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EXHIBIT 4.4
THE SECURITIES OF INTELLIGENT POLYMERS LIMITED ("INTELLIGENT POLYMERS") ARE
SUBJECT TO AN OPTION OF THE HOLDER OR HOLDERS OF A MAJORITY OF THE SPECIAL
SHARES OF INTELLIGENT POLYMERS AS DESCRIBED IN THE BYE-LAWS OF INTELLIGENT
POLYMERS TO PURCHASE SUCH SECURITIES AT AN AGREED UPON PRICE EXERCISABLE BY
NOTICE AT ANY TIME COMMENCING ON THE CLOSING DATE OF THE UNIT OFFERING AND
ENDING ON THE EARLIER OF (i) SEPTEMBER 30, 2002 AND (ii) THE 90TH DAY AFTER THE
DATE INTELLIGENT POLYMERS PROVIDES SUCH HOLDER OR HOLDERS WITH QUARTERLY
FINANCIAL STATEMENTS OF INTELLIGENT POLYMERS SHOWING CASH OR CASH EQUIVALENTS
OF LESS THAN U.S.$3 MILLION. COPIES OF THE BYE-LAWS OF INTELLIGENT POLYMERS
ARE AVAILABLE AT THE OFFICES OF INTELLIGENT POLYMERS AT CONYERS DILL & PEARMAN,
CLARENDON HOUSE, 2 CHURCH STREET, HAMILTON HM 11, BERMUDA AND WILL BE FURNISHED
TO ANY SHAREHOLDER OF INTELLIGENT POLYMERS ON REQUEST AND WITHOUT COST.
NUMBER OF UNITS
_________
UNIT CUSIP
_________
INTELLIGENT POLYMERS LIMITED
(INCORPORATED UNDER THE LAWS OF BERMUDA)
Authorized Capitalization:
__________ Common Shares, Par Value
U.S.$.01 Per Share, and 12,000 Special Shares,
Par Value U.S.$1.00 Per Share
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BIOVAIL CORPORATION INTERNATIONAL
(INCORPORATED UNDER THE LAWS OF ONTARIO, CANADA)
Authorized Capitalization:
60,000,000 Common Shares, No Par Value
EACH UNIT CONSISTING OF (A) ONE COMMON SHARE, PAR VALUE
U.S.$.01 OF INTELLIGENT POLYMERS LIMITED AND (B) ONE WARRANT TO PURCHASE ONE
COMMON SHARE, NO PAR VALUE OF BIOVAIL CORPORATION INTERNATIONAL ("BIOVAIL").
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THIS CERTIFIES Cede & Co. is the owner of _________ Units that
as described above are transferable only on the books of Intelligent Polymers
and Biovail by the holder thereof in person or by his or her duly authorized
attorney on surrender of this certificate properly endorsed.
Each Unit consists of (a) one Common Share, par value
U.S.$.01, of Intelligent Polymers (the "Intelligent Polymers Common Shares")
and (b) one warrant, (the "Warrant") to purchase one Common Share of Biovail,
no par value (the "Biovail Common Shares").
The Intelligent Polymers Common Shares and the Warrants
comprising the Units will be traded only as Units until September 30, 1999 or
such earlier date as the holder's or holders' of the Special Shares right to
purchase all of the outstanding Intelligent Polymers Common Shares is exercised
or expires (the "Separation Date").
On the Separation Date, the record holder of this Unit
Certificate shall be entitled to receive a certificate or certificates for the
number of Intelligent Polymers Common Shares equal to the number of Intelligent
Polymers Common Shares represented by this Unit Certificate immediately prior
to the Separation Date from ChaseMellon Shareholder Services L.L.C., which is
the Transfer Agent (in such capacity, the "Transfer Agent") for Intelligent
Polymers. A form of Intelligent Polymers Common Share certificate is attached
hereto as Exhibit A. The Intelligent Polymers Common Shares are subject to all
of the provisions of the Memorandum of Association and Bye-Laws of Intelligent
Polymers to all of which the holder of this Unit Certificate consents by
acceptance hereof. Copies of the Memorandum of Association of Intelligent
Polymers are on file at the offices of the Transfer Agent at 450 West 33rd
Street, New York, NY 10001 and at the offices of Intelligent Polymers at
Conyers Dill & Pearman, Clarendon House, 2 Church Street, Hamilton HM 11,
Bermuda, Attention: David J. Doyle and are available for inspection by any
holder of the Units during business hours.
