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SECURITIES AND EXCHANGE COMMISSION
UNDER
THE SECURITIES ACT OF 1933
Delaware (State or other jurisdiction of incorporation or organization) | 2834 (Primary Standard Industrial Classification Code Number) | 33-0628076 (I.R.S. Employer Identification Number) |
Aliso Viejo, California 92656
(949) 461-6000
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
SEE TABLE OF SUBSIDIARY GUARANTOR REGISTRANTS BELOW
14 Main Street, Suite 140
Madison, NJ 07940
(973) 549-5292
(Name and address, including zip code, and telephone
number, including area code, of agent for service)
Michael F. Marino, Esq.
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, Pennsylvania 19103-2921
(215) 963-5134
Fax: (215) 963-5001
Large accelerated filerþ | Accelerated filero | Non-accelerated filero(Do not check if a smaller reporting company) | Smaller reporting companyo |
Proposed Maximum | Proposed Maximum | ||||||||||||||||||||||||||
Title of each Class of | Amount to | Offering Price | Aggregate | Amount of | |||||||||||||||||||||||
Securities to be Registered | be Registered | Unit | Offering Price | Registration Fee | |||||||||||||||||||||||
8.375% Senior Notes due 2016 | $ | 365,000,000 | 100 | % | $ | 354,105,788 | (1) | $ | 25,248 | ||||||||||||||||||
Guarantees of 8.375% Senior Notes due 2016 | N/A | N/A | N/A | (2 | ) | ||||||||||||||||||||||
(1) | Based upon the book value of the securities as of January 31, 2010 pursuant to Rule 457(f)(2) under the Securities Act. | |
(2) | No separate registration fee is due for the guarantees pursuant to Rule 457(n) under the Securities Act. |
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State or other | Primary Standard | |||||||||||
Jurisdiction | Industrial | I.R.S. Employer | ||||||||||
of Incorporation or | Classification | Identification | ||||||||||
Exact Name of Subsidiary Guarantor Registrant as Specified in its Charter * | Organization | Code Number | Number | |||||||||
Amarin Pharmaceuticals Inc. | Delaware | 5122 | 13-4096932 | |||||||||
Harbor Pharmaceuticals, Inc. | Ohio | 5122 | 20-0211035 | |||||||||
Healthchoice Online, LLC | Delaware | 5122 | 37-1473228 | |||||||||
Hyland Capital, Inc. | Delaware | 6159 | 33-0860694 | |||||||||
ICN Medical Alliance, Inc. | California | 5122 | 33-0933982 | |||||||||
ICN Southeast, Inc. | Delaware | 2833 | 33-0216000 | |||||||||
Oceanside Pharmaceuticals, Inc. | Delaware | 5122 | 33-0845345 | |||||||||
Valeant Biomedicals, Inc. | Delaware | 6799 | 13-3179561 | |||||||||
Valeant China, Inc. | Delaware | 6799 | 33-0697447 | |||||||||
Valeant Pharmaceuticals North America | Delaware | 5122 | 33-0949894 | |||||||||
Coria Laboratories, Ltd. | Delaware | 6794 | 26-0291510 | |||||||||
Dow Pharmaceutical Sciences, Inc. | Delaware | 6794 | 68-0174793 |
* | Each Subsidiary Guarantor Registrant is a direct or indirect subsidiary of Valeant Pharmaceuticals International. The address and telephone number of the principal executive offices of Amarin Pharmaceuticals Inc., Harbor Pharmaceuticals, Inc., Healthchoice Online, LLC, Hyland Capital, Inc., ICN Medical Alliance, Inc., ICN Southeast, Inc., Oceanside Pharmaceuticals, Inc., Valeant Biomedicals, Inc., Valeant China, Inc. and Valeant Pharmaceuticals North America are c/o Valeant Pharmaceuticals International, One Enterprise, Aliso Viejo, California 92656, telephone (949) 461-6000. The address and telephone number of the principal executive offices of Coria Laboratories, Ltd. are 3801 Hulen Street, Fort Worth, Texas 76107, telephone (866) 819-9007. The address and telephone number of the principal executive offices of Dow Pharmaceutical Sciences, Inc. are 1330 Redwood Way, Petaluma, California 94954, telephone (707) 793-2600. |
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION RELATING TO THESE SECURITIES IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL AND IT IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY JURISDICTION WHERE THE OFFER OR SALE IS NOT PERMITTED.
8.375% SENIOR NOTES DUE 2016
• | We will exchange a like principal amount of exchange notes for all old notes that are validly tendered and not validly withdrawn. | ||
• | You may withdraw tenders of old notes at any time prior to the expiration of the exchange offer. | ||
• | The exchange offer expires at 5:00 p.m., New York City time, on , 2010, unless extended. | ||
• | We will not receive any proceeds from the exchange offer. | ||
• | We believe the exchange of old notes for exchange notes in the exchange offer generally will not be a taxable event for U.S. federal income tax purposes, but you should read “Certain Material United States Federal Income Tax Considerations” on page 77 of this prospectus for more information. |
• | The form and terms of the exchange notes will be substantially identical to the form and terms of the old notes, except that: |
o | the offer and sale of the exchange notes will have been registered under the Securities Act of 1933, and therefore, the exchange notes generally will not be subject to the restrictions on transfer applicable to the old notes or bear legends restricting their transfer; and | ||
o | specified rights under the exchange and registration rights agreement, including the provisions providing for registration rights and the right to earn additional interest under circumstances relating to our registration obligations thereunder, will be limited or eliminated. |
• | The old notes are not listed on any national securities exchange and we do not intend to list the exchange notes on any national securities exchange. |
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• | “we,” “us,” “our,” “the Company” and “Valeant” refer to Valeant Pharmaceuticals International and (unless the context otherwise requires) its subsidiaries on a consolidated basis; | ||
• | “subsidiary guarantors” refers to those subsidiaries of Valeant Pharmaceuticals International that guarantee the obligations of Valeant Pharmaceuticals International under the old notes and the exchange notes; | ||
• | “old notes” refers to the $365,000,000 aggregate principal amount of 8.375% senior notes due 2016 of Valeant Pharmaceuticals International and (unless the context otherwise requires) the guarantees thereof made by the subsidiary guarantors, which were previously issued without registration under the Securities Act; | ||
• | “exchange notes” refers to $365,000,000 aggregate principal amount of 8.375% senior notes due 2016 of Valeant Pharmaceuticals International and (unless the context otherwise requires) the guarantees thereof made by the subsidiary guarantors, which have been registered under the Securities Act and which we are offering in exchange for the old notes pursuant to this prospectus and the accompanying letter of transmittal; and | ||
• | “notes” refers collectively to the old notes and the exchange notes. |
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• | Annual Report on Form 10-K for the year ended December 31, 2009 (including the portions of our definitive Proxy Statement for our 2010 Annual Meeting of Stockholders incorporated therein by reference); and |
• | Current Report on Form 8-K filed January 11, 2010. |
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One Enterprise
Aliso Viejo, California 92656
Attention: Corporate Secretary
Telephone: (949) 461-6000
• | our future economic performance, operating results, financial condition, capital resources or prospects; | ||
• | projections of revenue, expenses, income and losses, earnings (losses) per share, capital expenditures, dividends, growth rates or other financial items; | ||
• | market or industry trends, | ||
• | legal or regulatory developments; | ||
• | future events; | ||
• | the anticipated effect of acquisitions, litigation, new (or changes to existing) laws, regulations or accounting principles or other matters on our business, economic performance, operating results, financial condition, capital resources or prospects; | ||
• | our plans, objectives and strategies for future operations or otherwise; and | ||
• | our expectations and beliefs. |
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• | Specialty Pharmaceuticals— The Specialty Pharmaceuticals segment generates product revenues from pharmaceutical and OTC products primarily from the United States, Canada, Australia and New Zealand. Within the Specialty Pharmaceuticals segment, we have a broad range of pharmaceutical products including dermatology, neurology and prescription products in other therapeutic areas. These pharmaceutical products are marketed and sold primarily through wholesalers and to a lesser extent through retail and direct-to-physician channels. Additionally, within the Specialty Pharmaceuticals segment, we generate alliance revenue and service revenue from the licensing of dermatological products and from contract services in the areas of dermatology and topical medication. |
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• | Branded Generics — Europe- The Branded Generics — Europe segment generates revenues from branded generic pharmaceutical products primarily in Poland, Hungary, the Czech Republic and Slovakia. Our Branded Generics — Europe segment develops, manufactures and markets products that are the therapeutic equivalent to their brand name counterparts, which are developed when patents or other regulatory exclusivity no longer protect an originator’s brand product. Our branded generics strategy is to develop a commercialization strategy to differentiate these products through innovative marketing tactics. Our products in this region are sold under the ICN Polfa brand name and we market our portfolio of generic branded products to doctors and pharmacists through approximately 300 sales professionals. Our branded generics in this segment cover a broad range of treatments including antibiotics, antifungal medications and diabetic therapies among many others. | ||
• | Branded Generics — Latin America- The Branded Generics — Latin America segment generates revenues from branded generic pharmaceutical products and OTC products in Mexico, Brazil and exports out of Mexico to other Latin American markets. Our branded generic and generic products are developed when patents or other regulatory exclusivity no longer protect an originator’s brand product. Our products in this region are primarily marketed to physicians and pharmacies through approximately 300 sales professionals under the Grossman brand. Our generic portfolio is primarily sold through the Government Health Care System, which awards its business through a tender process. Our portfolio in this segment covers a broad range of therapeutic classes including antibacterials, vitamin deficiency and dermatology. |
• | Retigabine —Retigabine is being developed by us in collaboration with GSK as an adjunctive treatment for partial-onset seizures in patients with epilepsy. On October 30, 2009, the New Drug Application, or NDA, was filed for retigabine for the treatment of refractory partial onset seizures. The U.S. Food and Drug Administration, or FDA, accepted the NDA for review on December 29, 2009 and established a Prescription Drug User Fee Act date of August 30, 2010. In addition, the European Medicines Evaluation Agency confirmed on November 17, 2009 that the Marketing Authorization Application, or MAA, was successfully validated, thus enabling the MAA review to commence. | ||
• | Taribavirin —Taribavirin (formerly referred to as viramidine) was in development in oral form for the treatment of hepatitis C. During 2009, we ceased further independent development work on taribavirin and we are seeking potential partners for the taribavirin program. | ||
• | Dermatology Products— We have a number of dermatology product candidates in development including, but not limited to: |
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• | IDP-107 is an oral treatment for moderate to severe acne vulgaris. | ||
• | IDP-108 is an antifungal targeted to treat onychomycosis, a fungal infection of the fingernails and toenails primarily in older adults. | ||
• | IDP-113 is a topical therapy for the treatment of tinea capitis, which is a fungal infection of the scalp characterized by redness, scaling and bald patches, particularly in children. IDP-113 has the same active pharmaceutical ingredient as IDP-108. | ||
• | IDP-115 combines an established anti-rosacea active ingredient with sunscreen agents to provide sun protection in the same topical treatment for rosacea patients. |
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The Exchange Offer | We are offering to exchange the exchange notes for a like principal amount of the old notes. Old notes may be tendered only in denominations of $2,000 and any integral multiples of $1,000 in excess thereof. We are making this exchange offer to satisfy our obligations under the exchange and registration rights agreement. After the exchange offer is complete, except as set forth below, you will no longer be entitled to any exchange or registration rights with respect to the notes. The exchange and registration rights agreement requires us to file a registration statement for a continuous offering in accordance with Rule 415 under the Securities Act for your benefit if you notify us prior to the 20th business day following the completion of the exchange offer that you would not receive freely tradable exchange notes in the exchange offer or you are ineligible to participate in the exchange offer. See “The Exchange Offer—Purpose and Effect.” | |||
