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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): October 1, 2010 (September 27, 2010)
VALEANT PHARMACEUTICALS INTERNATIONAL
(Exact name of registrant as specified in its charter)
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Delaware
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1-11397
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33-0628076 |
(State or Other
Jurisdiction of
Incorporation)
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(Commission File Number)
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(IRS Employer
Identification
Number) |
One Enterprise
Aliso Viejo, California 92656
(Address of principal executive offices, including zip code)
(949) 461-6000
(Registrants telephone number, including area code)
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c)) |
TABLE OF CONTENTS
INTRODUCTORY NOTE
This Current Report on Form 8-K is being filed in connection with the consummation on September 28,
2010 (the Effective Date), at 12:01 a.m., Eastern Daylight Time (the Effective
Time), of the merger and certain other transactions contemplated by the Agreement and Plan of
Merger, dated as of June 20, 2010 (the Merger Agreement), by and among Biovail
Corporation (Biovail), Biovail Americas Corp., a wholly-owned subsidiary of Biovail
(BAC), Beach Merger Corp., a wholly-owned subsidiary of BAC (Merger Sub), and
Valeant Pharmaceuticals International ( Old Valeant).
At the Effective Time, pursuant to the terms and conditions of the Merger Agreement, Merger Sub
merged with and into Old Valeant, with Old Valeant surviving as a wholly owned subsidiary of BAC
(the Merger). In connection with the Merger, Biovail was renamed Valeant
Pharmaceuticals International, Inc. and is hereinafter referred to as New Valeant.
The descriptions contained in this Current Report on Form 8-K of the Merger Agreement and the
transactions contemplated thereby are not complete and are qualified in their entirety by the full
and complete text of the Merger Agreement, which is attached as Exhibit 2.1 to Old Valeants
Current Report on Form 8-K
filed with the Securities and Exchange Commission (the SEC) on June 23, 2010
and incorporated herein by reference.
The following transactions occurred in connection with the consummation of the Merger:
Item 1.01 Entry into a Material Definitive Agreement
The disclosure set forth in Item 2.03 below is incorporated herein by reference.
On September 27, 2010, Old Valeant, New Valeant and The Bank of New York Mellon Trust Company,
N.A., as successor to The Bank of New York Mellon (formerly The Bank of New York) (the
Convertible Notes Trustee), entered into the First Supplemental Indenture to be effective
at the Effective Time (the First Supplemental Indenture) to the indenture dated as of
November 19, 2003 (the Base Indenture), by and between Old Valeant, Ribapharm Inc. and
the Convertible Notes Trustee. The First Supplemental Indenture (a) states that, as provided in
the Merger Agreement, each of Old Valeants 4.0% Convertible Notes due 2013 (the Convertible
Notes) issued pursuant to the Base Indenture became convertible solely into the number of
Common Shares that the holder of such Convertible Note would have received pursuant to the Merger
Agreement if such holder had converted such Convertible Note immediately before the Effective Time
and (b) provides that New Valeant fully and unconditionally guarantees, on a subordinated basis,
the full and punctual payment when due of all obligations of Old Valeant under the Base Indenture,
whether for payment of principal or interest on the Convertible Notes, and all other monetary
obligations of Old Valeant under the Convertible Notes.
The foregoing summary of the First Supplemental Indenture is not complete, and is qualified in its
entirety by reference to the full and complete text of the First Supplemental Indenture, a copy of
which is attached as Exhibit 4.2 to this Current Report on Form 8-K and incorporated herein by
reference.
Item 1.02 Termination of a Material Definitive Agreement
Existing Credit Agreement
On September 27, 2010, Old Valeant terminated its Credit and Guaranty Agreement (the Existing
Credit Agreement), dated as of May 26, 2010, among Old Valeant, certain subsidiaries of Old
Valeant named
therein, as Guarantors, Goldman Sachs Credit Partners L.P., as Sole Lead Arranger, and Goldman
Sachs Bank USA, as Administrative Agent and Collateral Agent, pursuant to the terms thereof.
As of September 27, 2010, borrowings of $30 million principal amount were outstanding under the
Existing Credit Agreement.
A description of the material terms of the Existing Credit Agreement was included in Old Valeants
Current Report on Form 8-K filed with the SEC on May 26, 2010 and is incorporated herein by
reference.