The Intelligent Polymers Common Shares are subject to a
purchase option set forth in the Bye-Laws of Intelligent Polymers.
On the Separation Date the record holder of this Unit
Certificate shall also be entitled to receive a certificate or certificates for
the number of Warrants equal to the number of Warrants represented by this Unit
Certificate immediately prior to the Separation Date from ChaseMellon
Shareholder Services, L.L.C., which is the Warrant Agent (in such capacity, the
"Warrant Agent") for Biovail pursuant to a warrant agreement dated as of
October __, 1997 (the "Warrant Agreement") between Biovail and the Warrant
Agent. The terms of the Warrants are governed by the terms of the Warrant
Agreement and are subject to the terms and conditions contained therein, to all
of which terms and conditions the holder
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of this Unit Certificate consents by acceptance hereof. A form of certificate
representing the Warrants is attached hereto as Exhibit B. Copies of such
Warrant Agreement are on file at the offices of the Warrant Agent at 450 West
33rd Street, New York, NY 10001 and are available for inspection by any holder
of Units during business hours. The Warrants shall be void unless exercised by
5:00 p.m., New York time, on September 30, 2002.
The terms of this Unit Certificate shall be governed by the
laws of the State of New York without giving effect to conflicts of law
principles thereof.
This Unit Certificate is not valid unless countersigned and
registered by the Transfer Agent and Registrar of this Unit Certificate.
ON AND AFTER THE SEPARATION DATE THIS UNIT CERTIFICATE SHALL
BE VOID.
INTELLIGENT POLYMERS LIMITED
By:
------------------------------
Name:
Title:
BIOVAIL CORPORATION INTERNATIONAL
By:
------------------------------
Name:
Title:
Countersigned
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
as Unit Registrar and Transfer Agent
By:
------------------------------
Name:
Title:
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[REVERSE OF UNIT CERTIFICATE]
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in common
CTST - as custodian
U/G/M/A - Uniform Gifts to Minors Act
For Value Received ______________ hereby sell(s), assign(s)
and transfer(s) unto:
- --------------------------------------------------------------------------------
Please insert Social Security or other
Identifying Number of Assignee
- --------------------------------------------------------------------------------
Please Print or Typewrite Name and
Address Including Zip Code of Assignee
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
of the Units represented by this written Certificate, and do(es) hereby
irrevocably constitute and appoint ________Attorney to transfer the said Unit
with full power of substitution in the premises.
Dated:
-------------------------- ------------------------------------
Signature
------------------------------------
Signature
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EXHIBIT A
TO UNIT CERTIFICATE
[FORM OF FACE OF INTELLIGENT POLYMERS COMMON SHARES]
The securities of Intelligent Polymers Limited, a Bermuda company ("Intelligent
Polymers") evidenced hereby are subject to an option of the holder or holders
of a majority of the Special Shares of Intelligent Polymers, as described in
the Bye-Laws of Intelligent Polymers, to purchase such securities at an agreed
upon price, exercisable by notice given at any time beginning on the closing
date of the offering of common stock, par value, $0.01 per share (the
"Intelligent Polymers Common Shares") of Intelligent Polymers and the warrants
(the "Warrants") to purchase common shares of Biovail Corporation International
("Biovail Common Shares") which comprise the Units, (the "Unit Offering") and
ending on the earlier of (i) September 30, 2002 and (ii) the 90th day after the
date Intelligent Polymers provides such holder or holders with quarterly
financial statements of Intelligent Polymers showing cash or cash equivalents
of less than U.S.$3,000,000. Copies of the Bye-Laws of Intelligent Polymers
are available at the offices of Intelligent Polymers at Conyers Dill & Pearman,
Clarendon House, 2 Church Street, Hamilton HM 11, Bermuda, and will be
furnished to any shareholder of Intelligent Polymers on request and without
cost.
Until September 30, 1999 or such earlier date as the Purchase
Option is exercised or expires unexercised (the "Separation Date"), the shares
represented by this Certificate may be traded, exchanged, or otherwise
transferred only together with the Warrant issued herewith. The holder hereof
may, but need not, submit this Certificate for the removal of this legend after
the Separation Date.
