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

CONFIDENTIALITY ORDER

(GSK)

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 a case is currently pending in the United States District Court for the Southern District of New York (Case Number 08-02979), commenced by the Securities and Exchange Commission on March 24, 2008, against Melnyk, Crombie, Miszuk and Howling (the "U.S. Case"), wherein a Stipulation and Protective Order dated September 3, 2008 and the Stipulated Addendum to Stipulation and Protective Order Concerning Non-Party SmithKline Beecham Corporation dated January 12, 2009, were entered by the court in the U.S. Case;

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

AND WHEREAS the OSC Proceeding continued against Melnyk;

AND WHEREAS Staff of the Commission and Melnyk relied on an initial collection of 213 documents containing information over which SmithKline Beecham Corporation carrying on business as GlaxoSmithKline ("GSK") sought to assert confidential treatment in the OSC Proceeding (the "Initial Hearing Documents");

AND WHEREAS GSK brought a motion returnable March 3, 2009 seeking confidential treatment over certain portions of the Initial Hearing Documents (the "March 3 Motion");

AND WHEREAS subsequent to the March 3 Motion, Staff of the Commission and Melnyk relied on additional hearing documents, compendia and written submissions containing information over which GSK seeks to assert confidential treatment (the "Additional Hearing Documents");

AND WHEREAS by order dated March 4, 2009 and subsequent orders dated June 4 and June 10, 2009, GSK was 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 March 3 Motion;

AND WHEREAS GSK brought a motion for confidential treatment over certain of the Additional Hearing Documents listed in Schedule "A" hereto (the "Schedule A Additional Documents"), certain transcript references (the "Schedule B Transcripts" and the "Schedule E Transcript"), certain written submissions (the "Schedule C Submissions") and certain compendia (the "Schedule D Compendia") (the "GSK Motion");

IT IS HEREBY ORDERED that:

1. The Schedule A Additional Documents, the Schedule B Transcripts, the Schedule C Submissions, the Schedule D Compendia and the Schedule E Transcript shall only be made available to the public in redacted form, as provided to the Commission and the parties as part of the GSK Motion.

2. All documents ordered redacted pursuant to this order and the Commission's March 4, June 4 and June 10, 2009 orders shall include documents tendered into evidence and filed with the Commission in electronic form.

3. The Commission, Melnyk and his counsel, Staff of the Commission, the United States Securities and Exchange Commission (the "SEC"), the parties' experts, GSK and its counsel, as well as counsel for Crombie, Miszuk and Howling, may be provided with a copy of any documents referred to in paragraph 1 above in unredacted form. Subject to paragraph 4 hereof, such unredacted documents shall be kept confidential and shall not be disclosed to any other person or entity.

4. Melnyk and his counsel, the SEC, the parties' experts, Biovail and its counsel, as well as counsel for Crombie, Miszuk and Howling may use any unredacted documents referred to in paragraph 3 above in the U.S. Case, subject to any determinations or orders that have been made or may be made in that proceeding as to the use that may be made of the unredacted documents, and the rights of all parties including GSK in that regard are reserved.

5. The terms of this order are subject to any modification or variation made by order of the Commission on its own initiative or on application by Staff or any of the parties, provided notice thereof is given to any of the affected parties.

DATED at Toronto this 20th day of August, 2009.

"James E. A. Turner"

"David L. Knight"

"Paulette L. Kennedy"

 

SCHEDULES "A" -- "E"

 

Date

Document

Docid/Page(s)

 

SCHEDULE "A" -- EXHIBITS

 

 

1.

Oct. 29, 2003

Email and Wellbutrin XL Inventory as at September 30, 2003

BVF_02_000630041

 

2.

Nov. 14, 2003

Email and Wellbutrin XL Inventory as of September 30, 2003 US

BVF_02_000047794

 

 

Pharma

 

 

3.

Nov. 9, 2004

Wellbutrin XL Amendment Summary

DWPVNEW000542

 

4.

Jan. 20, 2004

Email and Wellbutrin XL Reconciliation

BVF_02_000019019

 

SCHEDULE "B" -- TRANSCRIPTS

 

 

1.

Mar. 3 2009

Extract from Ontario Securities Commission ("OSC") Hearing

45

 

 

Transcript re: GSK Motion

 

 

2.

Mar. 5, 2009

Extracts from OSC Hearing Transcript re: Biovail

86-89, 118-125

 

3.

Mar. 6, 2009

Extracts from OSC Hearing Transcript re: Biovail

126-137, 142-149, 166-185

 

4.

Mar. 9, 2009

Extracts from OSC Hearing Transcript re: Biovail

18-25, 30-37, 50-57

 

5.

Mar. 11, 2009

Extracts from OSC Hearing Transcript re: Biovail

46-53, 82-85, 150-157

 

6.

Mar. 12, 2009

Extracts from OSC Hearing Transcript re: Biovail

10-13, 58-69

 

7.

Apr. 2, 2009

Extracts from OSC Hearing Transcript re: Biovail

50-53, 154-157

 

8.

Apr. 3, 2009

Extracts from OSC Hearing Transcript re: Biovail

18-21, 118-121

 

9.

June 26, 2009

Extracts from OSC Hearing Transcript re: Biovail

73

 

SCHEDULE "C" -- WRITTEN SUBMISSIONS

 

 

1.

May 25, 2009

Closing Submissions of OSC Staff

6-7

 

2.

June 9, 2009

Closing Submissions of Eugene N. Melnyk

25-26

 

SCHEDULE "D" -- COMPENDIA

 

 

1.

None

Extracts from Mr. Melnyk's Opening Brief/ Compendium, Tab 7

3, 6, 7, 9, 10, 11, 12, 14, 17

 

2.

None

Extracts from Mr. Melnyk's Closing Compendium, Tab 13, April

19

 

 

3, 2009.

 

 

SCHEDULE "E" -- OTHER TRANSCRIPTS

 

 

1.

Mar. 25, 2009

Extracts from transcript of deposition of Mr. Jack Davis given in

9, 10

 

 

Durham, North Carolina