Exhibit 10.35


 


	
  UNITED STATES DISTRICT COURT SOUTHERN DISTRICT
  OF NEW YORK

  	
   

  
	
   

  	
   

  
	
  SECURITIES AND EXCHANGE

  COMMISSION,

   

  Plaintiff,

  v.

   

  BIOVAIL CORPORATION, et al.,

   

  Defendants.

  	
  08
  Civ.         

  ECF CASE

  
	
   

  	
   

  



 


FINAL
JUDGMENT AS TO DEFENDANT


 


BIOVAIL
CORPORATION


 


The
Securities and Exchange Commission having filed a Complaint and Defendant
Biovail having entered a general appearance; consented to the Court’s
jurisdiction over Defendant and the subject matter of this action; consented to
entry of this Final Judgment without admitting or denying the allegations of
the Complaint (except as to jurisdiction); waived findings of fact and
conclusions of law; and waived any right to appeal from this Final Judgment:


 


I.


 


IT
IS HEREBY ORDERED, ADJUDGED, AND DECREED
that Defendant and Defendant’s agents, servants, employees, attorneys, and all
persons in active concert or participation with them who receive actual notice
of this Final Judgment by personal service or otherwise are permanently
restrained and enjoined from violating, directly or indirectly, Section 10(b) of
the Securities Exchange Act of 1934 (the “Exchange Act”) [ 15 U.S.C. § 78j(b)]
and Rule 10b-5 [17 C.F.R. § 240.10b-5], by using any means or
instrumentality of interstate


 

















 


commerce, or of the mails, or of any facility of any
national securities exchange, in connection with the purchase or sale of any
security:


 


(a)           to employ any device, scheme,
or artifice to defraud:


 


(b)           to make any untrue statement
of a material fact or to omit to state a material fact necessary in order to
make the statements made, in the light of the circumstances under which they
were made, not misleading; or


 


(c)           to engage in any act,
practice, or course of business which operates or would operate as a fraud or
deceit upon any person.


 


II.


 


IT
IS FURTHER ORDERED, ADJUDGED, AND DECREED
that Defendant and Defendant’s agents, servants, employees, attorneys, and all
persons in active concert or participation with them who receive actual notice
of this Final Judgment by personal service or otherwise are permanently
restrained and enjoined from violating Section 17(a) of the
Securities Act of 1933 (the “Securities Act”) [15 U.S.C. § 77q(a)] in the offer
or sale of any security by the use of any means or instruments of
transportation or communication in interstate commerce or by use of the mails,
directly or indirectly:


 


(a)           to employ any device, scheme,
or artifice to defraud;


 


(b)           to obtain money or property by
means of any untrue statement of a material fact or any omission of a material
fact necessary in order to make the statements 


 


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made, in light of the
circumstances under which they were made, not misleading; or


 


(c)           to engage in any transaction,
practice, or course of business which operates or would operate as a fraud or
deceit upon the purchaser.


 


III.


 


IT
IS FURTHER ORDERED, ADJUDGED, AND DECREED
that Defendant and Defendant’s agents, servants, employees, attorneys, and all
persons in active concert or participation with them who receive actual notice
of this Final Judgment by personal service or otherwise are permanently
restrained and enjoined from violating Section 13(a) of the Exchange
Act [15 U.S.C. § 78m(a)] and Rules 12b-20, 13a-1, and 13a-16 [17 CFR §§
240.12b-20, 240.13a-1, and 240.13a-16] by, directly or indirectly:


 


(a)           failing to file with or
furnish to the Commission any report required to be filed or furnished to the
Commission pursuant to Section 13(a) of the Exchange Act [15 U.S.C. §
78m(a)], and the rules and regulations promulgated thereunder; or


 


(b)           filing with or furnishing to
the Commission a report required to be filed with or furnished to the
Commission pursuant to Section 13(a) of the Exchange Act [15 U.S.C. §
78m(a)] and the rules and regulations promulgated thereunder that: (1) contains
an untrue statement of material fact; (2) fails to include, in addition to
the information required to be stated in such report, such further material
information as may be necessary to make the required statements, in light of the
circumstances 


 


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under which they are made, not misleading; or (3) fails
to disclose any information required to be disclosed therein.