INTELLIGENT POLYMERS LIMITED
Incorporated Under The Laws Of Bermuda
COMMON SHARES
FULLY PAID AND NON-ASSESSABLE COMMON SHARES,
PAR VALUE OF U.S.$0.01 PER SHARE
OF INTELLIGENT POLYMERS LIMITED
CUSIP
See Reverse For Certain Definitions
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THIS CERTIFIES that
is the owner of Common Shares of
INTELLIGENT POLYMERS LIMITED (the "Company"), transferable on the books of the
Company by the holder hereof, in person or by duly authorized attorney, upon
surrender of this Certificate properly endorsed. This certificate and the
shares represented hereby are subject to the laws of Bermuda, and to the
Memorandum of Association and Bye-Laws of the Company as now or hereafter
amended (copies of which are on file at the offices of the Company and the
Transfer Agent), which are made a part hereof with the same force and effect as
if they were set forth herein, to all of which the holder, by acceptance
hereof, assents. This certificate is not valid unless countersigned by the
Transfer Agent and registered by the Registrar.
IN WITNESS WHEREOF, the Company has caused the facsimile
signatures of its duly authorized officers and the facsimile of its corporate
seal to be hereunto affixed.
Dated:
Countersigned and Registered:
Transfer Agent and Registrar
By:
-----------------------
Name:
Title:
----------------------- -----------------------
Authorized Officer Authorized Officer
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[FORM OF REVERSE OF INTELLIGENT POLYMERS COMMON SHARES]
INTELLIGENT POLYMERS LIMITED
The Company will furnish without charge to each shareholder
who so requests a copy of the powers, designations, preferences and relative,
participating, optional or other special rights of each class of shares of the
Company or series thereof, and the qualifications, limitations or restrictions
of such preferences and/or rights.
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in common
UNIF GIFT MIN ACT...............Custodian.........................
(cust) (Minor)
under Uniform Gifts to Minors Act
.................................................
(State)
Additional abbreviations may also be used though not in the above list.
For Value Received, __________________ hereby sells, assigns
and transfers unto
Please insert Social Security
or other identifying number
of assignee
- -------------------------
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- --------------------------------------------------------------------------------
Please print or typewrite name and address
including postal zip code of assignee
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Shares
- -------------------------------------------------------------------------
represented by the within Certificate, and do hereby irrevocably constitute and
appoint
- --------------------------------------------------------------------------------
attorney, to transfer the said same on the books of the within named Company,
with full power of substitution in the premises.
Dated:
-------------------------
----------------------------------------
Signature
----------------------------------------
Signature
Notice: The signature to this
assignment must correspond
with the name as written upon
the face of the Certificate,
in every particular, without
alteration or enlargement, or
any change whatever.
In presence of:
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Important: All signatures must be guaranteed by a firm which is a financial institution and a
member of the Securities Transfer Agent's medallion Program ("STAMP"), the Stock
Exchange Medallion Program ("SEMP") or the New York Stock Exchange, Inc. Medallion
Signature Program ("MSP").
Signature Guarantee:
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Name of Firm
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Authorized Signature
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Name of Authorized Signatory
(Please print)
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Address of Firm
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Area Code and Telephone Number of Firm
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EXHIBIT B
TO UNIT CERTIFICATE
UNTIL SEPTEMBER 30, 1999 OR SUCH EARLIER DATE AS THE PURCHASE
OPTION (AS DEFINED IN THE WARRANT AGREEMENT) IS EXERCISED OR EXPIRES
UNEXERCISED (THE "SEPARATION DATE") THE WARRANTS REPRESENTED BY THIS
CERTIFICATE MAY BE TRADED, EXCHANGED OR OTHERWISE TRANSFERRED ONLY TOGETHER
WITH THE COMMON SHARES OF INTELLIGENT POLYMERS LIMITED ISSUED HEREWITH. THE
HOLDER HEREOF MAY, BUT NEED NOT, SUBMIT THIS CERTIFICATE FOR THE REMOVAL OF
THIS LEGEND AFTER THE SEPARATION DATE.