Exchange Notes | Up to $365 million aggregate principal amount of 8.375% Senior Notes due 2016. The form and terms of the exchange notes will be substantially identical to the form and terms of the old notes, except that: | |||
• | the offer and sale of the exchange notes will have been registered under the Securities Act, and therefore, the exchange notes generally will not be subject to the restrictions on transfer applicable to the old notes or bear legends restricting their transfer; and | |||
• | specified rights under the exchange and registration rights agreement, including the provisions providing for registration rights and the right to earn additional interest under circumstances relating to our registration obligations thereunder, will be limited or eliminated. | |||
Resales of the Exchange Notes | Based on interpretative letters of the SEC staff to third parties, we believe that the exchange notes may be offered for resale, resold and otherwise transferred by you without compliance with the registration and prospectus delivery provisions of the Securities Act if you meet all of the following conditions: | |||
• | you are acquiring the exchange notes in the ordinary course of your business; | |||
• | you have not engaged in, do not intend to engage in, and have no arrangement or understanding with any person to participate in a distribution of the exchange notes; | |||
• | you are not an affiliate of ours, as the term “affiliate” is defined in Rule 405 under the Securities Act; and | |||
• | you are not acting on behalf of any person or entity that could not truthfully make these representations. |
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If you do not meet all of the above conditions, you must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a resale of the exchange notes. | ||||
Each broker-dealer that receives exchange notes for its own account in the exchange offer for old notes that it acquired as a result of market-making activities or other trading activities must deliver a prospectus in connection with any resale of the exchange notes and acknowledge this obligation in the letter of transmittal. See “Plan of Distribution.” | ||||
Our belief that transfers of exchange notes would be permitted without registration or prospectus delivery under the conditions described above is based on SEC interpretations given to other, unrelated issuers in similar exchange offers. We cannot assure you that the SEC would make a similar interpretation with respect to our exchange offer. We will not be responsible for or indemnify you against any liability you may incur under the Securities Act. You should consult your own legal adviser with respect to such matters. | ||||
Consequences of Failure to Exchange | If you do not participate or properly tender your old notes in the exchange offer: | |||
• | you will retain old notes that are not registered under the Securities Act and that will continue to be subject to restrictions on transfer that are described in the legend on the old notes; | |||
• | you will not be able to require us to register your old notes under the Securities Act, except in the very limited circumstances described above under “The Exchange Offer”; | |||
• | you will not be able to offer to resell or transfer your old notes unless they are registered under the Securities Act or unless you offer to resell or transfer them pursuant to an exemption under the Securities Act; and | |||
• | the trading market for your old notes may become more limited to the extent that other holders of old notes participate in the exchange offer. | |||
Acceptance of Old Notes and Delivery of Exchange Notes | Except under the circumstances summarized below under “Conditions to the Exchange Offer,” we will accept for exchange any and all old notes validly tendered and not validly withdrawn prior to 5:00 p.m., New York City time, on the expiration date of the exchange offer. The exchange notes to be issued to you in the exchange offer will be delivered promptly following the expiration of the exchange offer. See “The Exchange Offer—Terms of the Exchange Offer.” | |||
Expiration Date | The exchange offer will expire at 5:00 p.m., New York City time, on , 2010, unless we decide to extend the exchange offer. We do not intend to extend the exchange offer, although we reserve the right to do so. | |||
Procedures for Tendering Old Notes | The old notes were issued as global securities in fully registered form without coupons. Beneficial interests in the old notes that are held by direct or indirect participants in The Depository Trust Company (referred to in this prospectus as, “DTC”) through certificateless depositary interests that are shown on, and transfers of the old notes can be made only through, records maintained in book-entry form by DTC with respect to its participants. |
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If you are a holder of an old note held in the form of a book-entry interest and you wish to exchange your old note for an exchange note pursuant to the exchange offer, you must transmit to The Bank of New York Mellon Trust Company, N.A., as exchange agent, on or prior to the expiration of the exchange offer a computer-generated message transmitted by means of DTC’s Automated Tender Offer Program (referred to in this prospectus as, “ATOP”) system and forming a part of a confirmation of book-entry transfer in which you acknowledge and agree to be bound by the terms of the letter of transmittal. | ||||
The exchange agent must also receive on or prior to the expiration of the exchange offer either: | ||||
• | a timely confirmation of book-entry transfer of your old notes into the exchange agent’s account at DTC, in accordance with the procedure for book-entry transfers described in this prospectus under the heading “The Exchange Offer—Procedures for Tendering Old Notes—Book-Entry Transfer”; or | |||
• | the documents necessary for compliance with the guaranteed delivery procedures described below. | |||
A letter of transmittal accompanies this prospectus. By delivering a computer-generated message through DTC’s ATOP system, you will represent to us, among other things, that: | ||||
• | you are acquiring the exchange notes in the exchange offer in the ordinary course of your business; | |||
• | you have not engaged in, do not intend to engage in, and have no arrangement or understanding with any person to participate in a distribution of the exchange notes; | |||
• | you are not an affiliate of ours, as the term “affiliate” is defined in Rule 405 under the Securities Act; and | |||
• | you are not acting on behalf of any person or entity that could not truthfully make these representations. | |||
Special Procedures for Beneficial Owners | If you are the beneficial owner of old notes that are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and you wish to tender your old notes, you should promptly contact the person in whose name your old notes are registered and instruct that person to tender on your behalf. See “The Exchange Offer—Procedures for Tendering Old Notes.” | |||
Guaranteed Delivery Procedures | If you wish to tender your old notes and you cannot get the required documents to the exchange agent before the expiration date of the exchange offer, or the procedure for book-entry transfer cannot be completed on a timely basis, you may tender your old notes in accordance with the guaranteed delivery procedures set forth in “The Exchange Offer—Procedures for Tendering Old Notes—Guaranteed Delivery Procedures.” | |||
Withdrawal | You may withdraw any tender of your old notes at any time prior to the expiration of the exchange offer. |
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Conditions to the Exchange Offer | We reserve the right in our sole discretion to terminate the exchange offer at any time before the acceptance of any old notes for exchange. As set forth in the exchange and registration rights agreement, we will complete the exchange offer only if it will not violate applicable law or any applicable interpretation of the staff of the Commission and no injunction, order or decree has been issued that would prohibit, prevent or otherwise materially impair our ability to proceed with the exchange offer. See “The Exchange Offer—Conditions.” | |||
Exchange Agent | The Bank of New York Mellon Trust Company, N.A. is serving as the exchange agent in connection with the exchange offer. The address, facsimile number and telephone number of the exchange agent are set forth under “The Exchange Offer — Exchange Agent.” | |||
Federal Income Tax Consequences | We believe your exchange of old notes for exchange notes in the exchange offer generally will not be a taxable event for U.S. federal income tax purposes. See “Certain Material United States Federal Income Tax Considerations.” | |||
No Appraisal Rights | You do not have any appraisal or dissenters’ rights under the Delaware General Corporation Law in connection with the exchange offer. | |||
Accounting Treatment | We will not recognize any gain or loss for accounting purposes upon the completion of the exchange offer. The expenses of the exchange offer that we pay will increase our deferred financing costs in accordance with generally accepted accounting principles and such costs will be amortized over the term of the exchange notes under generally accepted accounting principles. | |||
Use of Proceeds | We will not receive any cash proceeds from the issuance of the exchange notes in connection with the exchange offer. See “Use of Proceeds.” |
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• | the offer and sale of the exchange notes will have been registered under the Securities Act of 1933, and therefore, the exchange notes generally will not be subject to the restrictions on transfer applicable to the old notes or bear legends restricting their transfer; and | ||
• | specified rights under the exchange and registration rights agreement, including the provisions providing for registration rights and the right to earn additional interest under circumstances relating to our registration obligations thereunder, will be limited or eliminated. |
Issuer | Valeant Pharmaceuticals International. | |
Exchange Notes Offered | $365,000,000 aggregate principal amount of 8.375% senior notes due 2016. | |
Maturity Date | June 15, 2016. | |
Interest | Interest on the exchange notes will accrue at the rate of 8.375% per annum and will be payable semi-annually in arrears on June 15 and December 15. Interest on the exchange notes will accrue from December 15, 2009 (the date interest was most recently paid on the old notes). In order to avoid duplicative payment of interest, all interest accrued on old notes that are accepted for exchange before June 15, 2010 will be superseded by the interest that is deemed to have accrued on the exchange notes from December 15, 2009 through the date of the exchange. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. Valeant will make each interest payment to the Holders of record on the immediately preceding June 1 and December 1. | |
Original Issue Discount | As in the case of the old notes, the exchange notes will be treated as having been issued with original issue discount for United States federal income tax purposes (but based on the issue date of the old notes). Thus, in addition to stated interest on the notes, U.S. holders (as defined in “Certain Material United States Federal Income Tax Considerations”) will be required to include any amounts representing the original issue discount in gross income on a constant yield basis for United States federal income tax purposes in advance of the receipt of cash payments to which such income is attributable. Each holder should consult its own tax adviser as to the particular tax consequences that would |
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bear on its exchange of old notes for exchange notes, and the holding of exchange notes, including the applicability and effect of any state, local or foreign tax laws and of any proposed changes in applicable laws. | ||
Guarantees | The exchange notes will be jointly and severally guaranteed by certain of our subsidiaries (referred to in this prospectus as, “subsidiary guarantors”). Additional subsidiaries may be required to guarantee the notes, and the guarantee of any subsidiary may be released, in each case, in the circumstances set forth under “Description of the Exchange Notes — Subsidiary Guarantees.” | |
