Current Report Filing (8-k)
04 Noviembre 2019 - 5:08AM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
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Current Report
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 31, 2019
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Insys Therapeutics, Inc.
(Exact Name of Registrant as Specified in its Charter)
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Delaware
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001- 35902
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51-0327886
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(State or other jurisdiction of
incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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410 S. Benson Lane
Chandler, Arizona 85224
(Address of principal executive offices, including zip code)
(480) 500-3127
(Registrant’s telephone number, including area code)
Not applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered or to be registered pursuant to Section 12(b) of the Act.*
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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Common Stock, $0.01 Par Value Per Share
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INSYQ
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N/A
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* On June 24, 2019, a Form 25 relating to the delisting and deregistration under Section 12(b) of the Act of the registrant’s common stock was filed by The Nasdaq Stock Market LLC. The registrant’s common stock trades on the OTC Pink Sheets Market.
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement
As previously disclosed, on June 10, 2019, Insys Therapeutics, Inc. (the “Company”) and its subsidiaries (collectively, the “Debtors”) filed voluntary petitions (the “Bankruptcy Petitions,” and the cases commenced thereby, the “Chapter 11 Cases”) for relief under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”). On July 2, 2019, the Bankruptcy Court entered an order that, among other things, established bidding procedures to sell substantially all of the Debtors’ assets in accordance with Section 363 of the Bankruptcy Code (“Section 363”). Also as previously disclosed, on September 17, 2019, the Debtors filed the Joint Chapter 11 Plan Liquidation of Insys Therapeutics, Inc. and Its Affiliated Debtors (the “Plan”) and the related disclosure statement (the “Disclosure Statement”) with the Bankruptcy Court. The Plan and Disclosure Statement are subject to approval by the Bankruptcy Court.
As previously disclosed, on August 6, 2019, the Company entered into an Asset Purchase Agreement with Chilion Group Holdings US, Inc., a Delaware corporation (“Chilion”), which agreement was subsequently amended by that certain Amendment No. 1 to Asset Purchase Agreement (the “Purchase Agreement Amendment”), dated October 23, 2019 (as amended, the “Purchase Agreement”), pursuant to which the Company agreed to sell, transfer and assign to Chilion, pursuant to Section 363, the Company’s CBD formulations across current pre-clinical, clinical, third-party grants and investigator initiated study activities (including any future activities or indications), THC programs of SYNDROS® oral dronabinol solution and Buprenorphine products, and related equipment and other assets (collectively, the “Transferred Assets”), in consideration for a purchase price of $12,305,000 in cash that was to be payable at the closing of the transaction.
Transition Services Agreement
On October 31, 2019, in accordance with the Purchase Agreement Amendment, the Company and Chilion entered into a Transition Services Agreement (the “Transition Services Agreement”), pursuant to which the Company agreed to make available to Chilion (or its affiliates or designee(s)) certain employees of the Company and/or its affiliates (the “Employees”) for the purpose of providing the services that were performed by such Employees during the period prior to the closing of the transaction in the ordinary course of (i) the Company’s business and (ii) each such Employee’s scope of employment, and related to the Transferred Assets, to the extent the provision of such services is reasonably possible after the closing of the transaction and to the extent such individuals remain employed by the Company and/or its affiliates, or as otherwise mutually agreed by the Company and Chilion (the “Services”).
The Transition Services Agreement provides that, as consideration for the provision of the Services, Chilion will pay the Company or its designee(s) fees at the Company’s cost plus a seven and one-half percent (7.5%) mark-up. The term of the Transition Services Agreement commences on the date of the closing of the transaction and continues through December 31, 2019, unless terminated earlier or extended in accordance with the terms of the Transition Services Agreement.
The foregoing descriptions of the Purchase Agreement and the Transition Services Agreement do not purport to be complete and are qualified in their entirety by reference to, respectively, the full text of the Purchase Agreement in its original form filed as Exhibit 2.2 to the Current Report on Form 8-K that was filed with the U.S. Securities and Exchange Commission (the “SEC”) on August 8, 2019, the Purchase Agreement Amendment filed as Exhibit 2.1 to the Current Report on Form 8-K that was filed with the SEC on October 25, 2019, and the Transition Services Agreement attached hereto as Exhibit 2.1, all of which are incorporated herein by reference.
Item 7.01Regulation FD Disclosure.
