King Pharmaceuticals, Inc.
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
Form 10-Q
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(Mark One)
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þ
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QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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For the quarterly period ended
March 31, 2007
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OR
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o
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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For the transition period
from to
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Commission file
no. 001-15875
King Pharmaceuticals,
Inc.
(Exact name of registrant as
specified in its charter)
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Tennessee
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54-1684963
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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501 Fifth Street, Bristol,
TN
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37620
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(Address of principal executive
offices)
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(Zip
Code)
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(423) 989-8000
(Registrants telephone
number, including area code)
Indicate by check mark whether the registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of
the Securities Exchange Act of 1934 during the preceding
12 months (or for such shorter period that the registrant
was required to file such reports), and (2) has been
subject to such filing requirements for the past
90 days. Yes þ No o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, or a non-accelerated
filer. (Check one):
Large accelerated
filer þ Accelerated
filer
o Non-accelerated
filer o
Indicate by check mark whether the Registrant is a shell company
(as defined in
Rule 12b-2
of the Exchange
Act). Yes o No þ
Number of shares outstanding of Registrants common stock
as of May 8, 2007: 243,663,434
PART I
FINANCIAL INFORMATION
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Item 1.
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Financial
Statements
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KING
PHARMACEUTICALS, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands)
(Unaudited)
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March 31,
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December 31,
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2007
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2006
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ASSETS
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Current Assets:
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Cash and cash equivalents
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$
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60,211
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$
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113,777
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Investments in debt securities
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758,205
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890,185
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Accounts receivable, net of
allowance for doubtful accounts of $5,499 and $5,437,
respectively
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263,542
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265,467
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Inventories
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207,885
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215,458
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Deferred income tax assets
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61,152
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81,991
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|
Prepaid expenses and other current
assets
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48,319
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106,595
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|
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Total current assets
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1,399,314
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1,673,473
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Property, plant and equipment, net
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306,662
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307,036
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Intangible assets, net
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1,115,744
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851,391
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Goodwill
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121,152
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121,152
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Marketable securities
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10,500
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11,578
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Deferred income tax assets
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280,286
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271,554
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Other assets (includes restricted
cash of $16,116 and $15,968, respectively)
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99,812
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93,347
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Total assets
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$
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3,333,470
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$
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3,329,531
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LIABILITIES AND
SHAREHOLDERS EQUITY
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Current Liabilities:
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Accounts payable
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$
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67,061
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$
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77,158
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Accrued expenses
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353,675
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510,137
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Income taxes payable
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44,215
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30,501
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|
|
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Total current liabilities
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464,951
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617,796
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Long-term debt
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400,000
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400,000
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Other liabilities
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58,812
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23,129
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Total liabilities
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923,763
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1,040,925
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Commitments and contingencies
(Note 8)
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Shareholders equity
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2,409,707
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2,288,606
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Total liabilities and
shareholders equity
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$
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3,333,470
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$
|
3,329,531
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|
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See accompanying notes.
1
KING
PHARMACEUTICALS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share data)
(Unaudited)
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Three Months Ended
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March 31,
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2007
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2006
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Revenues:
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Net sales
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$
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495,706
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$
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464,599
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Royalty revenue
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20,324
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19,636
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Total revenues
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516,030
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484,235
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Operating costs and expenses:
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Cost of revenues, exclusive of
depreciation and amortization shown below
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111,454
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92,404
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Selling, general and
administrative, exclusive of co-promotion fees
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122,354
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105,054
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Co-promotion fees
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45,958
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65,289
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Total selling, general and
administrative expense
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|
168,312
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170,343
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Research and development
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32,271
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29,882
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Research and development-in
process upon acquisition
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85,000
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Total research and development
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32,271
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|
|
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114,882
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Depreciation and amortization
|
|
|
35,678
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|
|
|
34,365
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Restructuring charges
(Note 12)
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|
460
|
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|
|
|
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|
|
|
|
|
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Total operating costs and expenses
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|
348,175
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|
|
|
411,994
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|
|
|
|
|
|
|
|
|
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Operating income
|
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|
167,855
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|
|
|
72,241
|
|
|
|
|
|
|
|
|
|
|
Other income (expense):
|
|
|
|
|
|
|
|
|
Interest income
|
|
|
9,266
|
|
|
|
5,960
|
|
Interest expense
|
|
|
(2,025
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)
|
|
|
(2,984
|
)
|
Gain on early extinguishment of
debt
|
|
|
|
|
|
|
1,022
|
|
Other, net
|
|
|
(543
|
)
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|
|
(510
|
)
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|
|
|
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Total other income
|
|
|
6,698
|
|
|
|
3,488
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|
|
|
|
|
|
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Income from continuing operations
before income taxes
|
|
|
174,553
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|
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75,729
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Income tax expense
|
|
|
58,499
|
|
|
|
24,894
|
|
|
|
|
|
|
|
|
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Income from continuing operations
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|
116,054
|
|
|
|
50,835
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|
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|
|
|
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|
Discontinued operations
(Note 17):
|
|
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|
|
|
|
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Loss from discontinued operations
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|
(220
|
)
|
|
|
(247
|
)
|
Income tax benefit
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|
(79
|
)
|
|
|
(89
|
)
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|
|
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|
|
|
|
|
|
Total loss from discontinued
operations, net
|
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|
(141
|
)
|
|
|
(158
|
)
|
|
|
|
|
|
|
|
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|
Net income
|
|
$
|
115,913
|
|
|
$
|
50,677
|
|
|
|
|
|
|
|
|
|
|
Income per common share:
|
|
|
|
|
|
|
|
|
Basic:
|
|
|
|
|
|
|
|
|
Income from continuing operations
|
|
$
|
0.48
|
|
|
$
|
0.21
|
|
Total loss from discontinued
operations
|
|
|
0.00
|
|
|
|
0.00
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
0.48
|
|
|
$
|
0.21
|
|
|
|
|
|
|
|
|
|
|
Diluted:
|
|
|
|
|
|
|
|
|
Income from continuing operations
|
|
$
|
0.48
|
|
|
$
|
0.21
|
|
Total loss from discontinued
operations
|
|
|
0.00
|
|
|
|
0.00
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
0.48
|
|
|
$
|
0.21
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes.
2
KING
PHARMACEUTICALS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CHANGES IN
SHAREHOLDERS EQUITY
AND OTHER COMPREHENSIVE INCOME
(In thousands, except share data)
(Unaudited)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accumulated
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other
|
|
|
|
|
|
|
Common Stock
|
|
|
Unearned
|
|
|
Retained
|
|
|
Comprehensive
|
|
|
|
|
|
|
Shares
|
|
|
Amount
|
|
|
Compensation
|
|
|
Earnings
|
|
|
Income (Loss)
|
|
|
Total
|
|
|
Balance at December 31, 2005
|
|
|
242,493,416
|
|
|
$
|
1,222,246
|
|
|
$
|
(8,764
|
)
|
|
$
|
754,953
|
|
|
$
|
4,987
|
|
|
$
|
1,973,422
|
|
Adoption of Statement of Financial
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounting Standard No. 123(R)
|
|
|
|
|
|
|
(8,764
|
)
|
|
|
8,764
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50,677
|
|
|
|
|
|
|
|
50,677
|
|
Net unrealized loss on marketable
securities, net of tax of $1,213
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(2,252
|
)
|
|
|
(2,252
|
)
|
Foreign currency translation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(10
|
)
|
|
|
(10
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total comprehensive income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
48,415
|
|
Stock-based compensation expense
|
|
|
|
|
|
|
3,889
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,889
|
|
Exercise of stock options
|
|
|
394,330
|
|
|
|
6,724
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6,724
|
|
Issuance of share-based awards
|
|
|
168,500
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at March 31, 2006
|
|
|
243,056,246
|
|
|
$
|
1,224,095
|
|
|
$
|
|
|
|
$
|
805,630
|
|
|
$
|
2,725
|
|
|
$
|
2,032,450
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2006
|
|
|
243,151,223
|
|
|
$
|
1,244,986
|
|
|
$
|
|
|
|
$
|
1,043,902
|
|
|
$
|
(282
|
)
|
|
$
|
2,288,606
|
|
Comprehensive income:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
115,913
|
|
|
|
|
|
|
|
115,913
|
|
Adoption of Financial Accounting
Standards Board Interpretation No. 48
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1,523
|
)
|
|
|
|
|
|
|
(1,523
|
)
|
Net unrealized loss on marketable
securities, net of tax of $285
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(465
|
)
|
|
|
(465
|
)
|
Foreign currency translation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
52
|
|
|
|
52
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total comprehensive income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
113,977
|
|
Stock-based compensation expense
|
|
|
|
|
|
|
4,596
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,596
|
|
Exercise of stock options
|
|
|
156,385
|
|
|
|
2,528
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,528
|
|
Issuance of share-based awards
|
|
|
195,244
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at March 31, 2007
|
|
|
243,502,852
|
|
|
$
|
1,252,110
|
|
|
$
|
|
|
|
$
|
1,158,292
|
|
|
$
|
(695
|
)
|
|
$
|
2,409,707
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes.