As of December 31, 2009, the non-guarantor subsidiaries held $667.1 million, or 51% , of our total consolidated assets. The non-guarantor subsidiaries generated $422.4 million, or 51%, of our total consolidated revenue and $122.2 million, 52%, of our total consolidated income from operations for the year ended December 31, 2009. | ||
Ranking | The exchange notes will be senior unsecured obligations of ours. Accordingly, they will rank: | |
• | equal in right of payment to all of our existing and future unsecured and unsubordinated indebtedness; | |
• | senior in right of payment to all of our existing and future indebtedness that expressly provides for subordination to the notes; and | |
• | effectively junior in right of payment to all of our existing and future secured indebtedness to the extent of the value of the collateral securing such indebtedness. As of December 31, 2009, we had $2.0 million of secured indebtedness outstanding. | |
The guarantees will be the senior unsecured obligation of the applicable subsidiary guarantor. Accordingly they will rank: | ||
• | equal in right of payment to all of the applicable subsidiary guarantor’s existing and future unsecured and unsubordinated indebtedness; | |
• | senior in right of payment to all of the applicable subsidiary guarantor’s existing and future indebtedness that expressly provides for subordination to the notes; and | |
• | effectively junior in right of payment to all of the applicable subsidiary guarantor’s existing and future secured indebtedness to the extent of the value of the collateral securing such indebtedness. As of December 31, 2009, the subsidiary guarantors had no secured indebtedness outstanding. | |
In addition, the notes will be effectively junior in right of payment to all liabilities of our non-guarantor subsidiaries. As of December 31, 2009, the non-guarantor subsidiaries had an |
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aggregate of $344.1 million of liabilities. | ||
Optional Redemption | At any time prior to June 15, 2012, we may redeem the notes, in whole or in part, at a redemption price equal to the principal amount of the notes, plus the premium described under the heading “Description of the Exchange Notes— Optional Redemption.” In addition, at any time prior to June 15, 2012, we may on any one or more occasions redeem up to 35% of the aggregate principal amount of notes with the proceeds from certain equity offerings at a redemption price equal to 108.375% of the principal amount thereof, plus accrued and unpaid interest and liquidated damages, if any, to the redemption date. On or after June 15, 2012, we may redeem all or a part of the notes at the redemption prices listed under the heading “Description of the Exchange Notes — Optional Redemption,” plus accrued and unpaid interest and liquidated damages, if any, to the applicable redemption date. | |
Change of Control | If we experience a change of control, you will have the right to require us to repurchase all or part of your notes at 101% of the aggregate principal amount of the notes repurchased, plus accrued and unpaid interest and liquidated damages, if any, to the date of purchase. See “Description of the Exchange Notes — Repurchase at the Option of Holders.” | |
Certain Covenants | The indenture governing the exchange notes contains covenants that, among other things, will limit our ability and the ability of our restricted subsidiaries to: | |
• | incur or guarantee additional debt or issue disqualified stock; | |
• | pay dividends, or make redemptions, repurchases or distributions, with respect to ordinary shares or capital stock; | |
• | create or incur certain liens; | |
• | make certain loans or investments; | |
• | engage in mergers, acquisitions, amalgamations, asset sales and sale and leaseback transactions; and | |
• | engage in transactions with affiliates. | |
These covenants are subject to a number of important limitations and exceptions (including the suspension of covenants under certain circumstances). See “Description of the Exchange Notes — Certain Covenants.” | ||
Form and Denominations | The exchange notes will be issued in minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof. The exchange notes will be represented |
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by one or more notes registered in global form, without interest coupons attached. Upon the consummation of the exchange offer, these global notes will be deposited with The Depository Trust Company (referred to in this prospectus as “DTC”) in New York, New York, or remain in the custody of the trustee and registered in the name of DTC or its nominee, in each case for credit to the account of a direct or indirect participant in DTC. Transfers of beneficial interests in the global notes will be subject to the applicable rules and procedures of DTC and its direct or indirect participants. Beneficial interests may not be exchanged for notes in certificated form, except in limited circumstances. | ||
Governing Law | The exchange notes and the indenture governing the exchange notes will be governed by New York law. | |
Trustee | The Bank of New York Mellon Trust Company, N.A. | |
Absence of Public Market for the Exchange Notes | The exchange notes are new securities for which there is no established trading market and we do not intend to list the exchange notes on any national securities exchange. The absence of an active trading market for the exchange notes could have an adverse effect on the liquidity and value of the exchange notes. |
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Year Ended December 31, | ||||||||||||||||||||
2009 (1) | 2008 (1) | 2007 | 2006 | 2005 (1) | ||||||||||||||||
(In thousands exceptper share data) | ||||||||||||||||||||
Revenues: | ||||||||||||||||||||
Product sales | $ | 710,761 | $ | 593,165 | $ | 603,051 | $ | 603,810 | $ | 546,429 | ||||||||||
Service revenue | 22,389 | — | — | — | — | |||||||||||||||
Alliance revenue | 97,311 | 63,812 | 86,452 | 81,242 | 91,646 | |||||||||||||||
Total revenues | 830,461 | 656,977 | 689,503 | 685,052 | 638,075 | |||||||||||||||
Income (loss) from continuing operations before income taxes | 199,349 | (172,680 | ) | 20,145 | 3,522 | (92,838 | ) | |||||||||||||
Provision (benefit) for income taxes (2) | (58,270 | ) | 34,688 | 13,535 | 36,577 | 67,034 | ||||||||||||||
Income (loss) from continuing operations | 257,619 | (207,368 | ) | 6,610 | (33,055 | ) | (159,872 | ) | ||||||||||||
Income (loss) from discontinued operations, net of tax (3) | 6,125 | 166,548 | (26,796 | ) | (37,332 | ) | (40,468 | ) | ||||||||||||
Net income (loss) | 263,744 | (40,820 | ) | (20,186 | ) | (70,387 | ) | (200,340 | ) | |||||||||||
Less: Net income attributable to noncontrolling interest | 3 | 7 | 2 | 3 | 287 | |||||||||||||||
Net income (loss) attributable to Valeant | $ | 263,741 | $ | (40,827 | ) | $ | (20,188 | ) | $ | (70,390 | ) | $ | (200,627 | ) | ||||||
Basic income (loss) per share attributable to Valeant: | ||||||||||||||||||||
Income (loss) from continuing operations attributable to Valeant | $ | 3.15 | $ | (2.37 | ) | $ | 0.07 | $ | (0.35 | ) | $ | (1.74 | ) | |||||||
Income (loss) from discontinued operations attributable to Valeant | 0.07 | 1.90 | (0.29 | ) | (0.40 | ) | (0.45 | ) | ||||||||||||
Net income (loss) per share attributable to Valeant | $ | 3.22 | $ | (0.47 | ) | $ | (0.22 | ) | $ | (0.75 | ) | $ | (2.19 | ) | ||||||
Diluted income (loss) per share attributable to Valeant: | ||||||||||||||||||||
Income (loss) from continuing operations attributable to Valeant | $ | 3.07 | $ | (2.37 | ) | $ | 0.07 | $ | (0.35 | ) | $ | (1.74 | ) | |||||||
Income (loss) from discontinued operations attributable to Valeant | 0.07 | 1.90 | (0.28 | ) | (0.40 | ) | (0.45 | ) | ||||||||||||
Net income (loss) per share attributable to Valeant | $ | 3.14 | $ | (0.47 | ) | $ | (0.21 | ) | $ | (0.75 | ) | $ | (2.19 | ) | ||||||
Dividends declared per share of common stock | $ | — | $ | — | $ | — | $ | 0.24 | $ | 0.23 | ||||||||||
As of December 31, | ||||||||||||||||||||
2009 | 2008 | 2007 | 2006 | 2005 | ||||||||||||||||
( In thousands ) | ||||||||||||||||||||
Balance Sheet Data: | ||||||||||||||||||||
Cash and cash equivalents | $ | 68,080 | $ | 199,582 | $ | 287,728 | $ | 311,012 | $ | 208,397 | ||||||||||
Working capital (4) | 125,079 | 175,450 | 412,272 | 348,402 | 220,447 | |||||||||||||||
Net assets of discontinued operations (3) | — | — | 272,047 | 282,251 | 307,096 | |||||||||||||||
Total assets | 1,305,479 | 1,185,932 | 1,492,321 | 1,503,386 | 1,512,740 | |||||||||||||||
Total debt (5) | 600,589 | 398,802 | 716,821 | 698,502 | 681,606 | |||||||||||||||
Stockholders’ equity | 371,179 | 251,748 | 479,571 | 509,857 | 527,843 |
(1) | The results of operations of Coria Laboratories Ltd. (“Coria”), DermaTech Pty Ltd. (“DermaTech”), Dow Pharmaceutical Sciences, Inc. (“Dow”), EMO-FARM sp. z o.o. (“Emo-Farm”), Tecnofarma S.A. de C.V. (“Tecnofarma”), Private Formula Holdings International Pty Limited (“PFI”) and Laboratoire Dr. Renaud (“Dr. Renaud”) are included since their respective acquisition dates of October 15, 2008; November 14, 2008; December 31, 2008; April 29, 2009; July 31, 2009; October 6, 2009 and December 15, 2009. In connection with our acquisitions prior to 2009, portions of the purchase price are allocated to acquired in- |
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process research and development (“IPR&D”) on projects that, as of the acquisition date, had not yet reached technological feasibility and had no alternative future use. In 2008, we recorded $185.8 million and $0.5 million of IPR&D expense related to the acquisitions of Dow and Coria, respectively. In 2005, we acquired Xcel for approximately $280.0 million of which $126.4 million was allocated to IPR&D costs and charged to expense. | ||
(2) | The tax provision in 2005 included a net charge of $27.4 million associated with an Internal Revenue Service examination of our U.S. tax returns for the years 1997 to 2001 (including interest). The tax provision in 2007 includes a net credit of $21.5 million to partially reverse the 2005 charge, as a result of resolving many of the issues raised during the examination through an appeals process. In 2007, 2006 and 2005, we recorded valuation allowance increases of $58.6 million, $33.1 million and $44.5 million, respectively, against our deferred tax asset to recognize the uncertainty of realizing the benefits of our accumulated U.S. and state net operating losses and credits. In 2007, the increase in the U.S. valuation allowance was offset by liabilities for uncertain tax positions of $60.1 million, with a net decrease of the valuation allowance of $7.0 million. As of December 31, 2008, the valuation allowances totaled $123.8 million. During 2008, based upon certain transactions including the sale of our business operations located in Western and Eastern Europe, Middle East and Africa (the “WEEMEA business”) and reversal of our intent to indefinitely reinvest foreign earnings, we released $23.6 million and $4.5 million of the valuation allowance through additional capital and goodwill, respectively. Additionally, the tax provisions in 2005 and 2008 do not reflect tax benefits for acquired IPR&D charged to expense. The tax benefit in 2009 includes $102.5 million related to the partial release of our valuation allowance in the U.S. as we determined that it is more likely than not that we would utilize our deferred tax assets with the exception of state capital losses and foreign net operating losses. See Note 11 of notes to consolidated financial statements in Item 8 of our Annual Report on Form 10-K for the year ended December 31, 2009 for additional information. Such Annual Report is incorporated by reference into this prospectus. See “Documents Incorporated by Reference.” | |
(3) | In September 2008 and September 2007, we reclassified our WEEMEA business and Infergen® operations, respectively, as discontinued operations. The consolidated financial statements have been reclassified for all historical periods presented. In 2006, the loss from discontinued operations was partly offset by the partial release of $5.6 million from a reserve for our environmental liability related to our former biomedical facility. In December 2005, we acquired the U.S. and Canadian rights to Infergen® from InterMune. In this transaction, we charged $47.2 million to acquired IPR&D. As a result of the reclassification of the Infergen® operations to discontinued operations, this charge was classified as an expense within discontinued operations. | |
(4) | Working capital in 2007 and 2006 excludes $325.9 million and $236.6 million, respectively, of assets held for sale. | |
(5) | In June 2009, we issued $365.0 million aggregate principal amount of the old notes. In 2009, we repurchased $173.5 million aggregate principal amount of our 3.0% Convertible Subordinated Notes due 2010 (the “3.0% Notes”) and 4.0% Convertible Subordinated Notes due 2013 (the “4.0% Notes”). In 2008, we repurchased $32.6 million aggregate principal amount of our 3.0% Notes. In July 2008, we redeemed $300.0 million aggregate principal amount of 7.0% Senior Notes due 2011 (the “7.0% Senior Notes”). |