 


IV.


 


IT
IS FURTHER ORDERED, ADJUDGED, AND DECREED
that Defendant and Defendant’s agents, servants, employees, attorneys, and all
persons in active concert or participation with them who receive actual notice
of this Final Judgment by personal service or otherwise are permanently
restrained and enjoined from violating Sections 13(b)(2)(A) and 13(b)(2)(B) of
the Exchange Act [15 U.S.C. §§ 78m(b)(2)(A) and 78m(b)(2)(B)] by, directly
or indirectly:


 


(a)           failing to make and keep
books, records, and accounts, which, in reasonable detail, accurately and
fairly reflected the transactions and dispositions of its assets; and


 


(b)           failing to devise and maintain
a system of internal accounting controls sufficient to provide reasonable
assurances that:


 


i.        transactions were executed in
accordance with management’s general or specific authorization;


 


ii.       transactions were recorded as
necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles or any other criteria applicable to
such statements, and to maintain accountability for assets;


 


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iii.      access to assets was permitted
only in accordance with management’s general or specific authorization; and


 


iv.     the recorded accountability
for assets was compared with the existing assets at reasonable intervals and
appropriate action was taken with respect to any differences.


 


V.


 


IT
IS FURTHER ORDERED, ADJUDGED, AND DECREED
that Defendant and Defendant’s agents, servants, employees, attorneys, and all
persons in active concert or participation with them who receive actual notice
of this Final Judgment by personal service or otherwise are permanently
restrained and enjoined from violating Rule 302(b) of Regulation S-T
[17 CFR § 232.302(b)] by, directly or indirectly, failing to retain for a
period of five years and produce to the Commission staff upon request manually
signed signature pages or other documents authenticating, acknowledging,
or otherwise adopting the signatures that appear in typed form within its
electronically filed annual reports on Form 20-F.


 


VI.


 


IT
IS FURTHER ORDERED, ADJUDGED, AND DECREED
that Defendant shall disgorge $1, representing profits gained as a result of
the conduct alleged in the Complaint, and pay a civil penalty in the amount of
$10 million pursuant to Section 20(d) of the Securities Act [ 15
U.S.C. § 77t(d)] and Section 21(d)(3) of the Exchange Act [ 15 U.S.C.
§ 78u(d)(3)]. Defendant shall satisfy this obligation by paying a total of
$10,000,001 within ten business days of the entry of this Final Judgment to the
Clerk of this Court by means of a certified check, bank cashier’s check, or
United States postal money order payable to the Clerk of the Court, together 


 


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with a cover letter identifying Biovail Corporation as
a defendant in this action; setting forth the title and civil action number of
this action and the name of this Court; and specifying that payment is made
pursuant to this Final Judgment. Defendant shall simultaneously transmit
photocopies of such payment and letter to the Commission’s counsel in this
action, Robert J. Keyes, U.S. Securities and Exchange Commission. New York
Regional Office, 3 World Financial Center. Room 400, New York. New York
10281-1022. By making this payment, Defendant relinquishes all legal and
equitable right, title, and interest in such funds, and no part of the funds
shall be returned to Defendant. The Clerk shall deposit the funds into an
interest bearing account with the Court Registry Investment System (“CRIS”).
These funds, together with any interest and income earned thereon
(collectively, the “Fund”), shall be held in the interest bearing account until
further order of the Court. In accordance with 28 U.S.C. § 1914 and the
guidelines set by the Director of the Administrative Office of the United
States Courts, the Clerk is directed, without further order of this Court, to
deduct from the income earned on the money in the Fund a fee equal to ten
percent of the income earned on the Fund. Such fee shall not exceed that authorized
by the Judicial Conference of the United States. Defendant shall pay post
judgment interest on any delinquent amounts pursuant to 28 U.S.C. § 1961.


