Bankrupt Insys offers to turn out its almost empty pockets for plaintiffs
Amidst a "fire sale" restructuring of bankrupt Insys, the former maker of notorious fentanyl spray Subsys, opioid plaintiffs are still hoping to pick some meat off the drugmaker's bones. And now, Insys is floating a deal that would come at pennies on the dollar.
As part of its liquidation, Insys would create a "victims restitution trust" to help settle the drugmaker's liabilities––legal and otherwise––that could have been as high as $16 billion, the company said in a Securities and Exchange Commission (SEC) filing. That number was reduced in arbitration, though the SEC filing doesn't disclose it.
Of the roughly $1 billion opioid liability that Insys faces, plaintiffs will likely see far, far less, given the company only holds $39 million in cash reserves, the drugmaker said. The U.S. Department of Justice (DOJ) would also have a claim of $243 million, along with undetermined claims for forfeiture and restitution, according to Reuters.
Closing its opioid accounts would put a cap on an ignominious end to Insys as some of the drugmaker's top brass face prison time for their role in boosting sales of highly addictive Subsys.
In September, Insys won a bankruptcy court's approval to hive off Subsys to Wyoming-based BTcP Pharma LLC, part of the MMB Healthcare network. The deal was expected to net Insys $20 million in royalties.
According to Reuters, six state attorneys general opposed the sale of Subsys for fear that the new buyer would market the spray in much the same way Insys had. The states eventually withdrew their opposition after BTcP owner Michael Burke pledged that the drug's marketing would restrict its prescription for cancer patients alone.
After a $225 million settlement with the DOJ in June, Insys agreed to restructure and divest its products within 90 days of filing Chapter 11 bankruptcy. In its first sale after that announcement, Hikma Pharmaceuticals snapped up unit-dose nasal and sublingual spray manufacturing equipment as well as pipeline products of epinephrine and naloxone nasal sprays, in a $12 million deal. Naloxone spray is used to counteract opioid overdoses.
According to bankruptcy records, Hikma made a $1 million down payment and agreed to pay the remaining $11.2 million on closing. The London-based company, which does some contract work, did not say where it intends to develop and produce its new assets.
As part of its settlement, Insys also agreed to five years of deferred prosecution on civil and criminal charges.
Insys’ bankruptcy filing turned the page on a troubled period––to say the least––for the drugmaker after it watched its founder and former CEO John Kapoor go down on federal racketeering charges in May.
Kapoor was found guilty by a Boston jury of driving a scheme to reward sales managers for wining and dining physicians to boost Subsys sales, a strategy federal prosecutors said exacerbated the nation’s opioid epidemic. Kapoor was the first C-level executive to be held directly responsible for his company’s role in the driving the crisis.
INSYS Therapeutics Initiates Court-Supervised Process to Facilitate Asset Sales and Address Legacy Liabilities
Company to Facilitate Transaction Process and Sale of Substantially All Assets Through Chapter 11 of the U.S. Bankruptcy Code
Operations to Continue as Normal Including Payment of Employee Wages and Benefits and Continuing Programs for Customers; Vendors and Suppliers to Receive Full Payment for Goods and Services Provided Post-Filing
PHOENIX, June 10, 2019 (GLOBE NEWSWIRE) -- INSYS Therapeutics, Inc. (NASDAQ: INSY) (“INSYS” or the “Company”), a specialty pharmaceutical development and distribution company, announced today that INSYS has filed voluntary cases (the “Chapter 11 Cases”) under Chapter 11 of the U.S. Bankruptcy Code in the U.S. Bankruptcy Court in the District of Delaware (the “Court”) to facilitate the sale of substantially all of the Company’s assets and address the Company’s legacy legal liabilities. INSYS intends to continue operating its business in the ordinary course while it pursues these transactions through the court-supervised sale process.
Throughout the court-supervised Chapter 11 process, INSYS intends to utilize existing cash on hand and operating cash flows to support its continued operations, including payment of all employee wages and benefits without interruption and continuing programs offered to customers. The Company intends to pay vendors and suppliers in full under normal terms for goods and services provided after the filing date of June 10, 2019. To these ends, the Company has filed a number of customary motions seeking Court authorization to continue to support its business operations. INSYS expects to receive Court approval for all of these requests.
“After conducting a thorough review of available strategic alternatives, we determined that a court-supervised sale process is the best course of action to maximize the value of our assets and address our legacy legal challenges in a fair and transparent manner,” said Andrew G. Long, Chief Executive Officer of INSYS Therapeutics, Inc. “INSYS has compelling assets and a highly talented team. We believe this process will provide us with a forum to negotiate an equitable resolution with our creditors and represents the best opportunity for our people and our business.”
INSYS intends to conduct the asset sales in accordance with Section 363 of the U.S. Bankruptcy Code. The Chapter 11 process is intended to facilitate an orderly auction and sale process and maximize value for INSYS’ creditors. INSYS aims to complete the asset sales within 90 days and address creditors’ claims as efficiently and expeditiously as possible.
Court documents and additional information can be found at a website administered by INSYS’ claims agent, Epiq, at https://dm.epiq11.com/Insys or by calling the Company’s Restructuring Hotline, toll-free in the U.S., at (855) 424-7683. For calls originating outside of the U.S., please dial +1 (503) 520-4461.
Weil, Gotshal & Manges LLP is serving as legal counsel to INSYS, Lazard Frères & Co. LLC is serving as investment banker, and FTI Consulting, Inc. is serving as financial advisor. https://marketwirenews.com/news-releases/insys-therapeutics-initiates-court-supervised-process-to-facilitate-asset-sales-and-address-legacy-liabilities-8328858.html
SEC Form 8-K https://www.otcmarkets.com/filing/html?id=13485277&guid=jwnyUHVJ3HALXyh
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
As previously disclosed, on June 10, 2019, Insys Therapeutics, Inc. (the “Company”) and its subsidiaries filed voluntary petitions (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.
On June 10, 2019, the Company received a letter form the listing qualifications department staff of the Nasdaq Stock Market (“Nasdaq”) notifying the Company that, as a result of the Chapter 11 Cases and in accordance with Nasdaq Listing Rules 5101, 5110(b) and IM-5101-1, Nasdaq has determined that the Company’s securities will be delisted from Nasdaq. Accordingly, unless the Company requests an appeal of this determination, trading of the Company’s securities will be suspended at the opening of business on June 19, 2019 and a Form 25-NSE will be filed with the Securities and Exchange Commission (the “SEC”), which will remove the Company’s securities from listing and registration on Nasdaq.
The Company does not intend to appeal the determination and, therefore, it is expected that the Company’s securities will be delisted. The Company expects the trading of its securities will be eligible to be quoted on the over-the-counter market on June 19, 2019, but no assurance can be made that trading in the Company’s securities on the over-the-counter market will commence or be maintained. The transition does not affect the Company’s operations and does not change reporting requirement under SEC rules.
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.