sv3d
As filed with the Securities and Exchange Commission on
November 9, 2010
Registration
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
Valeant Pharmaceuticals
International, Inc.
(Exact Name of Registrant as
Specified in its Charter)
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Canada
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98-0448205
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(State or other jurisdiction
of incorporation)
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(IRS Employer
Identification Number)
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7150 Mississauga Road
Mississauga, Ontario
Canada L5N 8M5
(905) 286-3000
(Address, Including Zip Code,
and Telephone Number, Including Area Code, of Registrants
Principal Executive Offices)
CT Corporation
111 Eighth Avenue, 13th Floor
New York, New York 10011
(212) 590-9331
(Name, Address, Including Zip
Code, and Telephone Number, Including Area Code, of Agent For
Service)
Copies to:
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Robert Chai-Onn
Executive Vice President, General Counsel and
Corporate Secretary
Valeant Pharmaceuticals International, Inc.
7150 Mississauga Road
Mississauga, Ontario
Canada, L5N 8M5
(905) 286-3000
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Erik R. Tavzel
Cravath, Swaine & Moore LLP
825 Eighth Avenue
New York, New York 10019
(212) 474-1000
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Approximate date of commencement of proposed sale to the
public: As soon as practicable after this
registration statement becomes effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. þ
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box. o
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same
offering. o
If this form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box. o
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box. o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in Rule
12b-2 of the
Exchange Act. (Check one):
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Large
accelerated
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Accelerated
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Non-accelerated
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Smaller reporting
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(Do not check if a smaller
reporting company)
CALCULATION
OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Amount of
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Title of Each Class of
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Amount
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Offering
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Aggregate
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Registration
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Securities to be Registered
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to be Registered(1)
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Price per Share(2)
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Offering Price(2)
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Fee
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Common Shares, no par value
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12,000,000
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$28.12
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$337,440,000
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$24,059.47
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(1)
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Plus such additional shares as may be issued by reason of stock
splits, stock distributions and similar transactions.
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(2)
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Estimated solely for the purpose of calculating the amount of
the registration fee pursuant to Rule 457(c) under the
Securities Act of 1933, as amended, based on the average of the
high and low prices of Common Shares, no par value, of Valeant
Pharmaceuticals International, Inc. on the New York Stock
Exchange on November 3, 2010.
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PROSPECTUS
VALEANT PHARMACEUTICALS INTERNATIONAL, INC.
12,000,000 Common
Shares
SPECIAL DIVIDEND REINVESTMENT PLAN
This prospectus covers 12,000,000 common shares, no par value
(the Common Shares), of Valeant Pharmaceuticals
International, Inc. (the Company,
Valeant, we or us) to be
issued under our special dividend reinvestment plan (the
Plan). The Plan provides holders of our Common
Shares resident in Canada and the United States with a
convenient method of investing the cash distribution payable
with respect to the one-time special dividend of $1.00 per
Common Share (the Special Dividend) that the holders
of record as of close of business on November 15, 2010 (the
Record Date) will be entitled to receive on
December 22, 2010 (the Special Dividend Payment
Date). In connection with the consummation, on
September 28, 2010, of the previously announced merger of
Valeant Pharmaceuticals International and Biovail Corporation,
the Board of Directors of the Company declared, as of
November 4, 2010, the Special Dividend. As of
November 4, 2010, the Board of Directors of the Company
also approved the Plan and the filing of this prospectus to,
among other things, register Common Shares to be issued pursuant
to the Plan. The Plan has been created solely for use in
connection with the Special Divided and will only be used for
this one-time purpose. The Plan will automatically terminate on
December 22, 2010, immediately following payment of the
Special Dividend. After payment of the Special Dividend, the
Company does not expect to pay dividends in the future. Unless
stated otherwise or the context otherwise requires, all
references to dollar amounts in this prospectus are references
to U.S. dollars.
Under the Plan, eligible holders of our Common Shares may elect
to reinvest the Special Dividend in Common Shares, without
paying any brokerage commissions or service charges, by
completing the enrollment form (the Enrollment Form)
enclosed with the Plan and returning it to CIBC Mellon
Trust Company, the administrator of the Plan (the
Agent). A completed Enrollment Form must be received
by the Agent no later than 5:00 p.m. (Toronto time) on
December 8, 2010 (the Enrollment Deadline), in
order for the Special Dividend (net of any applicable
withholding tax) to be reinvested under the Plan.
Our Common Shares are listed on the New York Stock Exchange
(NYSE) and on the Toronto Stock Exchange
(TSX) under the symbol VRX. On
November 3, 2010, the closing price for our Common Shares
on the NYSE was $28.26 and on the TSX was CDN$28.34.
The Plan shares will be newly issued Common Shares acquired from
the treasury of the Company (a Treasury Purchase).
The number of Common Shares acquired by a holder participating
in the Plan will be calculated by dividing the Special Dividend
(net of any applicable withholding tax) payable on such Common
Shares owned by such holder by the Market Price (as defined
below). The price for a Treasury Purchase of Common Shares under
the Plan (the Market Price) will be the volume
weighted average price at which board lots of Common Shares have
traded on the NYSE during the five trading days immediately
following the Enrollment Deadline on which at least one board
lot of Common Shares has traded, as reported by the NYSE.
We cannot estimate the anticipated proceeds from the issuance of
Common Shares under the Plan, as the amount of such proceeds
will depend upon the Market Price, the extent of shareholder
participation in the Plan and other factors. We will not pay
underwriting commissions in connection with the Plan but will
incur costs of approximately $250,000 in connection with this
offering.
Investing in our Common Shares involves risks. See Risk
Factors on page 4 of this prospectus for a discussion
of certain factors relevant to an investment in our Common
Shares. See also Statements Regarding Forward-Looking
Information on page 2 of this prospectus.
NEITHER THE U.S. SECURITIES AND EXCHANGE COMMISSION NOR
ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF
THESE SECURITIES OR PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The date of this prospectus is November 9, 2010.
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that we have
filed with the U.S. Securities and Exchange Commission (the
Commission) and the Canadian Securities
Administrators (the CSA) relating to our Common
Shares to be offered and sold pursuant to the Plan. This
prospectus does not include all of the information in the
registration statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. The
rules of the Commission allow us to incorporate information
herein by reference. The information incorporated by reference
is considered to be a part of this prospectus, and certain
information that we file later with the Commission will
automatically update and supersede this information. See
Documents Incorporated by Reference. The
registration statement containing this prospectus, including
exhibits to the registration statement, together with the
documents incorporated by reference in this prospectus, provides
additional information about us, the Plan and the Common Shares
offered. Before you invest, you should read this prospectus
together with the information incorporated by reference and the
additional information described below under the heading
Where You Can Find More Information. You should
refer to the registration statement and the exhibits to the
registration statement for further information.
No person has been authorized to provide any information or to
make any representation, other than those contained or
incorporated herein by reference, and, if given or made, such
information or representation must not be relied upon as having
been authorized by Valeant. Neither the delivery of this
prospectus nor any sale made pursuant to this prospectus shall
under any circumstances create any implication that there has
been no change in the affairs of Valeant since the date of this
prospectus or that the information contained or incorporated by
reference herein is correct as of any time subsequent to the
date of such information. This prospectus does not constitute an
offer to sell or a solicitation of an offer to buy any
securities by anyone in any jurisdiction in which such offer or
solicitation is not authorized or in which the person making
such offer or solicitation is not qualified to do so or to any
person to whom it is unlawful to make such offer or solicitation.
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STATEMENTS
REGARDING FORWARD-LOOKING INFORMATION
To the extent any statements made in this prospectus and the
documents incorporated by reference herein contain information
that is not historical, these statements are forward-looking
statements within the meaning of Section 27A of the
Securities Act of 1933, as amended, which we refer to in this
prospectus as the Securities Act, and
Section 21E of the Securities Exchange Act of 1934, as
amended, which we refer to in this prospectus as the
Exchange Act, and may be forward-looking information
within the meaning defined under applicable Canadian securities
legislation (collectively, forward-looking
statements). These forward-looking statements can
generally be identified by the use of words such as
guidance, believe,
anticipate, expect, target,
intend, plan, continue,
will, may, would,
could, potential, and other similar
expressions. Such forward-looking statements are found at
various places throughout this prospectus and the documents
incorporated by reference herein, and all such statements are
qualified by these cautionary statements. Although Valeant
believes that the expectations reflected in such forward-looking
statements are reasonable, such statements involve risks and
uncertainties and undue reliance should not be placed on such
statements.
