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8-K - FORM 8-K - K-V Pharmaceutical Cokvpharm_8k-031513.htm
EX-99.2 - EXHIBIT 99.2 - K-V Pharmaceutical Coex99-2.htm
EX-99.3 - EXHIBIT 99.3 - K-V Pharmaceutical Coex99-3.htm
EXHIBIT 99.1
 
 
United States Bankruptcy Court
   
Southern District of New York
   
 
X
 
In re:
:
Chapter 11
 
:
 
K-V Discovery Solutions, Inc. et al.,
:
Case No.  12-13346 (ALG)
 
:
 
Debtors.
X
Jointly Administered
     
     


Monthly Operating Report for the Period
February 1, 2013 to February 28, 2013

Debtors’ Address:
2280 Schuetz Road
 
St. Louis, Missouri 63146
 
Telephone:  (314) 645-6600
   
Debtors’ Attorneys:
Willkie Farr & Gallagher LLP
 
787 Seventh Avenue
 
New York, New York 10019
 
Telephone:  (212) 728-8000

This Monthly Operating Report ("MOR") has been prepared solely for the purposes of complying with the monthly reporting requirements applicable in these Chapter 11 cases and is in a format that the Debtors believe is acceptable to the United States Trustee.  The financial information contained herein is limited in scope and covers a limited time period. Moreover, such information is preliminary and unaudited, and is not prepared in accordance with accounting principles generally accepted in the United States ("GAAP").
 
I declare under penalty of perjury that this report and the attached documents are true and correct to the best of my knowledge and belief.

/s/ Thomas S. McHugh
 
March 15, 2013
Thomas S. McHugh
 
Chief Financial Officer
 
K-V Pharmaceutical Company
 

 
 

 
 
In re
K-V DISCOVERY SOLUTIONS, INC., et al.,
 
Case No.
12-13346 (ALG)
         
 
Debtors.
 
Reporting Period:
2/1/13 -2/28/13
         
     
Federal Tax I.D.#
13-1587982

 
CORPORATE MONTHLY OPERATING REPORT
 
File with the Court and submit a copy to the United States Trustee within 20 days after the end of the month and submit a copy of the report to any official committee appointed in the case.
 
(Reports for Rochester and Buffalo Divisions of Western District of New York are due 15 days after the end of the month, as are the reports for Southern District of New York.)
 
 
REQUIRED DOCUMENTS
Form No.
Document
Attached
Explanation
Attached
Schedule of Cash Receipts and Disbursements
MOR-1
x
 
Bank Reconciliation (or copies of debtor's bank reconciliations)
MOR-1
x
 
     Copies of bank statements
   
x
     Cash disbursements journals
   
x
Statement of Operations
MOR-2
x
 
Balance Sheet
MOR-3
x
 
Status of Post-petition Taxes
MOR-4
x
x
     Copies of IRS Form 6123 or payment receipt (See Notes to MOR 4)
   
x
     Copies of tax returns filed during reporting period (See Notes to MOR 4)
   
x
Summary of Unpaid Post-petition Debts (See Notes to MOR 4)
MOR-4
 
x
     Listing of Aged Accounts Payable (See MOR 7)
 
 x
 
Accounts Receivable Reconciliation and Aging
MOR-5
 x
 
Taxes Reconciliation and Aging (See MOR 7)
MOR-5
 
x
Payments to Insiders and Professionals
MOR-6
x
 
Post Petition Status of Secured Notes, Leases Payable
MOR-6
x
 
Debtor Questionnaire
MOR-7
x
 
Makena® Performance Metrics
 
x
 

 
- 2 -

 
 
NOTES TO MONTHLY OPERATING REPORT
 
This MOR includes activity from the following Debtors:

Debtor
Case Number
 
K-V Discovery Solutions, Inc.
12-13346
K-V Pharmaceutical Company
12-13347
Ther-Rx Corporation
12-13348
K-V Generic Pharmaceuticals, Inc.
12-13349
Zeratech Technologies USA, Inc.
12-13350
Drug Tech Corporation
12-13351
K-V Solutions USA, Inc.
12-13352
FP1096, Inc.
12-13353
 
General Notes:
The financial statements and supplemental information contained herein are preliminary, unaudited, and may not comply in all material respects with GAAP.  In addition, the financial statements and supplemental information contained herein represent consolidated information.

The unaudited consolidated financial statements have been derived from the books and records of the Debtors and exclude activity for their non-debtor subsidiaries. This information has not been subject to certain procedures that would typically be applied to financial information in accordance with GAAP, and upon application of such procedures the financial information could be subject to changes, and these changes could be material.