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Years Ended December 31, | ||||||||||||||||||||
2009 | 2008 | 2007 | 2006 | 2005 | ||||||||||||||||
Ratio of Earnings to Fixed Charges | 5.2x | — | 1.3x | 1.1x | — |
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• | as to the development or continuation of any market for the exchange notes; | ||
• | as to the liquidity of any market that does develop; or | ||
• | as to your ability to sell your exchange notes or the price at which you will be able to sell your exchange notes. |
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• | prevailing interest rates; | ||
• | our business, results of operations, condition (financial and otherwise) and prospects; | ||
• | ratings, if any, assigned to the exchange notes by rating agencies; and | ||
• | the market for similar securities. |
• | make it more difficult for us to satisfy our obligations with respect to the notes; | ||
• | require us to dedicate a substantial portion of our cash flow from operations to payments on our debt, thereby reducing funds available for working capital, capital expenditures, acquisitions, research and development and other purposes; | ||
• | increase our vulnerability to adverse economic and industry conditions; | ||
• | limit our flexibility in planning for, or reacting to, changes in our business and the industries in which we operate; | ||
• | limit our noteholders’ rights to receive payments under the notes if secured creditors have not been paid; | ||
• | place us at a competitive disadvantage compared to our competitors that have relatively less debt; | ||
• | limit our ability to borrow additional funds, or to dispose of assets to raise funds, if needed, for working capital, capital expenditures, acquisitions, research and development and other purposes; and |
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• | prevent us from raising the funds necessary to repurchase all notes tendered to us upon the occurrence of certain changes of control, which would constitute a default under the indenture governing the notes. |
• | incur or guarantee additional debt or issue disqualified stock; |
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• | pay dividends, or make redemptions, repurchases or distributions, with respect to ordinary shares or capital stock; | ||
• | create or incur certain liens; | ||
• | make certain loans or investments; | ||
• | engage in mergers, acquisitions, amalgamations, asset sales and sale and leaseback transactions; and | ||
• | engage in transactions with affiliates. |
• | we or any of the subsidiary guarantors, as applicable, were insolvent or rendered insolvent by reason of the issuance of the notes or the incurrence of the guarantees; |
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• | the issuance of the notes or the incurrence of the guarantees left us or any of the subsidiary guarantors, as applicable, with an unreasonably small amount of capital to carry on the business; | ||
• | we or any of the subsidiary guarantors intended to, or believed that we or such subsidiary guarantor would, incur debts beyond our or such subsidiary guarantor’s ability to pay as they mature; or | ||
• | we or any of the subsidiary guarantors was a defendant in an action for money damages, or had a judgment for money damages docketed against us or such subsidiary guarantor if, in either case, after final judgment, the judgment is unsatisfied. |
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• | the original issue price for the notes; and | ||
• | that portion of the original issue discount that does not constitute “unmatured interest” for purposes of the U.S. Bankruptcy Code. |
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4.0% Convertible Subordinated Notes due 2013
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• | the holder must acquire the exchange notes in the ordinary course of its business, |
• | the holder must not be engaged in or intend to engage in a distribution of the exchange notes within the meaning of the Securities Act or have no arrangement or understanding with any person to participate in the distribution of the exchange notes, |
• | the holder must not be an “affiliate,” as defined in Rule 405 of the Securities Act, of ours or any subsidiary guarantor, and |
• | the holder must not be acting on behalf of any person or entity that could not truthfully make these representations. |
• | cannot rely on the position of the SEC set forth in the no-action letters referred to above, and |
• | must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a resale of the exchange notes. |
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• | you will retain old notes that are not registered under the Securities Act and that will continue to be subject to restrictions on transfer that are described in the legend on the old notes; |
• | you will not be able to require us to register your old notes under the Securities Act unless, except in the very limited circumstances described above under “—Purpose and Effect”; |
• | you will not be able to offer to resell or transfer your old notes unless they are registered under the Securities Act or unless you offer to resell or transfer them pursuant to an exemption under the Securities Act; and |
• | the trading market for your old notes will become more limited to the extent that other holders of old notes participate in the exchange offer. |
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• | the offer and sale of the exchange notes will have been registered under the Securities Act of 1933, and therefore, the exchange notes generally will not be subject to the restrictions on transfer applicable to the old notes or bear legends restricting their transfer; and |
• | specified rights under the exchange and registration rights agreement, including the provisions providing for registration rights and the right to earn additional interest under circumstances relating to our registration obligations thereunder, will be limited or eliminated. |
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• | to accept tendered notes upon the expiration of the exchange offer and extend the exchange offer with respect to untendered old notes only; |
• | to terminate the exchange offer at any time before the acceptance of any old notes for exchange; |
• | to delay accepting any old notes or, if any of the conditions set forth below under “—Conditions” have not been satisfied or waived; or |
• | to amend the terms of the exchange offer in any manner by complying with Rule 14e-l(d) under the Exchange Act, to the extent that rule applies. |
• | the certificates representing your old notes must be received by the exchange agent prior to the expiration date; |
• | a timely confirmation of book-entry transfer of such notes into the exchange agent’s account at DTC pursuant to the procedure for book-entry transfers described below under “—Book-Entry Transfer” must be received by the exchange agent prior to the expiration date; or |
• | you must comply with the guaranteed delivery procedures described below. |
• | old notes tendered in the exchange offer are tendered either by a registered holder who has not completed the box entitled “Special Registration Instructions” or “Special Delivery Instructions” on the holder’s letter of transmittal or for the account of an eligible institution; and |
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• | the box entitled “Special Registration Instructions” on the letter of transmittal has not been completed. |
• | you improperly tender your old notes; |
• | you have not cured any defects or irregularities in your tender; and |
• | we have not waived those defects, irregularities or improper tender. |
• | purchase or make offers for, or offer exchange notes for, any old notes that remain outstanding subsequent to the expiration of the exchange offer; |
• | terminate the exchange offer at any time before the acceptance of any old notes for exchange; and |
• | to the extent permitted by applicable law, purchase notes in the open market, in privately negotiated transactions or otherwise. |
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• | DTC has received an express acknowledgment from the participant in DTC tendering notes subject to the book-entry confirmation; |
• | the participant has received and agrees to be bound by the terms of the letter of transmittal; and |
• | we may enforce such agreement against such participant. |
• | the tender is made through a firm which is a member of a registered national securities exchange or a member of the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States; |
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• | prior to the expiration date of the exchange offer, the exchange agent received from the firm which is a member of a registered national securities exchange or a member of the National Association of Securities Dealers, Inc. or commercial bank or trust company having an office or correspondent in the United States a properly completed and duly executed letter of transmittal (or a facsimile of the letter of transmittal) and notice of guaranteed delivery, substantially in the form provided by us (by telegram, telex, facsimile transmission, mail or hand delivery), setting forth: |
• | the name and address of the holder of old notes |
• | the amount of old notes tendered, |
• | a statement that the tender is being made and guaranteeing that within five New York Stock Exchange trading days after the date of execution of the notice of guaranteed delivery, |
• | the certificates for all physically tendered old notes, in proper form for transfer, or a confirmation of a book-entry transfer, as the case may be, and any other documents required by the letter of transmittal will be deposited by the firm which is a member of a registered national securities exchange or a member of the National Association of Securities Dealers, Inc. or commercial bank or trust company having an office or correspondent in the United States with the exchange agent; and |
• | the certificates for all physically tendered old notes, in proper form for transfer, or a confirmation of a book-entry transfer, as the case may be, and all other documents required by the letter of transmittal are received by the exchange agent within five New York Stock Exchange trading days after the date of execution of the notice of guaranteed delivery. |
• | specify the name of the person having tendered the old notes to be withdrawn; |
• | identify the old notes to be withdrawn, including the certificate number(s) and principal amount of such notes, or, in the case of notes transferred by book-entry transfer, the name and number of the account at DTC); |
• | be signed by the holder in the same manner as the original signature on the letter of transmittal by which such notes were tendered, with any required signature guarantees, or be accompanied by documents of transfer sufficient to have the trustee with respect to the notes register the transfer of such notes into the name of the person withdrawing the tender and a properly completed irrevocable proxy authorizing such person to effect such withdrawal on behalf of such holder; and |
• | where certificates for old notes have been transmitted specify the name in which the old notes are registered, if different from that of the withdrawing holder. |
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• | any injunction, order or decree has been issued by any court or any governmental agency that would prohibit, prevent or otherwise materially impair our ability to proceed with the exchange offer; |
• | we decide, in our sole discretion, to terminate the exchange offer; or |
• | the exchange offer violates any applicable law or any applicable interpretation of the staff of the Commission. |
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• | SEC registration fees, |
• | fees and expenses of the exchange agent and trustee, |
• | our accounting and legal fees, and |
• | our printing and mailing costs. |
• | exchange notes are to be delivered to, or issued in the name of, any person other than the registered holder of the original notes tendered; or |
• | tendered original notes are registered in the name of any person other than the person signing the letter of transmittal; or |
• | a transfer tax is imposed for any reason other than the exchange of original notes in connection with the exchange offer; |
By Registered or Certified Mail: | By Hand or Overnight Courier: | |
The Bank of New York Mellon Corporate Trust Operations Reorganization Unit 101 Barclay Street — 7 East New York, N.Y. 10286 Attn: Mr. David Mauer | The Bank of New York Mellon Corporate Trust Operations Reorganization Unit 101 Barclay Street — 7 East New York, N.Y. 10286 Attn: Mr. David Mauer | |
By Facsimile: | For information, call: | |
(212) 298-1915 | (212) 815-3687 | |
Confirm by telephone: | ||
(212) 815-3687 |
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NUMBER OTHER THAN THE ONES SET FORTH ABOVE WILL NOT CONSTITUTE VALID DELIVERY.
