York, New York 10011
(Name and Address of Agent for Service)
(212) 590-9200
(Telephone Number, Including Area Code, of Agent For Service)
Copies to:
Wendy Kelley, Esq. |
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Andrea S. Rattner, Esq. |
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer x |
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Accelerated filer o |
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Non-accelerated filer o
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Smaller reporting company o |
EXPLANATORY NOTE
This Amendment No. 1 is being filed because the 2006 Stock Options Plan was amended, restated and renamed the 2007 Equity Compensation Plan (the Plan) and because the Plan was amended to provide restricted stock units.
CALCULATION OF REGISTRATION FEE
Title Of Each Class Of Securities |
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Amount To Be |
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Proposed Maximum |
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Proposed Maximum |
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Amount |
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2007 Equity Compensation Plan (formerly known as the 2006 Stock Options Plan) Common Shares, no par value |
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Not applicable |
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Not applicable |
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Not applicable |
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Not applicable |
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(1) |
Represents the maximum aggregate number of common shares of the Registrant that were granted under the Plan sponsored by the Registrant. Pursuant to Rule 416 under the Securities Act of 1933, as amended, this Registration Statement shall also cover any additional common shares of the Registrant which become issuable under the Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrants receipt of consideration which results in an increase in the number of the outstanding common shares of the Registrant. |
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(2) |
Six million (6,000,0000) shares were previously registered on November 14, 2006 under the Plan. The proposed maximum offering price per share for the six million shares registered was $16.055 and the proposed maximum aggregate offering price for the shares was $96,330,000. A registration fee in the amount of $10,307 was previously paid in connection with the registration of the shares under the Plan. There was no increase in the number of shares issued under the Plan, as amended and restated. This Registration Statement is being filed because the Plan was amended to include restricted stock units. A Registration Statement on Form S-8 has been filed previously on November 14, 2006 (Registration No. 333-138697) for the existing securities under the Plan. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required by Part I to be contained in the Section 10(a) Prospectus is omitted from this registration statement in accordance with Rule 428 under the Securities Act of 1933, as amended, and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Biovail Corporation, a corporation continued under the Canada Business Corporations Act, hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the Commission):
(a) Annual Report on Form 20-F for the fiscal year ended December 31, 2008, filed on February 27, 2009.
(b) The description of the Registrants common shares contained in the Companys Registration Statement on Form 8-A, filed on December 10, 1996, in the Companys Amended Registration Statement on Form 8-A/A, filed on June 5, 2000, and in the Companys Registration Statement on Form S-8, filed on November 14, 2006, and any amendment or report filed for the purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act), subsequent to the effective date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement indicating that all securities offered hereby have been sold or deregistering all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the date of filing of such documents. Any statement contained in any document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed to constitute a part of this Registration Statement, except as so modified or superseded.
Not applicable.
Not applicable.
Under Section 124 of the Canada Business Corporations Act, a director or officer of the corporation, a former director or officer of the corporation or another individual who acts or acted at the corporations request as a director or officer, or an individual acting in a similar capacity, of another entity:
(a) may be indemnified by the corporation against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by the individual in respect of any civil, criminal, administrative, investigative or other proceeding in which the individual is involved because of that association with the corporation or other entity;
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(b) may, with the approval of a court, be indemnified by the corporation in respect of an action by or on behalf of the corporation or other entity to procure a judgment in its favour, to which the individual is made a party because of the individuals association with the corporation or other entity against all costs, charges and expenses reasonably incurred by the individual in connection with such action; and
(c) is entitled to indemnity from the corporation in respect of all costs, charges and expenses reasonably incurred by the individual in connection with the defence of any civil, criminal, administrative, investigative or other proceeding to which the individual is subject because of the individuals association with the corporation or other entity, if the individual seeking indemnity was not judged by the court or other competent authority to have committed any fault or omitted to do anything that the individual ought to have done;
provided, in all cases, on condition that such individual (i) acted honestly and in good faith with a view to the best interests of the corporation, or, as the case may be, to the best interests of the other entity for which the individual acted as director or officer or in a similar capacity at the corporations request; and (ii) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the individual had reasonable grounds for believing that the individuals conduct was lawful. A corporation may advance moneys to a director, officer or other individual for the costs, charges and expenses of a proceeding referred to under paragraphs (a) and (b) above, provided that the individual shall repay the moneys if the individual does not fulfill the conditions set out under (i) and (ii) above.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the U.S. Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is therefore unenforceable.