The financial information contained herein is presented on a preliminary and unaudited basis and remains subject to future adjustment.  The Debtors are reviewing their books and records and other information on an ongoing basis to determine whether the financial statements should be supplemented or otherwise amended.  The Debtors reserve the right to file, at any time, such supplements or amendments to the financial statements that form a part of this MOR.  The financial statements should not be considered an admission regarding any of the Debtors’ income, expenditures or general financial condition, but rather, a current compilation of the Debtors’ books and records.  The Debtors do not make, and specifically disclaim, any representation or warranty as to the completeness or accuracy of the information set forth herein.

The unaudited consolidated financial statements contained herein have been prepared on a going concern basis and do not reflect or provide all of the possible consequences of the ongoing chapter 11 cases.  Specifically, the unaudited consolidated financial statements do not present the amount which will ultimately be paid to settle liabilities and contingencies which may be required in these cases.  As a result of the chapter 11 proceedings, the Debtors may take, or may be required to take, actions which may cause assets to be realized, or liabilities to be liquidated, for amounts other than those reflected in the unaudited consolidated financial statements.

Certain footnote disclosures normally included in unaudited consolidated financial statements prepared in accordance with GAAP have been condensed or omitted.  Preparation of the financial statements requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amount of expenses during the reporting period.  The results of operations contained herein are not necessarily indicative of results which may be expected for any other period or for the full year and may not necessarily reflect the consolidated results of operations and financial position of the Debtors in the future.
 
 
- 3 -

 
 
MOR-1:
SCHEDULE OF CASH RECEIPTS AND DISBURSEMENTS 1
(Dollars in thousands)
 
Debtor
 
Case Number
   
Cash Receipts
 
Ther-Rx Corporation
    12-13348     $ 8,390  
K-V Pharmaceutical Company
    12-13347       715  
DrugTech Corporation
    12-13351       0  
K-V Discovery Solutions, Inc
    12-13346       0  
K-V Generic Pharmaceuticals, Inc
    12-13349       0  
Zeratech Technologies USA, Inc
    12-13350       0  
K-V Solutions USA Inc
    12-13352       0  
FP1096, Inc
    12-13353       0  
Total Cash Receipts
    $ 9,105  
                 
Debtor
 
Case Number
   
Cash 2 Disbursements
 
K-V Pharmaceutical Company
    12-13347     $ (6,800 )
Ther-Rx Corporation
    12-13348       (1,593 )
DrugTech Corporation
    12-13351       (2 )
K-V Discovery Solutions, Inc
    12-13346       0  
K-V Generic Pharmaceuticals, Inc
    12-13349       0  
Zeratech Technologies USA, Inc
    12-13350       0  
K-V Solutions USA Inc
    12-13352       0  
FP1096, Inc
    12-13353       0  
Total Cash Disbursements
    $ (8,395 )
 
Notes
1 –
Cash is received and disbursed by the Debtors as described in the Debtors’ motion to approve continued use of their cash management system (which motion was granted on a final basis pursuant to an order entered by the Bankruptcy Court on January 15, 2013) and is consistent with the Debtors’ historical cash management practices.  All amounts listed are the balances reported by the bank as of the end of the reporting period.  Copies of bank statements will be provided upon reasonable request in writing to counsel for the Debtors.
2 –
Cash disbursements during the month of February 2013 include $1,967 of outstanding checks.

 
- 4 -

 
 
MOR-1 (CON’T):
BANK RECONCILIATIONS 1, 2, 3, 4
(Dollars in thousands)
Debtor
 
Case Number
 
Bank and Account Description
 
Bank Account No. Ending In
   
Bank Balance
 
K-V Pharmaceutical Company
    12-13347  
Fifth Third Money Market / Investment Account
    1225     $ 30,493  
K-V Pharmaceutical Company
    12-13347  
Fifth Third Bank / Operating Account
    9158       4,454  
K-V Pharmaceutical Company
    12-13347  
Fifth Third Bank / PDI Escrow Account
    1876 5     1,819  
K-V Pharmaceutical Company
    12-13347  
Fifth Third Bank / Deposit Account
    0941       1,327  
K-V Pharmaceutical Company
    12-13347  
Fifth Third Bank / Nesher Escrow Account
    0383       501  
K-V Pharmaceutical Company
    12-13347  
Commerce Bank / Certificate of Deposit
    2433       150  
K-V Pharmaceutical Company
    12-13347  
AMEX Centurion Bank / Certificate of Deposit
    8420       60  
K-V Pharmaceutical Company
    12-13347  
Fifth Third Bank / Utility Deposit
    0479 6     2  
Drug Tech Corporation
    12-13351  
Wells Fargo Bank/ DrugTech Operating Acct
    6823       2  
Drug Tech Corporation
    12-13351  
US Bank / DrugTech Custody Account
    3256       2  
                      $ 38,810  
 