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• | the offer and sale of the exchange notes will have been registered under the Securities Act of 1933, and therefore, the exchange notes generally will not be subject to the restrictions on transfer applicable to the old notes or bear legends restricting their transfer; and |
• | specified rights under the exchange and registration rights agreement, including the provisions providing for registration rights and the right to earn additional interest under circumstances relating to our registration obligations thereunder, will be limited or eliminated. |
• | general unsecured obligations of Valeant and the Subsidiary Guarantors, as applicable; |
• | equal in right of payment to all existing and future unsecured and unsubordinated indebtedness of Valeant and the Subsidiary Guarantors, as applicable; |
• | senior in right of payment to all existing and future indebtedness of Valeant and the Subsidiary Guarantors, as applicable, that expressly provides for its subordination to the notes; |
• | effectively junior in right of payment to all existing and future secured Indebtedness of Valeant and the Subsidiary Guarantors, as applicable, to the extent of the value of the assets securing such Indebtedness. As of December 31, 2009, Valeant and the Subsidiary Guarantors had no secured indebtedness outstanding; and |
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• | effectively junior in right of payment to all Indebtedness and other liabilities of our Subsidiaries that do not guarantee the notes. As of December 31, 2009, our non-guarantor Subsidiaries had an aggregate of $344.1 million of total liabilities. |
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(1) | in the event of a sale or other disposition of all or substantially all of the assets of such Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all of the Equity Interests of such Subsidiary Guarantor then held by Valeant and the Restricted Subsidiaries; |
(2) | if such Subsidiary Guarantor is designated as an Unrestricted Subsidiary or otherwise ceases to be a Restricted Subsidiary, in each case in accordance with the provisions of the indenture, upon effectiveness of such designation or when it first ceases to be a Restricted Subsidiary, respectively; or |
(3) | if we exercise our legal defeasance option or our covenant defeasance option as described under “Legal Defeasance and Covenant Defeasance” or if our obligations under the indenture are discharged in accordance with the terms of the indenture. (Section 10.5) |
(1) | at least 65% of the aggregate principal amount of notes issued under the indenture remains outstanding immediately after the occurrence of such redemption (excluding notes held by Valeant and its Subsidiaries); and |
(2) | the redemption occurs within 90 days of the date of the closing of such Equity Offering. |
Year | Percentage | |||
2012 | 104.188 | % | ||
2013 | 102.094 | % | ||
2014 and thereafter | 100.000 | % |
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(1) | accept for payment all notes or portions of notes properly tendered pursuant to the Change of Control Offer; | ||
(2) | deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all notes or portions of notes properly tendered; and | ||
(3) | deliver or cause to be delivered to the trustee the notes properly accepted together with an officers’ certificate stating the aggregate principal amount of notes or portions of notes being purchased by Valeant. |
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(1) | Valeant (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (determined, for purposes of this clause (1), by Valeant or, in the case of any asset(s) valued in excess of $10.0 million, by the Board of Directors, in each case evidenced by an officers’ certificate delivered to the trustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and | ||
(2) | at least 75% of the consideration received in the Asset Sale by Valeant or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash: |
(a) | any liabilities, as shown on Valeant’s most recent consolidated balance sheet, of Valeant or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the notes and the Subsidiary Guarantees) that are assumed by the transferee of any such assets pursuant to an agreement that releases Valeant or such Restricted Subsidiary from further liability; and | ||
(b) | any securities, notes or other obligations received by Valeant or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by Valeant or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion. |
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(1) | to repay Indebtedness and other Obligations under (x) a Credit Facility and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto, (y) other secured Indebtedness or (z) other Indebtedness of a Subsidiary that does not guarantee the notes, so long as the relevant assets were assets of such Subsidiary (provided, in the case of (y), that such Indebtedness is not subordinated in right of payment to the Notes); | ||
(2) | to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business; | ||
(3) | to make payments with respect to the acquisition or license of intellectual property rights that are used in a Permitted Business; | ||
(4) | to make a capital expenditure in or that is useful in a Permitted Business; | ||
(5) | to retire notes pursuant to privately negotiated transactions, open market purchases or otherwise; or | ||
(6) | to acquire other assets that are not classified as current assets (for the avoidance of doubt, including acquisitions of in-process research and development) under GAAP and that are used or useful in a Permitted Business. |
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(1) | if the notes are listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange on which the notes are listed; or | ||
(2) | if the notes are not listed on any national securities exchange, on a pro rata basis, by lot or by such method as the trustee deems fair and appropriate. |
(1) | the notes have an Investment Grade Rating; and | ||
(2) | no Default or Event of Default shall have occurred and be continuing, |
(1) | “— Repurchase at the Option of Holders —Asset Sales”; | ||
(2) | “— Restricted Payments”; | ||
(3) | “— Incurrence of Indebtedness and Issuance of Preferred Stock”; | ||
(4) | “— Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries”; | ||
(5) | “—Transactions with Affiliates”; | ||
(6) | clause (4) of the covenant listed under “— Merger, Consolidation or Sale of Assets”. |
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(1) | declare or pay any dividend or make any other payment or distribution on account of Valeant’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving Valeant or any of its Restricted Subsidiaries) or to the direct or indirect holders of Valeant’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of Valeant or to Valeant or a Restricted Subsidiary of Valeant); | ||
(2) | purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving Valeant) any Equity Interests of Valeant or any direct or indirect parent of Valeant, except for any purchase or redemption of Valeant’s common Equity Interests with the net proceeds of the notes issued on the Issue Date and within twelve months of the Issue Date; | ||
(3) | make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated to the notes, except (i) payments of interest thereon, (ii) payments of principal at the Stated Maturity thereof and (iii) any payment on or with respect to the 3% Convertible Subordinated Notes due 2010 or the 4% Convertible Subordinated Notes due 2013 made, in the case of clause (iii), with the net proceeds of the notes issued on the Issue Date and within twelve months of the Issue Date; or | ||
(4) | make any Restricted Investment; |
(1) | no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment; | ||
(2) | Valeant would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of the covenant described below under the caption “— Incurrence of Indebtedness and Issuance of Preferred Stock”; and | ||
(3) | such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by Valeant and its Restricted Subsidiaries after the date of the indenture (excluding |
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Restricted Payments permitted by clauses (2), (3), (4) and (5) of the next succeeding paragraph), is less than the sum, without duplication, of: |
(a) | 50% of the Consolidated Net Income of Valeant for the period (taken as one accounting period) from April 1, 2009 to the end of Valeant’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus | ||
(b) | 100% of the aggregate net cash proceeds received by Valeant since the date of the indenture as a contribution to its common equity capital or from the issue or sale of Equity Interests of Valeant (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of Valeant that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of Valeant), plus | ||
(c) | to the extent that any Restricted Investment that was made after the date of the indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (i) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) or (ii) the initial amount of such Restricted Investment, plus | ||
(d) | to the extent that any Unrestricted Subsidiary of Valeant is redesignated as a Restricted Subsidiary after the date of the indenture, the lesser of (i) the Fair Market Value of Valeant’s Investment in such Subsidiary as of the date of such redesignation or (ii) such Fair Market Value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary. |
(1) | the payment of any dividend within 60 days after the date of declaration of the dividend, if at the date of declaration the dividend payment would have complied with the provisions of the indenture; | ||
(2) | the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of Valeant or of any Equity Interests of Valeant in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of Valeant) of, Equity Interests of Valeant (other than Disqualified Stock) or other subordinated Indebtedness incurred under the first paragraph of the covenant described under “— Incurrence of Indebtedness and Issuance of Preferred Stock”;provided, that (i) the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition will be excluded from clause (3)(b) of the preceding paragraph and (ii) any such subordinated Indebtedness shall be Permitted Refinancing Indebtedness; | ||
(3) | the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness of Valeant with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; | ||
(4) | the payment of any dividend by a Restricted Subsidiary of Valeant to the holders of its Equity Interests on a pro rata basis; | ||
(5) | the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of Valeant or any Restricted Subsidiary of Valeant held by any employee of Valeant or any of its Restricted Subsidiaries pursuant to any equity subscription agreement, stock option agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, |
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acquired or retired Equity Interests may not exceed an aggregate of $15.0 million since the date of the indenture; | |||
(6) | payments to holders of Equity Interests (or to the holders of Indebtedness that is convertible into or exchangeable for Equity Interests upon such conversion or exchange) in lieu of the issuance of fractional shares; provided, however, that such payments shall be excluded in the calculation of the amount of Restricted Payments; | ||
(7) | the redemption, repurchase, retirement, defeasance or other acquisition of subordinated Indebtedness of Valeant, so long as, at the time of any such redemption, repurchase, retirement, defeasance or acquisition, the Total Leverage Ratio is less than 1.25x, in an aggregate amount not to exceed $50.0 million since the date of the indenture; and | ||
(8) | other Restricted Payments in an aggregate amount not to exceed $75.0 million since the date of the indenture. |
(1) | the incurrence by Valeant of Indebtedness under Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (1) not to exceed $150.0 million; | ||
(2) | the incurrence by Valeant and its Restricted Subsidiaries of the Existing Indebtedness; | ||
(3) | the incurrence by Valeant of Indebtedness represented by the notes to be issued on the date of the indenture (including the Guarantees) and the Exchange Notes to be issued pursuant to the exchange and registration rights agreement and Guarantees thereof, if any, by Domestic Subsidiaries of Valeant; | ||
(4) | the incurrence by Valeant or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of Valeant or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing |
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Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (4), not to exceed $25.0 million at any time outstanding; | |||
(5) | the incurrence by Valeant or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by the indenture to be incurred under the first paragraph of this covenant or clauses (2), (3), (4), (11) or (12) of this paragraph; | ||
(6) | the incurrence by Valeant or any of its Restricted Subsidiaries of intercompany Indebtedness between or among Valeant and any of its Restricted Subsidiaries; provided, however, that: |
(a) | if Valeant or a Subsidiary Guarantor is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the notes; and | ||
(b) | (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Valeant or a Restricted Subsidiary of Valeant and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either Valeant or a Restricted Subsidiary of Valeant will be deemed, in each case, to constitute an incurrence of such Indebtedness by Valeant or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6); |
(7) | the incurrence by Valeant or any of its Restricted Subsidiaries of Hedging Obligations that are incurred in the ordinary course of business and not for speculative purposes; | ||