3
KING
PHARMACEUTICALS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
(Unaudited)
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31,
|
|
|
|
2007
|
|
|
2006
|
|
|
Cash flows provided by (used in)
operating activities
|
|
$
|
108,084
|
|
|
$
|
(5,592
|
)
|
|
|
|
|
|
|
|
|
|
Cash flows from investing
activities:
|
|
|
|
|
|
|
|
|
Transfers (to) from restricted cash
|
|
|
(148
|
)
|
|
|
130,279
|
|
Purchases of investments in debt
securities
|
|
|
(383,925
|
)
|
|
|
(192,275
|
)
|
Proceeds from maturities and sales
of investments in debt securities
|
|
|
515,905
|
|
|
|
200,784
|
|
Purchases of property, plant and
equipment
|
|
|
(11,785
|
)
|
|
|
(8,768
|
)
|
Proceeds from sale of property and
equipment
|
|
|
3
|
|
|
|
|
|
Acquisition of
Avinza®
|
|
|
(290,551
|
)
|
|
|
|
|
Loan repayment from Ligand
|
|
|
37,750
|
|
|
|
|
|
Purchases of product rights
|
|
|
(6,452
|
)
|
|
|
(23,926
|
)
|
Arrow International Limited
collaboration agreement
|
|
|
(25,000
|
)
|
|
|
(35,000
|
)
|
|
|
|
|
|
|
|
|
|
Net cash (used in) provided by
investing activities
|
|
|
(164,203
|
)
|
|
|
71,094
|
|
|
|
|
|
|
|
|
|
|
Cash flows from financing
activities:
|
|
|
|
|
|
|
|
|
Proceeds from exercise of stock
options, net
|
|
|
2,462
|
|
|
|
6,468
|
|
Excess tax benefits from
stock-based compensation
|
|
|
91
|
|
|
|
274
|
|
Proceeds from issuance of
long-term debt
|
|
|
|
|
|
|
400,000
|
|
Payments on long-term debt
|
|
|
|
|
|
|
(163,350
|
)
|
Debt issuance costs
|
|
|
|
|
|
|
(10,610
|
)
|
|
|
|
|
|
|
|
|
|
Net cash provided by financing
activities
|
|
|
2,553
|
|
|
|
232,782
|
|
|
|
|
|
|
|
|
|
|
(Decrease) increase in cash and
cash equivalents
|
|
|
(53,566
|
)
|
|
|
298,284
|
|
Cash and cash equivalents,
beginning of period
|
|
|
113,777
|
|
|
|
30,014
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents, end of
period
|
|
$
|
60,211
|
|
|
$
|
328,298
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes.
4
KING
PHARMACEUTICALS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
March 31, 2007 and 2006
(in thousands, except share and per share data)
(Unaudited)
The accompanying unaudited interim condensed consolidated
financial statements of King Pharmaceuticals, Inc.
(King or the Company) were prepared by
the Company in accordance with the instructions to
Form 10-Q
and
Rule 10-01
of
Regulation S-X
and, accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles
for complete financial statements. In the opinion of management,
all adjustments (consisting of items of a normal recurring
nature) considered necessary for a fair presentation are
included. Operating results for the three months ended
March 31, 2007 are not necessarily indicative of the
results that may be expected for the year ending
December 31, 2007. These unaudited interim condensed
consolidated financial statements should be read in conjunction
with the audited consolidated financial statements and notes
thereto included in the Companys Annual Report on
Form 10-K
for the year ended December 31, 2006. The year-end
condensed consolidated balance sheet was derived from the
audited consolidated financial statements, but does not include
all disclosures required by generally accepted accounting
principles.
These unaudited interim condensed consolidated financial
statements include the accounts of King and all of its wholly
owned subsidiaries. All intercompany transactions and balances
have been eliminated in consolidation.
The basic and diluted income per common share was determined
using the following share data:
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31,
|
|
|
|
2007
|
|
|
2006
|
|
|
Basic income per common share:
|
|
|
|
|
|
|
|
|
Weighted average common shares
|
|
|
242,390,241
|
|
|
|
242,022,443
|
|
|
|
|
|
|
|
|
|
|
Diluted income per common share:
|
|
|
|
|
|
|
|
|
Weighted average common shares
|
|
|
242,390,241
|
|
|
|
242,022,443
|
|
Effect of stock options
|
|
|
483,922
|
|
|
|
361,405
|
|
Effect of dilutive share awards
|
|
|
796,410
|
|
|
|
197,468
|
|
|
|
|
|
|
|
|
|
|
Weighted average common shares
|
|
|
243,670,573
|
|
|
|
242,581,316
|
|
|
|
|
|
|
|
|
|
|
For the three months ended March 31, 2007, the weighted
average shares that were anti-dilutive, and therefore excluded
from the calculation of diluted income per share, included
options to purchase 1,979,835 shares of common stock,
21,903 restricted stock awards (RSAs) and
72,871 long-term performance units (LPUs). The
11/4% Convertible
Senior Notes due April 1, 2026 could be converted into the
Companys common stock in the future, subject to certain
contingencies (see Note 7). Shares of the Companys
common stock associated with this right of conversion were
excluded from the calculation of diluted income per share
because these notes are anti-dilutive because the conversion
price of the notes was greater than the average market price of
the Companys common stock during the quarter.
For the three months ended March 31, 2006, the weighted
average shares that were anti-dilutive, and therefore excluded
from the calculation of diluted income per share, included
options to purchase 5,309,829 shares of common stock,
28,297 RSAs and 79,512 LPUs. The 2
3/4% Convertible
Debentures due November 15, 2021 could also have been
converted into 3,588,517 shares of the Companys
common stock in the future, subject to certain contingencies
outlined in the indenture. Because the Convertible Debentures
were
5
KING
PHARMACEUTICALS, INC.
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
anti-dilutive, they were not included in the calculation of
diluted income per common share. Similarly, the 1
1/4%
Convertible Senior Notes due April 1, 2026 could be
converted into common stock in the future, subject to certain
contingencies (see Note 7). Shares of the Companys
common stock associated with these rights of conversion were
excluded from the calculation of diluted income per share
because the Convertible Senior notes were anti-dilutive because
the conversion price of the notes was greater than the average
market price of the Companys common stock during the
quarter.
Inventories consist of the following:
|
|
|
|
|
|
|
|
|
|
|
March 31,
|
|
|
December 31,
|
|
|
|
2007
|
|
|
2006
|
|
|
Raw materials
|
|
$
|
121,337
|
|
|
$
|
141,227
|
|
Work-in-process
|
|
|
27,808
|
|
|
|
21,857
|
|
Finished goods (including $6,929
and $6,813 of sample inventory, respectively)
|
|
|
73,626
|
|
|
|
65,967
|
|
|
|
|
|
|
|
|
|
|
|
|
|
222,771
|
|
|
|
229,051
|
|
Inventory valuation allowance
|
|
|
(14,886
|
)
|
|
|
(13,593
|
)
|
|
|
|
|
|
|
|
|
|
Total inventories
|
|
$
|
207,885
|
|
|
$
|
215,458
|
|
|
|
|
|
|
|
|
|
|
|
|
4.
|
Property,
Plant and Equipment
|
The Companys Rochester, Michigan facility manufactures
products for the Company and various third parties. As of
March 31, 2007, the net carrying value of the property,
plant and equipment at the Rochester facility, excluding the net
carrying value associated with the
Bicillin®
production facility, was $62,178. Overall production volume at
this facility declined in recent years. The Company currently is
transferring to this facility the manufacture of certain
products that are currently manufactured by the Company at other
Company facilities or for the Company by third parties. These
transfers should increase production and cash flow at the
Rochester facility. Management currently believes that the
long-term assets associated with the Rochester facility are not
impaired based on estimated undiscounted future cash flows.