ValueAct Standstill and Board Nomination Agreement
On September 27, 2010, Old Valeant and ValueAct Capital Master Fund, L.P., VA Partners I, LLC,
ValueAct Capital Management, L.P., ValueAct Capital Management, LLC, ValueAct Holdings, L.P., and
ValueAct Holdings GP, LLC (the ValueAct Stockholders) terminated, effective as of the
Effective Time, the Standstill and Board Nomination Agreement, dated as of December 17, 2009 (the
Standstill and Board Nomination Agreement) entered into among the parties. Prior to the
Effective Time, the ValueAct Stockholders beneficially owned approximately 20.0% of the common
stock of Old Valeant.
A description of the material terms of the Standstill and Board Nomination Agreement was included
in Old Valeants Current Report on Form 8-K filed with the SEC on December 21, 2009 and is
incorporated herein by reference.
Item 2.01 Completion of Acquisition or Disposition of Assets
At the Effective Time, each outstanding share of Old Valeant common stock, par value $0.01 per
share (Old Valeant Common Stock), other than
shares of Old Valeant Common Stock held by Old Valeant, as treasury stock, New Valeant, BAC or Merger Sub (all of which were canceled), was converted into the right to receive 1.7809 of New
Valeants common shares, no par value (the Common Shares), plus cash in lieu of
fractional shares. Based on the closing price of the Common Shares on September 27, 2010, Old
Valeant stockholders received consideration valued at approximately $3.6 billion.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet
Arrangement of a Registrant
On September 27, 2010, Old Valeant secured financing consisting of extensions of credit and
commitments aggregating $2.75 billion under the New Credit Facilities (as defined below). On
September 27, 2010, Old Valeant used a portion of the proceeds from the New Credit Facilities to
undertake the transactions set forth below.
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Old Valeant funded a one-time special cash dividend of $16.77 per share
of Old Valeant Common Stock to Old Valeant stockholders of record as of the close
of business on September 27, 2010 (the Pre-Merger Special Dividend) and dividend equivalent payments to holders of certain Old Valeant equity awards. |
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Old Valeant repaid in full, in an aggregate principal amount of $30 million, the Credit and Guaranty Agreement (the
Old Valeant Existing Credit Facility), dated as of May 26, 2010, among
Old Valeant, certain subsidiaries of Old Valeant, as Guarantors, Goldman Sachs
Credit Partners L.P., as Sole Lead Arranger, and Goldman Sachs Bank USA, as
Administrative Agent and Collateral Agent. |
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In accordance with the Indenture, dated as of June 9, 2009, between Old
Valeant, the subsidiary guarantors party thereto and The Bank of New York Mellon
Trust Company, N.A. (the 8.375% Trustee), Old Valeant defeased its 8.375%
Senior Notes due 2016 (the 8.375% Notes) by depositing with the 8.375%
Trustee an amount sufficient to pay
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100% of the outstanding aggregate principal amount of the 8.375% Notes, plus the
applicable premium, plus accrued and unpaid interest, on October 27, 2010, the
redemption date. |
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In accordance with the Indenture, dated as of April 9, 2010, between
Old Valeant, the subsidiary guarantors party thereto and The Bank of New York
Mellon Trust Company, N.A. (the 7.625% Trustee), Old Valeant defeased its
7.625% Senior Notes due 2020 (the 7.625% Notes) by depositing with the
7.625% Trustee an amount sufficient to pay 100% of the outstanding aggregate
principal amount of the 7.625% Notes, plus the applicable premium, plus accrued and
unpaid interest, on October 27, 2010, the redemption date. |
As of the Effective Date, the New Credit Facilities were guaranteed by New Valeant and certain of
its subsidiaries (other than Old Valeant).
On the Effective Date, Old Valeant issued $1.2 billion aggregate principal amount of the Senior
Notes (as defined below) pursuant to the Senior Notes Indenture (as defined below), a portion of
the proceeds of which Old Valeant used on the Effective date to pay down $1.0 billion in term loans
under the New Credit Facilities. Taking this into account, the aggregate amount of financing
obtained was $2.95 billion (the Merger Financing).