Certain material factors or assumptions are applied in making
forward-looking statements and actual results may differ
materially from those expressed or implied in such statements.
Information about these factors and about the material factors
or assumptions underlying such forward-looking statements may be
found in the body of this prospectus, as well as under
Item 1A. Risk Factors of our Annual Report on
Form 10-K
for the fiscal year ended December 31, 2009 and our most
recent Quarterly Report on
Form 10-Q
for the quarterly period ended September 30, 2010. When
relying on our forward-looking statements to make decisions with
respect to our Company, investors and others should carefully
consider the factors set forth in this prospectus and
incorporated by reference herein and other uncertainties and
potential events. We undertake no obligation to update or revise
any forward-looking statement, except as may be required by law.
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THE
COMPANY
Valeant
Pharmaceuticals International, Inc.
Valeant Pharmaceuticals International, Inc., a Canadian
corporation, is a multi-national specialty pharmaceutical
company that develops and markets a broad range of prescription
and nonprescription pharmaceutical products. Valeant is focused
on the neurology and dermatology therapeutic areas primarily in
the United States, Canada, Mexico, Brazil, Central Europe and
Australia.
On September 28, 2010, Valeant Pharmaceuticals
International and Biovail Corporation (Biovail)
completed their previously announced merger to become one
company, with the combined company renamed Valeant
Pharmaceuticals International, Inc.
Our principal executive office is located at 7150 Mississauga
Road, Mississauga, Ontario, Canada, L5N 8M5, telephone number
(905) 286-3000.
Our agent for service in the United States is CT Corporation
System, located at 111 Eighth Avenue, 13th Floor, New York,
New York, 10011, telephone number
(212) 590-9331.
Our website is www.valeant.com. The information contained
on our website is not incorporated by reference in this
prospectus.
Our Common Shares are listed on the NYSE and on the TSX under
the symbol VRX.
Additional information about the Company and its subsidiaries is
included in documents incorporated by reference in this
prospectus. See Documents Incorporated by Reference
beginning on page 20.
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RISK
FACTORS
Before you decide to participate in the Plan and reinvest in our
Common Shares, you should be aware of the following material
risks in making such an investment. You should consider
carefully these risk factors together with all risk factors and
information included or incorporated by reference herein,
including the risk factors set forth in Biovails most
recent Annual Report on
Form 10-K,
our most recent Quarterly Report on
Form 10-Q
and other filings we make with the Commission before you decide
to participate in the Plan and purchase Common Shares. In
addition, you should consult your own financial and legal
advisors before making an investment.
Risks
Related to the Plan
You
will not know the price of the Common Shares you are purchasing
under the Plan at the time you elect to reinvest your Special
Dividend.
The price of our Common Shares may fluctuate between the time
you elect to reinvest the Special Dividend in Common Shares
under the Plan prior to the Enrollment Deadline and the time of
the actual reinvestment of the Special Dividend on the Special
Dividend Payment Date. In addition, during this time period, you
may become aware of additional information that might affect
your investment decision, but you will be unable to revoke your
instructions with respect to reinvestment of the Special
Dividend if the Agent has not received your notice of revocation
in proper form on the Enrollment Deadline.
The
Company may amend, modify, suspend or terminate the Plan at any
time, and if the Company suspends or terminates the Plan prior
to the Special Dividend Payment Date, no reinvestment of the
Special Dividend will be made under the Plan.
Under the Plan, the Company may amend, modify, suspend or
terminate the Plan at any time, and such amendments,
modifications, suspensions or terminations may be materially
prejudicial to Participants on a going-forward basis. The Agent
will notify Participants in writing of any modifications made to
the Plan that in the Companys opinion may materially
prejudice Participants. If the Plan is suspended or terminated
by the Company prior to the Special Dividend Payment Date, no
reinvestment of the Special Dividend will be made under the
Plan, and each Participant will be entitled to receive the
Special Dividend in cash (net of any applicable withholding tax)
on the Special Dividend Payment Date.
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USE OF
PROCEEDS
We have no basis for estimating precisely either the number of
Common Shares that may be sold under the Plan or the prices at
which such Common Shares may be sold. We will receive proceeds
from the sale of Common Shares under the Plan that the Agent
purchases from the treasury of the Company. We intend to use
such proceeds for general corporate purposes.
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DESCRIPTION
OF THE PLAN
The following is a summary of the material attributes of the
Plan. The summary does not purport to be complete and is subject
to, and qualified in its entirety by, reference to the complete
Plan, which is filed as an exhibit to the registration statement
of which this prospectus forms a part. The 12,000,000 Common
Shares offered by this prospectus, if and when issued, will be
issued pursuant to the Plan, which will be effective as of
November 8, 2010.
The Plan provides a convenient means for eligible holders of
Common Shares to acquire additional Common Shares by reinvesting
the Special Dividend, declared on November 4, 2010, that
shareholders of record as of Record Date will be entitled to
receive on the Special Dividend Payment Date. The Plan has been
created solely for use in connection with the Special Dividend
and will only be used for this one-time purpose. As further
described below, eligible holders of Common Shares who wish to
reinvest the Special Dividend (net of any applicable withholding
tax) in Common Shares can elect to do so by enrolling in the
Plan. Holders not participating in the Plan will be entitled to
receive the Special Dividend in cash (net of any applicable
withholding tax) on the Special Dividend Payment Date.
Following the payment of the Special Dividend, the Plan will
automatically terminate. After the payment of the Special
Dividend, the Company does not expect to pay dividends in the
future.
Under the Plan, Common Shares acquired will be newly issued
directly from the treasury of the Company at 100% of their
Market Price. As Common Shares acquired under the Plan are newly
issued directly from the treasury of the Company, participants
in the Plan (Participants) do not pay any brokerage
commissions or service charges. All administrative costs of the
Plan are borne by the Company.
Any beneficial or registered holder of Common Shares as of the
Record Date who is a resident of Canada or the United States is
eligible to elect to reinvest the Special Dividend (net of any
applicable withholding tax) in Common Shares by enrolling in the
Plan. Shareholders resident outside of Canada and the United
States are not eligible to participate in the Plan and will be
entitled to receive the Special Dividend in cash (net of any
applicable withholding tax) on the Special Dividend Payment Date.
An eligible shareholder may only elect to reinvest 100% of the
Special Dividend paid on all Common Shares owned by him, her or
it (net of any applicable withholding tax) under the Plan.
Partial reinvestment of the Special Dividend is not permitted
under the Plan. An Enrollment Form requesting partial
reinvestment of the Special Dividend will be deemed invalid.
On the Special Dividend Payment Date, the Company will pay to
the Agent the Special Dividend otherwise payable to a
Participant in respect to the Common Shares registered in the
name of such Participant. Common Shares acquired by the Agent
pursuant to the Plan will be Treasury Purchases.
A Participant electing to reinvest the Special Dividend under
the Plan may only elect to reinvest 100% of the Special Dividend
paid on all Common Shares owned by the Participant (net of any
applicable withholding tax). Partial reinvestment of the Special
Dividend is not permitted under the Plan. The Special Dividend
payable on the Common Shares owned by the Participant (net of
any applicable withholding tax) will be applied on the Special
Dividend Payment Date to acquire Common Shares under the Plan.
The Market Price will be the volume weighted average price at
which board lots of Common Shares have traded on the NYSE during
the period of five trading days immediately following the
Enrollment Deadline on which at least one board lot of Common
Shares has traded, as reported by the NYSE.
On the Special Dividend Payment Date, the Company will pay to
the Agent the Special Dividend otherwise payable to a
Participant in respect of the Common Shares registered in the
name of the Participant. Any amount required under applicable
income tax laws to be withheld by the Company from the Special
Dividend paid to any
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Participant and remitted to a taxing authority will be withheld
and remitted as required by the Agent on behalf of the
Participant. The Special Dividend (net of any applicable
withholding taxes) paid on the Common Shares registered in the
name of such Participant will be used by the Agent to acquire
Common Shares from the treasury of the Company for the
Participant.