However, if production volumes decline further or if the Company
is not successful in transferring additional production to the
Rochester facility, the Company may have to write off a portion
of the property, plant and equipment associated with this
facility.
The net book value of some of the Companys manufacturing
facilities currently exceeds fair market value. Management
currently believes that the long-term assets associated with
these facilities are not impaired based on estimated
undiscounted future cash flows. However, if the Company were to
approve a plan to sell or close any of the facilities for which
the carrying value exceeds fair market value, the Company would
have to write off a portion of the assets, or reduce the
estimated useful life of the assets, which would accelerate
depreciation.
During 2006, the Company decided to proceed with the
implementation of its plan to streamline manufacturing
activities in order to improve operating efficiency and reduce
costs, including the decision to transfer the production of
Levoxyl®
from its St. Petersburg, Florida facility to its Bristol,
Tennessee facility by the end of 2008. The Company believes that
the assets associated with the St. Petersburg facility are not
currently impaired based on estimated undiscounted cash flows
associated with these assets. However, during 2006, the Company
shortened the estimated useful lives of assets at the St.
Petersburg facility and therefore accelerated the depreciation
of these assets. For additional discussion, please see
Note 12, Restructuring Activities.
6
KING
PHARMACEUTICALS, INC.
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
|
|
5.
|
Acquisitions,
Dispositions, Co-Promotions and Alliances
|
On September 6, 2006, the Company entered into a definitive
asset purchase agreement and related agreements with Ligand
Pharmaceuticals Incorporated (Ligand) to acquire
rights to Ligands product
Avinza®
(morphine sulfate extended release).
Avinza®
is an extended release formulation of morphine and is indicated
as a once-daily treatment for moderate to severe pain in
patients who require continuous opioid therapy for an extended
period of time. The Company completed its acquisition of
Avinza®
on February 26, 2007, acquiring all the rights to
Avinza®
in the United States, its territories and Canada. Under the
terms of the asset purchase agreement the purchase price was
$289,587, consisting of $289,332 in cash consideration and $255
for the assumption of a short-term liability. Additionally, the
Company incurred acquisition costs of $941. Of the cash payments
made to Ligand, $15,000 is set aside in an escrow account to
fund potential liabilities Ligand could later owe the Company.
As part of the transaction, the Company has agreed to pay Ligand
an ongoing royalty and assume payment of Ligands royalty
obligations to third parties. The royalty the Company will pay
to Ligand consists of a 15% royalty during the first
20 months after the closing date. Subsequent royalty
payments to Ligand will be based upon calendar year net sales of
Avinza®
as follows:
|
|
|
|
|
If calendar year net sales are less than $200,000 the royalty
payment will be 5% of all net sales.
|
|
|
|
If calendar year net sales are greater than $200,000 then the
royalty payment will be 10% of all net sales up to $250,000,
plus 15% of net sales greater than $250,000.
|
In connection with the transaction, on October 12, 2006,
the Company entered into a loan agreement with Ligand for the
amount of $37,750. The principal amount of the loan was to be
used solely for the purpose of paying a specific liability
related to
Avinza®.
The loan was subject to certain market terms, including a 9.5%
interest rate and security interest in the assets that comprise
Avinza®
and certain of the proceeds of Ligands sale of certain
assets. On January 8, 2007, Ligand repaid the principal
amount of the loan of $37,750 and accrued interest of $883.
Pursuant to the terms of the loan agreement with Ligand, the
Company forgave the interest on the loan at the time of closing
the transaction to acquire
Avinza®.
Accordingly, the Company has not recognized interest income on
the related note receivable.
The allocation of the initial purchase price and acquisition
costs is as follows:
|
|
|
|
|
Intangible assets
|
|
$
|
287,728
|
|
Inventory
|
|
|
2,800
|
|
|
|
|
|
|
|
|
$
|
290,528
|
|
|
|
|
|
|
At the time of the acquisition, the intangible assets were
assigned useful lives of 10.75 years. The acquisition is
allocated to the branded pharmaceuticals segment. The Company
financed the acquisition using available cash on hand.
On January 9, 2007, the Company obtained an exclusive
license to certain hemostatic products owned by Vascular
Solutions, Inc. (Vascular Solutions), including
products which the Company expects to market as
Thrombi-Padtm
and
Thrombi-Gel®.
The license also includes a product the Company expects to
market as
Thrombi-Pastetm,
which is currently in development. Each of these products
includes the Companys
Thrombin-JMI®
topical hemostatic agent product as a component. Vascular
Solutions will manufacture the products for the Company. Upon
acquisition of the license, the Company made an initial payment
to Vascular Solutions of $6,000, a portion of which is
refundable in the event FDA approval for certain of these
products is not received. In addition, the Company could make
additional milestone payments of up to a total of $2,000.
7
KING
PHARMACEUTICALS, INC.
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
On March 1, 2006, the Company acquired the exclusive right
to market and sell
EpiPen®
throughout Canada and other specific assets from Allerex
Laboratory LTD. Under the terms of the agreements, the initial
purchase price was $23,924, plus acquisition costs of $682. As
an additional component of the purchase price, the Company will
pay Allerex an earn-out equal to a percentage of future sales of
EpiPen®
in Canada over a fixed period of time. As these additional
payments accrue, the Company will increase intangible assets by
the amount of the accrual. As of March 31, 2007, the
Company has accrued a total of $2,767 for these earn-out
payments. The aggregate of these payments will not exceed
$13,164.
The allocation of the initial purchase price and acquisition
costs is as follows:
|
|
|
|
|
Intangible assets
|
|
$
|
23,985
|
|
Inventory
|
|
|
618
|
|
Fixed assets
|
|
|
3
|
|
|
|
|
|
|
|
|
$
|
24,606
|
|
|
|
|
|
|
At the time of the acquisition, the intangible assets were
assigned useful lives of 9.8 years. The acquisition is
allocated to the Meridian Medical Technologies segment. The
Company financed the acquisition using available cash on hand.
On February 12, 2006, the Company entered into a
collaboration with Arrow International Limited and certain of
its affiliates, excluding Cobalt Pharmaceuticals, Inc.
(collectively, Arrow), to commercialize one or more
novel formulations of ramipril, the active ingredient in the
Companys
Altace®
product. Under a series of agreements, Arrow has granted King
rights to certain current and future New Drug Applications
regarding novel formulations of ramipril and intellectual
property, including patent rights and technology licenses
relating to these novel formulations. Arrow will have
responsibility for the manufacture and supply of the new
formulations of ramipril for King. However, under certain
conditions King may manufacture and supply the formulations of
ramipril.
Upon execution of the agreements, King made an initial payment
to Arrow of $35,000. During the fourth quarter of 2006 and the
first quarter of 2007, the Company made additional payments of
$25,000 in each quarter to Arrow. Arrow will also receive an
additional payment from King of $25,000 during the second
quarter of 2007. Additionally, Arrow will earn fees for the
manufacture and supply of the new formulations of ramipril.
In connection with the agreement with Arrow, the Company
recognized the above payments and future payments totaling
$110,000 as in-process research and development expense during
2006. This amount was expensed as in-process research and
development as the project had not received regulatory approval
and had no alternative future use. The in-process research and
development project is part of the branded pharmaceutical
segment. This project includes a New Drug Application
(NDA) filed by Arrow for a tablet formulation of
ramipril in January 2006. At the time of the acquisition, the
success of the project was dependent on additional development
activities and FDA approval. The estimated cost to complete the
project at the execution of the agreement was approximately
$3,500. The FDA approved the NDA on February 27, 2007. The
Company expects to launch the tablet formulation during the
fourth quarter of 2007 or the first quarter of 2008.
On February 12, 2006, the Company entered into an agreement
with Cobalt Pharmaceuticals, Inc. (Cobalt), an
affiliate of Arrow International Limited, whereby Cobalt has the
non-exclusive right to distribute a generic formulation of the
Companys currently marketed
Altace®
product in the U.S. market, which generic product would be
supplied by King.
8
KING
PHARMACEUTICALS, INC.