 


The
Commission may by motion propose a plan to distribute the Fund subject to the
Court’s approval. Such a plan may provide that the Fund shall be distributed
pursuant to the Fair Fund provisions of Section 308(a) of the
Sarbanes-Oxley Act of 2002. Regardless of whether any such Fair Fund
distribution is made, amounts ordered to be paid as civil penalties pursuant to
this Judgment shall be treated as penalties paid to the government for all
purposes, including all tax purposes. To preserve the deterrent effect of the
civil penalty, Defendant shall not, after offset or reduction of any award of
compensatory damages in any Related Investor Action based 


 


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on Defendant’s payment of disgorgement in this action,
argue that it is entitled to, nor shall it further benefit by, offset or
reduction of such compensatory damages award by the amount of any part of
Defendant’s payment of a civil penalty in this action (“Penalty Offset”). If
the court in any Related Investor Action grants such a Penalty Offset,
Defendant shall, within 30 days after entry of a final order granting the
Penalty Offset, notify the Commission’s counsel in this action and pay the
amount of the Penalty Offset to the United States Treasury or to a Fair Fund,
as the Commission directs. Such a payment shall not be deemed an additional
civil penalty and shall not be deemed to change the amount of the civil penalty
imposed in this Judgment. For purposes of this paragraph, a “Related Investor
Action” means a private damages action brought against Defendant by or on
behalf of one or more investors based on substantially the same facts as
alleged in the Complaint in this action.


 


VII.


 


IT
IS ORDERED, ADJUDGED, AND DECREED
that the Consent is incorporated herein with the same force and effect as if
fully set forth herein, and that Defendant shall comply with all of the
undertakings and agreements set forth therein.


 


VIII.


 


IT
IS ORDERED, ADJUDGED, AND DECREED
that this Court shall retain jurisdiction of this matter for the purposes of
enforcing the terms of this Final Judgment.


 


IX.


 


There
being no just reason for delay, pursuant to Rule 54(b) of the Federal
Rules of Civil Procedure, the Clerk is ordered to enter this Final
Judgment forthwith and without further notice.


 


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CONSENT
OF DEFENDANT BIOVAIL CORPORATION


 


1.             Defendant Biovail
Corporation (“Defendant”) waives service of a summons and the complaint in this
action, enters a general appearance, and admits the Court’s jurisdiction over
Defendant and over the subject matter of this action.


 


2.             Without admitting
or denying the allegations of the complaint (except as to personal and subject
matter jurisdiction, which Defendant admits), Defendant hereby consents to the
entry of the final Judgment in the form attached hereto (the “Final Judgment”)
and incorporated by reference herein, that, among other things:


 


A.            permanently
restrains and enjoins Defendant from violation of Section 17(a) of
the Securities Act of 1933 ( “Securities Act”) [15 U.S.C. § 77q(a)], Sections
10(b), 13(a), 13(b)(2)(A), and 13(b)(2)(B) of the Securities Exchange Act
of 1934 ( “Exchange Act”) [15 U.S.C. §§ 78j(b), 78m(a), 78m(b)(2)(A), and
78m(b)(2)(B)] and Rules 10b-5, 12b-20, 13a-1, and 13a-16, and Rule 302(b) of
Regulation S-T [17 C.F.R. §§ 240.10b-5, 240.12b-20, 240.13a-1, 240.13a-16, and
232.302(b)];


 


B.            orders Defendant
to pay disgorgement in the amount of $1;


 


C.            orders Defendant
to pay a civil penalty in the amount of $10 million pursuant to Section 20(d) of
the Securities Act [15 U.S.C. § 77t(d)] and Section 21(d)(3) of the
Exchange Act [ 15 U.S.C. § 78u(d)(3)]; and


 


D.            orders Defendant
to comply with the undertakings and agreements set forth in this Consent.


 

















 