As contemplated by Section 124 of the Canada Business Corporations Act, the Registrant has purchased insurance against potential claims against the directors and officers of the Registrant and against loss for which the Registrant may be required or permitted by law to indemnify such directors and officers.
Not applicable.
Exhibit No. |
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Description |
4.1 |
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Instruments Defining the Rights of Stockholders. Reference is made to the Registrants Registration Statement No. 001-14956 on Form 8-A, filed on December 10, 1996 and to the Companys Amended Registration Statement on Form 8-A/A, filed on June 5, 2000, and any amendment or report filed for the purpose of updating such description, together with any exhibits thereto, which are incorporated herein by reference pursuant to Item 3(c) to this Registration Statement. |
5.1 |
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Opinion of Blake, Cassels & Graydon LLP. |
23.1 |
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Consent of Blake, Cassels & Graydon LLP (included in the opinion filed as Exhibit No. 5.1).* |
23.2 |
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Consent of Ernst & Young LLP. |
24 |
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Power of Attorney (included on signature page). |
* Filed herewith.
3
Provided, however, that (A) paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if this Registration Statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement; and (B) paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if this Registration Statement is on Form S-3 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of this Registration Statement.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Mississauga, Ontario on this 27th day of February, 2009.
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BIOVAIL CORPORATION |
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By: |
/s/ PEGGY MULLIGAN. |
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Peggy Mulligan |
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Senior Vice President, Chief Financial Officer |
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each person whose signature appears below hereby constitutes and appoints Douglas J.P. Squires, William M. Wells, Peggy Mulligan, Greg Guyatt, and Wendy Kelley, or any of them individually, such persons true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for and in such persons name, place and stead, in the capacities indicated below, to sign this Registration Statement on Form S-8 of Biovail Corporation and any and all amendments (including post-effective amendments) thereto, and to file or cause to be filed the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as such person might, or could, do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, and each of them, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on February 27, 2009 by the following persons in the capacities indicated.
Signature |
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Title |
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/s/ William M. Wells |
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Chief Executive Officer (principal executive officer) and |
William M. Wells |
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Director |
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/s/ Peggy Mulligan |
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Senior Vice President, Chief Financial Officer |
Peggy Mulligan. |
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(principal financial officer) |
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/s/ Greg Guyatt |
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Controller (principal accounting officer) |
Greg Guyatt |
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/s/ Dr. Douglas J.P. Squires |
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Chairman and Director |
Dr. Douglas J.P. Squires |
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/s/ Dr. Laurence E. Paul |
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Director |
Dr. Laurence E. Paul |
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/s/ Michael R. Van Every |
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Director |
Michael R. Van Every |
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/s/Lloyd M. Segal |
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Director |
Lloyd M. Segal |
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/s/ Mark Parrish |
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Director |
Mark Parrish |
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/s/ J. Spencer Lanthier |
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Director |
J. Spencer Lanthier |
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/s/ Robert N. Power |
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Director |
Robert N. Power |
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/s/ Serge Gouin |
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Director |
Serge Gouin |
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7
/s/ David H. Laidley |
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Director |
David H. Laidley |
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8
EXHIBIT INDEX
Exhibit No. |
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Description |
4.1 |
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Instruments Defining the Rights of Stockholders. Reference is made to the Registrants Registration Statement No. 001-14956 on Form 8-A, filed on December 10, 1996 and to the Companys Amended Registration Statement on Form 8-A/A, filed on June 5, 2000, and any amendment or report filed for the purpose of updating such description, together with any exhibits thereto, which are incorporated herein by reference pursuant to Item 3(c) to this Registration Statement. |
5.1 |
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Opinion of Blake, Cassels & Graydon LLP* |
23.1 |
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Consent of Blake, Cassels & Graydon LLP (included in the opinion filed as Exhibit No. 5.1).* |
23.2 |
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Consent of Ernst & Young LLP.* |
24.1 |
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Power of Attorney (included on signature page).* |
* Filed herewith.