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
|
|
6.
|
Intangible
Assets and Goodwill
|
The following table reflects the components of intangible assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
March 31, 2007
|
|
|
December 31, 2006
|
|
|
|
Gross
|
|
|
|
|
|
Gross
|
|
|
|
|
|
|
Carrying
|
|
|
Accumulated
|
|
|
Carrying
|
|
|
Accumulated
|
|
|
|
Amount
|
|
|
Amortization
|
|
|
Amount
|
|
|
Amortization
|
|
|
Trademarks and product rights
|
|
$
|
1,153,939
|
|
|
$
|
389,380
|
|
|
$
|
1,152,433
|
|
|
$
|
371,410
|
|
Patents
|
|
|
560,449
|
|
|
|
209,619
|
|
|
|
272,833
|
|
|
|
202,873
|
|
Other intangibles
|
|
|
9,459
|
|
|
|
9,104
|
|
|
|
9,459
|
|
|
|
9,051
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total intangible assets
|
|
$
|
1,723,847
|
|
|
$
|
608,103
|
|
|
$
|
1,434,725
|
|
|
$
|
583,334
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amortization expense for the three months ended March 31,
2007 and 2006 was $24,769 and $25,873, respectively.
As of March 31, 2007, the net intangible assets associated
with
Intal®,
Tilade®
and
Synercid®
totaled approximately $123,748. The Company believes that these
intangible assets are not currently impaired based on estimated
undiscounted cash flows associated with these assets. However,
if the Companys estimates regarding future cash flows
prove to be incorrect or adversely change, the Company may have
to reduce the estimated remaining useful life
and/or write
off a portion or all of these intangible assets.
Goodwill at March 31, 2007 and December 31, 2006 is as
follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Branded
|
|
|
Meridian
|
|
|
|
|
|
|
Segment
|
|
|
Segment
|
|
|
Total
|
|
|
Goodwill
|
|
$
|
12,742
|
|
|
$
|
108,410
|
|
|
$
|
121,152
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Long-term debt consists of the following:
|
|
|
|
|
|
|
|
|
|
|
March 31,
|
|
|
December 31,
|
|
|
|
2007
|
|
|
2006
|
|
|
Convertible senior notes(a)
|
|
$
|
400,000
|
|
|
$
|
400,000
|
|
Senior secured revolving credit
facility(b)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total long-term debt
|
|
|
400,000
|
|
|
|
400,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(a) |
|
During the first quarter of 2006, the Company issued $400,000 of
11/4% Convertible
Senior Notes due April 1, 2026 (Notes). The
Notes are unsecured obligations and are guaranteed by each of
the Companys domestic subsidiaries on a joint and several
basis. The Notes accrue interest at an initial rate of
11/4%.
Beginning with the six-month interest period that commences on
April 1, 2013, the Company will pay additional interest
during any six-month interest period if the average trading
price of the Notes during the five consecutive trading days
ending on the second trading day immediately preceding the first
day of such six-month period equals 120% or more of the
principal amount of the Notes. Interest is payable on
April 1 and October 1 of each year, beginning
October 1, 2006. |
|
|
|
On or after April 5, 2013, the Company may redeem for cash
some or all of the Notes at any time at a price equal to 100% of
the principal amount of the Notes to be redeemed, plus any
accrued and unpaid interest, and liquidated damages, if any, to
but excluding the date fixed for redemption. Holders may require
the Company to purchase for cash some or all of their Notes on
April 1, 2013, April 1, 2016 and April 1, 2021,
or upon the occurrence of a fundamental change (such as a change
of control or a |
9
KING
PHARMACEUTICALS, INC.
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
|
|
|
|
|
termination of trading), at 100% of the principal amount of the
Notes to be purchased, plus any accrued and unpaid interest, and
liquidated damages, if any, to but excluding the purchase date. |
|
|
|
Prior to April 1, 2012, the Notes are convertible under the
following circumstances: |
|
|
|
|
|
if the price of the Companys common stock reaches a
specified threshold during specified periods,
|
|
|
|
if the Notes have been called for redemption, or
|
|
|
|
if specified corporate transactions or other specified events
occur.
|
|
|
|
|
|
The Notes are convertible at any time on and after April 1,
2012, until the close of business on the business day
immediately preceding maturity. Subject to certain exceptions,
the Company will deliver cash and shares of the Companys
common stock, as follows: (i) an amount in cash equal to
the lesser of (a) the principal amount of Notes surrendered
for conversion and (b) the product of the conversion rate
and the average price of the Companys common stock (the
conversion value), and (ii) if the conversion
value is greater than the principal amount, a specified amount
in cash or shares of the Companys common stock, at the
Companys election. The initial conversion price is
approximately $20.83 per share of common stock. If certain
corporate transactions occur on or prior to April 1, 2013,
the Company will increase the conversion rate in certain
circumstances. |
|
|
|
The Company has reserved 23,732,724 shares of common stock
in the event the Notes are converted into shares of the
Companys common stock. |
|
|
|
In connection with the issuance of the Notes, the Company
incurred approximately $10,680 of deferred financing costs that
are being amortized over seven years. |
|
(b) |
|
On April 23, 2002, the Company established a $400,000
five-year Senior Secured Revolving Credit Facility which was
scheduled to mature in April 2007 (the 2002 Credit
Facility). On April 19, 2007, this facility was
terminated and replaced with a new $475,000 five-year Senior
Secured Revolving Credit Facility which matures in April 2012
(the 2007 Credit Facility). |
|
|
8.
|
Commitments
and Contingencies
|
Fen/Phen
Litigation
Many distributors, marketers and manufacturers of anorexigenic
drugs have been subject to claims relating to the use of these
drugs. Generally, the lawsuits allege that the defendants
(1) misled users of the products with respect to the
dangers associated with them, (2) failed to adequately test
the products and (3) knew or should have known about the
negative effects of the drugs, and should have informed the
public about the risks of such negative effects. Claims include
product liability, breach of warranty, misrepresentation and
negligence. The actions have been filed in various state and
federal jurisdictions throughout the United States. A
multi-district litigation (MDL) court has been
established in Philadelphia, Pennsylvania, In re Fen-Phen
Litigation. The plaintiffs seek, among other
things, compensatory and punitive damages
and/or
court-supervised medical monitoring of persons who have ingested
these products.
The Companys wholly-owned subsidiary, King Pharmaceuticals
Research and Development, Inc. (King Research and
Development), is a defendant in approximately 105
multi-plaintiff (1,520 plaintiffs) lawsuits involving the
manufacture and sale of dexfenfluramine, fenfluramine and
phentermine. These lawsuits have been filed in various
jurisdictions throughout the United States and in each of these
lawsuits King Research and Development, as the successor to
Jones Pharma Incorporated (Jones), is one of many
defendants, including manufacturers and other distributors of
these drugs. Although Jones did not at any time manufacture
dexfenfluramine, fenfluramine, or phentermine, Jones was a
distributor of a generic phentermine product and, after its
acquisition of Abana Pharmaceuticals, was a distributor of
Obenix®,
Abanas branded phentermine product. The manufacturer of
the phentermine purchased by Jones filed for bankruptcy
protection and is no longer in business. The plaintiffs in these
cases, in addition to the claims described above, claim injury
as a
10
KING
PHARMACEUTICALS, INC.
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
result of ingesting a combination of these weight-loss drugs and
are seeking compensatory and punitive damages as well as medical
care and court-supervised medical monitoring. The plaintiffs
claim liability based on a variety of theories, including, but
not limited to, product liability, strict liability, negligence,
breach of warranty, fraud and misrepresentation.
King Research and Development denies any liability incident to
Jones distribution and sale of
Obenix®
or Jones generic phentermine product. King Research and
Developments insurance carriers are currently defending
King Research and Development in these lawsuits. The
manufacturers of fenfluramine and dexfenfluramine have settled
many of these cases. As a result of these settlements, King
Research and Development has routinely received voluntarily
dismissals without the payment of settlement proceeds. In the
event that King Research and Developments insurance
coverage is inadequate to satisfy any resulting liability, King
Research and Development will have to assume defense of these
lawsuits and be responsible for the damages, if any, that are
awarded against it.
While the Company cannot predict the outcome of these lawsuits,
management believes that the claims against King Research and
Development are without merit and intends to vigorously pursue
all defenses available. The Company is unable to disclose an
aggregate dollar amount of damages claimed because many of these
complaints are multi-party suits and do not state specific
damage amounts. Rather, these claims typically state damages as
may be determined by the court or similar language and state no
specific amount of damages against King Research and
Development. Consequently, the Company cannot reasonably
estimate possible losses related to the lawsuits.