3.             Defendant
acknowledges that the civil penalty paid pursuant to the Final Judgment may be
distributed pursuant to the Fair Fund provisions of Section 308(a) of
the Sarbanes-Oxley Act of 2002. Regardless of whether any such Fair Fund
distribution is made, the civil penalty shall be treated as a penalty paid to
the government for all purposes, including all tax purposes. To preserve the
deterrent effect of the civil penalty, Defendant agrees that it shall not,
after offset or reduction of any award of compensatory damages in any Related
Investor Action based on Defendant’s payment of disgorgement in this action,
argue that it is entitled to, nor shall it further benefit by, offset or
reduction of such compensatory damages award by the amount of any part of
Defendant’s payment of a civil penalty in this action (“Penalty Offset”). If
the court in any Related Investor Action grants such a Penalty Offset,
Defendant agrees that it shall, within 30 days after entry of a final order
granting the Penalty Offset, notify the Commission’s counsel in this action and
pay the amount of the Penalty Offset to the United States Treasury or to a Fair
Fund, as the Commission directs. Such a payment shall not be deemed an
additional civil penalty and shall not be deemed to change the amount of the
civil penalty imposed in this action. For purposes of this paragraph, a “Related
Investor Action” means a private damages action brought against Defendant by or
on behalf of one or more investors based on substantially the same facts as
alleged in the Complaint in this action.


 


4.             Defendant agrees
that it shall not seek or accept, directly or indirectly, reimbursement or
indemnification from any source, including but not limited to payment made
pursuant to any insurance policy, with regard to any civil penalty amounts that
Defendant pays pursuant to the Final Judgment, regardless of whether such
penalty amounts or any part thereof are added to a distribution fund or
otherwise used for the benefit of investors. Defendant further agrees that it
shall not claim, assert, or apply for a tax deduction or tax credit with regard
to any 


 


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federal, state, or local tax
for any penalty amounts that Defendant pays pursuant to the Final Judgment,
regardless of whether such penalty amounts or any part thereof are added to a
distribution fund or otherwise used for the benefit of investors.


 


5.             Defendant agrees
to comply with the following undertakings:


 


A.            Retention of a
Consultant


 


i.           Biovail shall
retain, pay for, and enter into an agreement with an independent consultant (“Consultant”),
not unacceptable to the Commission staff, to conduct a comprehensive
examination and review of the areas specified below and to make recommendations
to Biovail’s board of directors and the Commission staff. The Consultant’s
compensation and expenses shall be borne exclusively by Biovail, and shall not
be deducted from any amount due under the provisions of the Final Judgment.


 


ii.          The agreement
with the Consultant (“Agreement”) shall provide that the Consultant examine:


 


a.          Biovail’s
internal accounting controls and its internal controls over financial
reporting, provided, however, that the Consultant may, if appropriate, rely on
Biovail’s independent accountant’s attestation and report on management’s
assessment of the effectiveness of Biovail’s internal control structure and
procedures pursuant to Section 404 of the Sarbanes-Oxley Act;


 


b.          The policies,
procedures, and effectiveness of Biovail’s regulatory and compliance functions,
including the operations of any committees or other mechanisms established to
review and approve transactions or for the purpose of preventing the 


 


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recording of transactions or
financial reporting results in a manner that is not in compliance with U.S.
generally accepted accounting principles;


 


c.          Biovail’s training
of its accounting staff concerning financial reporting and U.S. generally
accepted accounting principles;


 


d.          Biovail’s ethics
and compliance policies, including the adequacy and effectiveness of any
whistleblower procedures designed to allow employees and others to report
confidentially matters that may bear on Biovail’s financial reporting
obligations;


 


e.          Biovail’s records
management and retention policies and procedures, including without limitation
such procedures with respect to e-mail and other electronically stored
information;


 


f.           The functioning
of Biovail’s audit committee, including the audit committee’s policies and
procedures and the methods for the selection of its members;


 


g.          Biovail’s
policies and procedures with respect to compliance with Rule 302(b) of
Regulation S-T;


 


h.          Biovail’s
investor relations and public affairs functions, including policies and
procedures designed to enhance the quality and accuracy of Biovail’s press
releases, investor conference calls, and other similar public disclosures;


 


i.           Biovail’s
policies and procedures concerning its communications with its outside
auditors.


 


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B.            Consultant’s
Reporting Obligations


 


i.           The Consultant
shall issue a report to Biovail’s board of directors, its audit committee, and
to the Commission staff within three months of appointment, provided however,
that the Consultant may seek to extend the period of review for one additional
three-month term by requesting such an extension from the Commission’s staff.
The Commission’s staff, after consultation with Biovail, shall have discretion
to grant such extension for the period requested if deemed reasonable and
warranted.