The following transactions took place in connection with the Merger Financing:
The New Credit Facilities
On September 27, 2010, Old Valeant entered into the Credit and Guaranty Agreement (the Credit
Agreement) with certain subsidiaries of Old Valeant, as Guarantors, each of the lenders named
therein, Goldman Sachs Lending Partners LLC (GSLP), Morgan Stanley Senior Funding, Inc.
and Jefferies Finance LLC, as Joint Lead Arrangers, Joint Bookrunners and Syndication Agents, GSLP,
as Administrative Agent and Collateral Agent, and each of Bank of America, N.A., DnB NOR Bank ASA,
SunTrust Bank and The Bank of Nova Scotia, as Documentation Agent. On September 28, 2010, New
Valeant and certain of its subsidiaries entered into Counterpart Agreements to the Credit
Agreement, each in substantially the same form. The Credit Agreement consists of (1) a four-and-one half-year nonamortizing $125
million senior secured revolving credit facility (the Revolving Credit Facility), which
will include a sublimit for the issuance of standby and commercial letters of credit and a sublimit
for swing line loans, (2) a five-year amortizing $1.0 billion senior secured term loan A facility
(the Tranche A Term Loan Facility) and (3) a six-year amortizing $1.625 billion senior
secured term loan B facility, consisting of a $1.5 billion tranche B term loan facility and a $125
million delayed draw tranche B term loan facility (the Tranche B Term Loan Facility,
and together with the Revolving Credit Facility and the Tranche A Term Loan Facility, the New
Credit Facilities).
The loans under the Revolving Credit Facility may be made to, and the letters of credit under the
Revolving Credit Facility may be issued on behalf of, Old Valeant, provided that, after the
Effective Time, the Credit Agreement may be amended without the consent of the lenders thereunder
to permit New Valeant to borrow loans, and to have letters of credit issued on its behalf, under
the Revolving Credit Facility. The loans under the Tranche A Term Loan Facility and the Tranche B
Term Loan Facility were made to Old Valeant on September 27, 2010, and were used for the purposes
of (1) refinancing the Old Valeant Existing Credit Facility, the 8.375% Notes and the 7.625% Notes
(collectively, the Refinancings), (2) funding the Pre-Merger Special Dividend and dividend equivalent payments to
holders of certain Old Valeant equity awards and
(3) paying fees and expenses incurred in connection with the Refinancings and the New Credit
Facilities. The loans under the delayed draw Tranche B Term Loan Facility may be made to Old
Valeant and used by New Valeant, together with cash
on hand, for the payment of a special dividend of $1.00 per common share of New Valeant that it is
anticipated New Valeant will pay, subject to the discretion of the Board of Directors of New
Valeant, and to compliance with applicable law, on December 31, 2010, or such other date as the
Board of Directors of New Valeant may determine.
The New Credit Facilities provide that Old Valeant has the right at any time to seek commitments to
provide additional term loan facilities or additional revolving credit commitments in an aggregate
principal amount of up to $250 million. The lenders under the New Credit Facilities are not under
any obligation to provide any such additional term loan facilities or revolving credit commitments.
All borrowings under the New Credit Facilities, including the additional term loan facilities and
revolving commitments, are subject to the satisfaction of customary conditions, including the
absence of a default or an event of default and the accuracy in all material respects of
representations and warranties.
Borrowings under the New Credit Facilities will bear interest at a rate per annum equal to, at Old
Valeants option, either (a) a base rate determined by reference to the higher of (1) the rate of
interest quoted in the print edition of The Wall Street Journal, Money Rates Section, as the Prime
Rate (currently defined as the base rate on corporate loans posted by at least 75% of the nations
thirty largest banks), (2) the federal funds effective rate plus 1/2 of 1% and (3) a LIBO rate
determined by reference to the costs of funds for U.S. dollar deposits for a one-month interest
period adjusted for certain additional costs plus 1% or (b) a LIBO rate determined by reference to
the costs of funds for U.S. dollar deposits for the interest period relevant to such borrowing
adjusted for certain additional costs, in each case plus an applicable margin. For purpose of
determining the interest rate payable on loans under the Tranche B Term Loan Facility under clauses
(a) and (b) of the immediately preceding sentence, the base rate and LIBO rate will in no event be
less than 2.50% and 1.50%, respectively. The applicable margin for borrowings under the Revolving
Credit Facility will be 3.00% with respect to base rate borrowings and 4.00% with respect to LIBO
rate borrowings. The applicable margin for borrowings under the Tranche A Term Loan Facility will
be 3.00% with respect to base rate borrowings and 4.00% with respect to LIBO rate borrowings. The
applicable margin for borrowings under the Tranche B Term Loan Facility will be 3.00% with respect
to base rate borrowings and 4.00% with respect to LIBO rate borrowings.