On October 30, 2019, the Company filed its monthly operating report for the period beginning September 1, 2019 and ending September 30, 2019 (the “Monthly Operating Report”) with the Bankruptcy Court. The Monthly Operating Report is attached hereto as Exhibit 99.1 and is incorporated herein by reference. The information set forth in Item 7.01 of this Current Report on Form 8-K will not be deemed an admission as to the materiality of any information required to be disclosed solely by Regulation FD.
In accordance with General Instruction B.2 of Form 8-K, the information being furnished under this Item 7.01 of this Current Report on Form 8-K, including Exhibit 99.1, shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference into any registration statement or other document filed by the Company under the Securities Act of 1933, as amended, or the Exchange Act, except as expressly set forth by specific reference in such filing.
Item 8.01Other Events
On October 31, 2019, the Company consummated the transactions contemplated by the Purchase Agreement.
Cautionary Statements Regarding Trading in the Company’s Securities
The Company cautions that trading in the Company’s securities during the pendency of the Chapter 11 Cases is highly speculative and poses substantial risks. Trading prices for the Company’s securities may bear little or no relationship to the actual recovery, if any, by holders of the Company’s securities in the Chapter 11 Cases. It is unlikely that holders of the Company’s common stock will receive any recovery on account of such securities.
Cautionary Statements Regarding Forward-Looking Information
This Form 8-K includes “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. In some cases, you can identify forward-looking statements by terminology such as “may,” “will,” “should,” “could,” “expects,” “plans,” “anticipates,” “believes,” “estimates,” “predicts,” “potential,” “continue,” “intend” or the negative of these terms or other comparable terminology, although not all forward-looking statements contain these identifying words. All statements, other than statements of historical facts, included in this filing that address activities, events or developments that the Company expects, believes, targets or anticipates will or may occur in the future are forward-looking statements. The Company’s actual results may differ materially from those anticipated in these forward-looking statements as a result of certain risks and other factors, which could include the following: the failure to consummate the transactions contemplated by the Asset Purchase Agreement, dated as of September 25, 2019, by and between the Company and Pharmbio Korea, Inc., risks and uncertainties relating to the Chapter 11 Cases, including but not limited to, the terms of and potential transactions contemplated by the Plan and Disclosure Statement, the Company’s ability to obtain Bankruptcy Court approval with respect to motions in the Chapter 11 Cases, the effects of the Chapter 11 Cases on the Company and on the interests of various constituents, Bankruptcy Court rulings in the Chapter 11 Cases and the outcome of the Chapter 11 Cases in general, the length of time the Company will operate under the Chapter 11 Cases, risks associated with third-party motions in the Chapter 11 Cases, the potential adverse effects of the Chapter 11 Cases on the Company’s liquidity or results of operations and increased legal and other professional costs necessary to execute the Company’s reorganization, the effects of disruption from the Chapter 11 Cases making it more difficult to maintain business and operational relationships, to retain key executives and to maintain various licenses and approvals necessary for the Company to conduct its business, uncertainty associated with the Company’s ability to complete the sale of its assets as contemplated by the Bankruptcy Petitions, trading price and volatility of the Company’s common stock as well as other risk factors set forth in the Company’s Annual Report on Form 10-K and Quarterly Reports on Form 10-Q filed with the SEC in addition to those factors, risks and uncertainties described in more detail in the Company’s risk factors set forth in Exhibit 99.1 to the Current Report on Form 8-K filed by the Company with the SEC on August 8, 2019. The Company therefore cautions readers against relying on these forward-looking statements. All forward-looking statements attributable to the Company or persons acting on the Company’s behalf are expressly qualified in their entirety by the foregoing cautionary statements. All such statements speak only as of the date made, and, except as required by law, the Company undertakes no obligation to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise.
Additional Information Regarding the Chapter 11 Cases
Information about the Chapter 11 process, as well as court filings and other documents related to the liquidation proceedings, is available through the Company’s noticing and claims agent, Epiq Bankruptcy Solutions LLC, at https://dm.epiq11.com/Insys. Information contained on, or that can be accessed through, such website or the Bankruptcy Court’s website is not part of this Current Report.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
See Exhibit Index.
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EXHIBIT INDEX
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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Date: November 1, 2019
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Insys Therapeutics, Inc.
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By:
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/s/ Andrece Housley
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Name: Andrece Housley
Title: Chief Financial Officer
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INSYS THERAPEUTICS, INC. (NASDAQ:INSY)
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