 


ii.          The Consultant’s
report shall address the Consultant’s review of the areas specified in
paragraph 5.A.ii above and shall include a description of the review performed,
the conclusions reached, the Consultant’s recommendations for any changes or
improvements to Biovail’s policies and procedures as the Consultant reasonably
deems necessary to conform to the law and best practices, and a procedure for
implementing the recommended changes or improvements.


 


iii.         Biovail shall
adopt all recommendations contained in the Consultant’s report, provided,
however, that within forty-five days of its receipt of the report, Biovail
shall in writing advise the Consultant and the Commission staff of any
recommendation that it considers to be unnecessary or inappropriate. With
respect to any recommendation that Biovail considers unnecessary or
inappropriate, Biovail need not adopt that recommendation at that time but
shall propose in writing an alternative policy, procedure, or system designed
to achieve the same objective or purpose.


 


iv.        As to any recommendations of
the Consultant with respect to which Biovail and the Consultant do not agree,
such parties shall attempt in good faith to reach an agreement within ninety
days of the issuance of the Consultant’s report. In the event Biovail and 


 


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the Consultant are unable to
agree on an alternative proposal, Biovail shall abide by the determinations of
the Consultant.


 


v.         Biovail shall
retain the Consultant for a period of twelve months from the date of
appointment in accordance with paragraph 5.C below. After the Consultant’s
recommendations become final pursuant to paragraph 5.B.i above, the Consultant
shall oversee the implementation of such recommendations and provide a report
to Biovail’s board of directors, its audit committee, and to the Commission
staff twelve months after appointment concerning the progress of the
implementation. If, at the conclusion of this twelve-month period, less than
all the recommendations of the consultant (to the extent deemed significant by
the Commission staff) have been substantially implemented for at least two
successive fiscal quarters, the Commission staff may, in its discretion, direct
Biovail to extend the Consultant’s term of appointment until such time as all
recommendations (to the extent deemed significant by the Commission staff) have
been substantially implemented for at least two successive fiscal quarters.


 


vi.        In addition to the reports
identified above, the Consultant shall provide Biovail’s board of directors,
its audit committee, and the Commission staff with such documents or other
information concerning the areas specified in paragraph 5.A.ii above as any of
them may request during the pendency or at the conclusion of the review.


 


C.            Terms of
Consultant’s Retention


 


i.           Within forty-five
days after the date of entry of the Final Judgment, Biovail will submit to the
Commission staff a proposal setting forth the identity, qualifications, and
proposed terms of retention of the Consultant. The Commission staff, within
thirty days of 


 


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such notice, will either (a) deem
Biovail’s choice of Consultant and proposed terms of retention not unacceptable
or (b) require Biovail to propose an alternative Consultant and/or revised
proposed terms of retention within fifteen days. This process will continue, as
necessary, until the proposed Consultant and retention terms are not
unacceptable to the Commission staff.


 


ii.          The Consultant
shall have reasonable access to all of Biovail’s books and records and the ability
to meet privately with Biovail’s personnel. Biovail shall instruct and
otherwise encourage its officers, directors, and employees to cooperate fully
with the review conducted by the Consultant, and inform its officers,
directors, and employees that failure to cooperate with the review may be
grounds for dismissal, other disciplinary actions, or other appropriate
actions.


 


iii.         The Consultant
shall have the right, as reasonable and necessary in his or her judgment, to
retain, at Biovail’s expense, attorneys, accountants, and other persons or
firms, other than officers, directors, or employees of Biovail, to assist in
the discharge of the Consultant’s obligations. Biovail shall pay all reasonable
fees and expenses (as reasonably documented) of any persons or firms retained
by the Consultant.


 


iv.        The Consultant shall make and
keep notes of interviews conducted, and keep a copy of documents gathered, in
connection with the performance of his or her responsibilities, and require all
persons and firms retained to assist the Consultant to do so as well.