In addition to paying interest on outstanding principal under the Revolving Credit Facility, Old
Valeant will be required to pay a commitment fee of 0.75% per annum in respect of the unutilized
commitments thereunder, payable quarterly in arrears. Old Valeant will also be required to pay
letter of credit fees on the maximum amount available to be drawn under all outstanding letters of
credit in an amount equal to the applicable margin on LIBO rate borrowings under the Revolving
Credit Facility on a per annum basis, payable quarterly in arrears, as well as customary fronting
fees for the issuance of letters of credit fees and agency fees.
Prior to the funding of the delayed draw commitments under the Tranche B Term Loan Facility, Old
Valeant will be required to pay a commitment fee equal to 0.75% per annum in respect of the
unutilized commitments thereunder, payable quarterly in arrears.
Subject to certain exceptions and customary baskets set forth in the Credit Agreement, Old Valeant
will be required to make mandatory prepayments of the loans under the Tranche A Term Loan Facility
and the Tranche B Term Loan Facility, on a pro rata basis, under certain circumstances, including
from (1) 100% of net cash proceeds from asset sales outside the ordinary course of business
(subject to reinvestment rights), (2) 100% of the net cash proceeds of insurance and condemnation
proceeds for property or asset losses (subject to reinvestment rights and net proceeds threshold), (3) 50% (with a step down
to 25% based on achievement of a specified leverage ratio) of the net cash proceeds received from
certain issuances of equity interests, (4) 100% of the net cash proceeds from the incurrence of
debt not otherwise permitted by the terms of the
Credit Agreement and (5) 50% of annual excess cash flow (with a step down to 25% based on
achievement of a specified leverage ratio), with any excess amounts after the prepayment of the
loans under the Tranche A Term Loan Facility and the Tranche B Term Loan Facility to be applied
against the outstanding amounts under the Revolving Credit Facility. For so long as any loans
under the Tranche A Term Loan Facility remain outstanding, the lenders under the Tranche B Term
Loan Facility will be permitted to waive any mandatory prepayments of the loans under the Tranche B
Term Loan Facility.
Old Valeant will be permitted to voluntarily reduce the unutilized portion of the commitment amount
and repay outstanding loans under the New Credit Facilities at any time without premium or penalty,
other than customary breakage costs with respect to LIBO rate loans.
The Tranche A Term Loan Facility will mature on the five-year anniversary of the closing date for
the New Credit Facilities and will amortize in equal quarterly installments of 10% of the original
principal amount per year for each of the first and second years after such closing date and in
equal quarterly installments of 20% of the original principal amount per year for each of the third
and fourth years after such closing date, with the remaining balance amortizing in equal quarterly
installments in the last year. The Tranche B Term Loan Facility will mature on the six-year
anniversary of the closing date for the New Credit Facilities and will amortize in an amount equal
to 1% of the original principal amount per year payable in quarterly installments, with the
remaining balance to be due at the maturity of the Tranche B Term Loan Facility. The Revolving
Credit Facility will mature on the four-and-one-half-year anniversary of the closing date for the
New Credit Facilities and will not amortize.
Old Valeants obligations under the New Credit Facilities, as well as certain hedging arrangements
and cash management arrangements entered into with lenders under the New Credit Facilities (or
affiliates thereof), are guaranteed, as of September 27, 2010, or will be guaranteed, by Old
Valeants existing and future direct and indirect domestic subsidiaries and, after the Effective
Time, by New Valeant and its existing and future direct and indirect subsidiaries (other than Old
Valeant), in each case excluding immaterial subsidiaries designated by Old Valeant or New Valeant
from time to time that, individually or in the aggregate, constitute less than (1) 7.5% of the
total assets and (2) 7.5% of the total revenues of New Valeant and its consolidated subsidiaries
(including Old Valeant) at the time of designation and, in each case subject to certain exclusions
set forth in the credit documentation governing the New Credit Facilities.