The number of Common Shares acquired on behalf of a Participant
under the Plan will be equal to the Special Dividend (net of any
applicable withholding tax) paid on such Common Shares owned by
such Participant divided by the Market Price. Fractional Common
Shares will not be issued and Participants will receive a cash
payment in lieu any fractional Common Shares based on the Market
Price of the Common Shares purchased under the Plan.
Registered
Shareholders
Eligible registered shareholders may elect to reinvest the
Special Dividend (net of any applicable withholding tax) in
Common Shares by enrolling in the Plan at any time prior to the
Enrollment Deadline by completing an Enrollment Form and sending
it to the Agent via facsimile or by mail in the manner provided
for in Section 11 of the Plan. Copies of the Plan and
Enrollment Form can be obtained from the Agent at any time.
Shareholders should not send share certificates or dividend
cheques to the Agent or the Company.
If the Common Shares are registered in more than one name, the
Enrollment Form must be signed by all such registered holders.
Also, if a shareholders total holding is registered in
different names (e.g., full name on some share certificates and
initials and surname on other share certificates), a separate
Enrollment Form must be completed for each different registered
name. If the Special Dividend from all shareholdings is to be
reinvested under one account, registration must be identical.
Beneficial
Owners of Common Shares
If a shareholder is an eligible beneficial owner of Common
Shares, he, she or it should contact his, her or its broker,
investment dealer, financial institution or other nominee who
holds his, her or its Common Shares to provide instructions
regarding his, her or its election to reinvest the Special
Dividend in Common Shares through participation in the Plan and
to inquire about any applicable deadlines that the nominee may
impose or be subject to and to confirm what fees, if any, the
nominee may charge to enroll such shareholders Common
Shares in the Plan on his, her or its behalf or whether the
nominees policies might result in any costs otherwise
becoming payable by the shareholder. Such fee or fees will not
be paid for by the Company or Agent.
If a shareholder is an eligible beneficial owner whose Common
Shares are registered in the name of CDS Clearing and Depository
Services Inc. (CDS) or The Depository
Trust Company (DTC) or a name other than the
eligible beneficial owners own name, he, she or it may
elect to reinvest the Special Dividend in Common Shares through
participation in the Plan by: (i) prior to the Record Date,
having those Common Shares transferred into his, her or its name
directly and then making the election to reinvest the Special
Dividend in Common Shares by enrolling such Common Shares under
the Plan directly, or (ii) making appropriate arrangements
with the broker, investment dealer, financial institution or
other nominee who holds the eligible beneficial owners
Common Shares to elect to reinvest the Special Dividend in
Common Shares by enrolling in the Plan on the eligible
beneficial owners behalf, either as a nominee that
delivers a completed and executed Enrollment Form to the Agent
in the manner provided in the Plan, or, if applicable, as a CDS
Participant or a DTC Participant through enrollment by CDS or
DTC, respectively.
If a shareholder is an eligible beneficial owner of Common
Shares and wishes to elect to reinvest the Special Dividend in
our Common Shares by enrolling in the Plan through a CDS
participant or a DTC participant in respect of his, her or its
Common Shares registered through CDS or DTC, appropriate
instructions must be received by CDS or DTC, as applicable, from
the CDS participant or DTC participant not later than such
deadline as may be established by CDS or DTC, as applicable, in
order for the instructions to take effect on the Enrollment
Deadline. Instructions received by CDS or DTC after their
respective internal deadlines will not be effective.
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CDS participants and DTC participants holding Common Shares on
behalf of beneficial owners of Common Shares registered through
CDS or DTC must arrange for CDS or DTC, as applicable, to enroll
such Common Shares in the Plan on behalf of such eligible
beneficial owners with respect to the Special Dividend Payment
Date.
CDS or DTC, as applicable, will provide instructions to the
Agent regarding the extent of its participation in the Plan, on
behalf of eligible beneficial owners of Common Shares, with
respect to the Special Dividend Payment Date on which the
Special Dividend otherwise payable to CDS or DTC, as applicable,
as shareholder of record, is to be reinvested under the Plan.
A completed Enrollment Form must be received by the Agent prior
to the Enrollment Deadline in order for the Special Dividend
(net of any applicable withholding tax) to be reinvested under
the Plan. If the completed Enrollment Form is not received by
the Agent by the Enrollment Deadline, or the participation is
properly revoked in accordance with Section 8 of the Plan,
the Special Dividend will be paid in cash (net of any applicable
withholding tax).
Both the Company and the Agent shall have the right to reject
any request regarding enrollment in or revocation of
participation in the Plan if such request is not received in
proper form. Any such request will be deemed to be invalid until
any irregularities have been resolved to the Companys
satisfaction
and/or the
Agents satisfaction prior to the Enrollment Deadline.
Neither the Company nor the Agent is under any obligation to
notify any shareholder of an invalid request.
A Participant may not transfer the right to participate in the
Plan to another person.
Without limitation, the Company reserves the right to refuse
participation in the Plan to, or terminate the participation of,
any person who, in the Companys sole opinion, is
participating in the Plan primarily with a view to arbitrage
trading, whose participation in the Plan is part of a scheme to
avoid applicable legal requirements or engage in unlawful
behavior or has been artificially accumulating the
Companys securities, for the purpose of taking undue
advantage of the Plan to the Companys detriment. The
Company may also deny the right to participate in the Plan to
any person or terminate the participation of any Participant in
the Plan if the Company deems it advisable under any laws or
regulations.
The Company may also make rules and regulations to facilitate
the administration of the Plan and reserves the right to
regulate and interpret the Plan text as the Company deems
necessary and desirable. Any issues of interpretation arising in
connection with the Plan or its application shall be
conclusively determined by the Company. The Company may adopt
rules and regulations concerning the establishment of
internet-based or other electronic mechanisms with respect to
the communication of information concerning the Plan to the
Participants and any other aspect of this Plan.
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7.
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Delivery
of Common Shares under the Plan
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On or about the Special Dividend Payment Date, Participants will
receive from the Agent, a share certificate for the number of
whole Common Shares acquired under the Plan on the Special
Dividend Payment Date and a cash payment in lieu of any
fractional Common Share based on the Market Price of the Common
Shares purchased under the Plan.
Participants will also receive a statement setting out the
amount of the Special Dividend reinvested, the Market Price and
the number of Common Shares acquired under the Plan on the
Special Dividend Payment Date with respect to the Special
Dividend. In the case of CDS participants and DTC participants,
CDS or DTC, as applicable, will receive a statement on behalf of
eligible beneficial owners participating in the Plan. This
statement is a record of the cost of Common Shares acquired
under the Plan and should be retained for tax reporting purposes.
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8.
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Revocation
of Participation
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The Plan was created solely for use in connection with the
Special Dividend and will only be used for this one-time
purpose. The Plan will automatically terminate on
December 22, 2010, immediately following payment of the
Special Dividend.
If a shareholder has enrolled in the Plan but chooses to revoke
participation in the Plan, such shareholder may do so by giving
written notice to the Agent (or, in the case of beneficial
owners, by making arrangements to revoke participation through
their nominee) prior to the Enrollment Deadline. If
participation in the Plan is revoked prior to the Enrollment
Deadline, such shareholder will receive the Special Dividend
(net of any applicable withholding tax) in cash. If the notice
of revocation is received by the Agent after the Enrollment
Deadline, the Special Dividend payable on the Special Dividend
Payment Date (net of any applicable withholding tax) will be
reinvested in Common Shares under the Plan. Notice of revocation
must be received in writing (or, in the case of beneficial
owners, by making arrangements to revoke participation through
their nominee) and be for 100% of the Special Dividend
participating in the Plan. Partial revocation of participation
in the Plan will be deemed invalid. Each notice of revocation
must be signed by the shareholder in whose name such Common
Shares are registered. Where the Common Shares are registered in
more than one name, the notice of revocation must be signed by
all registered holders of such Common Shares.
|
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9.
|
Death
or Incompetence of a Participant
|
Participation in the Plan will not be affected by a
Participants death or incompetence and participation will
remain effective until it is terminated in accordance with the
provisions of the Plan or the Plan itself is terminated.
|
|
10.
|
Amendment,
Suspension or Termination of the Plan
|
The Company reserves the right to amend, modify, suspend or
terminate the Plan at any time, but such actions shall have no
retroactive effect that would prejudice a Participants
interests. Any amendments to the Plan are subject to prior
approval by the TSX and the NYSE. The Agent will notify
Participants in writing of any modifications made to the Plan
that in the Companys opinion may materially prejudice
Participants. Generally, no notice will be given to Participants
regarding any amendments to the Plan intended to cure, correct
or rectify any ambiguities, defective or inconsistent
provisions, errors, mistakes or omissions.
