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Subsequent Event
9 Months Ended
Sep. 30, 2013
Subsequent Event

Note 15—Subsequent Event

On October 14, 2013, the Company and its wholly owned subsidiary SPHI filed voluntary petitions for relief under Chapter 11 of Title 11 of the United States Code, or the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware, or the Bankruptcy Court. The Chapter 11 cases are being jointly administered for procedural purposes under the caption “In re Savient Pharmaceuticals, Inc., et. al.” Case No. 13-12680, or the Chapter 11 Cases. On October 14, 2013, the Board of Directors of SPIL and the Board of Directors of SIL, both wholly owned subsidiaries of the Company’s, each passed a resolution recommending to the Company, as the sole shareholder of each, that it is advisable for both SPIL and SIL to be liquidated under the laws of Ireland, contingent upon Bankruptcy Court approval authorizing the Company to take such actions that may be necessary to effectuate the liquidation. On November 4, 2013, the Bankruptcy Court approved a motion authorizing the Company to take such actions necessary to liquidate SPIL and SIL under Irish law, however such liquidations have not yet commenced.

The Company and SPHI each intend to continue operating their businesses in the ordinary course, taking into account their status as debtors-in-possession, as they seek to complete the sale of their assets. In general, as debtors-in-possession, each of the Company and SPHI are authorized under the applicable provisions of the Bankruptcy Code to continue as an ongoing business, but may not engage in transactions outside of the ordinary course of business without the prior approval of the Bankruptcy Court.

At hearings held on October 16, 2013, the Bankruptcy Court granted the Company’s and SPHI’s “first day” motions for various relief designed to stabilize the Company’s and SPHI’s operations and business relationships with employees, customers and others and entered orders granting authority to the Company and SPHI to, among other things, pay certain pre-petition employee wages, salaries, benefits and other employee obligations, maintain certain customer programs, continue ordinary banking practices and use the cash collateral of the holders of the Company’s 2019 Notes to fund the Company’s and SPHI’s operations. In addition, the Bankruptcy Court entered an order prohibiting utility companies from altering or discontinuing service on account of pre-petition invoices. The interim cash collateral order entered by the Bankruptcy Court on October 16, 2013 provided, among other things, that the Company and SPHI may use cash collateral of the holders of the Company’s 2019 Notes only for working capital, general corporate purposes and administrative costs incurred in the ordinary course of business, including in connection with the proposed asset sale process, and for adequate protection payments to the holders of the Company’s 2019 Notes since the cash collateral is subject to the security interests of such holders. On October 18, 2013, the Company and SPHI paid $8.0 million to the holders of the Company’s 2019 Notes. The Company and SPHI intend to seek final relief from the Bankruptcy Court with respect to matters addressed by relevant “first day” motions at a hearing scheduled for November 20, 2013.

The commencement of the Chapter 11 Cases constituted an event of default under each of the 2018 Indenture and the 2019 Indenture. Under the terms of the 2018 Convertible Notes, upon commencement of the Chapter 11 Cases, the outstanding principal amount of, and accrued and unpaid interest on, the 2018 Convertible Notes became immediately due and payable. Under the terms of the 2019 Notes, upon commencement of the Chapter 11 Cases, the accreted principal balance of, and the accrued and unpaid interest on, the 2019 Notes became immediately due and payable. As of October 14, 2013, the 2018 Notes had an outstanding principal amount of $122.4 million and outstanding accrued and unpaid interest and the 2019 Notes had a contractual accreted principal balance of $145.4 million and outstanding accrued and unpaid interest. Under the Bankruptcy Code, the acceleration provisions applicable to the debt obligations described above are generally unenforceable, and any remedies that may exist related to the events of default described above are stayed, under section 362 of the Bankruptcy Code.

On October 14, 2013, the Company and SPHI entered into an acquisition agreement, or the Acquisition Agreement, with US WorldMeds, LLC, or US WorldMeds, and its subsidiary Sloan Holdings C.V., or Sloan, pursuant to which Sloan agreed to acquire substantially all of the Company’s and SPHI’s assets and certain liabilities, for an aggregate purchase price of approximately $55.0 million, subject to certain adjustments.

