Form 8-K Insys Therapeutics, Inc. For: Feb 05

 

 

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): February 5, 2020

 

Insys Therapeutics, Inc.

(Exact name of Registrant as Specified in Its Charter)

 

 

Registrant’s Telephone Number, Including Area Code: (480) 500-3127

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 (see General Instructions A.2. below):

Securities registered or to be registered pursuant to Section 12(b) of the Act.*

 

* 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. ☐

 

 

 

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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 11 of the United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”).  

On February 5, 2020, the Company filed its monthly operating for the period beginning November 1, 2019 and ending November 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. This Current Report on Form 8-K (including the exhibit hereto) 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 pursuant to 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.

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.  As previously disclosed, on the effective date of the Second Amended Joint Chapter 11 Plan of Liquidation of Insys Therapeutics, Inc. and Its Affiliated Debtors that was confirmed by the Bankruptcy Court on January 16, 2020 (as further amended, supplemented or modified in accordance with its terms, the “Plan”), all existing shares of the Company’s common stock will be cancelled.

Cautionary Statements Regarding Forward-Looking Information

This Current Report on 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: 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 the related 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, 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; uncertainty associated with the Company’s ability to complete the sale of its remaining 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

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 Corporate Restructuring, 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.

 

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(d) Exhibits.

 

 

 

 

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SIGNATURES

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.

 

 

 

 

Exhibit 99.1

united states bankruptcy court
district of DELAWARE

 

 

 

MONTHLY OPERATING REPORT

Reporting Period: November 1, 2019 – November 30, 2019

 

 

 

I declare under penalty of perjury (28 U.S.C. Section 1746) that this report and the attached documents are true and correct to the best of my knowledge and belief.

 

 

Chief Financial Officer of Insys Therapeutics, Inc.; et al.

Page 1 of 12

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Notes to the Monthly Operating Report

Reporting Period: November 1, 2019 – November 30, 2019

General:

The report includes activity from the following Debtors and related Case Numbers:

 

 

This Monthly Operating Report is unaudited and has been prepared solely for the purpose of complying with the Debtors' obligations to provide monthly operating reports currently during these Chapter 11 Cases. This MOR is not prepared in accordance with accounting principles generally accepted in the United States of America ("U.S. GAAP") and does not include all the information and footnotes required by U.S. GAAP. The Debtors have prepared this Monthly Operating Report using the best information presently available to them, which has been collected, maintained, and prepared in accordance with their historical accounting practices. This Monthly Operating Report is, thus, true and accurate to the best of the Debtors’ knowledge, information and belief based on current available data.

 

General Methodology: The Debtors prepared this Monthly Operating Report relying primarily upon the information set forth in their books and records. Consequently, certain transactions that are not identified in the normal course of business in the Debtors’ books and records may not be included in this Monthly Operating Report. Additionally, the information furnished in this report includes primarily normal recurring adjustments, but does not include all the adjustments that would typically be made for the quarterly and annual consolidated financial statements to be in accordance with U.S. GAAP. Furthermore, the monthly financial information contained herein has not been subjected to the same level of accounting review and testing that the Debtors apply in the preparation of their quarterly and annual consolidated financial information in accordance with U.S. GAAP. Accordingly, upon the application of such procedures, the Debtors believe that the financial information may be subject to change, and these changes could be material. Nevertheless, in preparing this Monthly Operating Report, the Debtors made best efforts to supplement the information set forth in their books and records with additional information concerning transactions that may not have been identified therein.

 

Liabilities Subject to Compromise: The payment of prepetition indebtedness is subject to compromise or other treatment under a chapter 11 plan of reorganization.  The determination of the amount of such liabilities and how the liabilities will be settled and treated cannot be made until a Chapter 11 Plan of Reorganization is approved by the Bankruptcy Court. Liabilities subject to compromise have been reported at the amounts recorded on the Debtor’s books and records. The amounts classified as liabilities subject to compromise in the financial statements and supplemental schedules included herein are preliminary and may be subject to future adjustments depending on claims filed on and before the bar date, Bankruptcy Court actions, developments with respect to disputed claims, rejection of executory contracts, reconciliation of claims, and other events.

 

Reservation of Rights: Given the complexity of the Debtors’ business, inadvertent errors, omissions or over inclusion of contracts may have occurred. Accordingly, the Debtors hereby reserve all of their rights to dispute the validity, status, enforceability, or executory nature of any claim amount, representation or other statement in this Monthly Operating Report and reserve the right to amend or supplement this Monthly Operating Report, if necessary.