Old Valeants obligations and the obligations of the guarantors under the New Credit Facilities and
certain hedging arrangements and cash management arrangements entered into with lenders under the
New Credit Facilities (or affiliates thereof) are secured, or will be secured, by first-priority
security interests in substantially all tangible and intangible assets of Old Valeant and the
guarantors, including 100% of the capital stock of Old Valeant and each domestic subsidiary of Old
Valeant, 65% of the capital stock of each foreign subsidiary of Old Valeant that is directly owned
by Old Valeant or a guarantor and, after the Effective Time, 100% of the capital stock of Old
Valeant and each subsidiary of New Valeant (other than Old Valeants subsidiaries) that is owned by
a guarantor, in each case subject to certain exclusions set forth in the credit documentation
governing the New Credit Facilities.
The New Credit Facilities contain a number of covenants that, among other things and subject to
certain exceptions, restrict Old Valeants ability and the ability of New Valeant and its
subsidiaries to:
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incur additional indebtedness; |
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create liens; |
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enter into agreements and other arrangements that include negative pledge
clauses; |
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pay dividends on capital stock or redeem, repurchase or retire capital stock or
subordinated indebtedness;
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create restrictions on the payment of dividends or other distributions by
subsidiaries; |
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make investments, loans, advances and acquisitions; |
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merge, amalgamate or sell assets, including equity interests of the
subsidiaries; |
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enter into sale and leaseback transactions; |
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engage in transactions with affiliates; |
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enter into new lines of business; and |
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enter into amendments of or waivers under subordinated indebtedness,
organizational documents and certain other material agreements. |
The Credit Agreement requires that New Valeant maintain a minimum interest coverage ratio and a
maximum leverage ratio. In addition, the Credit Agreement limits the aggregate amount of capital
expenditures permitted to be made during any fiscal year, subject to a limited one-year
carryforward of up to a maximum amount of $27.5 million for the unused capital expenditures capacity
in any such fiscal year.
The Credit Agreement will also contain certain customary affirmative covenants and events of
default. If an event of default, as specified in the Credit Agreement, shall occur and be
continuing, Old Valeant may be required to repay all amounts outstanding under the New Credit
Facilities.
The foregoing summary of the New Credit Facilities is not complete and is qualified in its entirety
by the full and complete text of the Credit Agreement, a copy of which is attached as Exhibit 10.1
to this Current Report on Form 8-K and incorporated herein by reference.
The Senior Notes Offering
On the Effective Date, Old Valeant completed its previously announced offering (the Senior
Notes Offering) of $500 million aggregate principal amount of 6.75% Senior Notes due 2017 (the
2017 Notes) and $700 million aggregate principal amount of 7.00% Senior Notes due 2020
(the 2020 Notes and, together with the 2017 Notes, the Senior Notes) to
qualified institutional buyers pursuant to Rule 144A under the Securities Act of 1933, as amended
(the Securities Act), and outside the United States to non-United States persons pursuant
to Regulation S under the Securities Act. The Senior Notes have not been and will not be
registered under the Securities Act or any state securities law and may not be offered or sold in
the United States absent registration or an applicable exemption from the registration
requirements. The Senior Notes are the senior unsecured obligations of Old Valeant and are jointly and severally guaranteed on a senior unsecured basis by New Valeant and each of
New Valeants subsidiaries (other than Old Valeant) that is a guarantor under the New Credit
Facilities. Certain of the future subsidiaries of Old Valeant and New Valeant may be required to
guarantee the Senior Notes.
A portion of the proceeds of the Senior Notes Offering were used to repay $1.0 billion of the Term
Loan B Facility and the remaining portion will be used for general corporate purposes.
The Senior Notes were issued pursuant to the Indenture, dated as of the Effective Date, among Old
Valeant, The Bank of New York Mellon Trust Company, as trustee, and New Valeant and the other
Guarantors named therein (the Senior Notes Indenture).
Pursuant to the Senior Notes Indenture, the 2017 Notes will mature on October 1, 2017, and the 2020
Notes will mature on October 1, 2020. The 2017 Notes will accrue interest at the rate of 6.75% per
year and the 2020 Notes will accrue interest at the rate of 7.00% per year. Interest on the Senior
Notes will be payable semi-annually in arrears on each April 1 and October 1, commencing on April
1, 2011.