(8) | the Guarantee by Valeant or any Subsidiary Guarantor of Indebtedness of Valeant or a Subsidiary Guarantor of Valeant that was permitted to be incurred by another provision of this covenant (other than the Subsidiary Guarantees); provided that if the Indebtedness being guaranteed is subordinated to orpari passuwith the notes, then the Guarantee shall be subordinated to the same extent as the Indebtedness guaranteed; | ||
(9) | the accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this covenant; provided, in each such case, that the amount thereof is included in Fixed Charges of Valeant as accrued; | ||
(10) | Obligations in respect of performance and surety bonds and completion guarantees provided by Valeant or any Restricted Subsidiary in an aggregate principal amount at any time outstanding not to exceed $25.0 million; | ||
(11) | the incurrence by Valeant or any of its Restricted Subsidiaries of Acquired Debt in an aggregate principal amount at any time outstanding not to exceed $50.0 million; | ||
(12) | the incurrence by Valeant or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (12), not to exceed $50.0 million; and | ||
(13) | the Guarantee by Domestic Subsidiaries of Valeant of Indebtedness of Valeant or the Subsidiary Guarantors permitted to be incurred under another provision of this covenant. |
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(1) | in the case of any Lien securing an obligation that rankspari passuwith the notes or a Subsidiary Guarantee, effective provision is made to secure the notes or such Subsidiary Guarantee, as the case may be, at least equally and ratably with or prior to such obligation with a Lien on the same assets of the Issuer or such Restricted Subsidiary, as the case may be; and | ||
(2) | in the case of any Lien securing an obligation that is subordinated in right of payment to the notes or a Subsidiary Guarantee, effective provision is made to secure the Notes or such Subsidiary Guarantee, as the case may be, with a Lien on the same assets of the Issuer or such Restricted Subsidiary, as the case may be, that is prior to the Lien securing such subordinated obligation. (Section 4.11) |
(1) | pay dividends or make any other distributions on its Capital Stock to Valeant or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to Valeant or any of its Restricted Subsidiaries; | ||
(2) | make loans or advances to Valeant or any of its Restricted Subsidiaries; or | ||
(3) | transfer any of its properties or assets to Valeant or any of its Restricted Subsidiaries. |
(1) | agreements governing Existing Indebtedness as in effect on the date of the indenture and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of those agreements, provided that the amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings |
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are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of the indenture; | |||
(2) | the indenture, the notes and the Subsidiary Guarantees; | ||
(3) | any encumbrance or restriction pursuant to Credit Facilities incurred under clause (1) of the second paragraph of the covenant entitled “— Certain Covenants — Incurrence of Indebtedness and Issuance of Preferred Stock”; | ||
(4) | applicable law, rule, regulation or order, approval, license, permit or similar restriction, including under contracts with foreign governments or agencies thereof entered into in the ordinary course of business; | ||
(5) | any instrument governing Indebtedness or Capital Stock of a Person acquired by Valeant or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred, or such Capital Stock was issued, in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of the indenture to be incurred; | ||
(6) | customary non-assignment provisions in leases, contracts and licenses entered into in the ordinary course of business and consistent with past practices; | ||
(7) | purchase money obligations for property acquired in the ordinary course of business that impose restrictions on that property of the nature described in clause (3) of the preceding paragraph; | ||
(8) | any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition; | ||
(9) | Permitted Refinancing Indebtedness,providedthat the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced; | ||
(10) | Permitted Liens securing Indebtedness that limit the right of the debtor to dispose of the assets subject to such Liens; | ||
(11) | customary provisions with respect to the disposition or distribution of assets or property in joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business; and | ||
(12) | restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business. (Section 4.12) |
(1) | either: (a) Valeant or a Subsidiary Guarantor is the surviving corporation; or (b) the Person formed by or surviving any such consolidation or merger (if other than Valeant or a Subsidiary Guarantor) or to which such sale, assignment, transfer, conveyance or other disposition has been made is |
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organized and validly existing under the laws of the United States, any state of the United States or the District of Columbia; | |||
(2) | the Person formed by or surviving any such consolidation or merger (if other than Valeant or a Subsidiary Guarantor) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made expressly assumes all the obligations of Valeant, or the Subsidiary Guarantor, as applicable, under the notes (or the Subsidiary Guarantee), the indenture and the exchange and registration rights agreement pursuant to agreements reasonably satisfactory to the trustee; | ||
(3) | immediately after such transaction, no Default or Event of Default exists; and | ||
(4) | Valeant or the Person formed by or surviving any such consolidation or merger (if other than Valeant or a Subsidiary Guarantor), or to which such sale, assignment, transfer, conveyance or other disposition has been made will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of the covenant described above under the caption “— Incurrence of Indebtedness and Issuance of Preferred Stock”. |
(1) | the Affiliate Transaction is on terms that are no less favorable to Valeant or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by Valeant or such Restricted Subsidiary with an unrelated Person; and | ||
(2) | Valeant delivers to the trustee: |
(a) | with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 million, a resolution of the Board of Directors set forth in an officers’ certificate certifying that such Affiliate Transaction complies with this covenant and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; provided, that a series of related Affiliate Transactions that provides for payments of no more than $2 million in any calendar year shall be exempted; and | ||
(b) | with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion as to the fairness to Valeant or such Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing; provided, that a series of related Affiliate Transactions that provides for payments of no more than $5 million in any calendar year shall be exempted. |
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(1) | any employment agreement entered into by Valeant or any of its Restricted Subsidiaries in the ordinary course of business and consistent with the past practice of Valeant or such Restricted Subsidiary; | ||
(2) | transactions between or among Valeant and/or its Restricted Subsidiaries; | ||
(3) | transactions with a Person that is an Affiliate of Valeant solely because Valeant owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person; | ||
(4) | payment of reasonable directors’ fees to Persons who are not otherwise Affiliates of Valeant; | ||
(5) | issuances or sales of Equity Interests (other than Disqualified Stock) of Valeant to Affiliates or employees of or consultants to Valeant; | ||
(6) | Restricted Payments that are permitted by the provisions of the indenture described above under the caption “— Restricted Payments”; | ||
(7) | transactions effected pursuant to agreements in effect on the date of the indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not disadvantageous to the Holders of the notes in any respect); | ||
(8) | advances to employees in the ordinary course of business not to exceed $1.0 million in the aggregate at any one time outstanding; and | ||
(9) | transactions with a Permitted Joint Venture. (Section 4.13) |
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(1) | all quarterly and annual reports that would be required to be filed with the Commission on Forms 10-Q and 10-K if Valeant were required to file such reports; and | ||
(2) | all current reports that would be required to be filed with the Commission on Form 8-K if Valeant were required to file such reports. |
(1) | default for 30 days in the payment when due of interest on, or Liquidated Damages with respect to, the notes; | ||
(2) | default in payment when due of the principal of, or premium, if any, on the notes; | ||
(3) | failure by Valeant or any of its Restricted Subsidiaries (a) to comply with the provisions described under the captions “— Repurchase at the Option of Holders — Asset Sales”, “— Certain Covenants — Restricted Payments”, “— Certain Covenants — Incurrence of Indebtedness and Issuance of Preferred Stock”, which failure remains uncured for 30 days after notice or (b) to comply with the provisions described under the captions “— Repurchase at the Option of |
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Holders — Change of Control” or “— Certain Covenants — Merger, Consolidation or Sale of Assets”; | |||
(4) | failure by Valeant or any of its Restricted Subsidiaries for 60 days after notice to comply with any of the other agreements in the indenture; | ||
(5) | default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by Valeant or any of its Restricted Subsidiaries (or the payment of which is guaranteed by Valeant or any of its Restricted Subsidiaries) whether such Indebtedness or guarantee now exists, or is created after the date of the indenture, if that default: |
(a) | is caused by a failure to pay principal of, or interest or premium, if any, on such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default (a “Payment Default”); or | ||
(b) | results in the acceleration of such Indebtedness prior to its express maturity; |
(6) | failure by Valeant or any of its Restricted Subsidiaries to pay final non-appealable judgments aggregating in excess of $20.0 million, which judgments are not paid, discharged or stayed for a period of 60 days; | ||
(7) | any Subsidiary Guarantee by a Significant Subsidiary ceases to be in full force and effect in all material respects (except as contemplated by the terms thereof) or any Subsidiary Guarantor that is a Significant Subsidiary denies or disaffirms such Subsidiary Guarantor’s obligations under the Indenture or any Subsidiary Guarantee and such Default continues for 10 days after receipt of the notice as specified in the Indenture; or | ||
(8) | certain events of bankruptcy, administration, administrative receivership, composition, insolvency or liquidation described in the indenture with respect to Valeant, any Significant Subsidiary, or any group of Subsidiaries that, when taken together, would constitute a Significant Subsidiary or a Significant Subsidiary upon the occurrence of such events. (Section 6.1) |
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(1) | the rights of Holders of outstanding notes to receive payments in respect of the principal of, or interest or premium and Liquidated Damages, if any, on, such notes when such payments are due from the trust referred to below; | ||
(2) | Valeant’s obligations with respect to the notes concerning issuing temporary notes, registration of notes, mutilated, destroyed, lost or stolen notes and the maintenance of an office or agency for payment and money for security payments held in trust; | ||
(3) | the rights, powers, trusts, duties and immunities of the trustee, and Valeant’s obligations in connection therewith; and | ||
(4) | the Legal Defeasance provisions of the indenture. (Section 8.2) |
(1) | Valeant must irrevocably deposit with the trustee, in trust, for the benefit of the Holders of the notes, cash in U.S. Dollars, non-callable Government Securities, or a combination of cash in U.S. Dollars and non-callable Government Securities, in amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, or interest and premium and Liquidated Damages, if any, on, the outstanding notes on the stated maturity or on the applicable redemption date, as the case may be, and Valeant must specify whether the notes are being defeased to maturity or to a particular redemption date; (Section 8.2 and 8.3) | ||
(2) | in the case of Legal Defeasance, Valeant must deliver to the trustee an opinion of counsel reasonably acceptable to the trustee confirming that (a) Valeant has received from, or there has been published by, the Internal Revenue Service a ruling or (b) since the date of the indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such opinion of counsel will confirm that, the Holders of the outstanding notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred; (Section 8.2) |
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(3) | in the case of Covenant Defeasance, Valeant must deliver to the trustee an opinion of counsel reasonably acceptable to the trustee confirming that the Holders of the outstanding notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; (Section 8.3) | ||
(4) | no Default or Event of Default may have occurred and be continuing either: (a) on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit); or (b) insofar as Events of Default from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of deposit; (Section 8.2 and 8.3) | ||