In addition, the Company is one of many defendants in six
multi-plaintiff lawsuits that claim damages for personal injury
arising from its production of the anorexigenic drug phentermine
under contract for GlaxoSmithKline. While the Company cannot
predict the outcome of these suits, the Company believes that
the claims against it are without merit and the Company intends
to vigorously pursue all defenses available to it. The Company
is being indemnified in the six lawsuits by GlaxoSmithKline, for
which the Company manufactured the anorexigenic product,
provided that neither the lawsuits nor the associated
liabilities are based upon the Companys independent
negligence or intentional acts. The Company intends to submit a
claim for any unreimbursed costs to its product liability
insurance carrier. However, in the event that GlaxoSmithKline is
unable to satisfy or fulfill its obligations under the
indemnity, the Company would have to assume defense of the
lawsuits and be responsible for damages, fees and expenses, if
any, that are awarded against it or for amounts in excess of the
Companys product liability coverage. A reasonable estimate
of possible losses related to these suits cannot be made.
Thimerosal
/ Childrens Vaccine Related Litigation
The Company and Parkedale Pharmaceuticals, Inc., a wholly-owned
subsidiary of the Company, were named as defendants in lawsuits
filed in California, Mississippi and Illinois (Madison County),
along with other pharmaceutical companies. The first of these
lawsuits was filed in November 2001. Most of the defendants
manufactured or sold the mercury-based preservative thimerosal
or manufactured or sold childrens vaccines containing
thimerosal. The Company did not manufacture or sell thimerosal
or a childrens vaccine that contained thimerosal. For two
years the Company did manufacture and sell an influenza vaccine
that contained thimerosal. None of the plaintiffs has alleged
taking the Companys influenza vaccine.
In these cases, the plaintiffs have attempted to link the
receipt of mercury-based products to neurological defects in
children. The plaintiffs claim unfair business practices,
fraudulent misrepresentations, negligent misrepresentations,
product liability, Proposition 65 violations, breach of implied
warranty, and claims premised on the allegation that the
defendants promoted products without any reference to the toxic
hazards and potential public health ramifications resulting from
the mercury-containing preservative. The plaintiffs also allege
that the defendants knew of the dangerous propensities of
thimerosal in their products.
11
KING
PHARMACEUTICALS, INC.
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
The Company has given its product liability insurance carrier
proper notice of all of these matters and defense counsel is
vigorously defending the Companys interests. The Company
has filed motions to dismiss based on the Federal Vaccine Act
and lack of product identification. The Company was voluntarily
dismissed in Mississippi due, among other things, to lack of
product identification in the plaintiffs complaints. The
Company was also voluntarily dismissed in both cases filed in
Chicago, Illinois. The California Proposition 65 claims were
dismissed in the California Trial Court. This dismissal was
affirmed in the California Court of Appeals and no further
appeals were filed. Subsequent Proposition 65 claims were
dismissed. The remaining California claims have been stayed
pending compliance with the processes and procedures of the
Federal Vaccine Act. Motions for summary judgment have been
filed in Madison County, Illinois because the Company never
manufactured a product of the type specified in the complaint.
Management believes that the claims against the Company are
without merit and the Company intends to defend these lawsuits
vigorously, but the Company is unable currently to predict the
outcome or to reasonably estimate the range of potential loss,
if any.
Hormone
Replacement Therapy
Currently, the Company is named as a defendant by 22 plaintiffs
in lawsuits involving the manufacture and sale of hormone
replacement therapy drugs. The first of these lawsuits was filed
in July 2004. Numerous other pharmaceutical companies have also
been sued. The Company was sued by approximately 800 plaintiffs,
but most of those claims were voluntarily dismissed or dismissed
by the Court for lack of product identification. These remaining
22 lawsuits were filed in Alabama, Arkansas, Missouri,
Pennsylvania, Ohio, Florida, Maryland, Mississippi and
Minnesota. A federal multidistrict litigation court
(MDL) has been established in Little Rock, Arkansas,
In re: Prempro Products Liability Litigation, and all of
the plaintiffs claims have been transferred and are
pending in that Court except for one lawsuit pending in
Philadelphia, Pennsylvania State Court. Many of these plaintiffs
allege that the Company and other defendants failed to conduct
adequate research and testing before the sale of the products
and post-sale monitoring to establish the safety and efficacy of
the long-term hormone therapy regimen and, as a result, misled
consumers when marketing their products. Plaintiffs also allege
negligence, strict liability, design defect, breach of implied
warranty, breach of express warranty, fraud and
misrepresentation. Discovery of the plaintiffs claims
against the Company has begun but is limited to document
discovery. No trial has occurred in the hormone replacement
therapy litigation against the Company or any other defendant
except Wyeth. The first five trials against Wyeth have resulted
in one mistrial for juror misconduct, two verdicts for Wyeth in
the MDL and two plantiffs verdicts for $1,500 and $3,000
in Philadelphia, Pennsylvania State Court. The Company does not
expect to have any trials set in 2007. The Company intends to
defend these lawsuits vigorously but is currently unable to
predict the outcome or to reasonably estimate the range of
potential loss, if any. The Company may have limited insurance
for these claims. The Company would have to assume defense of
the lawsuits and be responsible for damages, fees and expenses,
if any, that are awarded against it or for amounts in excess of
the Companys product liability coverage.
Average
Wholesale Price Litigation
In August 2004, King and Monarch Pharmaceuticals, Inc.
(Monarch), a wholly-owned subsidiary of King, were
named as defendants along with 44 other pharmaceutical
manufacturers in an action brought by the City of New York
(NYC) in Federal Court in the state of New York. NYC
claims that the defendants fraudulently inflated their average
wholesale prices (AWP) and fraudulently failed to
accurately report their best prices and their
average manufacturers prices and failed to pay proper
rebates pursuant to federal law. Additional claims allege
violations of federal and New York statutes, fraud and unjust
enrichment. For the period from 1992 to the present, NYC is
requesting money damages, civil penalties, declaratory and
injunctive relief, restitution, disgorgement of profits, and
treble and punitive damages. The United States District Court
for the District of Massachusetts has been established as the
MDL Court for the case, In re: Pharmaceutical Industry
Average Wholesale Pricing Litigation.
12
KING
PHARMACEUTICALS, INC.
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Since the filing of the New York City case, forty eight New York
counties have filed lawsuits against the pharmaceutical
industry, including the Company and Monarch. All of these
lawsuits are currently pending in the MDL Court in the District
of Massachusetts. Motions to remand were filed in Erie, Oswego
and Schenectady after they were removed from the New York State
Courts. The allegations in all of these cases are virtually the
same as the allegations in the New York City case. Motions to
dismiss were granted in part and denied in part for all
defendants in all New York City and County cases pending in the
MDL except for Oswego and Schenectady. The Erie motion to
dismiss was granted in part and denied in part by the state
court before removal. The MDL Court has not ruled on the motions
to remand Erie, Oswego and Schenectady Counties claims.
In January 2005, the State of Alabama filed a lawsuit in State
Court against 79 defendants including the Company and Monarch.
The four causes of action center on the allegation that all
defendants fraudulently inflated AWPs of their products. A
motion to dismiss was filed and denied by the court, but the
Court did require an amended complaint to be filed. The Company
filed an answer and counter-claim for return of rebates overpaid
to the State. Alabama filed a motion to dismiss the
counter-claim which was granted. The Company perfected its
appeal of that ruling.
In October 2005, the State of Mississippi filed a lawsuit in
State Court against the Company, Monarch and eighty-four other
defendants and alleged fourteen causes of action. Many of those
causes of action allege that all defendants fraudulently
inflated the AWPs and wholesale acquisition costs
(WACs) of their products. A motion to dismiss the
criminal statute counts and a motion for more definite statement
were granted. Mississippi was required to file an amended
complaint and in doing so dismissed the Company and Monarch from
the lawsuit without prejudice. These claims could be refiled.
A co-defendant removed the Alabama and Mississippi cases to
Federal Court on October 11, 2006. The Alabama case was
remanded to State Court on November 2, 2006. The MDL Court
has not ruled upon the motion to remand the Mississippi case
from which we were previously dismissed. Discovery is proceeding
in the Alabama case. The relief sought in both of these cases is
similar to the relief sought in the New York City lawsuit. The
Company does not expect any of its trials to be set in 2007. The
Company intends to defend all of the AWP lawsuits vigorously but
is currently unable to predict the outcome or reasonably
estimate the range of potential loss, if any.