Notes
1–
The Debtors have not included copies of their bank statements or cash disbursement journals due to the voluminous nature of these reports.  Copies of the Debtors’ bank statements and cash disbursement journals will be provided upon reasonable request in writing to counsel for the Debtors.
2–
The Debtors reconcile their bank accounts on a monthly basis.
3–
The Debtors have excluded accounts with no balance as of the end of the reporting period.
4–
The Debtors’ bank balances exclude $2,027 of outstanding checks.
5–
This account was inadvertently identified in the Debtors’ motion to approve continued use of their cash management system as ending in 4187.
6–
The Debtors opened this bank account post-petition on August 28, 2012 in accordance with the order of the Bankruptcy Court, entered on August 23, 2012, that, among other things, established procedures for providing deposits to the Debtors’ utility service providers that request adequate assurance of payment and deemed such utility service providers to have adequate assurance of payment.
 
 
- 5 -

 
 
MOR-2:
 
CONSOLIDATED STATEMENT OF OPERATIONS
(Unaudited; Dollars in thousands)
 
   
For the
Month Ended
February 28, 20131
 
Net revenues
  $ 6,379  
Cost of sales
    (16 )
Gross profit
    6,395  
         
Research and development
    542  
Selling and administrative
    5,281  
Operating expenses
    5,823  
Operating income
    572  
         
Interest, net and other
    1,413  
Reorganization items, net
    3,041  
Total other (income), net
    4,454  
         
Loss from continuing operations before income taxes
    (3,882 )
Income tax provision
    1,030  
Net loss from continuing operations
  $ (4,912 )
 
Notes
 
1 – The Debtors prepare their income statement on an accrual basis.  Accordingly, the Debtors’ Statement of Operations, as set forth in this MOR, reflects the results of the Debtors’ operations for the month of February 2013.
 
 
- 6 -

 
 
MOR-3:
 
CONSOLIDATED BALANCE SHEET
(Unaudited; Dollars in thousands)
 
   
As of
February 28,
 
   
2013
 
ASSETS
     
Current Assets:
     
Cash and cash equivalents
  $ 34,254  
Restricted cash
    2,380  
Undrawn DIP Facility proceeds
    21,950  
Receivables, net
    16,155  
Inventories, net
    5,417  
Other current assets
    6,383  
Total Current Assets
    86,539  
Property and equipment, less accumulated depreciation
    1,698  
Intangible assets, net
    112,945  
Other assets
    15,310  
Total Assets
  $ 216,492  
         
LIABILITIES
       
LIABILITIES NOT SUBJECT TO COMPROMISE:
       
Current Liabilities:
       
Accounts payable
  $ 4,517  
Accrued expenses
    26,620  
Other current liabilities
    3,131  
Debtor-in-Possession Financing 1
    85,000  
Total Liabilities not subject to compromise
    119,268  
Total liabilities subject to compromise
    579,447  
Total Liabilities
    698,715  
         
SHAREHOLDERS' DEFICIT
       
Preferred Stock
     
Class A Common Stock
    657  
Class B Common Stock
    98  
Additional paid-in capital
    206,171  
Accumulated deficit
    (631,740 )
Less: Treasury stock
    (57,409 )
Total Shareholders' Deficit
    (482,223 )
Total Liabilities and Shareholders' Deficit
  $ 216,492  
 
Notes
1 –
Debtor-in-Possession Financing in the amount of $85,000 is reflective of the Debtors’ debtor-in-possession financing facility (the “DIP Facility”), which was approved pursuant to an order of the Bankruptcy Court (the “DIP Order”) entered on December 27, 2012 [Docket No. 497]. For administrative purposes, the net proceeds of the DIP Facility are being held in an account in the name of Silver Point Finance, LLC, the agent for the DIP Facility.