Old Valeant may redeem all or a portion of the 2017 Notes at any time prior to October 1, 2014, and
Old Valeant may redeem all or a portion of the 2020 notes at any time prior to October 1, 2015, in
each case at a price equal to 100% of the principal amount thereof, plus accrued and unpaid
interest, if any, to the date of redemption, plus a make-whole premium. On or after October 1,
2014, Old Valeant may redeem all or a portion of the 2017 Notes, and on or after October 1, 2015,
Old Valeant may redeem all or a portion of the 2020 Notes, in each case at the redemption prices
applicable to the 2017 Notes or the 2020 Notes, as applicable, as set forth in the Senior Notes
Indenture, plus accrued and unpaid interest to the date of redemption of the 2017 Notes or the 2020
Notes, as applicable. In addition, prior to October 1, 2013, Old Valeant may redeem up to 35% of
the aggregate principal amount of either the 2017 Notes or the 2020 Notes, in each case with the
net proceeds of certain equity offerings.
If Old Valeant or New Valeant experiences a Change of Control (as
defined in the Senior Notes Indenture), unless
Old Valeant has exercised its right to redeem all of the 2017 Notes or the 2020 Notes, as
applicable, each holder of 2017 Notes or 2020 Notes, as applicable, may require Old Valeant to
repurchase such holders 2017 Notes or 2020 Notes, as applicable, in whole or in part, at a
purchase price equal to 101% of the principal amount thereof, plus accrued and unpaid interest to
the purchase date of the 2017 Notes or 2020 Notes, as applicable.
The Senior Notes Indenture contains covenants that limit the ability of New Valeant and any of its
restricted subsidiaries (as such term is defined in the Senior Notes Indenture) to, among other
things:
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incur or guarantee additional debt; |
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make certain investments and other restricted payments; |
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create liens; |
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enter into transactions with affiliates; |
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engage in mergers, consolidations or amalgamations; |
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repurchase capital stock, repurchase subordinated debt and make certain
investments; and |
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transfer and sell assets. |
If an event of default, as specified in the Senior Notes Indenture, shall occur and be continuing,
either the trustee or the holders of a specified percentage of the Senior Notes may accelerate the
maturity of all the Senior Notes.
The foregoing summary of the Senior Notes Indenture is not complete and is qualified in its
entirety by reference to the full and complete text of the Senior
Notes Indenture, a copy of which is attached
as Exhibit 4.1 to this Current Report on Form 8-K and incorporated herein by reference.
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule
Old Valeant notified the New York Stock Exchange (the NYSE) of the consummation of the
Merger. Accordingly, on the Effective Date, the
NYSE filed a notification of removal from listing on Form 25 with the SEC with respect to the Old
Valeant Common Stock.
In addition, Old Valeant intends to file with the SEC a certification and notice of termination on
Form 15 requesting that the Old Valeant Common Stock be deregistered under Section 12(g) of the
Securities Exchange Act of 1934, as amended (the Exchange Act), and that Old Valeants
reporting obligations under Sections 13 and 15(d) of the Exchange Act be suspended.
Item 3.03 Material Modification to Rights of Security Holders
The disclosure set forth in Item 2.01 above is incorporated
herein by reference.
Item 5.01 Changes in Control of Registrant
As a result of the Merger, a change of control of Old Valeant occurred, and Old Valeant became a
wholly-owned subsidiary of New Valeant. The disclosure set forth in Item 2.01 above is incorporated
herein by reference.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain
Officers; Compensatory Arrangements of Certain Officers
In connection with the Merger, all of the directors of Old Valeant resigned from their
directorships of Old Valeant, as of the Effective Time, and Robert Chai-Onn, Jeremy Lipshy
and Rajiv De Silva became the directors of Old Valeant at the Effective Time.
On September 28, 2010, each of Bhaskar Chaudhuri, Peter Blott, Steve T. Min and Elisa A.
Karlson ceased to hold his or her respective office with Old Valeant and Old Valeants Board of
Directors appointed Margaret Mulligan as Executive Vice President and Chief Financial Officer,
Rajiv De Silva as President and Chief Operating Officer and Robert Chai-Onn as Executive Vice
President, General Counsel and Corporate Secretary. On September 29, 2010, J. Michael
Pearson, Chief Executive Officer of New Valeant, ceased to be the principal executive officer of
Old Valeant.