Settlement
of Governmental Pricing Investigation
As previously reported, during the first quarter of 2006, the
Company paid approximately $129,268, comprising (i) all
amounts due under each of the settlement agreements resolving
the governmental investigations related to the Companys
underpayment of rebates owed to Medicaid and other governmental
pricing programs during the period from 1994 to 2002 (the
Settlement Agreements) and (ii) all the
Companys obligations to reimburse other parties for
expenses related to the settlement, including the previously
disclosed legal fees of approximately $787 and the previously
disclosed settlement costs of approximately $950.
The individual purportedly acting as a relator under
the False Claims Act has appealed certain decisions of the
District Court denying the relators request to be
compensated out of the approximately $31,000 that was paid by
the Company to those states that do not have legislation
providing for a relators share. The purported
relator has asserted for the first time on appeal that the
Company should be responsible for making such a payment to this
individual. Oral argument of the appeal before the
United States Court of Appeals for the Third Circuit was
heard on May 8, 2007. The Company believes that this claim
against it is without merit and does not expect the result of
the appeal to have a material effect on it.
In addition to the Settlement Agreements, on October 31,
2005, the Company entered into a five-year corporate integrity
agreement with HHS/OIG (the Corporate Integrity
Agreement) pursuant to which the Company is required,
among other things, to keep in place the Companys current
compliance program, to
13
KING
PHARMACEUTICALS, INC.
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
provide periodic reports to HHS/OIG and to submit to audits
relating to the Companys Medicaid rebate calculations.
The Settlement Agreements do not resolve any of the previously
disclosed civil suits that are pending against the Company and
related individuals and entities discussed in the section
Securities Litigation below.
SEC
Investigation
As previously reported, the Securities and Exchange Commission
(SEC) has also been conducting an investigation
relating to the Companys underpayments to governmental
programs, as well as into the Companys previously
disclosed errors relating to reserves for product returns. While
the SECs investigation is continuing with respect to the
product returns issue, the Staff of the SEC has advised the
Company that it has determined not to recommend enforcement
action against the Company with respect to the aforementioned
governmental pricing matter. The Staff of the SEC notified the
Company of this determination pursuant to the final paragraph of
Securities Act Release 5310. Although the SEC could still
consider charges against individuals in connection with the
governmental pricing matter, the Company does not believe that
any governmental unit with authority to assert criminal charges
is considering any charges of that kind.
The Company continues to cooperate with the SECs ongoing
investigation. Based on all information currently available to
it, the Company does not anticipate that the results of the
SECs ongoing investigation will have a material adverse
effect on it, including by virtue of any obligations to
indemnify current or former officers and directors.
Securities
Litigation
Subsequent to the announcement of the SEC investigation
described above, beginning in March 2003, 22 purported class
action complaints were filed by holders of the Companys
securities against the Company, its directors, former directors,
executive officers, former executive officers, a Company
subsidiary, and a former director of the subsidiary in the
United States District Court for the Eastern District of
Tennessee, alleging violations of the Securities Act of 1933
and/or the
Securities Exchange Act of 1934, in connection with the
Companys underpayment of rebates owed to Medicaid and
other governmental pricing programs, and certain transactions
between the Company and the Benevolent Fund, a nonprofit
organization affiliated with certain former members of the
Companys senior management. These 22 complaints were
consolidated in the United States District Court for the Eastern
District of Tennessee. In addition, holders of the
Companys securities filed two class action complaints
alleging violations of the Securities Act of 1933 in Tennessee
State Court. The Company removed these two cases to the United
States District Court for the Eastern District of Tennessee,
where these two cases were consolidated with the other class
actions. The District Court appointed lead plaintiffs in the
consolidated action, and those lead plaintiffs filed a
consolidated amended complaint on October 21, 2003 alleging
that the Company, through some of its executive officers, former
executive officers, directors, and former directors, made false
or misleading statements concerning its business, financial
condition, and results of operations during periods beginning
February 16, 1999 and continuing until March 10, 2003.
Plaintiffs in the consolidated action also named the
underwriters of the Companys November 2001 public offering
as defendants. The Company and other defendants filed motions to
dismiss the consolidated amended complaint.
On August 12, 2004, the United States District Court for
the Eastern District of Tennessee ruled on defendants
motions to dismiss. The Court dismissed all claims as to Jones
and as to defendants Dennis Jones and Henry Richards. The Court
also dismissed certain claims as to five other individual
defendants. The Court denied the motions to dismiss in all other
respects. Following the Courts ruling, on
September 20, 2004, the Company and the other remaining
defendants filed answers to plaintiffs consolidated
amended complaint.
14
KING
PHARMACEUTICALS, INC.
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
In November 2005, the parties agreed to submit the matter to
non-binding mediation. After an extensive mediation process, an
agreement in principle to settle the litigation was reached on
April 26, 2006. On July 31, 2006, the parties entered
into a stipulation of settlement and a supplemental agreement
(together, the Settlement Agreement) to resolve the
litigation. On January 9, 2007, the Court granted final
approval of the Settlement Agreement. The Settlement Agreement
provides for a settlement amount of $38,250 which has been fully
funded by the Companys insurance carriers on the
Companys behalf and placed into an escrow account
controlled by the Court.
Beginning in March 2003, four purported shareholder derivative
complaints were also filed in Tennessee State Court alleging a
breach of fiduciary duty, among other things, by some of the
Companys current and former officers and directors, with
respect to the same events at issue in the federal securities
litigation described above. These cases have been consolidated,
and on October 11, 2006, plaintiffs voluntarily dismissed
claims against Brian Markison and Elizabeth Greetham. Discovery
with respect to the remaining claims in the case has commenced.
No trial date has been set.
Beginning in March 2003, three purported shareholder derivative
complaints were likewise filed in Tennessee Federal Court,
asserting claims similar to those alleged in the state
derivative litigation. These cases have been consolidated, and
on December 2, 2003 plaintiffs filed a consolidated amended
complaint. On March 9, 2004, the Court entered an order
indefinitely staying these cases in favor of the state
derivative action.
During the third quarter of 2006, the Company recorded an
anticipated insurance recovery of legal fees in the amount of
$6,750 for the class action and derivative suits described
above. In November of 2006, the Company received payment for the
recovery of these legal fees.
The Company is currently unable to predict the outcome or
reasonably estimate the range of potential loss, if any, except
as noted above, in the pending litigation. If the Company were
not to prevail in the pending litigation, which it cannot
predict or reasonably estimate at this time, its business,
financial condition, results of operations and cash flows could
be materially adversely affected.
Other
Legal Proceedings
Elan Corporation, plc (Elan) was working to develop
a modified release formulation of
Sonata®,
which the Company refers to as
Sonata®
MR, pursuant to an agreement the Company had with Elan which the
Company refers to as the
Sonata®
MR Development Agreement. In early 2005, the Company advised
Elan that it considered the
Sonata®
MR Development Agreement terminated for failure to satisfy the
target product profile required by the Company. Elan disputed
the termination and initiated an arbitration proceeding. During
December of 2006, the arbitration panel reached a decision in
favor of Elan and ordered the Company to pay Elan certain
milestone payments and other research and development related
expenses of approximately $49,800, plus interest from the date
of the decision. The Company recorded approximately $45,100 in
the fourth quarter of 2006 and had previously recorded $5,000 in
2004, related to this arbitration. In January 2007, the Company
paid Elan approximately $50,100, which included interest of
approximately $300.
Cobalt Pharmaceuticals, Inc. (Cobalt), a generic
drug manufacturer located in Mississauga, Ontario, Canada, filed
an Abbreviated New Drug Application (ANDA) with the
U.S. Food and Drug Administration (the FDA)
seeking permission to market a generic version of
Altace®.
The following U.S. patents are listed for
Altace®
in the FDAs Approved Drug Products With Therapeutic
Equivalence Evaluations (the Orange Book):
United States Patent No. 5,061,722 (the 722
patent), a composition of matter patent, and United States
Patent No. 5,403,856 (the 856 patent), a
method-of-use
patent, with expiration dates of October 2008 and April 2012,
respectively. Under the federal Hatch-Waxman Act of 1984, any
generic manufacturer may file an ANDA with a certification (a
Paragraph IV certification) challenging the
validity or infringement of a patent listed in the FDAs
Orange Book four years after the pioneer company obtains
approval of its New
15
KING
PHARMACEUTICALS, INC.