 


v.         If the Consultant
determines that he or she has a conflict with respect to one or more of the
areas described in paragraph 5.A.ii above, he or she shall delegate 


 


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his or her responsibilities
with respect to that subject to a person who is chosen by the Consultant and
who is not unacceptable to the Commission staff.


 


vi.        For the period of engagement
and for a period of two years from completion of the engagement, the Consultant
shall not enter into any employment, consultant, attorney-client, auditing, or
other professional relationship with Biovail, or any of its present or former
affiliates, directors, officers, employees, or agents acting in their capacity as
such, and shall require that any firm with which the Consultant is affiliated
or of which the Consultant is a member, or any person engaged to assist the
Consultant in performance of the Consultant’s duties under the Final Judgment
not, without prior written consent of the Commission staff, enter into any
employment, consultant, attorney-client, auditing, or other professional
relationship with Biovail, or any of its present or former affiliates,
directors, officers, employees, or agents acting in their capacity as such for
the period of the engagement and for a period of two years after the
engagement.


 


D.            Fees and Expenses of
Distribution


 


If
the Commission determines that amounts paid by Biovail under the terms of the
Final Judgment shall be distributed to victims of the violations alleged in the
Complaint as a Fair Fund under Section 308 of the Sarbanes Oxley Act or
otherwise, Biovail shall pay all fees and expenses relating to such
distribution, as reasonably documented, and such fees and expenses shall not be
deducted from any amount due under the provisions of the Final Judgment or from
any earnings of the distribution fund that may accrue to it prior to the
distribution, as interest or otherwise.


 


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6.             Defendant waives
the entry of findings of fact and conclusions of law pursuant to Rule 52
of the Federal Rules of Civil Procedure.


 


7.             Defendant waives
the right, if any, to a jury trial and to appeal from the entry of the Final
Judgment.


 


8.             Defendant enters
into this Consent voluntarily and represents that no threats, offers, promises,
or inducements of any kind have been made by the Commission or any member,
officer, employee, agent, or representative of the Commission to induce
Defendant to enter into this Consent.


 


9.             Defendant agrees
that this Consent shall be incorporated into the Final Judgment with the same
force and effect as if fully set forth therein.


 


10.           Defendant will
not oppose the enforcement of the Final Judgment on the ground, if any exists,
that it fails to comply with Rule 65(d) of the Federal Rules of
Civil Procedure, and hereby waives any objection based thereon.


 


11.           Defendant waives
service of the Final Judgment and agrees that entry of the Final Judgment by
the Court and filing with the Clerk of the Court will constitute notice to
Defendant of its terms and conditions. Defendant further agrees to provide
counsel for the Commission, within thirty days after the Final Judgment is
filed with the Clerk of the Court, with an affidavit or declaration stating
that Defendant has received and read a copy of the Final Judgment.


 


12.           Consistent with
17 C.F.R. 202.5(f), this Consent resolves only the claims asserted against
Defendant in this civil proceeding. Defendant acknowledges that no promise or
representation has been made by the Commission or any member, officer,
employee, agent, or 


 


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representative of the
Commission with regard to any criminal liability that may have arisen or may
arise from the facts underlying this action or immunity from any such criminal
liability. Defendant waives any claim of Double Jeopardy based upon the
settlement of this proceeding, including the imposition of any remedy or civil
penalty herein. Defendant further acknowledges that the Court’s entry of a
permanent injunction may have collateral consequences under federal or state
law and the rules and regulations of self-regulatory organizations,
licensing boards, and other regulatory organizations. Such collateral
consequences include, but are not limited to, a statutory disqualification with
respect to membership in, or association with a member of, a self-regulatory
organization. This statutory disqualification has consequences that are
separate from any sanction imposed in an administrative proceeding. In
addition, in any disciplinary proceeding before the Commission based on the
entry of the injunction in this action, Defendant understands that it shall not
be permitted to contest the factual allegations of the complaint in this
action.