(FORM OF WARRANT CERTIFICATE)
VOID AFTER 5:00 p.m., Warrant No. _____
New York City Time, Warrant to Purchase _____
on the Separation Date Common Shares, no par value
BIOVAIL CORPORATION INTERNATIONAL WARRANTS TO PURCHASE COMMON
SHARES, NO PAR VALUE
This Warrant Certificate certifies that for value received ____
________________________________________________________________________________
or registered assigns is entitled to purchase from Biovail Corporation
International (the "Company"), on any business day beginning on October 1, 1999
(the "Exercise Commencement Date"), the number of the Company's Common Shares,
no par value (the "Common Shares"), set forth above, each of which Common
Shares shall be fully paid and nonassessable, at the exercise price per Common
Share of U.S.$_____ (the "Exercise Price"). The number of Common Shares
purchasable upon exercise of the Warrants evidenced hereby and the Exercise
Price shall be subject to adjustment from time to time as set forth in the
Warrant Agreement referred to on the reverse side hereof (the "Warrant
Agreement"). Subject to the terms of the Warrant Agreement, this Warrant may
be exercised in whole or in increments of one Common Share at any time on or
after the Exercise Commencement Date and before 5:00 p.m., New York City time,
on September 30,
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2002 (the "Expiration Date"), by surrender of this Warrant Certificate at the
office of the warrant agent for the Warrants (the "Warrant Agent"), with the
Election to Purchase on the reverse side hereof completed and duly executed and
accompanied by payment, in cash or certified or official bank check payable to
the order of the Company.
The Exercise Price and the number of Common Shares purchasable
upon exercise of this Warrant are subject to adjustment upon the occurrence of
certain events set forth in the Warrant Agreement.
Immediately after 5:00 p.m., New York City time, on the
Expiration Date, this Warrant will become null and void and of no value.
REFERENCE IS MADE TO THE PROVISIONS OF THIS WARRANT
CERTIFICATE SET FORTH ON THE REVERSE SIDE HEREOF, AND SUCH FURTHER PROVISIONS
SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH ON THE
FRONT OF THIS CERTIFICATE.
This Warrant Certificate shall not be valid unless
countersigned by the Warrant Agent.
This Warrant shall be governed by and construed in accordance
with the laws of the State of New York as applicable without giving effect to
conflicts of law principles thereof.
Copies of the Warrant Agreement are on file at the office of
the Warrant Agent at 450 West 33rd Street, New York, NY 10001, Attention:
____________________, and may be obtained by any holder upon written request
and without cost.
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be executed by its duly authorized officer, and its corporate
seal is hereunto affixed.
Dated:
Chase Mellon Shareholder Services, L.L.C.,
as Warrant Agent
By:
--------------------------------------
Name:
Title:
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BIOVAIL CORPORATION
INTERNATIONAL
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
[Reverse Side]
The warrant evidenced by this Warrant Certificate is part of a
duly authorized issue of warrants to purchase Common Shares, no par value, of
Biovail Corporation International (the "Company"), issued pursuant to the
Warrant Agreement between the Company and the Warrant Agent named therein,
dated as of October __, 1997 as amended at any time (the "Warrant Agreement").
The Warrant Agreement is hereby incorporated by reference and made a part of
this Warrant Certificate as fully as though completely set forth herein. The
holder of this Warrant Certificate agrees to be bound by the Warrant Agreement.
In the event of any inconsistency or discrepancy between the Warrant
Certificate and the Warrant Agreement, the Warrant Agreement shall govern.
Reference is made to the Warrant Agreement for a complete description of the
rights, limitations of rights, obligations and duties of the Company, the
Warrant Agent and the holders of Warrants.
If upon any exercise of the Warrant evidenced hereby the
number of Common Shares purchased shall be less than the total number of Common
Shares evidenced hereby, the Warrant Agent shall issue to the holder hereof, or
his proper transferee, a new Warrant Certificate evidencing the rights of the
holder hereof to purchase the balance of the Common Shares purchasable
hereunder upon the same terms and conditions herein set forth. Warrants may be
exercised only as to whole Common Shares.
The Warrant may not be transferred or exercised except in
compliance with the Warrant Agreement and applicable federal, state and
provincial securities laws.
Upon due presentation for registration of transfer of this
Warrant Certificate to the office of the Warrant Agent with the Form of
Transfer set forth below duly completed and executed, a new Warrant Certificate
of like tenor and evidencing rights to purchase a like number of Common Shares
shall be issued without charge to the transferee designated in the Form of
Transfer in exchange for this Warrant Certificate.