If the Plan is suspended or terminated by the Company prior to
the Special Dividend Payment Date, no reinvestment will be made
under the Plan, and each Participant will be entitled to receive
the Special Dividend in cash (net of any applicable withholding
tax) on the Special Divided Payment Date.
The Plan will automatically terminate on December 22, 2010,
immediately following payment of the Special Dividend.
All notices required to be given to a Participant will be mailed
to the Participant at his, her or its latest address shown on
the records of the Agent.
9
All communications including notices, requests for forms or
information regarding the Plan should be directed to the Agent
and the Company, as applicable, as follows:
To the Agent:
|
|
|
By telephone:
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CIBC Mellon Trust Company
|
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416-643-5500
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Toll-free throughout North America
|
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1-800-387-0825
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By fax:
|
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416-643-5501
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By mail:
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CIBC Mellon Trust Company
|
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P.O. Box 7010
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Adelaide Street Postal Station
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Toronto, ON M5C 2W9
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Attention: Dividend Reinvestment Services Dept.
|
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By email:
|
|
inquiries@cibcmellon.com
|
To the Companys head office:
|
|
|
By telephone:
|
|
Valeant Pharmaceuticals International, Inc.
|
|
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905-286-3000
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By fax:
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|
Investor Relations
|
|
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905-286-3034
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By mail:
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Valeant Pharmaceuticals International, Inc.
7150 Mississauga Road
Mississauga, Ontario
CANADA, L5N 8M5
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12.
|
Income
Tax Considerations Relating to the Plan
|
See Canadian Federal Income Tax Considerations and
U.S. Federal Income Tax Considerations on
pages 12 and 14, respectively, for a discussion of certain
income tax considerations related to the Plan.
THE SUMMARY OF INCOME TAX CONSEQUENCES CONTAINED IN THIS
PROSPECTUS IS FOR GENERAL INFORMATION ONLY AND IS NOT INTENDED
TO BE LEGAL OR TAX ADVICE TO ANY PARTICULAR PARTICIPANT. IT IS
THE RESPONSIBILITY OF PARTICIPANTS IN THE PLAN TO CONSULT THEIR
OWN TAX ADVISORS WITH RESPECT TO THE TAX CONSEQUENCES OF
PARTICIPATION IN THE PLAN IN THEIR RESPECTIVE COUNTRIES OF
RESIDENCE.
The Agent will act as administrator of the Plan for the Company.
The Agent will keep all records necessary for the administration
of the Plan.
The Company reserves the right to interpret and regulate the
Plan as it deems necessary or desirable.
Unless the context otherwise requires, words importing only the
singular number shall include the plural and vice versa, words
importing the masculine gender shall include feminine and neuter
genders and vice versa, and words importing persons shall
include individuals, partnerships, associations, trusts,
unincorporated organizations and corporations.
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|
14.
|
Liability
of the Company and the Agent
|
The Company and the Agent, in administering the Plan, are not
liable for any act or omission to act, including, without
limitation, any claims of liability: (a) with respect to
receipt or non-receipt of any payment, form or other writing
purported to have been sent to the Company or the Agent;
(b) actions taken as a result of inaccurate and incomplete
information or instructions; (c) in respect of any decision
to amend, suspend, terminate or replace the Plan in accordance
with the terms hereof; (d) in respect of the involuntary
termination of a Participants participation in the Plan in
the circumstances described herein; (e) with respect to the
price at which Common
10
Shares are acquired for a Participant; or (f) in respect of
income taxes or other liabilities payable by any Participant or
beneficial owner in connection with their participation in the
Plan. Nor shall the Company or the Agent have any duties,
responsibilities or liabilities except such as are expressly set
forth in the Plan.
Participants
should recognize that neither the Company nor the Agent can
assure profit or protect against a loss on Common Shares
acquired under the Plan.
Given that Common Shares acquired under the Plan are to be a
Treasury Purchase, the calculation of the Market Price is the
responsibility of and shall be performed by the Company.
Both the Company and the Agent shall have the right to reject
any request regarding enrollment in or revocation of
participation in the Plan if such request is not received in
proper form. Any such request will be deemed to be invalid until
any irregularities have been resolved to the Companys
satisfaction
and/or the
Agents satisfaction prior to the Enrollment Deadline.
Neither the Company nor the Agent is under any obligation to
notify any shareholder of an invalid request.
The Plan shall be governed and construed in accordance with the
laws in force of the Province of Ontario, Canada, and the
federal laws of Canada applicable therein.
The effective date of the Plan is November 8, 2010.
11
CANADIAN
FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of the principal Canadian federal
income tax considerations generally applicable to Participants
under the Plan. This summary is based on the current provisions
of the Income Tax Act (Canada) (the ITA), the
regulations thereunder, all specific proposals to amend the ITA
or the regulations publicly announced by the Minister of Finance
(Canada) prior to the date hereof (the Tax
Proposals), and an understanding of the current published
administrative policies and assessing practices of the Canada
Revenue Agency. No assurance can be provided that the Tax
Proposals will be enacted as currently proposed or at all. This
summary does not, except for the Tax Proposals, take into
account or anticipate any changes in law, whether by
legislative, regulatory, administrative or judicial action.
Further, this summary does not take into account Canadian
provincial or territorial income tax laws or those of any
country other than Canada.
Participants
Resident in Canada
This portion of the summary is applicable only to Participants
who, for purposes of the ITA, and at all relevant times, are
resident in Canada, hold their Common Shares as capital
property, deal at arms length and are not affiliated with
the Company and are not subject to
mark-to-market
rules relating to securities held by certain financial
institutions as defined for purposes of those rules. This
portion of the summary does not apply to a Participant an
interest in which is a tax shelter investment as
defined in section 143.2 of the ITA or to a Participant
that makes the functional currency reporting election in
accordance with the provisions of the ITA in that regard.
The Special Dividend reinvested on behalf of a Participant will
be subject to the tax treatment normally accorded to taxable
dividends received by the Participant directly from the Company.
For example, in the case of a Participant who is an individual,
the Special Dividend will be subject to the
gross-up and
credit rules or, in the case of a Participant that is a private
corporation or one of certain other corporations, a refundable
tax will apply to the amount of the Special Dividend. Other
taxes could apply depending on the circumstances of the
Participant. The fact that the Special Dividend is reinvested
pursuant to the Plan does not affect the taxability of the
Special Dividend to the Participant or the status of the Special
Dividend as an eligible dividend under the ITA. It
is expected that the Special Dividend will be designated as an
eligible dividend.
The right granted under the terms of the Plan to reinvest the
Special Dividend paid on Common Shares in Common Shares issued
from the treasury of the Company at the Market Price and the
exercise of such right should not give rise to a taxable benefit
under the ITA.
The cost to a Participant of Common Shares acquired under the
Plan will be the amount paid for the Common Shares by the Agent.
For the purpose of computing the adjusted cost base of such
Common Shares to the Participant, the cost of the Common Shares
acquired under the Plan will be averaged with the adjusted cost
base of all other Common Shares held by the Participant as
capital property. A Participant may realize a capital gain or
loss on the disposition of Common Shares acquired through the
Plan.
A Participant who disposes of Common Shares will generally
realize a capital gain (or capital loss) equal to the amount by
which the proceeds of disposition of the Common Shares exceed
(or are exceeded by) the aggregate of the adjusted cost base of
the Common Shares disposed of by the Participant and any
reasonable costs of disposition.