 
- 7 -

 
 
MOR-4:
 
STATUS OF POST-PETITION TAXES 1, 2
(Dollars in thousands)
 
Federal
 
Beginning Tax
   
Amount Withheld and/or Accrued
   
Amount Paid
   
Ending Tax
 
Withholding
  $ 0     $ 312     $ (312 )   $ 0  
FICA-Employee
    0       135       (135 )     0  
FICA-Employer
    0       135       (135 )     0  
Total Federal Taxes
  $ 0     $ 582     $ (582 )   $ 0  
                                 
State and Local
                               
Withholding
  $ 0     $ 108     $ (108 )   $ 0  
Sales Tax
    10       1       0       11  
Unemployment Tax
    0       1       (1 )     0  
Real Property
    11       1       0       12  
Personal Property
    21       0       0       21  
Franchise Tax
    25       20       (37 )     8  
Total State and Local
  $ 67     $ 131     $ (146 )   $ 52  
Total Taxes
  $ 67     $ 713     $ (728 )   $ 52  
 
Notes
1 -
The Debtors have not annexed copies of tax returns filed with various taxing authorities during the current reporting period to this MOR, nor have they included the Debtors’ IRS Form 6123 with this MOR.  Copies of such tax returns and IRS Form 6123 will be provided upon reasonable request in writing to counsel for the Debtors.
2 -
The Debtors believe they are paying all undisputed taxes and preparing and filing all tax returns when due or obtaining extensions where necessary.

 
- 8 -

 
 
MOR-4 (CON’T):
 
SUMMARY OF UNPAID POST-PETITION DEBTS 1
(Dollars in thousands)
 
Description
 
Amount
 
0 - 30 days old
  $ 3,342  
31+ days old
    1,175  
Total Vendor Accounts Payable Post-petition
  $ 4,517  
 
Notes
1 -
The Debtors believe they are paying all undisputed post-petition obligations according to terms.  

 
- 9 -

 
 
MOR-5:
 
ACCOUNTS RECEIVABLE RECONCILIATION AND AGING
(Dollars in thousands)
 
Description
 
Amount
 
0 - 30 days old
  $ 16,412  
31 - 60 days old
    185  
61 - 90 days old
    1  
91+ days old
    999  
Total Customer Accounts Receivable
  $ 17,597  
Customer Allowances
    (1,442 )
Total Accounts Receivable
  $ 16,155  
 
 
- 10 -

 
 
MOR-6:
 
PAYMENTS TO INSIDERS AND PROFESSIONALS
(Dollars in thousands)
 
INSIDERS
 
Name
Type of Payment 1
 
Current Month Amount Paid
   
Total Paid Since
August 4, 2012 2
 
Christmas, Patrick
Salary/Expenses
  $ 19     $ 144  
Divis, Gregory
Salary/Expenses
    29       210  
McHugh, Thomas
Salary/Expenses
    17       145  
                   
Total
    $ 65     $ 499  
 
Notes
1 –
Additional detail concerning payments to the Debtors’ insiders will be provided upon reasonable request in writing to counsel for the Debtors.
2 –
This table lists only those insiders who received a payment during the current reporting period.  Additional insiders have received payments during the Debtors’ chapter 11 cases.  For information regarding the total amount paid to such insiders during the Debtors’ chapter 11 cases, please refer to previously filed MORs.

PROFESSIONALS 1
 
Name
Date of Court Order Authorizing Payment
 
Amount Requested 2
   
Current Month Amount Paid
   
Total Paid To Date 3
   
Total Invoiced & Unpaid
 
Alston & Bird LLP
September 14, 2012
  $ 0     $ 71     $ 296     $ 0  
Arnall Golden Gregory LLP October 10, 2012     11       0       28       17  
Duff & Phelps, LLC
October 10, 2012
    0       0       368       90  
Curtis, Mallet-Prevost, Colt & Mosle LLP
January 15, 2013
    0       0       0       0  
Epiq Bankruptcy Solutions, LLC
September 27, 2012
    7       27       200       13  
Ernst & Young, LLP
September 28, 2012
    22       0       17       26  
Fortgang Consulting
September 14, 2012
    0       0       0       0  
Houlihan & Lokey Capital, Inc.
September 14, 2012
    152       152       1,238       0  
Jefferies & Company, Inc.
October 10, 2012
    0       149       1,275       476  
Lowenstein Sandler PC
December 27, 2012
    0       0       400 4     0  
Stroock Stroock & Lavan LLP
October 10, 2012
    0       0       1,010       1,274  
Weil, Gotshal & Manges LLP
September 27, 2012
    1,586       1,586       2,674       0  
Willkie Farr & Gallagher LLP
September 27, 2012
    483       1,061       3,510       1,334  
Total
    $ 2,261     $ 3,046     $ 11,016     $ 3,230  
 
Notes
1 – 
Represents professional services exclusive of those rendered by professionals retained by the Debtors pursuant to the September 27, 2012 order of the Bankruptcy Court authorizing the Debtors to employ and retain professionals utilized in the ordinary course of business professional service providers.
2 –
Represents amounts requested during the current reporting period.
3 –
Represents payments made from the date of the Bankruptcy Court’s order authorizing each firm’s retention.
4 –
The $400 to Lowenstein Sandler PC was paid pursuant to the DIP Order.