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The Company and the Warrant Agent may deem and treat the
registered holder hereof as the absolute owner of this Warrant Certificate
(notwithstanding any notation of ownership or other writing made hereon by
anyone) for the purpose of exercise of the Warrant and for all other purposes,
and neither the Company nor the Warrant Agent shall be affected by any notice
to the contrary.
Upon receipt by the Warrant Agent of evidence satisfactory to
it of the loss, theft, destruction or mutilation of this Warrant Certificate
and, in the case of loss, theft or destruction, upon receipt of an indemnity
bond satisfactory to the Warrant Agent (obtained by the holder at the holder's
expense) or, in the case of mutilation, upon surrender of this Warrant
Certificate, the Warrant Agent shall execute and deliver a new Warrant
Certificate of like tenor and date and the lost, stolen, destroyed or mutilated
Warrant Certificate thereupon shall become void.
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ELECTION TO PURCHASE
(To be executed upon exercise of Warrant)
The undersigned hereby irrevocably elects to exercise
__________ of the Warrants for the purchase of _____________ Common Shares, no
par value, of Biovail Corporation International (the "Common Shares") and
herewith makes payment of U.S.$____ (such payment being in cash, or certified
or official bank check payable to the order of Biovail Corporation
International), all at the exercise price and on the terms and conditions
specified in the Warrant Certificate and the Warrant Agreement referred to
therein, surrenders this Warrant Certificate and all right, title and interest
therein to Biovail Corporation International and requests that certificates for
such Common Shares be issued in the name of:
- --------------------------------------------------------------------------------
(Name)
- --------------------------------------------------------------------------------
(Address)
- --------------------------------------------------------------------------------
(Social Security or other taxpayer identifying number)
and, if different from above, be delivered to;
- --------------------------------------------------------------------------------
(Name)
- --------------------------------------------------------------------------------
(Address)
and, if the number of Common Shares so purchased are not all of the Common
Shares issuable upon exercise of the Warrants evidenced by this certificate,
that a new certificate evidencing Warrants to purchase the balance of such
Common Shares be registered in the name of, and delivered to, the undersigned
at the address stated below.
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Dated: __________________________, 19__
Name of Registered Owner:
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- --------------------------------------------------------------------------------
Address:
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- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Social Security or other taxpayer identifying number)
Signature:
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IMPORTANT: ALL SIGNATURES MUST BE GUARANTEED IN THE SPACE PROVIDED BELOW
BY A FINANCIAL INSTITUTION THAT IS A MEMBER OF THE SECURITIES
TRANSFER AGENTS MEDALLION PROGRAM ("STAMP"), THE STOCK
EXCHANGE MEDALLION PROGRAM ("SEMP") OR THE NEW YORK STOCK
EXCHANGE INC. MEDALLION SIGNATURE PROGRAM ("MSP").
SIGNATURE GUARANTEE:
Name:
--------------------------------------------------------------------------
(please print)
By:
----------------------------------------------------------------------------
Title:
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FORM OF TRANSFER
(To be signed only upon transfer of Warrant in accordance with Section 12 of
the Warrant Agreement)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfer unto ________________________ whose address is
________________________________the right represented by the Warrant to
purchase ____________________ Common Shares, no par value, of BIOVAIL
CORPORATION INTERNATIONAL to which the Warrant relates, and appoints the
Warrant Agent attorney to transfer such right on the books of BIOVAIL
CORPORATION INTERNATIONAL with full power of substitution.
Dated: __________________, 19__
---------------------------------------
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate)
---------------------------------------
(Address)
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IMPORTANT: ALL SIGNATURES MUST BE GUARANTEED IN THE SPACE PROVIDED BELOW
BY A FINANCIAL INSTITUTION THAT IS A MEMBER OF THE SECURITIES
TRANSFER AGENTS MEDALLION PROGRAM (STAMP), THE STOCK EXCHANGE
MEDALLION PROGRAM (SEMP) OR THE NEW YORK STOCK EXCHANGE, INC.
MEDALLION SIGNATURE PROGRAM ("MSP:).
SIGNATURE GUARANTEE:
Name:
--------------------------------------------------------------------------
(please print)
By:
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Title:
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