In certain circumstances, a capital loss realized by a
Participant that is a corporation may be reduced by the amount
of any taxable dividends received by such Participant from the
Company on the Common Shares. Analogous rules apply where the
Participant is a trust or partnership of which a corporation,
partnership or trust is a beneficiary or member.
A participant will not realize any taxable income on receipt of
a certificate for whole Common Shares in his, her or its name.
One-half of any capital gain (a taxable capital
gain) is included in computing income and one-half of a
capital loss (an allowable capital loss) is
generally deductible against taxable capital gains in accordance
with the provisions of the ITA. Any excess of allowable capital
losses over taxable capital gains in a taxation year may be
deducted against taxable capital gains realized by the
Participant in any of the three preceding taxation years or any
subsequent taxation year in accordance with the detailed
provisions of the ITA. A Participant that is a Canadian-
12
controlled private corporation will be subject to an additional
refundable tax on aggregate investment income, which includes an
amount in respect of taxable capital gains.
Participants
Resident in the United States
This portion of the summary is applicable only to Participants
who, for purposes of the ITA and any applicable income tax
treaty or convention, and at all relevant times, are not
resident or deemed to be resident in Canada, do not use or hold
and are not deemed to use or hold their Common Shares in
carrying on business in Canada and do not carry on an insurance
business in Canada and elsewhere. In addition, this portion of
the summary does not apply to an authorized foreign bank (as
defined in the ITA).
Dividends paid or credited to a Participant resident in the
United States on the Common Shares, including the Special
Dividend reinvested under the Plan, will be subject to Canadian
withholding tax at the rate of 25%, subject to the application
of the Canada-U.S. Income Tax Convention (1980), as amended
(the Treaty). If the Participant is entitled to
benefits under the Treaty, the applicable rate of Canadian
withholding tax is generally reduced to 15%. Under the Treaty,
dividends paid to certain religious, scientific, charitable and
similar tax-exempt organizations and certain pension
organizations that are resident in, and exempt from tax in, the
United States are exempt from Canadian withholding tax. The
amount of the Special Dividend to be reinvested under the Plan
will be reduced by the amount of tax withheld.
The right granted under the terms of the Plan to reinvest the
Special Dividend paid on Common Shares in Common Shares issued
from the treasury of the Company at the Market Price and the
exercise of such right should not give rise to a taxable benefit
under the ITA.
Gains on the disposition of Common Shares by a Participant
resident in the United States are generally not subject to
Canadian income tax unless such shares are or are deemed to be
taxable Canadian property within the meaning of the
ITA and the Participant is not entitled to relief under the
Treaty. Provided the Common Shares are listed on a designated
stock exchange (which includes the TSX and the NYSE), such
Common Shares will generally not be taxable Canadian property to
a Participant resident in the United States, unless either they
are otherwise deemed to be taxable Canadian property or, at any
time during the five-year period immediately preceding a
disposition, both (1) the Participant, persons with whom
the Participant did not deal at arms length for the
purposes of the ITA or the Participant and persons with whom the
Participant did not deal at arms length owned 25% or more
of the issued shares of any class or series of shares of the
Company and (2) the Common Shares derived more than 50% of
their fair market value from (i) real or immoveable
property situated in Canada, (ii) Canadian resource
properties, (iii) timber resource properties, and
(iv) options to acquire such property.
13
U.S.
FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of certain U.S. federal income
tax considerations relating to participation in the Plan by
Participants that reinvest the Special Dividend in additional
Common Shares under the Plan, which Common Shares are held as
capital assets. This summary is based on the U.S. Internal
Revenue Code of 1986, as amended (the Code),
U.S. Treasury regulations promulgated thereunder, judicial
decisions and administrative and judicial interpretations, all
as in effect on the date hereof and all of which are subject to
change, possibly with retroactive effect. This summary is for
general information only and does not address all of the tax
considerations that may be relevant to specific Participants in
light of their particular circumstances, particularly if such
Participants are subject to special treatment under the Code,
including: banks or financial institutions; insurance companies;
dealers in securities or currencies; tax-exempt entities;
retirement plans or other tax-deferred accounts; regulated
investment companies; real estate investment trusts; certain
former citizens or residents of the United States; persons
who hold Common Shares as part of a straddle, hedge, conversion
transaction or other integrated investment; persons that have a
functional currency other than the U.S. dollar;
persons that beneficially own (or are deemed to own) 10% or more
(by voting power or value) of our Common Shares; or persons that
generally mark their securities to market for U.S. federal
income tax purposes. Furthermore, this summary does not address
any U.S. state, local, or
non-U.S. tax
considerations, nor does it address any U.S. federal
estate, gift, or alternative minimum tax considerations.
If an entity treated as a partnership for U.S. federal
income tax purposes participates in the Plan, the tax treatment
of such partnership and each partner thereof generally will
depend upon the status and activities of the partnership and the
partner. Any such partnership or partner thereof should consult
its own tax advisor regarding the U.S. federal income tax
considerations relating to participation in the Plan.
ALL PROSPECTIVE PARTICIPANTS IN THE PLAN ARE URGED TO CONSULT
THEIR OWN TAX ADVISORS AS TO THE PARTICULAR TAX CONSIDERATIONS
APPLICABLE TO THEM RELATING TO PARTICIPATION IN THE PLAN AND
OWNERSHIP OF THE COMPANYS COMMON SHARES, INCLUDING THE
APPLICABILITY AND EFFECT OF U.S. FEDERAL, STATE, AND LOCAL
TAX LAWS AND
NON-U.S. TAX
LAWS AND POSSIBLE CHANGES IN TAX LAW.
U.S.
Participants
As used in this summary, the term
U.S. Participant means a beneficial owner of
Common Shares held as capital assets and purchased pursuant to
the Plan, if such beneficial owner is, for U.S. federal
income tax purposes: (i) an individual who is a citizen or
resident of the United States; (ii) a corporation created
or organized in or under the laws of the United States or any
political subdivision thereof; (iii) an estate the income
of which is subject to U.S. federal income tax regardless
of its source; or (iv) a trust if (a) a United States
court can exercise primary jurisdiction over such trusts
administration and one or more U.S. persons have the
authority to control all substantial decisions of such trust or
(b) such trust has made a valid election to be treated as a
U.S. person for U.S. federal income tax purposes.
Tax
Consequences of Dividend Reinvestment
A U.S. Participant will be treated as receiving a
distribution for U.S. federal income tax purposes in an
amount equal to the fair market value of the Common Shares
acquired pursuant to the Plan plus the amount of any income tax
withheld. The fair market value of the Common Shares so acquired
will be equal to the average of the high and low sale prices of
the Common Shares on the Special Dividend Payment Date as
reported on the principal securities exchange on which the
shares are traded, which amount may be higher or lower than the
Market Price used to determine the number of Common Shares
acquired under the Plan. The distribution (without reduction for
any Canadian taxes withheld) will be includible in a
U.S. Participants income as a taxable dividend to the
extent of the Companys current and accumulated earnings
and profits as determined for U.S. federal income tax
purposes. If a U.S. Participant is an individual, trust or
estate, the dividend should be treated as qualified
dividend income taxed at a preferential rate of 15%
(through 2010), provided that certain holding period
requirements and other conditions are met. The amount of the
Special Dividend will not be eligible for the dividends received
deduction generally available to U.S. corporate
shareholders on dividends received from a U.S. corporation.
Subject to certain
14
limitations under the Code, U.S. Participants may be
entitled to a U.S. federal income tax credit or deduction
for Canadian income taxes withheld from the Special Dividend.
A U.S. Participants tax basis per share for Common
Shares purchased pursuant to the Plan will equal the fair market
value per Common Share on the Special Dividend Payment Date. A
U.S. Participants holding period for such Common
Shares will begin on the day following the Special Dividend
Payment Date. U.S. Participants are urged to consult their
own tax advisors about the application of the rules for
calculating basis to their particular circumstances, including
with respect to any applicable elections or the transfer of such
Participants shares.
