Item 1.01Entry 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"). Also as previously disclosed, 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.
As previously disclosed, on October 31, 2019, the Company and Benuvia
Therapeutics Inc. (then known as Chilion Group Holdings US, Inc.) ("Benuvia")
entered into a Transition Services Agreement (the "Transition Services
Agreement"), pursuant to which the Company agreed to make available to Benuvia
(or its affiliates or designee(s)) certain employees of the Company and/or its
affiliates (the "Employees") for the purpose of providing certain transition
services in consideration for Benuvia's payment to the Company or its
designee(s) of fees at the Company's cost plus a seven and one-half percent
(7.5%) mark-up. The term of the Transition Services Agreement commenced on
October 31, 2019 and was to continue through December 31, 2019, unless
terminated earlier or extended in accordance with the terms of the Transition
Services Agreement.
On December 30, 2019, the Company and Benuvia entered into an Amendment to
Transition Services Agreement (the "TSA Amendment"), which amends the Transition
Services Agreement to, among other things, extend the term of the Transition
Services Agreement to continue through January 31, 2020 and provide that Benuvia
will be solely responsible for all costs and expenses associated with the
Employees.
The foregoing descriptions of the Transition Services Agreement and the TSA
Amendment do not purport to be complete and are subject to, and qualified in
their entirety by reference to, respectively, the full text of the Transition
Services Agreement filed as Exhibit 2.1 to the Current Report on Form 8-K that
was filed with the U.S. Securities and Exchange Commission (the "SEC") on
November 4, 2019 and the TSA Amendment attached hereto as Exhibit 2.1, both of
which are incorporated herein by reference.
Item 7.01Regulation FD Disclosure
In connection with the Chapter 11 Cases, as previously disclosed, on November
29, 2019, the Debtors filed the Second Amended Joint Chapter 11 Plan of
Liquidation of Insys Therapeutics, Inc. and Its Affiliated Debtors (the "Plan")
and the related disclosure statement (the "Disclosure Statement") with the
Bankruptcy Court. The Disclosure Statement was approved by the Bankruptcy Court
on December 4, 2019, and the Plan remains subject to confirmation by the
Bankruptcy Court. There can be no assurance that the Debtors' stakeholders will
accept the Plan or that the Bankruptcy Court will confirm the Plan. Capitalized
terms used but not otherwise defined in this Current Report on Form 8-K have the
meanings ascribed to them in 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 terms of the Plan. A hearing to
consider confirmation of the Plan is scheduled to be held before the Bankruptcy
Court on January 16 and 17, 2020 at 9:00 a.m. (Eastern Time).
As contemplated by the Plan, the Company filed a supplement to the Plan (the
"Plan Supplement") with the Bankruptcy Court on December 30, 2019, which
includes certain documents related to the Plan and referenced therein,
including, among other things, (i) forms of organizational documents of the
Company to become effective on the Effective Date, (ii) form of Equity and Asset
Transfer Agreement, to be entered into by and among the Debtors and the Insys
Liquidation Trust, and (iii) form of Asset Transfer Agreement, to be entered
into by and among the Debtors and the Victims Restitution Trust.
The foregoing description of the Plan Supplement does not purport to be complete
and is subject to, and qualified in its entirety by reference to, the full text
of the Plan Supplement attached hereto as Exhibit 99.1, which is incorporated
herein by reference.
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.
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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 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, the Disclosure Statement and the Plan Supplement, 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 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.
Item 9.01Financial Statements and Exhibits
(d) Exhibits.
Exhibit
No. Description
2.1 Amendment to Transition Services Agreement, dated as of December 30,
2019, by and between Benuvia Therapeutics Inc. and Insys Therapeutics,
Inc.
99.1
Plan Supplement Pursuant to the Second Amended Joint Chapter 11 Plan
of Liquidation of Insys Therapeutics, Inc. and Its Affiliated Debtors,
dated December 30, 2019, filed with the United States Bankruptcy Court
for the District of Delaware
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