(5) | such Legal Defeasance or Covenant Defeasance must not result in a breach or violation of, or constitute a default under any material agreement or instrument (other than the indenture) to which Valeant or any of its Subsidiaries is a party or by which Valeant or any of its Subsidiaries is bound; (Section 8.2 and 8.3) | ||
(6) | Valeant must deliver to the trustee an opinion of counsel reasonably acceptable to the trustee to the effect that after the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally; (Section 8.2 and 8.3) | ||
(7) | Valeant must deliver to the trustee an officers’ certificate stating that the deposit was not made by Valeant with the intent of preferring the Holders of notes over the other creditors of Valeant with the intent of defeating, hindering, delaying or defrauding creditors of Valeant or others; (Section 8.2 and 8.3) and | ||
(8) | Valeant must deliver to the trustee an officers’ certificate and an opinion of counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with. (Section 8.2 and 8.3) |
(1) | reduce the principal amount of notes whose Holders must consent to an amendment, supplement or waiver; | ||
(2) | reduce the principal of or change the fixed maturity of any note or alter the provisions with respect to the redemption of the notes (other than provisions relating to the covenants described above under the caption “— Repurchase at the Option of Holders”); | ||
(3) | reduce the rate of or change the time for payment of interest on any note; | ||
(4) | make any note payable in money other than U.S. Dollars; |
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(5) | make any change in the provisions of the indenture relating to waivers of past Defaults or the rights of Holders of notes to receive payments of principal of, or interest or premium or Liquidated Damages, if any, on the notes; | ||
(6) | waive a redemption payment with respect to any note (other than a payment required by one of the covenants described above under the caption “— Repurchase at the Option of Holders”); | ||
(7) | impair the right to institute suit for the enforcement of any payment on or with respect to the notes; | ||
(8) | modify the Subsidiary Guarantees in any manner adverse to the Holders of notes; or | ||
(9) | make any change in the preceding amendment and waiver provisions. (Section 9.2) |
(1) | to cure any ambiguity, defect or inconsistency; | ||
(2) | to provide for uncertificated notes in addition to or in place of certificated notes; | ||
(3) | to provide for the assumption of Valeant’s or any Subsidiary Guarantor’s obligations to Holders of notes in the case of a consolidation or merger or sale of all or substantially all of Valeant’s or a Subsidiary Guarantor’s assets; | ||
(4) | to make any change that would provide any additional rights or benefits to the Holders of notes or that does not adversely affect the legal rights under the indenture of any such Holder; | ||
(5) | to comply with requirements of the Commission in order to effect or maintain the qualification of the indenture under the Trust Indenture Act; | ||
(6) | to conform the text of the indenture or the notes to any provision of this Description of the Exchange Notes to the extent that such provision in the indenture was intended to be a verbatim recitation of a provision of this Description of the Exchange Notes; | ||
(7) | to provide for the issuance of additional notes in accordance with the limitations set forth in the indenture as of its date; or | ||
(8) | to add additional Guarantees with respect to the notes or to confirm and evidence the release, termination or discharge of any Guarantee when such release, termination or discharge is permitted under the indenture. (Section 9.1) |
(1) | either: |
(a) | all notes that have been authenticated, except lost, stolen or destroyed notes that have been replaced or paid and notes for whose payment money has been deposited in trust and thereafter repaid to Valeant, have been delivered to the trustee for cancellation; or | ||
(b) | all notes that have not been delivered to the trustee for cancellation have become due and payable by reason of the mailing of a notice of redemption or otherwise or will become due and payable within one year and Valeant has irrevocably deposited or caused |
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to be deposited with the trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. Dollars, non-callable Government Securities, or a combination of cash in U.S. Dollars and non-callable Government Securities, in amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire indebtedness on the notes not delivered to the trustee for cancellation for principal, premium and Liquidated Damages, if any, and accrued interest to the date of maturity or redemption; |
(2) | no Default or Event of Default has occurred and is continuing on the date of the deposit or will occur as a result of the deposit and the deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which Valeant is a party or by which Valeant is bound, and as to which the rights of the other parties thereto are senior to those of the Holders; | ||
(3) | Valeant has paid or caused to be paid all sums payable by it under the indenture; and | ||
(4) | Valeant has delivered irrevocable instructions to the trustee under the indenture to apply the deposited money toward the payment of the notes at maturity or the redemption date, as the case may be. |
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(1) | upon deposit of the Global Notes, DTC will credit the accounts of participants with portions of the principal amount of the Global Notes; and | ||
(2) | ownership of these interests in the Global Notes will be shown on, and the transfer of ownership of these interests will be effected only through, records maintained by DTC (with respect to the participants) or by the participants and the indirect participants (with respect to other owners of beneficial interest in the Global Notes). |
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(1) | any aspect of DTC’s records or any participant’s or indirect participant’s records relating to or payments made on account of beneficial ownership interest in the Global Notes or for maintaining, supervising or reviewing any of DTC’s records or any participant’s or indirect participant’s records relating to the beneficial ownership interests in the Global Notes; or | ||
(2) | any other matter relating to the actions and practices of DTC or any of its participants or indirect participants. |
(1) | DTC (a) notifies Valeant that it is unwilling or unable to continue as depositary for the Global Notes or (b) has ceased to be a clearing agency registered under the Exchange Act and, in either case, Valeant fails to appoint a successor depositary; or | ||
(2) | there has occurred and is continuing a Default or Event of Default with respect to the notes. |
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• | in the over-the-counter market; | ||
• | in negotiated transactions; | ||
• | through the writing of options on the exchange notes; or | ||
• | a combination of such methods of resale. |
• | at market prices prevailing at the time of resale; | ||
• | at prices related to such prevailing market prices; or | ||
• | at negotiated prices. |
• | may not rely on the applicable interpretation of the staff of the SEC’s position contained inExxon Capital Holdings Corp., SEC no-action letter (April 13, 1988),Morgan, Stanley and Co. Inc., SEC no-action letter (June 5, 1991) andShearman & Sterling, SEC no-action letter (July 2, 1993) andBrown & Wood LLP, SEC no-action letter (February 7, 1997); and | ||
• | must comply with the registration and prospectus delivery requirements of the Securities Act relating to any resale transaction (it being understood that this prospectus may not be used by such broker-dealers), in the absence of an exemption from such requirements. |
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8.375% SENIOR NOTES DUE 2016
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• | Intentional misconduct or knowing and culpable violation of law; | ||
• | Acts or omissions that a director believes to be contrary to the best interests of the corporation or its shareholders or that involve the absence of good faith on the part of the director; | ||
• | Receipt of an improper personal benefit; | ||
• | Acts or omissions that show reckless disregard for the director’s duty to the corporation or its shareholders, where the director in the ordinary course of performing a director’s duties should be aware of a risk of serious injury to the corporation or its shareholders; | ||
• | Acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of the director’s duty to the corporation and its shareholders; or | ||
• | Liability for improper distributions, loans or guarantees. |
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Exhibit | ||||
Number | Description of Exhibit | |||
3.1 | Restated Certificate of Incorporation of Valeant Pharmaceuticals International, as amended to date. (1) | |||
3.2 | Amended and Restated Bylaws of Valeant Pharmaceuticals International. (2) | |||
3.3* | Certificate of Incorporation of Amarin Pharmaceuticals Inc., as amended to date. | |||
3.4* | Bylaws of Amarin Pharmaceuticals Inc. | |||
3.5* | Articles of Incorporation of Harbor Pharmaceuticals, Inc. | |||
3.6* | Bylaws of Harbor Pharmaceuticals, Inc. | |||
3.7* | Certificate of Formation of Healthchoice Online, LLC. | |||
3.8* | Operating Agreement of Healthchoice Online, LLC. | |||
3.9* | Certificate of Incorporation of Hyland Capital, Inc. | |||
3.10* | Bylaws of Hyland Capital, Inc. | |||
3.11* | Articles of Incorporation of ICN Medical Alliance, Inc., as amended to date. | |||
3.12* | Bylaws of ICN Medical Alliance, Inc., formerly known as ICN Acquisition Corp. | |||
3.13* | Certificate of Incorporation of ICN Southeast, Inc. | |||
3.14* | Bylaws of ICN Southeast, Inc. | |||
3.15* | Certificate of Incorporation of Oceanside Pharmaceuticals, Inc., as amended to date. | |||
3.16* | Bylaws of Oceanside Pharmaceuticals, Inc. | |||
3.17* | Amended and Restated Certificate of Incorporation of Valeant Biomedicals, Inc. | |||
3.18* | Amended and Restated Bylaws of Valeant Biomedicals, Inc. | |||
3.19* | Certificate of Incorporation of Valeant China, Inc., as amended to date. | |||
3.20* | Bylaws of Valeant China, Inc., formerly known as ICN China, Inc. | |||
3.21* | Amended and Restated Certificate of Incorporation of Valeant Pharmaceuticals North America. | |||
3.22* | Amended and Restated Bylaws of Valeant Pharmaceuticals North America. | |||
3.23* | Amended Certificate of Incorporation of Coria Laboratories, Ltd. | |||
3.24* | Bylaws of Coria Laboratories, Ltd. | |||
3.25* | Amended and Restated Certificate of Incorporation of Dow Pharmaceutical Sciences, Inc. | |||
3.26* | Bylaws of Dow Pharmaceutical Sciences, Inc. |
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Exhibit | ||||
Number | Description of Exhibit | |||
4.1 | Indenture, dated as of June 9, 2009, by and among Valeant Pharmaceuticals International, the Guarantors named therein and The Bank of New York Mellon Trust Company, N.A., as Trustee (including Form of 8.375% Senior Note due 2016 and related Guarantees). (3) | |||
4.2 | Exchange and Registration Rights Agreement, dated as of June 9, 2009, by and among the Valeant Pharmaceuticals International, Goldman, Sachs & Co. and UBS Securities LLC as Representatives of the several Initial Purchasers named therein and the Guarantors named therein (relating to the 8.375% Senior Notes due 2016). (4) | |||
5.1* | Opinion of Morgan, Lewis & Bockius, LLP. | |||
12.1* | Computation of Ratio of Earnings to Fixed Charges. | |||
23.1* | Consent of Morgan, Lewis & Bockius, LLP (contained in opinion filed as Exhibit 5.1). | |||
23.2* | Consent of PricewaterhouseCoopers LLP. | |||
24.1* | Power of Attorney (included on signature pages attached hereto). | |||
25.1* | Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939, as amended, with respect to the Trustee (relating to trustee under indenture governing the 8.375% Senior Notes due 2016). | |||
99.1* | Form of Letter of Transmittal. | |||
99.2* | Form of Notice of Guaranteed Delivery. | |||
99.3* | Form of Letter to Brokers, Dealers. | |||
99.4* | Form of Letter to Clients. |
* | Filed herewith. | |
(1) | Incorporated by reference to Exhibit 3.1 to Valeant Pharmaceuticals International’s Form 10-Q for the quarter ended September 30, 2003 (File No. 03995078). | |
(2) | Incorporated by reference to Exhibit 3.3 to Valeant Pharmaceuticals International’s Form 10-K for the year ended December 31, 2009. | |
(3) | Incorporated by reference to Exhibit 99.2 to Valeant Pharmaceuticals International’s Current Report on Form 8-K, filed June 11, 2009. | |
(4) | Incorporated by reference to Exhibit 99.1 to Valeant Pharmaceuticals International’s Current Report on Form 8-K, filed June 11, 2009. |
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(a) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(i) | to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; | ||
(ii) | to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and | ||
(iii) | to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
(b) | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initialbona fideoffering thereof. | ||
(c) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. | ||
(d) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
(i) | Each prospectus filed pursuant to Rule 424(b) as part of the registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness.Provided,however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use. |
(e) | That, for the purpose of determining liability of the registrants under the Securities Act to any purchaser in the initial distribution of securities: The undersigned registrants undertake that in a primary offering of securities of the undersigned registrants pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrants will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