 


13.           Defendant
understands and agrees to comply with the Commission’s policy “not to permit a
defendant or respondent to consent to a judgment or order that imposes a
sanction while denying the allegation in the complaint or order for
proceedings.” 17 C.F.R. § 202.5. In compliance with this policy, Defendant
agrees: (i) not to take any action or to make or permit to be made any
public statement denying, directly or indirectly, any allegation in the
complaint or creating the impression that the complaint is without factual
basis; and (ii) that upon the filing of this Consent, Defendant hereby
withdraws any papers filed in this action to the extent that they deny any
allegation in the complaint. If Defendant breaches this agreement, the
Commission may petition the Court to vacate the Final Judgment and restore this
action to its active docket. Nothing in this paragraph affects Defendant’s: (i) testimonial
obligations; or (ii) right to take 


 


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legal or factual positions in
litigation or other legal proceedings in which the Commission is not a party.


 


14.           Defendant hereby
waives any rights under the Equal Access to Justice Act, the Small Business
Regulatory Enforcement Fairness Act of 1996, or any other provision of law to
seek from the United States, or any agency, or any official of the United
States acting in his or her official capacity, directly or indirectly,
reimbursement of attorney’s fees or other fees, expenses, or costs expended by
Defendant to defend against this action. For these purposes, Defendant agrees
that Defendant is not the prevailing party in this action since the parties
have reached a good faith settlement.


 


15.           In connection
with this action and any related judicial or administrative proceeding or
investigation commenced by the Commission or to which the Commission is a
party, Defendant (i) agrees to make its employees available for interviews
by Commission staff at such times and places as the staff requests upon reasonable
notice, including making available in the Southern District of New York
employees located in Canada, Barbados and other locations throughout the world;
(ii) will accept service by mail or facsimile transmission of notices or
subpoenas issued by the Commission for documents or testimony at depositions,
hearings, or trials, or in connection with any related investigation by
Commission staff; (iii) appoints Defendant’s undersigned attorney as agent
to receive service of such notices and subpoenas; (iv) with respect to
such notices and subpoenas, waives the territorial limits on service contained
in Rule 45 of the Federal Rules of Civil Procedure and any applicable
local rules, provided that the party requesting the testimony reimburses
Defendant’s travel, lodging, and subsistence expenses at the then-prevailing
U.S. Government per diem rates; and (v) consents to personal jurisdiction
over Defendant in any United States District Court for purposes of enforcing
any such subpoena.


 


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16.           Defendant agrees
that the Commission may present the Final Judgment to the Court for signature
and entry without further notice.


 


17.           Defendant agrees
that this Court shall retain jurisdiction over this matter for the

purpose of enforcing the terms of the Final Judgment.


 


	
  Dated:

  	
    March 18, 2008

  	
   

  	
  /s/ Wendy A. Kelley

  
	
   

  	
   

  	
   

  	
  Biovail Corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Wendy A. Kelley

  
	
   

  	
   

  	
  Its:

  	
  SVP,
  General Counsel & Corporate Secretary

  



 


On March 18, 2008, Wendy Kelley, a
person known to me, personally appeared before me and acknowledged executing t
e foregoing Consent with full authority to do so on behalf of Biovail
Corporation as its SVP, General Counsel & Corporate Secretary.


 


	
   

  	
   

  	
  (Notarized & Signed) Donald Alexander
  Matheson

  
	
   

  	
   

  	
  Notary Public

  
	
   

  	
   

  	
  Donald Alexander Matheson

  
	
   

  	
   

  	
   

  
	
  Approved as to form:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ T. Barry Kingham

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  T. Barry Kingham, Esq.

  	
   

  	
   

  
	
  Curtis, Mallet-Prevost, Colt and Mosle LLP

  	
   

  	
   

  
	
  101 Park Avenue

  	
   

  	
   

  
	
  New York, NY 10178-0061

  	
   

  	
   

  
	
  Tel: 212-696-6046

  	
   

  	
   

  
	
  Attorney
  for Defendant

  	
   

  	
   

  



 


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  SO ORDERED.

  
	
   

  	
   

  	
   

  
	
  Dated: 

  	
  March             ,
  2008

  	
   

  
	
   

  	
  New
  York, New York

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  UNITED
  STATES DISTRICT JUDGE

  



 


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