Proceedings

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IN THE MATTER OF THE SECURITIES ACT,
R.S.O. 1990, c. S.5, as amended

- and -

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"    
James E.A. Turner    


    "Paulette L. Kennedy"    
Paulette L. Kennedy    


    "David L. Knight"    
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: - 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 OSCS_021850
25. September 30, 2003 Finished Product Shipping Order (Shipment #994) attaching: - 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 OSCS_021856
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