Item 5.03 Amendments to Articles of Incorporation or By-laws; Change in Fiscal Year
As of the Effective Time, the certificate of incorporation of Old Valeant was amended and restated
in its entirety to be substantially identical to the certificate of incorporation of Merger Sub in
effect as of immediately prior to the Effective Time, but with the name of the surviving
corporation remaining Valeant Pharmaceuticals International. In addition, following the
Effective Time, the by-laws of Merger Sub in effect immediately prior to the Effective Time became
the by-laws of Old Valeant, but with the name of the surviving corporation remaining Valeant
Pharmaceuticals International.
The Amended and Restated Certificate of Incorporation of Old Valeant is attached hereto as Exhibit
3.1 and incorporated herein by reference. The Amended and Restated By-laws of Old Valeant are
attached hereto as Exhibit 3.2 and incorporated herein by reference.
Item 5.07 Submission of Matters to a Vote of Security Holders
On September 27, 2010, Old Valeant held a special meeting of stockholders at which the Old Valeant
stockholders voted on a proposal to adopt the Merger Agreement and a proposal to approve the
adjournment of the special meeting, if necessary or appropriate to solicit additional proxies if
there were not sufficient votes to adopt the Merger Agreement at the time of the special meeting.
Stockholders present in person at the special meeting or by proxy voted to adopt the Merger
Agreement as follows:
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For |
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68,031,394 |
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Against |
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68,218 |
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Abstain |
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24,520 |
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Stockholders present in person at the special meeting or by proxy voted to approve the adjournment
proposal as follows:
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For |
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66,130,467 |
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Against |
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1,956,387 |
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Abstain |
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37,278 |
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The votes in favor of adopting the Merger Agreement represented 88.7% of the shares of Old Valeant
Common Stock outstanding as of the record date for the special meeting and 99.9% of the shares of
Old Valeant Common Stock present in person or represented by proxy at the special meeting.
For each of the foregoing proposals, a quorum was present for the purposes of the vote.
On September 27, 2010, Old Valeant issued a press release announcing the foregoing voting results
of the special meeting of stockholders. Such press release is attached as Exhibit 99.1 to this
Current Report on Form 8-K and is incorporated herein by reference.
Item 8.01 Other Events
On September 27, 2010, Old Valeants Board of Directors declared the Pre-Merger Special Dividend.
On September 27, 2010, Old Valeant announced that it will redeem all of its 7.625% Notes and all of
its 8.375% Notes that remain outstanding on October 27, 2010 and that in conjunction with the
redemption, both the 7.625% Notes and the 8.375% Notes were legally defeased on September 27, 2010.
A copy of the press release announcing the redemption and defeasance is attached hereto as Exhibit 99.2 to this Current Report on Form 8-K
and incorporated herein by reference.
A copy of the press release announcing the declaration of the Pre-Merger Special Dividend and the
consummation of the Merger is attached as Exhibit 99.3 to this Current Report on Form 8-K and
incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits.
2.1 |
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Agreement and Plan of Merger, dated as of June 20, 2010, among Valeant Pharmaceuticals
International, Biovail Corporation, Biovail Americas Corp. and Beach Merger Corp.