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Drug Application (NDA). Cobalt filed a
Paragraph IV certification alleging invalidity of the
722 patent, and Aventis Pharma Deutschland GmbH
(Aventis) and the Company filed suit on
March 14, 2003 in the District Court for the District of
Massachusetts to enforce the rights under that patent. Pursuant
to the Hatch-Waxman Act, the filing of that suit provided the
Company an automatic stay of FDA approval of Cobalts ANDA
for 30 months (unless the patents are held invalid,
unenforceable, or not infringed) from no earlier than
February 5, 2003. That
30-month
stay expired in August 2005 and on October 24, 2005, the
FDA granted final approval of Cobalts ANDA. In March 2004,
Cobalt stipulated to infringement of the 722 patent.
Subsequent to filing its original complaint, the Company amended
its complaint to add an allegation of infringement of the
856 patent. The 856 patent covers one of
Altace®s
three indications for use. In response to the amended complaint,
Cobalt informed the FDA that it no longer seeks approval to
market its proposed product for the indication covered by the
856 patent. On this basis, the Court granted Cobalt
summary judgment of non-infringement of the 856 patent.
The Courts decision does not affect Cobalts
infringement of the 722 patent. The parties submitted a
joint stipulation of dismissal on April 4, 2006, and the
Court granted dismissal.
The Company has received a request for information from the
U.S. Federal Trade Commission (FTC) in
connection with the dismissal without prejudice of the
Companys patent infringement litigation against Cobalt
under the Hatch-Waxman Act of 1984. The Company is cooperating
with the FTC in this investigation.
Lupin Ltd. (Lupin) filed an ANDA with the FDA
seeking permission to market a generic version of
Altace®
(Lupins ANDA). In addition to its ANDA, Lupin
filed a Paragraph IV certification challenging the validity
and infringement of the 722 patent, and seeking to market
its generic version of
Altace®
before expiration of the 722 patent. In July 2005, the
Company filed civil actions for infringement of the 722
patent against Lupin in the U.S. District Courts for the
District of Maryland and the Eastern District of Virginia.
Pursuant to the Hatch-Waxman Act, the filing of the lawsuit
against Lupin provides the Company with an automatic stay of FDA
approval of Lupins ANDA for up to 30 months (unless
the patents are held invalid, unenforceable, or not infringed)
from no earlier than June 8, 2005. On February 1,
2006, the Maryland and Virginia cases were consolidated into a
single action in the Eastern District of Virginia. On
June 5, 2006, the Court granted King summary judgment and
found Lupin to infringe the 722 patent. On June 14,
2006, during the trial, the Court dismissed Lupins
unenforceability claims as a matter of law, finding the
722 patent enforceable. On July 18, 2006, the Court
upheld the validity of the 722 patent. Lupin filed a
notice of appeal on July 19, 2006. All appellate briefing
was completed as of March 19, 2007, and the parties are
waiting for the Court to set a date for oral argument.
The Company intends to vigorously enforce its rights under the
722 and 856 patents. If a generic version of
Altace®
enters the market, the Companys business, financial
condition, results of operations and cash flows could be
materially adversely affected. As of March 31, 2007, the
Company had net intangible assets related to
Altace®
of $215,939. If a generic version of
Altace®
enters the market, the Company may have to write off a portion
or all of the intangible assets associated with this product.
Eon Labs, Inc. (Eon Labs), CorePharma, LLC
(CorePharma) and Mutual Pharmaceutical Co., Inc.
(Mutual) have each filed an ANDA with the FDA
seeking permission to market a generic version of
Skelaxin®
400 mg tablets. Additionally, Eon Labs ANDA seeks
permission to market a generic version of
Skelaxin®
800 mg tablets. United States Patent Nos. 6,407,128 (the
128 patent) and 6,683,102 (the
102 patent), two
method-of-use
patents relating to
Skelaxin®,
are listed in the FDAs Orange Book and do not expire until
December 3, 2021. Eon Labs and CorePharma have each filed
Paragraph IV certifications against the 128 and
102 patents and are alleging noninfringement, invalidity
and unenforceability of those patents. Mutual has filed a
Paragraph IV certification against the 102 patent
alleging noninfringement and invalidity of that patent. A patent
infringement suit was filed against Eon Labs on January 2,
2003 in the District Court for the Eastern District of New York;
against CorePharma on March 7, 2003 in the District Court
for the District of New Jersey (subsequently transferred to the
District Court for the Eastern District of New York); and
against Mutual on March 12, 2004 in the District Court for
the Eastern District of
16
KING
PHARMACEUTICALS, INC.
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Pennsylvania concerning their proposed 400 mg products.
Additionally, the Company filed a separate suit against Eon Labs
on December 17, 2004 in the District Court for the Eastern
District of New York, concerning its proposed 800 mg
Skelaxin®
product.
Pursuant to the Hatch-Waxman Act, the filing of the suit against
CorePharma provided the Company with an automatic stay of FDA
approval of CorePharmas ANDA for 30 months (unless
the patents are held invalid, unenforceable, or not infringed)
from no earlier than January 24, 2003. That
30-month
stay expired in July 2005. Also pursuant to the Hatch-Waxman
Act, the filing of the suits against Eon Labs provided the
Company with an automatic stay of FDA approval of Eon Labs
ANDA for its proposed 400 mg and 800 mg products for
30 months (unless the patents are held invalid,
unenforceable, or not infringed) from no earlier than
November 18, 2002 and November 3, 2004, respectively.
The 30-month
stay of FDA approval for Eon Labs ANDA for its proposed
400 mg product expired in May 2005. The 30-month stay of
FDA approval for Eon Labs 800 mg product was tolled by the
Court and has not expired yet. The Court has reserved judgment
on the length of the tolling period. On May 17, 2006, the
District Court for the Eastern District of Pennsylvania placed
the Mutual case on the Civil Suspense Calendar pending the
outcome of the FDA activity described below. On June 16,
2006, the District Court for the Eastern District of New York
consolidated the Eon Labs cases with the CorePharma case. On
April 30, 2007, Eon Labs 400 mg case was dismissed
without prejudice, although Eon Labs claim for fees and
expenses was served and consolidated with Eon Labs 800 mg
case. The Court also set a briefing schedule in the CorePharma
case for the Companys motion to dismiss for lack of case
or controversy and for a CorePharma motion for summary judgment
of non-infringement. By the current schedule, motions are
scheduled to be fully briefed by July 2007 and oral argument
heard in August 2007. The Company intends to vigorously enforce
its rights under the 128 and 102 patents to the full
extent of the law.
On March 9, 2004, the Company received a copy of a letter
from the FDA to all ANDA applicants for
Skelaxin®
stating that the use listed in the FDAs Orange Book for
the 128 patent may be deleted from the ANDA
applicants product labeling. The Company believes that
this decision is arbitrary, capricious, and inconsistent with
the FDAs previous position on this issue. The Company
filed a Citizen Petition on March 18, 2004 (supplemented on
April 15, 2004 and on July 21, 2004), requesting the
FDA to rescind that letter, require generic applicants to submit
Paragraph IV certifications for the 128 patent, and
prohibit the removal of information corresponding to the use
listed in the Orange Book. The Company concurrently filed a
petition for stay of action requesting the FDA to stay approval
of any generic metaxalone products until the FDA has fully
evaluated the Companys Citizen Petition.
On March 12, 2004, the FDA sent a letter to the Company
explaining that its proposed labeling revision for
Skelaxin®,
which includes references to additional clinical studies
relating to food, age, and gender effects, was approvable and
only required certain formatting changes. On April 5, 2004,
the Company submitted amended labeling text that incorporated
those changes. On April 5, 2004, Mutual filed a petition
for stay of action requesting the FDA to stay approval of the
Companys proposed labeling revision until the FDA has
fully evaluated and ruled upon the Companys Citizen
Petition, as well as all comments submitted in response to that
petition. The Company, CorePharma and Mutual have filed
responses and supplements to their pending Citizen Petitions and
responses. On December 8, 2005, Mutual filed another
supplement with the FDA in which it withdrew its prior petition
for stay, supplement, and opposition to the Companys
Citizen Petition. On November 24, 2006, the FDA approved
the revision to the
Skelaxin®
labeling. On February 13, 2007, the Company filed another
supplement to the Companys Citizen Petition to reflect FDA
approval of the revision to the
Skelaxin®
labeling. On May 2, 2007, Mutual filed comments in
connection with the Companys supplemental submission.