Sale,
Exchange or Other Disposition of Common Shares
Subject to the discussion below under Passive Foreign
Investment Company Considerations, a U.S. Participant
generally will recognize a capital gain or loss for
U.S. federal income tax purposes when it sells, exchanges,
or otherwise disposes of Common Shares and when it receives cash
payments in lieu of fractional shares in accordance with the
Plan. The amount of such gain or loss will equal the difference,
if any, between the amount such U.S. Participant receives
for such Common Shares or fraction thereof and such
U.S. Participants adjusted tax basis in such Common
Shares or fraction thereof. Such gain or loss generally will be
a capital gain or loss and will be a long-term capital gain or
loss if the U.S. Participants holding period for such
Common Shares or fraction thereof exceeds one year. For taxable
years beginning on or before December 31, 2010, long-term
capital gains of a non-corporate U.S. Participant generally
are taxed at a maximum rate of 15%. The deductibility of capital
losses is subject to limitations. Such gain or loss recognized
generally will be treated as gain or loss from sources within
the United States for foreign tax credit limitation purposes.
Passive
Foreign Investment Company Considerations
The tax considerations set forth above may differ materially if
we are regarded as a passive foreign investment
company (PFIC) for U.S. federal income
tax purposes. We believe that we are not a PFIC in 2010, and we
do not expect to become one in 2011. However, because this
determination is made annually at the end of each taxable year
and is dependent upon a number of factors (some of which are
beyond our control), including the value of our assets and the
amount and type of our income, there can be no assurance that we
will not be treated as a PFIC in any taxable year or that the
Internal Revenue Service will agree with our conclusion
regarding our PFIC status. If we are a PFIC in any taxable year,
U.S. Participants could suffer adverse consequences under
the PFIC rules, including the possible treatment of gain from
the sale, exchange or other disposition of Common Shares as
ordinary income and the imposition of an interest charge on a
portion of the resulting tax liability. U.S. Participants
are urged to consult their tax advisors about the application of
the PFIC rules and the potential impact of such rules to their
particular circumstances.
Backup
Withholding Tax and Information Reporting
In general, if you are a non-corporate U.S. Participant,
dividend payments (or other taxable distributions) made within
the United States will be subject to information reporting
requirements and backup withholding tax if you:
(1) fail to provide us with an accurate taxpayer
identification number;
(2) are notified by the U.S. Internal Revenue Service
(the IRS) that you have failed to report all
interest or dividends required to be shown on your federal
income tax returns; or
(3) in certain circumstances, fail to comply with
applicable certification requirements.
If you sell Common Shares to or through a U.S. office or
broker, the payment of the sales proceeds is subject to both
U.S. backup withholding and information reporting unless
you certify that you are a
non-U.S. person,
under penalties of perjury, or you otherwise establish an
exemption. If you sell Common Shares through a
non-U.S. office
of a
non-U.S. broker
and the sales proceeds are paid to you outside the United
States, then information reporting and backup withholding
generally will not apply to that payment. However,
U.S. information reporting requirements (but not backup
withholding) will apply to a payment of sales proceeds, even if
that payment is made outside the United States, if you sell
Common Shares through a
non-U.S. office
of a broker that is a U.S. person or has certain other
connections with the United States.
15
Backup withholding tax is not an additional tax. Rather, you
generally may obtain a refund of any amounts withheld under
backup withholding rules that exceed your income tax liability
by accurately completing and timely filing a refund claim with
the IRS.
Recently adopted legislation imposes, for taxable years
beginning after March 18, 2010, new U.S. return
disclosure obligations (and related penalties for failure to
disclose) on U.S. individuals that hold certain specified
foreign financial assets (which include stock in a foreign
corporation). Participants are encouraged to consult with their
own tax advisors regarding the possible implications of this
legislation on their investment in Common Shares.
Canadian
Participants
As used in this summary, the term Canadian
Participant means a beneficial owner (other than a
partnership or other entity treated as a partnership for
U.S. federal income tax purposes) of Common Shares held as
capital assets and purchased pursuant to the Plan that is not a
U.S. Participant and is a resident of Canada.
Tax
Consequences of Dividend Reinvestment
A Canadian Participant generally will not be subject to
U.S. federal income taxes on the reinvestment of the
Special Dividend, unless the Special Dividend is effectively
connected with the Canadian Participants conduct of a
trade or business in the United States. If a Canadian
Participant is entitled to the benefits of the Treaty with
respect to the Special Dividend, the Special Dividend generally
will be taxable in the United States only if it is attributable
to a permanent establishment maintained by the Canadian
Participant in the United States.
Sale,
Exchange or Other Disposition of Common Shares
A Canadian Participant generally will not be subject to
U.S. federal income tax on any gain realized upon the sale,
exchange or other disposition of Common Shares, unless:
(a) the gain is effectively connected with the Canadian
Participants conduct of a trade or business in the United
States. If a Canadian Participant is entitled to the benefits of
the Treaty with respect to that gain, that gain generally will
be taxable in the United States only if it is attributable to a
permanent establishment maintained by the Canadian Participant
in the United States; or
(b) the Canadian Participant is an individual who is
present in the United States for 183 days or more during
the taxable year of disposition and certain other conditions are
met.
Gain that is effectively connected with the conduct of a trade
or business in the United States (or so treated) generally will
be subject to U.S. federal income tax, net of certain
deductions, at regular U.S. federal income tax rates. A
corporate Canadian Participants earnings and profits that
are attributable to the effectively connected income (subject to
certain adjustments) may be subject to an additional
U.S. branch profits tax at a rate of 30% (or 5%, if the
corporate Canadian Participant is entitled to the benefits of
the Treaty).
Backup
Withholding Tax and Information Reporting
A Canadian Participant may be required to establish its
exemption from information reporting and backup withholding by,
among other things, certifying its status on IRS
Form W-8BEN,
W-8ECI or
W-8IMY, as
applicable.
Backup withholding tax is not an additional tax. Rather, you
generally may obtain a refund of any amounts withheld under
backup withholding rules that exceed your income tax liability
by accurately completing and timely filing a refund claim with
the IRS.
Notice
Pursuant to U.S. Internal Revenue Service Circular 230
You are hereby advised that: (i) any discussion of
U.S. federal tax issues set forth herein, including
attachments, is not intended or written to be used and cannot be
relied upon by any taxpayer for the purpose of avoiding
penalties that may be imposed on the taxpayer under the Code;
(ii) such discussion is written to support the promotion or
marketing of the transactions or matters addressed herein and
(iii) each taxpayer should seek advice based on the
taxpayers particular circumstances from an independent tax
advisor.
16
ENFORCEABILITY
OF CIVIL LIABILITIES
We are organized under the federal laws of Canada and our
principal executive office is located in the Province of
Ontario. Many of our directors and officers, and some of the
experts named in the documents incorporated by reference herein,
are residents of Canada or otherwise reside outside of the
United States, and all or a substantial portion of their assets,
and a substantial portion of our assets, are located outside of
the United States. As a result, it may be difficult for
investors in the United States to bring an action against
directors, officers or experts who are not resident in the
United States. It may also be difficult for an investor to
enforce a judgment obtained in a United States court
predicated upon the civil liability provisions of federal
securities laws or other laws of the United States or any state
thereof against those persons or Valeant.
Under Section 124(1) of the Canada Business Corporations
Act (the CBCA), the Company may indemnify a director
or officer of the Company, a former director or officer of the
Company or another individual who acts or acted at the
Companys request as a director or officer, or an
individual acting in a similar capacity, of another entity,
against all costs, charges and expenses, including an amount
paid to settle an action or satisfy a judgment, reasonably
incurred by the individual in respect of any civil, criminal,
administrative, investigative or other proceeding in which the
individual is involved because of that association with the
Company or the other entity on condition that (i) the
individual acted honestly and in good faith with a view to the
best interests of the Company or, as the case may be, to the
best interests of the other entity for which the individual
acted as a director or officer or in a similar capacity at the
Companys request, and (ii) in the case of a criminal
or administrative action or proceeding that is enforced by a
monetary penalty, the individual had reasonable grounds for
believing that his or her conduct was lawful. The CBCA also
provides, under Section 124(2), that the Company may
advance moneys to a director, officer or other individual for
costs, charges and expenses reasonably incurred in connection
with such a proceeding; however, the individual shall repay the
moneys if the individual does not fulfill condition (i) and
where applicable, condition (ii), above. Furthermore, under
Section 124(4) of the CBCA, the Company may, with court
approval, indemnify an individual described above or advance
moneys as described above in respect of an action by or on
behalf of the Company or other entity to obtain a judgment in
its favor, to which the individual is made a party by reason of
the individuals association with the Company or such other
entity described above, against all costs, charges and expenses
reasonably incurred by the individual in connection with such
action if the individual fulfils condition (i) and where
applicable, condition (ii), above. An individual referred to
above is entitled to indemnification from the Company as a
matter of right if he or she was not judged by a court or other
competent authority to have committed any fault or omitted to do
anything he or she ought to have done and fulfils the condition
(i) and where applicable, condition (ii), above.