(incorporated by reference to Exhibit 2.1 of Old Valeants Current Report on Form 8-K filed on
June 23, 2010). |
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3.1 |
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Amended and Restated Certificate of Incorporation of Valeant Pharmaceuticals International. |
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3.2 |
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Amended and Restated By-laws of Valeant Pharmaceuticals International. |
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4.1 |
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Indenture, dated as of September 28, 2010, among Valeant Pharmaceuticals International,
Valeant Pharmaceuticals International, Inc., The Bank of New York Mellon Trust Company, N.A.,
as trustee, and the Guarantors listed therein. |
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4.2 |
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First Supplemental Indenture, dated as of September 27, 2010 and effective as of September
28, 2010, to the Indenture, dated as of November 19, 2003, between Valeant Pharmaceuticals
International, Ribapharm Inc. and The Bank of New York Mellon Trust Company, N.A, as successor
to The Bank of New York Mellon (formerly The Bank of New York) (the Convertible Notes
Trustee), between Valeant Pharmaceuticals International, Valeant Pharmaceuticals
International, Inc. (formerly known as Biovail Corporation), and the Convertible Notes
Trustee. |
10.1 |
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Credit and Guaranty Agreement, dated as of September 27, 2010, among Valeant Pharmaceuticals
International and, upon consummation of the Merger and delivery of the Counterpart Agreement
pursuant to Section 5.16 thereto, New Valeant, certain subsidiaries of Valeant Pharmaceuticals
International, as Guarantors, and, upon consummation of the Merger and delivery of the
Counterpart Agreement pursuant to Section 5.16 thereto, certain subsidiaries of New Valeant,
as Guarantors, each of the lenders named therein, Goldman Sachs Lending Partners LLC (GSLP),
Morgan Stanley Senior Funding, Inc. and Jefferies Finance LLC, as Joint Lead Arrangers, Joint
Bookrunners and Syndication Agents, GSLP, as Administrative Agent and Collateral Agent, and
each of Bank of America, N.A., DnB NOR Bank ASA, SunTrust Bank and The Bank of Nova Scotia, as
Documentation Agent. |
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99.1 |
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Press release of Valeant Pharmaceuticals International, issued on September 27, 2010 |
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99.2 |
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Press release of Valeant Pharmaceuticals International, issued on September 27, 2010. |
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99.3 |
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Press release of Valeant Pharmaceuticals International, Inc., issued on September 28, 2010. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: October 1, 2010
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By:
Name:
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/s/ Robert Chai-Onn
Robert Chai-Onn
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Title:
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Executive Vice President, General Counsel and
Corporate Secretary |
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EXHIBIT INDEX
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Exhibit |
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Number |
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Description |
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2.1
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Agreement and Plan of Merger, dated as of June 20, 2010, among Valeant
Pharmaceuticals International, Biovail Corporation, Biovail Americas Corp. and
Beach Merger Corp. (incorporated by reference to Exhibit 2.1 of Old Valeants
Current Report on Form 8-K filed on June 23, 2010). |
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3.1*
|
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Amended and Restated Certificate of Incorporation of Valeant Pharmaceuticals
International. |
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|
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3.2*
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Amended and Restated By-laws of Valeant Pharmaceuticals International. |
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4.1*
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Indenture, dated as of September 28, 2010, among Valeant Pharmaceuticals
International, Valeant Pharmaceuticals International, Inc., The Bank of New York
Mellon Trust Company, N.A., as trustee, and the Guarantors listed therein. |
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4.2*
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First Supplemental Indenture, dated as of September 27, 2010 and effective as of
September 28, 2010, to the Indenture, dated as of November 19, 2003, between Valeant
Pharmaceuticals International, Ribapharm Inc. and The Bank of New York Mellon Trust
Company, N.A, as successor to The Bank of New York Mellon (formerly The Bank of New
York) (the Convertible Notes Trustee), between Valeant Pharmaceuticals
International, Valeant Pharmaceuticals International, Inc. (formerly known as
Biovail Corporation), and the Convertible Notes Trustee. |
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10.1*
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Credit and Guaranty Agreement, dated as of September 27, 2010, among Valeant
Pharmaceuticals International and, upon consummation of the Merger and delivery of
the Counterpart Agreement pursuant to Section 5.16 thereto, New Valeant, certain
subsidiaries of Valeant Pharmaceuticals International, as Guarantors, and, upon
consummation of the Merger and delivery of the Counterpart Agreement pursuant to
Section 5.16 thereto, certain subsidiaries of New Valeant, as Guarantors, each of
the lenders named therein, Goldman Sachs Lending Partners LLC (GSLP), Morgan
Stanley Senior Funding, Inc. and Jefferies Finance LLC, as Joint Lead Arrangers,
Joint Bookrunners and Syndication Agents, GSLP, as Administrative Agent and
Collateral Agent, and each of Bank of America, N.A., DnB NOR Bank ASA, SunTrust Bank
and The Bank of Nova Scotia, as Documentation Agent. |
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99.1*
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Press release of Valeant Pharmaceuticals International, issued on September 27, 2010 |
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99.2*
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Press release of Valeant Pharmaceuticals International, issued on September 27, 2010. |
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99.3*
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Press release of Valeant Pharmaceuticals International, Inc., issued on September
28, 2010. |
* Filed
herewith