(i) | Any preliminary prospectus or prospectus of the undersigned registrants relating to the offering required to be filed pursuant to Rule 424; | ||
(ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrants or used or referred to by the undersigned registrants; | ||
(iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrants or its securities provided by or on behalf of the undersigned registrants; and |
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(iv) | Any other communication that is an offer in the offering made by the undersigned registrants to the purchaser. |
(f) | Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrants pursuant to the provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. | ||
(g) | To respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11 or 13 of this form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the date of the registration statement through the date of responding to the request. | ||
(h) | To supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective. |
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Valeant Pharmaceuticals International | ||||
By: | /S/ PETER J. BLOTT | |||
Name: | Peter J. Blott | |||
Title: | Executive Vice President and Chief Financial Officer | |||
Signature | Title | Date | ||
/S/ J. MICHAEL PEARSON | Chairman and Chief Executive Officer (Principal Executive Officer) | March 5, 2010 | ||
/S/ PETER J. BLOTT | Executive Vice President and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | March 5, 2010 | ||
/S/ BRANDON B. BOZE | Director | March 5, 2010 | ||
/S/ ROBERT A. INGRAM | Director | March 5, 2010 | ||
/S/ RICHARD H. KOPPES | Director | March 5, 2010 |
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Signature | Title | Date | ||
/S/ LAWRENCE N. KUGELMAN | Director | March 5, 2010 | ||
/S/ ANDERS LÖNNER | Director | March 5, 2010 | ||
/S/ THEO MELAS-KYRIAZI | Director | March 5, 2010 | ||
/S/ G. MASON MORFIT | Director | March 5, 2010 | ||
/S/ NORMA A. PROVENCIO | Director | March 5, 2010 | ||
/S/ STEPHEN F. STEFANO | Director | March 5, 2010 |
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Amarin Pharmaceuticals Inc. | ||||
By: | /S/ STEVE T. MIN | |||
Name: | Steve T. Min | |||
Title: | President | |||
Signature | Title | Date | ||
/S/ STEVE T. MIN | President and Director (Principal Executive Officer) | March 5, 2010 | ||
/S/ PETER J. BLOTT | Executive Vice President, Chief Financial Officer and Director (Principal Financial Officer and Principal Accounting Officer) | March 5, 2010 | ||
/S/ ROBERT R. CHAI-ONN | Vice President, Assistant General Counsel, Corporate Secretary and Director | March 5, 2010 |
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Harbor Pharmaceuticals, Inc. | ||||
By: | /S/ STEVE T. MIN | |||
Name: | Steve T. Min | |||
Title: | President | |||
Signature | Title | Date | ||
/S/ STEVE T. MIN | President and Director (Principal Executive Officer) | March 5, 2010 | ||
/S/ PETER J. BLOTT | Vice President, Treasurer and Director (Principal Financial Officer and Principal Accounting Officer) | March 5, 2010 | ||
/S/ ROBERT R. CHAI-ONN | Vice President, Secretary and Director | March 5, 2010 |
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Healthchoice Online, LLC | ||||
By: | /S/ STEVE T. MIN | |||
Name: | Steve T. Min | |||
Title: | Managing Officer | |||
Signature | Title | Date | ||
/S/ STEVE T. MIN | Managing Officer (Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer) | March 5, 2010 | ||
/S/ J. MICHAEL PEARSON | Director of Valeant Pharmaceuticals International, the registrant’s sole member | March 5, 2010 | ||
/S/ BRANDON B. BOZE | Director of Valeant Pharmaceuticals International, the registrant’s sole member | March 5, 2010 | ||
/S/ ROBERT A. INGRAM | Director of Valeant Pharmaceuticals International, the registrant’s sole member | March 5, 2010 | ||
/S/ RICHARD H. KOPPES | Director of Valeant Pharmaceuticals International, the registrant’s sole member | March 5, 2010 |
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Signature | Title | Date | ||
/S/ LAWRENCE N. KUGELMAN | Director of Valeant Pharmaceuticals International, the registrant’s sole member | March 5, 2010 | ||
/S/ ANDERS Lönner | Director of Valeant Pharmaceuticals International, the registrant’s sole member | March 5, 2010 | ||
/S/ THEO MELAS-KYRIAZI | Director of Valeant Pharmaceuticals International, the registrant’s sole member | March 5, 2010 | ||
/S/ G. MASON MORFIT | Director of Valeant Pharmaceuticals International, the registrant’s sole member | March 5, 2010 | ||
/S/ NORMA A. PROVENCIO | Director of Valeant Pharmaceuticals International, the registrant’s sole member | March 5, 2010 | ||
/S/ STEPHEN F. STEFANO | Director of Valeant Pharmaceuticals International, the registrant’s sole member | March 5, 2010 |
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Hyland Capital, Inc. | ||||
By: | /S/ STEVE T. MIN | |||
Name: | Steve T. Min | |||
Title: | President | |||
Signature | Title | Date | ||
/S/ STEVE T. MIN | President and Director (Principal Executive Officer) | March 5, 2010 | ||
/S/ PETER J. BLOTT | Treasurer and Director (Principal Financial Officer and Principal Accounting Officer) | March 5, 2010 | ||
/S/ ROBERT R. CHAI-ONN | Secretary and Director | March 5, 2010 |
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ICN Medical Alliance, Inc. | ||||
By: | /S/ PETER J. BLOTT | |||
Name: | Peter J. Blott | |||
Title: | President and Treasurer | |||
Signature | Title | Date | ||
/S/ PETER J. BLOTT | President, Treasurer and Director (Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer) | March 5, 2010 | ||
/S/ ROBERT R. CHAI-ONN | Vice President, Secretary and Director | March 5, 2010 |
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ICN Southeast, Inc. | ||||
By: | /S/ STEVE T. MIN | |||
Name: | Steve T. Min | |||
Title: | President | |||
Signature | Title | Date | ||
/S/ STEVE T. MIN | President and Director (Principal Executive Officer) | March 5, 2010 | ||
/S/ PETER J. BLOTT | Vice President, Treasurer and Director (Principal Financial Officer and Principal Accounting Officer) | March 5, 2010 | ||
/S/ ROBERT R. CHAI-ONN | Vice President, Secretary and Director | March 5, 2010 |
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Oceanside Pharmaceuticals, Inc. | ||||
By: | /S/ STEVE T. MIN | |||
Name: | Steve T. Min | |||
Title: | President | |||
Signature | Title | Date | ||
/S/ STEVE T. MIN | President and Director (Principal Executive Officer) | March 5, 2010 | ||
/S/ PETER J. BLOTT | Treasurer and Director (Principal Financial Officer and Principal Accounting Officer) | March 5, 2010 | ||
/S/ ROBERT R. CHAI-ONN | Secretary and Director | March 5, 2010 |
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Valeant Biomedicals, Inc. | ||||
By: | /S/ PETER J. BLOTT | |||
Name: | Peter J. Blott | |||
Title: | President and Treasurer | |||
Signature | Title | Date | ||
/S/ PETER J. BLOTT | President, Treasurer and Director (Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer) | March 5, 2010 | ||
/S/ ROBERT R. CHAI-ONN | Vice President, Secretary and Director | March 5, 2010 |
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Valeant China, Inc. | ||||
By: | /S/ STEVE T. MIN | |||
Name: | Steve T. Min | |||
Title: | President | |||
Signature | Title | Date | ||
/S/ STEVE T. MIN | President and Director (Principal Executive Officer) | March 5, 2010 | ||
/S/ PETER J. BLOTT | Treasurer and Director (Principal Financial Officer and Principal Accounting Officer) | March 5, 2010 | ||
/S/ ROBERT R. CHAI-ONN | Secretary and Director | March 5, 2010 |
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Valeant Pharmaceuticals North America | ||||
By: | /S/ STEVE T. MIN | |||
Name: | Steve T. Min | |||
Title: | Executive Vice President, General Counsel and Corporate Secretary | |||
Signature | Title | Date | ||
/S/ J. MICHAEL PEARSON | Chief Executive Officer (Principal Executive Officer) | March 5, 2010 | ||
/S/ PETER J. BLOTT | Executive Vice President, Chief Financial Officer and Director (Principal Financial Officer and Principal Accounting Officer) | March 5, 2010 | ||
/S/ STEVE T. MIN | Executive Vice President, General Counsel, Corporate Secretary and Director | March 5, 2010 | ||
/S/ ROBERT R. CHAI-ONN | Director | March 5, 2010 |
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Coria Laboratories, Ltd. | ||||
By: | /S/ STEVE T. MIN | |||
Name: | Steve T. Min | |||
Title: | Executive Vice President, General Counsel and Corporate Secretary | |||
Signature | Title | Date | ||
/S/ J. MICHAEL PEARSON | Chief Executive Officer (Principal Executive Officer) | March 5, 2010 | ||
/S/ PETER J. BLOTT | Executive Vice President, Chief Financial Officer and Director (Principal Financial Officer and Principal Accounting Officer) | March 5, 2010 | ||
/S/ STEVE T. MIN | Executive Vice President, General Counsel, Corporate Secretary and Director | March 5, 2010 | ||
/S/ ELISA A. KARLSON | Director | March 5, 2010 |
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Dow Pharmaceutical Sciences, Inc. | ||||
By: | /S/ STEVE T. MIN | |||
Name: | Steve T. Min | |||
Title: | Executive Vice President, General Counsel and Corporate Secretary | |||
Signature | Title | Date | ||
/S/ J. MICHAEL PEARSON | Chief Executive Officer (Principal Executive Officer) | March 5, 2010 | ||
/S/ PETER J. BLOTT | Executive Vice President, Chief Financial Officer and Director (Principal Financial Officer and Principal Accounting Officer) | March 5, 2010 | ||
/S/ STEVE T. MIN | Executive Vice President, General Counsel, Corporate Secretary and Director | March 5, 2010 | ||
S/ ELISA A. KARLSON | Director | March 5, 2010 |
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Exhibit Number | Description of Exhibits | |
3.1 | Restated Certificate of Incorporation of Valeant Pharmaceuticals International, as amended to date. (1) | |
3.2 | Amended and Restated Bylaws of Valeant Pharmaceuticals International. (2) | |
3.3* | Certificate of Incorporation of Amarin Pharmaceuticals Inc., as amended to date. | |
3.4* | Bylaws of Amarin Pharmaceuticals Inc. | |
3.5* | Articles of Incorporation of Harbor Pharmaceuticals, Inc. | |
3.6* | Bylaws of Harbor Pharmaceuticals, Inc. | |
3.7* | Certificate of Formation of Healthchoice Online, LLC. | |
3.8* | Operating Agreement of Healthchoice Online, LLC. | |
3.9* | Certificate of Incorporation of Hyland Capital, Inc. | |
3.10* | Bylaws of Hyland Capital, Inc. | |
3.11* | Articles of Incorporation of ICN Medical Alliance, Inc., as amended to date. | |
3.12* | Bylaws of ICN Medical Alliance, Inc., formerly known as ICN Acquisition Corp. | |
3.13* | Certificate of Incorporation of ICN Southeast, Inc. | |
3.14* | Bylaws of ICN Southeast, Inc. | |
3.15* | Certificate of Incorporation of Oceanside Pharmaceuticals, Inc., as amended to date. | |
3.16* | Bylaws of Oceanside Pharmaceuticals, Inc. | |
3.17* | Amended and Restated Certificate of Incorporation of Valeant Biomedicals, Inc. | |
3.18* | Amended and Restated Bylaws of Valeant Biomedicals, Inc. | |
3.19* | Certificate of Incorporation of Valeant China, Inc., as amended to date. | |
3.20* | Bylaws of Valeant China, Inc., formerly known as ICN China, Inc. | |
3.21* | Amended and Restated Certificate of Incorporation of Valeant Pharmaceuticals North America. | |
3.22* | Amended and Restated Bylaws of Valeant Pharmaceuticals North America. | |
3.23* | Amended Certificate of Incorporation of Coria Laboratories, Ltd. | |
3.24* | Bylaws of Coria Laboratories, Ltd. | |
3.25* | Amended and Restated Certificate of Incorporation of Dow Pharmaceutical Sciences, Inc. | |
3.26* | Bylaws of Dow Pharmaceutical Sciences, Inc. |
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Exhibit Number | Description of Exhibits | |
4.1 | Indenture, dated as of June 9, 2009, by and among Valeant Pharmaceuticals International, the Guarantors named therein and The Bank of New York Mellon Trust Company, N.A., as Trustee (including Form of 8.375% Senior Note due 2016 and related Guarantees). (3) | |
4.2 | Exchange and Registration Rights Agreement, dated as of June 9, 2009, by and among the Valeant Pharmaceuticals International, Goldman, Sachs & Co. and UBS Securities LLC as Representatives of the several Initial Purchasers named therein and the Guarantors named therein (relating to the 8.375% Senior Notes due 2016). (4) | |
5.1* | Opinion of Morgan, Lewis & Bockius, LLP. | |
12.1* | Computation of Ratio of Earnings to Fixed Charges. | |
23.1* | Consent of Morgan, Lewis & Bockius, LLP (contained in opinion filed as Exhibit 5.1). | |
23.2* | Consent of PricewaterhouseCoopers LLP. | |
24.1* | Power of Attorney (included on signature pages attached hereto). | |
25.1* | Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939, as amended, with respect to the Trustee (relating to trustee under indenture governing the 8.375% Senior Notes due 2016). | |
99.1* | Form of Letter of Transmittal. | |
99.2* | Form of Notice of Guaranteed Delivery. | |
99.3* | Form of Letter to Brokers, Dealers. | |
99.4* | Form of Letter to Clients. |
* | Filed herewith. | |
(1) | Incorporated by reference to Exhibit 3.1 to Valeant Pharmaceuticals International’s Form 10-Q for the quarter ended September 30, 2003 (File No. 03995078). | |
(2) | Incorporated by reference to Exhibit 3.3 to Valeant Pharmaceuticals International’s Form 10-K for the year ended December 31, 2009. | |
(3) | Incorporated by reference to Exhibit 99.2 to Valeant Pharmaceuticals International’s Current Report on Form 8-K, filed June 11, 2009. | |
(4) | Incorporated by reference to Exhibit 99.1 to Valeant Pharmaceuticals International’s Current Report on Form 8-K, filed June 11, 2009. |
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