The Companys bylaws provide for the indemnification of a
director or officer of the Company, a former director or officer
of the Company or another individual who acts or acted at the
Companys request as a director or officer, or an
individual acting in a similar capacity, of another entity,
against all costs, charges and expenses, including an amount
paid to settle an action or satisfy a judgment, reasonably
incurred by the individual in respect of any civil, criminal,
administrative, investigative or other proceeding in which the
individual is involved because of that association with the
Company or the other entity on condition that such individual
fulfills condition (i), and where applicable, condition (ii),
above. The Companys bylaws also authorize it to enter into
agreements evidencing the Companys indemnity in favor of
the foregoing persons to the full extent permitted by law.
The Company has entered into indemnification agreements with
certain of its officers and directors in respect of any legal
claims or actions initiated against them in their capacity as
officers and directors of the Company or the Companys
subsidiaries in accordance with applicable law. These agreements
include bearing the reasonable cost of legal representation in
any legal or regulatory action in which they may become involved
in their capacity as the Companys officers and directors.
Pursuant to such indemnities, the Company bears the cost of the
representation of certain officers and directors.
The Company maintains insurance for certain liabilities incurred
by its directors and officers in their capacity with the Company
or its subsidiaries.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or
persons controlling the Company pursuant to the foregoing
provisions, the Company has been informed that in
17
the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is
therefore unenforceable.
PLAN OF
DISTRIBUTION
Subject to the discussion below, we will distribute Common
Shares purchased pursuant to the Plan as described in this
prospectus. CIBC Mellon Trust Company, as the Agent, will
assist in the identification of shareholders, execute
transactions in Common Shares pursuant to the Plan and provide
other related services, but will not be acting as an underwriter
with respect to our Common Shares sold under the Plan.
Participants will pay no brokerage commissions or trading or
transaction fees on Common Shares purchased through the Plan by
reinvesting the Special Dividend. Our Common Shares are
currently listed for trading principally on the NYSE and the TSX
under the symbol VRX.
Persons who acquire our Common Shares through the Plan and
resell them shortly after acquiring them, including coverage of
short positions, under certain circumstances, may be
participating in a distribution of securities that would require
compliance with Regulation M under the Exchange Act, and
may be considered to be underwriters within the meaning of the
Securities Act. We will not extend to any such person any rights
or privileges other than those to which he, she or it would be
entitled as a Participant in the Plan, nor will we enter into
any agreement with any such person regarding the resale or
distribution by any such person of Common Shares so purchased.
Certain of our major shareholders, directors, officers or
members of our management, supervisory or administrative bodies
may participate in the Plan.
18
EXPERTS
The consolidated financial statements of Valeant Pharmaceuticals
International, Inc. (formerly known as Biovail Corporation) as
of December 31, 2009 and 2008, and for each of the three
years in the period ended December 31, 2009, appearing in
Biovails Annual Report on
Form 10-K
(including the schedule appearing therein) and the effectiveness
of Biovails internal control over financial reporting as
of December 31, 2009, have been audited by
Ernst & Young LLP, an independent registered public
accounting firm, as set forth in their reports thereon appearing
therein. Both reports are incorporated herein by reference. Such
consolidated financial statements and schedule are incorporated
herein by reference in reliance upon such reports given on the
authority of such firm as experts in accounting and auditing.
LEGAL
MATTERS
The validity of the Common Shares being offered by this
prospectus will be passed upon for us by Blake,
Cassels & Graydon LLP, Canadian legal counsel to
Valeant. Blake, Cassels & Graydon LLP have, in
addition, reviewed the statements made herein as to matters of
Canadian tax law. The statements made in this prospectus as to
matters of United States tax law have been reviewed for us by
Cravath, Swaine & Moore LLP, U.S. legal counsel
to Valeant.
19
WHERE YOU
CAN FIND MORE INFORMATION
Valeant files annual, quarterly and current reports, proxy
statements and other information with the Commission under the
Exchange Act and with the CSA.
You may read and copy any document that we have filed with the
Commission at the Commissions public reference room in
Washington, D.C. at 100 F Street, N.E.,
Washington, D.C. 20549 by paying a fee. You may call the
Commission at
1-800-SEC-0330
or access its website at www.sec.gov for further
information about the public reference room. You may read and
download reports, proxy and information statements, and other
documents we have filed with the Commissions Electronic
Data Gathering and Retrieval system at www.sec.gov. You
may read and download any public document that we have filed
with the Canadian securities regulatory authorities at
www.sedar.com. You can also find information about the
Company on our website at www.valeant.com. However, any
information that is included on or linked to our website is not
a part of this prospectus, except as specifically incorporated
by reference herein.
We have filed under the United States Securities Act a
registration statement on
Form S-3
relating to our Plan. This prospectus forms a part of the
registration statement. This prospectus does not contain all of
the information included in the registration statement, certain
portions of which have been omitted as permitted by the rules
and regulations of the Commission. For further information about
us and our Common Shares, you are encouraged to refer to the
filings and the exhibits that are incorporated by reference into
the registration statement. Statements contained in this
prospectus describing provisions of the Plan are not necessarily
complete, and in each instance reference is made to the copy of
the Plan which is included as an exhibit to the registration
statement, and each such statement in this prospectus is
qualified in all respects by such reference.
DOCUMENTS
INCORPORATED BY REFERENCE
The Commission and the CSA allow us to incorporate by
reference into this prospectus certain documents that we
file with or furnish to the Commission and the CSA. This means
that we can disclose important information to you by referring
to those documents. The information incorporated by reference is
considered to be an important part of this prospectus and later
information that we file with the Commission will automatically
update and supersede that information. The following documents,
which we have filed with or furnished to the Commission, are
specifically incorporated by reference into this prospectus:
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Biovails Annual Report on
Form 10-K
for the fiscal year ended December 31, 2009, filed with the
Commission and the CSA on February 26, 2010;
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Biovails Quarterly Reports on
Form 10-Q
for the quarterly periods ended March 31, 2010 and
June 30, 2010 and our Quarterly Report on
Form 10-Q
for the quarterly period ended September 30, 2010, filed
with the Commission and the CSA on May 7, 2010,
August 6, 2010, and November 5, 2010, respectively;
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Biovails Current Reports on
Form 8-K,
filed February 10, 2010, February 25, 2010 (film
number 10631839), May 19, 2010, June 21, 2010,
June 23, 2010, July 16, 2010, July 23, 2010,
September 20, 2010, September 22, 2010, and
September 23, 2010, and our Current Report on
Form 8-K,
filed October 1, 2010 (other than documents or portions of
these documents not deemed to be filed); and
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The description of our Common Shares contained in
(1) Biovails Registration Statement on
Form 8-A
filed with the Commission on December 10, 1996,
(2) Biovails Registration Statement on
Form 8-A/A
filed with the Commission on June 5, 2000, and (3) any
subsequently filed amendments and reports filed for the purpose
of updating such description.
