Securities Law & Instruments

IN THE MATTER OF

THE SECURITIES ACT,

R.S.O. 1990, c. S.5, AS AMENDED

AND

IN THE MATTER OF

BIOVAIL CORPORATION, EUGENE N. MELNYK,

BRIAN H. CROMBIE, JOHN R. MISZUK AND

KENNETH G. HOWLING

 

ORDER

WHEREAS, on March 24, 2008, the Ontario Securities Commission (the "Commission") issued a Notice of Hearing and related Statement of Allegations (the "Notice of Hearing") against Biovail Corporation ("Biovail"), Eugene N. Melnyk ("Melnyk"), Brian H. Crombie ("Crombie"), John R. Miszuk ("Miszuk") and Kenneth G. Howling ("Howling") (the "OSC Proceeding");

AND WHEREAS the Commission has approved settlement agreements reached with Biovail, Miszuk, Howling and Crombie;

AND WHEREAS the OSC Proceeding is continuing as against Melnyk;

AND WHEREAS Staff of the Commission and Melnyk are currently relying on 213 documents in the OSC Proceeding (the "Hearing Documents");

AND WHEREAS GSK was afforded the opportunity to review the Hearing Documents for GSK confidentiality concerns;

AND WHEREAS GSK brought a motion for confidential treatment over certain of the Hearing Documents listed at Schedule "A" hereto (the "Schedule "A" Documents")(the "GSK Motion");

IT IS HEREBY ORDERED that:

1. The GSK Motion is dismissed.

2. The Schedule "A" Documents shall only be made available to the public at the close of the OSC Proceeding in redacted form, as provided to the parties as part of the GSK Motion.

3. GSK shall be afforded the right to appear and be heard at the conclusion of the OSC Proceeding regarding matters arising during the hearing and matters arising out of the hearing, including but not limited to, issues relating to GSK confidentiality, other than those issues determined on the GSK Motion.

4. Transcripts of the OSC Proceeding shall only be made available to the public at the conclusion of the OSC Proceeding, after GSK has been afforded a reasonable opportunity to appear and be heard regarding any confidentiality issues arising therefrom.

5. The Commission, Melnyk and his counsel, Staff of the Commission, the United States Securities and Exchange Commission, the parties' experts, GSK and its counsel, as well as counsel for Crombie, Miszuk and Howling, may obtain transcripts of the OSC Proceeding throughout the OSC Proceeding. Such transcripts shall be kept confidential and not disclosed to any other person or entity until GSK has been afforded a reasonable opportunity to appear and be heard regarding any confidentiality issues arising therefrom.

DATED at Toronto this 4th day of March, 2009.

"James E.A. Turner"

"Paulette L. Kennedy"

"David L. Knight"

SCHEDULE "A"

 

Date

Document

Docid

 

1.

October 26, 2001

Development, License, and Copromotion Agreement between Biovail Laboratories Incorporated and SmithKline Beecham Corporation

OSCS_131305

 

2.

April 22, 2003

Purchase Order from GlaxoSmithKline to Biovail Laboratories Inc.

OSCS_004590

 

3.

September 2003 (estimate)

WBXL Summary -- Q3 Base Forecast + EM Strategy, Production Shipping Schedule and GSK POs

EXH0004309

 

4.

October 23, 2003

WBXL Value of Shipments

EXH0004093

 

5.

December 3, 2003 -- December 4, 2003

Emails between Dina Khairo and Arlene Fong re: GSK invoices attaching 2003 Wellbutrin XL (GSK) Manufacturing Revenue Sales Gross Margin Detail (Third Party) and 2003 Wellbutrin/Buproprion forecast Q2, Q3

BVF_290949

 

6.

February 20, 2004 -- February 23, 2004

Emails between Mark Davidson, Brian Crombie, Neil Smith

BVF_02_003685117

 

7.

September 23, 2003

WBXL 2003 -- 2004 Forecast as at September 23, 2003

OSC EXH0004320

 

8.

December 31, 2003

WBXL Reconciliation of Trade Product Cost Year to Date December 31, 2003

 

9.

September 30, 2003

WBXL Reconciliation of Trade Product Cost Year to Date September 30, 2003

 

10.

05/10/2001

Development, License and Copromotion Agreement

OSCS_099435

 

11.

05/10/2001

Development, License and Copromotion Agreement

OSCS_099386

 

12.

05/10/2001

Development, License and Copromotion Agreement

OSCS_099342

 

13.

05/10/2001

Development, License and Copromotion Agreement

BVF_02_000123179

 

14.

08/10/2001

Development, License and Copromotion Agreement

OSCS_099474

 

15.

08/10/2001

Development, License and Copromotion Agreement

OSCS_099523

 

16.

10/10/2001

Development, License and Copromotion Agreement

BVF_02_001658813

 

17.

26/10/2001

Development, License and Copromotion Agreement

EXH0004094

 

18.

26/10/2001

Bupropion Development License and CoPromotion Agreement

BVF_02_000298357

 

19.

26/10/2001

Zovirax Distribution Rights Agreement

BVF_02_000298366

 

20.

22/11/2002

FW: Biovail Request - Wellbutrin/Zyban Data - Nov 22, 2002

BVF_02_001903296

 

21.

26/01/2004

Biovail Q3 2003 10/1/03 Wellbutrin Accident

EYC_HCD_00012287

 

22.

10/24/2003

Email from John Miszuk -- FW: letter re agmt on invoicing doc.

BVF_02_002367957

 

23.

02/03/2004

Letter from John McCleery -- Biovail/GSK Development, Supply and Copromotion Agreement (Wellbutrin) -- Trade Packaging

BVF_02_000018917

 

24.

September 30, 2003

Finished Product Shipping Order (Shipment #1000) attaching:

OSCS_021850

 

- Bill of Lading from Penner International Inc. to GlaxoSmithKline dated September 30, 2003

- Invoice #010-6271 from Biovail Corporation to GlaxoSmithKline dated September 30, 2003

 

25.

September 30, 2003

Finished Product Shipping Order (Shipment #994) attaching:

OSCS_021856

- Bill of Lading from Penner International Inc. to GlaxoSmithKline dated September 30, 2003

- Invoice #010-6270 from Biovail Corporation to GlaxoSmithKline dated September 30, 2003

 

26.

August 20, 2003

Email from Carol Chapuis to Neil Smith -- FW: End-July Wellbutrin XL Forecast/PO

BVF_02_000009659

 

27.

September 4, 2003

Email from Neil Smith to Eugene Melnyk -- Q3-2003 WBXL Summary Prodn-PO

BF_02_001267474