 
- 11 -

 
 
MOR-6 (CON’T):

POST-PETITION STATUS OF SECURED NOTES, LEASES PAYABLE
AND ADEQUATE PROTECTION PAYMENTS 1
(Dollars in thousands)
 
Name of Creditor
 
Scheduled Monthly
Payment Due
   
Amount Paid
During Month
 
Building lease payable2
  $ 46     $ 46  
Building lease payable 3
    18       18  
                 
Total Payments
    $ 64  
                 
 
Notes
1 -
The Debtors’ schedule of lease payments, as set forth in this MOR, only reflects payments made pursuant to the Debtors’ real property leases.  Immaterial leases of personal property are not included in this MOR-6.
2 -
The Debtors’ lease for their former corporate headquarters, located at 2280 Schuetz Road, St. Louis, Missouri, was rejected by operation of law as of March 4, 2013 [Docket No. 410].  The Debtors will vacate the property by March 31, 2013.
3 –
On February 13, 2013, the Bankruptcy Court entered an order authorizing the Debtors to enter into a new corporate headquarters lease agreement for premises located at 16640 Chesterfield Grove Road, Suite 200, Chesterfield, Missouri [Docket No. 598].  During the current reporting period, the Debtors paid the first month’s lease payment with respect to such premises.

 
- 12 -

 
 
MOR-7:
 
DEBTOR QUESTIONNAIRE
 
 
 
Must be completed each month. If the answer to any of the questions is "Yes", provide a detailed explanation of each item. Attach additional sheets if necessary.  
Yes
 
No
             
1  
Have any assets been sold or transferred outside the normal course of business this reporting period?
      X
2  
Have any funds been disbursed from any account other than a debtor in possession account this reporting period?
      X
3  
Is the Debtor delinquent in the timely filing of any post-petition tax returns?
      X
4  
Are workers compensation, general liability or other necessary insurance coverages expired or cancelled, or has the debtor received notice of expiration or cancellation of such policies?
      X
5  
Is the Debtor delinquent in paying any insurance premium payment?
      X
6  
Have any payments been made on pre-petition liabilities this reporting period?
  X    
7  
Are any post-petition receivables (accounts, notes or loans) due from related parties?
      X
8  
Are any post-petition payroll taxes past due?
      X
9  
Are any post-petition State or Federal income taxes past due?
      X
10  
Are any post-petition real estate taxes past due?
      X
11  
Are any other post-petition taxes past due?
      X
12  
Have any pre-petition taxes been paid during this reporting period?
      X
13  
Are any amounts owed to post-petition creditors delinquent?
      X
14  
Are any wages payments past due?
      X
15  
Have any post-petition loans been received by the Debtor from any party?
      X
16  
Is the Debtor delinquent in paying any US Trustee fees?
      X
17  
Is the Debtor delinquent with any court ordered payments to attorneys or other professionals?
      X
18  
Have the owners or shareholders received any compensation outside of the normal course of business?
      X
 
Explanations
6
Pursuant to an order entered by the Bankruptcy Court, the Debtors were authorized to pay certain pre-petition employee salary and benefit and customer obligations.
13
The Debtors believe that all undisputed post-petition accounts payable have been and are being paid according to agreed-upon terms specific to each vendor and/or service provider.  Any aged amounts represent items subject to valid disputes and certain items which have been paid subsequent to the end of this reporting period.
 
 
- 13 -

 
 
MAKENA® PERFORMANCE METRICS

Makena® (hydroxyprogesterone caproate injection) is the Debtors’ single-most valuable product.  The information below addresses certain key performance metrics related to Makena®.  The amounts shown are based on estimates and are subject to change.  Gross revenues are preliminary and unaudited, and are not prepared in accordance with GAAP.
 
Three Months Ended
 
Gross Revenues
($ in thousands)(1)
   
Total
Prescriptions (2)
   
Vials Shipped
 to Customers (3)
 
6/30/2012
  $ 13,393       2,577       3,882  
9/30/2012
  $ 13,006       3,046       3,770  
12/31/2012
  $ 23,495       3,438       6,810  
2/28/2013(4)
  $ 26,117       3,813       7,570  
 
Notes:
(1) Amounts shown are estimated based on the number of vials shipped to customers and list price/vial.
(2) Represents total prescriptions reported to the Debtors and does not include cancellations.
(3) Represents paid vials shipped to the Debtors' customers, which include specialty pharmacies and distributors.
(4) Data for the months of December 2012, January 2013, and February 2013 is used in the absence of complete data for the three months ending March 31, 2013.