Item 7.01Regulation FD Disclosure.
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 11of the United States Code in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”).
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. Once the Disclosure Statement is approved by the Bankruptcy Court, the Plan will be solicited for approval by a vote of certain of the Company’s creditors, as described in the Disclosure Statement and the Plan.
As previously disclosed, the Company entered into purchase agreements to sell certain of its assets including (i) the Asset Purchase Agreement with Hikma Pharmaceuticals USA Inc., dated August 5, 2019, and the transactions contemplated thereby were consummated on August 29, 2019, (ii) the Asset Purchase Agreement with Chilion Group Holdings US, Inc., dated as of August 6, 2019 (the “Chilion Purchase Agreement”), and (iii) the Asset Purchase Agreement with BTcP Pharma, LLC, dated as of September 1, 2019 (the “BTcP Pharma Purchase Agreement”).
The Debtors intend to proceed expeditiously to commence the mailing of ballots and other solicitation materials (the “Solicitation Materials”) concerning the Plan upon the Bankruptcy Court’s approval of the Disclosure Statement. A hearing to consider approval of the Disclosure Statement is scheduled before the Bankruptcy Court on October 22, 2019 at 10:00 a.m. (Eastern Time). There can be no assurance that the Debtors’ stakeholders will accept the Plan or that the Bankruptcy Court will approve the Disclosure Statement or confirm the Plan.
The Plan will become effective if the Plan receives the requisite approval from holders of claims, the Bankruptcy Court enters an order confirming the Plan, and the conditions to the effectiveness of the Plan, as stated therein, are satisfied or waived in accordance with the Plan’s terms. Following the effectiveness of the Plan, the Plan provides for the Company’s remaining assets to be placed in two liquidating trusts. One liquidating trust will hold the Company’s assets related to product liability insurance, and the other will hold all other Company assets. The liquidating trusts will undertake the final liquidation of the Company’s assets and assumption of its liabilities. The Plan further provides for the shares of common stock of the Company to be canceled for no consideration, for one new share of common stock to be issued to a holding trust, and for the dissolution of the Company and its subsidiaries after the transfer of the Company’s assets to the liquidating trusts.
The Plan and Disclosure Statement, as well as Bankruptcy Court filings and other information related to the Chapter 11 Cases, are or will be available at a website administered by the Company’s noticing and claims agent, Epiq Bankruptcy Solutions LLC, at https://dm.epiq11.com/Insys. The Solicitation Materials will also be available at https://dm.epiq11.com/Insys. This Current Report on Form 8-K is not intended to be, nor should it be construed as, a solicitation for a vote on the Plan.
The foregoing description of the Plan and Disclosure Statement does not purport to be complete and is qualified in its entirety by reference to the full text of the Plan and Disclosure Statement, copies of which are filed as Exhibit 99.1 and 99.2 hereto and are incorporated herein by reference.
In accordance with General Instruction B.2 of Form 8-K, the information being furnished under this Item 7.01 pursuant to this Current Report on Form 8-K, including Exhibits 99.1 and 99.2, 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 (the “Securities Act”), or the Exchange Act, except as expressly set forth by specific reference in such filing.
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 obtain Bankruptcy Court approval of the BTcP Pharma Purchase Agreement or, if the BTcP Pharma Purchase Agreement is approved by the Bankruptcy Court, to consummate the transactions contemplated thereby, failure to obtain any required regulatory approvals for the BTcP Pharma Purchase Agreement, the failure to consummate the transactions contemplated by the Chilion Purchase Agreement, 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 anticipated mailing date of the Solicitation Materials, 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 Securities and Exchange Commission (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.