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In addition, Valeant incorporates by reference any future
filings it makes with the Commission under Section 13(a),
13(c), 14 or 15(d) of the Exchange Act and with the CSA under NI
51-102 of
the CSA after the date of this prospectus and prior to the
termination of this offering. These documents include periodic
reports, such as Annual Reports on
Form 10-K,
Quarterly Reports on
Form 10-Q
and Current Reports on
Form 8-K,
as well as proxy statements. Such documents are considered to be
a part of this prospectus, effective as of the date such
documents are filed. To the extent that any information
contained in any such Current Report on
Form 8-K,
or any exhibit thereto, is furnished, rather than filed, with
the SEC, such information or exhibit is specifically not
incorporated by reference into this prospectus. We will deliver
to each person, including any beneficial owner, to
20
whom this prospectus has been delivered, copies of the documents
incorporated by reference in this prospectus, but not delivered
with this prospectus, upon written or oral request, without
charge. Requests should be directed to us at:
Valeant Pharmaceuticals International, Inc.
7150 Mississauga Road
Mississauga, Ontario
Canada, L5N 8M5
Attention: Investor Relations
(905) 286-3000
Any statement contained herein or in a document incorporated
by reference into this prospectus
shall be deemed to be modified or superseded for the purposes
of this prospectus to the extent that
a statement contained herein or therein or in any other later
filed document which also is
incorporated by reference into this prospectus modifies or
supersedes that statement. Any statement
so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a
part of this prospectus.
21
PART II
INFORMATION
NOT REQUIRED IN THE PROSPECTUS
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Item 14.
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Other
Expenses Of Issuance And Distribution.
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The following table sets forth the estimated costs and expenses
payable by the Company in connection with the sale of the Common
Shares being registered hereby:
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Commission Registration Fee
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$
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24,059
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Printing expenses
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$
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25,000
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Legal fees and expenses
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$
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90,000
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Accounting fees and expenses
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$
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3,000
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Plan Administrator Fees
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$
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50,000
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NYSE listing fees and expenses
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$
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35,000
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Miscellaneous
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$
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22,941
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Total
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$
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250,000
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Item 15.
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Indemnification
Of Directors And Officers.
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The description of the indemnification provisions relating to
officers and directors under the caption Enforceability of
Civil Liabilities in Part I of this document is
incorporated herein by reference.
The exhibits to this Registration Statement are listed in the
Exhibit Index hereto and are incorporated herein by
reference.
(a) The undersigned registrant hereby undertakes:
(1) 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;
(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
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 SEC pursuant to Rule 424(b) under the
Securities Act if, in the aggregate, the changes in volume and
price represent no more than a 20% 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;
provided, however, that clauses (1)(i), (1)(ii)
and (1)(iii) do not apply if the information required to be
included in a post-effective amendment by those clauses is
contained in reports filed with or furnished to the SEC by the
registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in the
registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) under the Securities Act that
is part of the registration statement;
II-1
(2) That, for the purpose of determining any liability
under the Securities Act, 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 initial
bona fide offering thereof;
(3) 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;
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser: each prospectus
filed pursuant to Rule 424(b) as part of a 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;
(5) That, for the purpose of determining liability of the
registrant under the Securities Act to any purchaser in the
initial distribution of the securities, the undersigned
registrant undertakes that in a primary offering of securities
of the undersigned registrant 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 registrant 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 registrant relating to the offering required to be
filed pursuant to Rule 424 under the Securities Act;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used
or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrant or its securities provided by or on
behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the registrants annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act
(and where applicable, each filing of an employee benefit
plans annual report pursuant to section 15(d) of the
Exchange Act) that is incorporated by reference in the
registration statement 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 initial bona fide offering thereof.
II-2
SIGNATURES
AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on
Form S-3
and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in
Mississauga, Ontario on November 8, 2010.
VALEANT PHARMACEUTICALS INTERNATIONAL, INC.
Name: Margaret Mulligan
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Title:
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Executive Vice President, Chief Financial Officer
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KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints J. Michael
Pearson, Margaret Mulligan and Robert Chai-Onn, or any of them
individually, such persons true and lawful
attorneys-in-fact and agent, with full powers of substitution
and resubstitution, for and in such persons name, place
and stead, in the capacities indicated below, to sign this
Registration Statement on
Form S-3
of Valeant Pharmaceuticals International, Inc., and any and all
amendments (including post-effective amendments) thereto, and to
file or cause to be filed the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to
be done in connection therewith, as fully to all intents and
purposes as such person might, or could, do in person, hereby
ratifying and confirming all that said attorneys-in-fact and
agents, and each of them, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on
Form S-3
has been signed by the following persons in the capacities and
on the dates indicated below.
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Signature
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Title
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Date
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/s/ J.
Michael Pearson
J.
Michael Pearson
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Chief Executive Officer (Principal Executive Officer) and
Director
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November 3, 2010
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/s/ Margaret
Mulligan Margaret
Mulligan
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Executive Vice President,
Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)
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November 8, 2010
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/s/ William
M. Wells
William
M. Wells
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Chairman of the Board of Directors
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November 3, 2010
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/s/ Robert
A. Ingram
Robert
A. Ingram
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Director
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November 3, 2010
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/s/ Theo
Melas-Kyriazi
Theo
Melas-Kyriazi
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Director
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November 3, 2010
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/s/ G.
Mason Morfit
G.
Mason Morfit
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Director
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November 3, 2010
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/s/ Dr. Laurence
E. Paul
Dr. Laurence
E. Paul
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Director
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November 3, 2010
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Signature
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Title
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Date
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/s/ Robert
N. Power
Robert
N. Power
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Director
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November 3, 2010
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/s/ Norma
A. Provencio
Norma
A. Provencio
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Director
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November 3, 2010
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/s/ Lloyd
M. Segal
Lloyd
M. Segal
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Director
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November 3, 2010
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/s/ Katharine
B. Stevenson
Katharine
B. Stevenson
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Director
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November 3, 2010
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/s/ Michael
R. Van Every
Michael
R. Van Every
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Director
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November 3, 2010
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SIGNATURE
OF AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of Section 6(a) the Securities
Act, this Registration Statement has been signed on behalf of
the Registrant by the undersigned, solely in his or her capacity
as the duly authorized representative of Valeant Pharmaceuticals
International, Inc., in the United States, in the City of New
York, State of New York, on November 8, 2010.
PUGLISI & ASSOCIATES
by /s/ Donald J. Puglisi
Name: Donald J. Puglisi
Title: Managing Director
EXHIBIT INDEX
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Exhibit
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Number
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Description
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4.1
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Articles of Continuance of the Registrant filed on June 29, 2005
(incorporated by reference to Exhibit 3.1 to the
Registrants Annual Report on Form 10-K for the year ended
December 31, 2009, filed with the Commission on February 26,
2010).
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4.2
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Articles of Amendment of the Registrant filed on September 28,
2010 (incorporated by reference to Exhibit 3.1 to the
Registrants Current Report on Form 8-K filed with the
Commission on October 1, 2010).
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4.3
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Amended and Restated By-Law No. 1 of the Registrant
(incorporated by reference to Exhibit 3.2 to the
Registrants Annual Report on Form 10-K for the year ended
December 31, 2009, filed with the Commission on February 26,
2010).
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4.4
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By-Law No. 2 of the Registrant (incorporated by reference to
Exhibit 3.3 to the Registrants Annual Report on Form 10-K
for the year ended December 31, 2009, filed with the Commission
on February 26, 2010).
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4.5
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Special Dividend Reinvestment Plan Enrollment Form of Valeant
Pharmaceuticals International, Inc.*
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4.6
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Special Dividend Reinvestment Plan of Valeant Pharmaceuticals
International, Inc.*
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5.1
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Opinion of Blake, Cassels & Graydon LLP as to the validity
of the Common Shares to be registered.*
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8.1
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Opinion of Blake, Cassels & Graydon LLP regarding Canadian
tax matters (contained in Exhibit 5.1).*
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8.2
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Opinion of Cravath, Swaine & Moore LLP regarding U.S. tax
matters.*
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23.1
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Consent of Blake, Cassels & Graydon LLP (included in the
opinion filed as Exhibit No. 5.1).*
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23.2
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Consent of Cravath, Swaine & Moore LLP (included in the
opinion filed as Exhibit No. 8.2).*
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23.3
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Consent of Ernst & Young LLP.*
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24.1
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Powers of Attorney (included on the Signature Page to this
Registration Statement).*
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