 

General Notes

 

On June 10, 2019 (the “Petition Date”), Insys Therapeutics, Inc. (“Insys Therapeutics”) and its affiliated debtors each commenced a voluntary case 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”). The Debtors are authorized to operate their business and manage their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code.  The Debtors’ chapter 11 cases are being jointly administered for procedural purposes only under case number 19-11292 (KG) pursuant to Rule 1015(b) of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”).

 

Additional information about the Chapter 11 Cases, court filings and claims information is available on the internet at https://dm.epiq11.com/case/Insys/dockets

Page 2 of 12

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MOR-1

Consolidated Schedule of Cash Receipts and Disbursements

Reporting Period: November 1, 2019 – November 30, 2019

($’s in USD)

 

 

Footnotes:

Page 3 of 12

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MOR-1 (Continued)

Consolidated Schedule of Cash Receipts and Disbursements

Reporting Period: November 1, 2019 – November 30, 2019

($’s in USD)

 

 

 

MOR-1a

Bank Account Balances, Debtor Statement with Respect to Bank Account Reconciliations

Reporting Period: November 1, 2019 – November 30, 2019

($’s in USD)

 

 

Footnotes:

 

Page 4 of 12

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MOR-1a

Debtor Attestation to with Respect to Bank Account Reconciliations, Bank Statements and Open/Closed Bank Accounts

Reporting Period: November 1, 2019 – November 30, 2019

 

 

Bank Account Reconciliations & Cash Disbursement Journal

The Debtors affirm that bank account reconciliations are prepared for all open and active bank accounts on a monthly basis.  The Debtors affirm that within their financial accounting systems, check registers and/or disbursement journals are maintained for each disbursement account.

 

Bank Statement

The Debtors affirm that bank statements for all open and active bank accounts are retained by the Debtors.

 

Open/Closed Bank Accounts

The Debtors did not open or close any bank accounts during November.

 

 

 

 

 

 

 

 

Chief Financial Officer of Insys Therapeutics, Inc.; et al.

 

Page 5 of 12

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MOR-1b

Schedule of Professional Fees and Expenses Paid

Reporting Period: November 1, 2019 – November 30, 2019

($’s in USD)

 

 

Page 6 of 12

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MOR-2

Statement of Operations by Legal Entity

Reporting Period: November 1, 2019 – November 30, 2019

($’s in USD)

 

 

Footnotes:

 

Page 7 of 12

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MOR-3

Balance Sheet by Legal Entity

Reporting Period: November 1, 2019 – November 30, 2019

($’s in USD)

 

 

Page 8 of 12

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Debtor Attestation with Respect to Postpetition Taxes

Reporting Period: November 1, 2019 – November 30, 2019

 

Andrece Housley hereby declares under penalty of perjury:

 

I am Chief Financial Officer of Insys Therapeutics, Inc., et al., the above captioned debtors and debtors in possession (collectively the "Debtors").  I am familiar with the Debtors day-to-day operations, business affairs and books and records.  I am authorized to submit this statement on behalf of the Debtors.

 

All statements in this statement are based on my personal knowledge, my review of the relevant documents, my discussions with other employees of the Debtors, or my opinion based upon my experience and knowledge of the Debtors' operations and financial condition.  If I were called upon to testify, I could and would testify to each of the facts set forth herein based on such personal knowledge, review of documents, discussions with other employees of the Debtors or opinion.

 

To the best of my knowledge, information and belief, and except as otherwise set forth in the MOR, all of the Debtors have filed all the necessary federal, state and local tax returns, or extensions related there to, and have timely made (or are in the process of remediating any immaterial late filings or prepayments) all related required postpetition tax payments, which are not subject to dispute or reconciliation, and are current.

 

 

 

 

 

 

 

 

Chief Financial Officer of Insys Therapeutics, Inc.; et al.

 

 

Page 9 of 12

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MOR-4

Summary of Unpaid Postpetition Debts

Reporting Period: November 1, 2019 – November 30, 2019

($’s in USD)

 

 

 

Footnotes:

 

Page 10 of 12

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MOR-5

Accounts Receivable Reconciliation and Aging

Reporting Period: November 1, 2019 – November 30, 2019

($’s in USD)

 

 

 

 

Footnotes:

 

Page 11 of 12

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MOR-6

Debtor Questionnaire

Reporting Period: November 1, 2019 – November 30, 2019

 

 

Page 12 of 12