 

The Acquisition Agreement is subject to a number of closing conditions, including the approval by the Bankruptcy Court in the Chapter 11 Cases commenced by the Company and SPHI; the absence of a governmental order or other legal prohibition related to the transaction; the accuracy of representations and warranties of the parties, subject to certain qualifications; and material compliance with the obligations set forth in the Acquisition Agreement.

The asset sale pursuant to the Acquisition Agreement is being conducted under the provisions of Section 363 of the Bankruptcy Code and is subject to bidding procedures approved by the Bankruptcy Court and receipt of higher or otherwise better bid(s) at auction. On November 4, 2013, the Bankruptcy Court entered an order which, among other things, approved the proposed bidding procedures for the sale of the Company’s and SPHI’s assets and the bid protections, including a break-up fee of $1.65 million and an expense reimbursement amount not to exceed $0.75 million in the event that the sale to Sloan is not consummated and subject to other requirements. The deadline for receipt of bids is December 6, 2013, and the auction and sale hearing are scheduled to occur on December 10 and 13, 2013, respectively.

As a result of the Chapter 11 Cases, realization of assets and liquidation of liabilities are subject to uncertainty. Further, a plan of reorganization or liquidation or a sale of assets could or will materially change the amounts and classifications reported in the consolidated financial statements, which do not give effect to any adjustments to the carrying value of assets or amounts of liabilities that might be necessary as a consequence of confirmation of a Chapter 11 plan or a sale of assets.

Under the priority scheme established by the Bankruptcy Code, unless creditors agree otherwise, post-petition liabilities and prepetition liabilities must be satisfied in full before shareholders are entitled to receive any distribution or retain any property under a plan of reorganization or liquidation. In addition, under the Bankruptcy Code, the holders of the 2019 Notes as secured creditors are entitled to be paid in full before distributions to other creditors are made. The timing of the ultimate recovery to creditors and/or shareholders, if any, is uncertain. No assurance can be given as to what values, if any, will be ascribed in the Chapter 11 Cases to each of these constituencies or what types or amounts of distributions, if any, they would receive. The aggregate purchase price of approximately $55.0 million offered by the stalking horse buyers in the proposed asset sale is significantly less than the accreted principal amount of our 2019 Notes.

For additional information, see elsewhere in this Quarterly Report on Form 10-Q, including “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Chapter 11 Cases” in Part I, Item 2.

Accounting Requirements

Accounting Standards Codification, (“ASC”) 852-10, Reorganizations, which incorporated the guidance in American Institute of Certified Public Accountants Statement of Position 90-7, “Financial Reporting by Entities in Reorganization under the Bankruptcy Code” (SOP 90-7) is applicable to companies operating under the Bankruptcy Code. The guidance generally does not change the basis of accounting measurement and recognition on which financial statements are prepared. However, it does require that the financial statements for periods subsequent to the commencement of the Chapter 11 Cases distinguish transactions and events that are directly associated with the reorganization and restructuring of the business from the ongoing operations of the business. Revenues, expenses, realized gains and losses and provisions for losses that can be directly associated with the reorganization and restructuring of the business must be reported separately as reorganization items in the statements of operations for December 31, 2013 reporting. The Company’s balance sheet, in addition, must distinguish pre-petition liabilities subject to compromise from both those pre-petition liabilities that are not subject to compromise and from post-petition liabilities. Liabilities that may be affected by a plan of reorganization must be reported at the amounts expected to be allowed, even if they may be settled for lesser amounts. In addition, cash provided by reorganization items must be disclosed separately in The Company’s statement of cash flows. the Company will adopt ASC 852-10 for December 31, 2013 reporting and will segregate those items outlined above for all reporting periods from that date.

While in bankruptcy, the Company expects its financial results to continue to be volatile as asset impairments, asset dispositions, contract terminations and rejections and claims assessments may significantly impact the Company’s consolidated financial statements. As a result, the Company’s historical financial performance is likely not indicative of its financial performance after the date of the Chapter 11 Filings.