If the Companys Amended Citizen Petition is rejected,
there is a substantial likelihood that a generic version of
Skelaxin®
will enter the market, and the Companys business,
financial condition, results of operations and cash flows could
be materially adversely affected. As of March 31, 2007, the
Company had net
17
KING
PHARMACEUTICALS, INC.
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
intangible assets related to
Skelaxin®
of $150,949. If demand for
Skelaxin®
declines below current expectations, the Company may have to
write off a portion or all of these intangible assets.
The Company has entered into an agreement with a generic
pharmaceutical company to launch an authorized generic version
of
Skelaxin®
in the event the Company faces generic competition for
Skelaxin®.
However, the Company cannot provide any assurance regarding the
extent to which this strategy will be successful, if at all.
Sicor Pharmaceuticals, Inc. (Sicor Pharma), a
generic drug manufacturer located in Irvine California, filed an
ANDA with the FDA seeking permission to market a generic version
of
Adenoscan®.
U.S. Patent No. 5,070,877 (the 877
patent), a
method-of-use
patent with an expiration date of May 2009, is assigned to the
Company and listed in the FDAs Orange Book entry for
Adenoscan®.
Astellas Pharma US, Inc. (Astellas) is the exclusive
licensee of certain rights under the 877 patent and has
marketed
Adenoscan®
in the U.S. since 1995. A substantial portion of the
Companys revenues from its royalties segment is derived
from Astellas based on its net sales of
Adenoscan®.
Sicor Pharma has filed a Paragraph IV certification
alleging invalidity of the 877 patent and non-infringement
of certain claims of the 877 patent. The Company and
Astellas filed suit against Sicor Pharma and its
parents/affiliates Sicor, Inc., Teva Pharmaceuticals USA, Inc.
(Teva) and Teva Pharmaceutical Industries, Ltd., on
May 26, 2005 in the United States District Court for the
District of Delaware to enforce their rights under the 877
patent. Pursuant to the Hatch-Waxman Act, the filing of that
suit provides the Company an automatic stay of FDA approval of
Sicor Pharmas ANDA for 30 months (unless the patents
are held invalid, unenforceable, or not infringed) from no
earlier than April 16, 2005. On May 16, 2006, Sicor
Pharma stipulated to infringement of the asserted claims of the
877 patent. Trial in this action began on
February 12, 2007 and concluded on February 28, 2007.
Pursuant to the current schedule, post-trial briefing should
conclude in June 2007. The Company intends to vigorously enforce
its rights under the 877 patent. Sicor is also involved in
litigation with Item Development AB regarding
U.S. Patent No. 5,731,296 (the 296
patent), a
method-of-use
patent with an expiration date of March 2015, which is also
listed in the Orange Book for
Adenoscan®.
Trial of the 296 patent occurred simultaneously with the
877 patent. Post-trial briefing for the 296 patent
trial will follow the same schedule as the 877 patent
trial. Entry by Tevas adenosine generic product is
contingent upon its defeating both the 296 and 877
patents. If a generic version of
Adenoscan®
enters the market or competitive products enter the market, the
Companys business, financial condition, results of
operations and cash flows could be materially adversely affected.
Teva filed an ANDA with the FDA seeking permission to market a
generic version of
Sonata®.
In addition to its ANDA, Teva filed a Paragraph IV
certification challenging the enforceability of U.S. Patent
4,626,538 (the 538 patent) listed in the Orange
Book, a composition of matter patent which expires in June 2008.
In August 2005, King filed suit against Teva in the United
States District Court for the District of New Jersey to enforce
its rights under the 538 patent. Pursuant to the
Hatch-Waxman Act, the filing of that suit provides the Company
an automatic stay of FDA approval of Tevas ANDA for
30 months (unless the patents are held invalid,
unenforceable, or not infringed) from no earlier than
June 21, 2005. On September 25, 2006, the parties
filed a stipulation with the Court in which Teva admitted
infringement of the 538 patent. In October 2006, Teva
filed a summary judgment motion on the grounds that the
538 patent is unenforceable due to breach in the common
ownership requirement for terminally disclaimed patents. The
Company filed its opposition brief in November 2006. Oral
argument was heard on January 10, 2007, and the Court
subsequently denied Tevas summary judgment motion. The
Company has filed a motion for summary judgment to dispose of
the case, and Teva filed a cross-motion for summary judgment.
The Company intends to vigorously enforce its rights under the
538 patent. As of March 31, 2007, the Company had no
net intangible assets related to
Sonata®.
If a generic form of
Sonata®
enters the market, the Companys business, financial
condition, results of operations and cash flows could be
materially adversely affected.
18
KING
PHARMACEUTICALS, INC.
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
In addition to the matters discussed above, the Company is
involved in various other legal proceedings incident to the
ordinary course of its business. The Company does not believe
that unfavorable outcomes as a result of these other legal
proceedings would have a material adverse effect on its
financial position, results of operations and cash flows.
Other
Contingencies
The Company has a supply agreement with a third party to produce
ramipril, the active ingredient in
Altace®.
This supply agreement requires the Company to purchase certain
minimum levels of ramipril as long as the Company maintains
market exclusivity for
Altace®
in the United States, and thereafter the parties must negotiate
in good faith the annual minimum purchase quantities. If the
Company is unable to maintain market exclusivity for
Altace®
in accordance with current expectations
and/or if
the Companys product life cycle management is not
successful, the Company may incur losses in connection with the
purchase commitments under the supply agreement. In the event
the Company incurs losses in connection with the purchase
commitments under the supply agreement, there may be a material
adverse effect upon the Companys results of operations and
cash flows.
The Company orders metaxalone, the active ingredient in
Skelaxin®,
from two suppliers. If sales of
Skelaxin®
are not consistent with current forecasts, the Company could
incur losses in connection with purchase commitments for
metaxalone, which could have a material adverse effect upon the
Companys results of operations and cash flows.
|
|
9.
|
Accounting
Developments
|
In September 2006, the Financial Accounting Standards Board
(FASB) issued Statement of Financial Accounting
Standards No. 157, Fair Value Measurements
(SFAS No. 157). This statement defines
fair value, establishes a framework for measuring fair value,
and expands disclosures about fair value measurements. The
statement is effective for financial statements issued for
fiscal years beginning after November 15, 2007, and interim
periods within those fiscal years. The Company is in the process
of evaluating the effect of SFAS No. 157 on its
financial statements and is planning to adopt this standard in
the first quarter of 2008.
In February 2007, the FASB issued Statement of Financial
Accounting Standards No. 159, The Fair Value Option for
Financial Assets and Financial Liabilities
(SFAS No. 159). This statement permits
entities to choose to measure many financial instruments and
certain other items at fair value. SFAS No. 159 also
establishes presentation and disclosure requirements designed to
facilitate comparisons between entities that choose different
measurement attributes for similar types of assets and
liabilities. The statement is effective for financial statements
issued for fiscal years beginning after November 15, 2007.
The Company is in the process of evaluating the effect of
SFAS No. 159 on its financial statements and is
planning to adopt this standard in the first quarter of 2008.
Effective January 1, 2007, the Company adopted Financial
Accounting Standards Board (FASB) Interpretation
No. 48, Accounting for Uncertainty in Income Taxes
(FIN 48). FIN 48 is an interpretation of
FASB Statement No. 109, Accounting for Income Taxes,
and it seeks to reduce the variability in practice associated
with measurement and recognition of tax benefits. FIN 48
prescribes a recognition threshold and measurement attribute for
the financial statement recognition and measurement of a tax
position that an entity takes or expects to take in a tax
return. Additionally, FIN 48 provides guidance on
de-recognition, classification, interest and penalties,
accounting in interim periods, disclosure, and transition. Under
FIN 48, an entity may only recognize or continue to
recognize tax positions that meet a more likely than
not threshold. The Company recorded the cumulative effect
of applying FIN 48 of $1,523 as a reduction to the opening
balance of retained earnings. The total net liability under
FIN 48 as of January 1, 2007 was $34,152. See
Note 10, Income Taxes, for additional
information.
The Companys effective income tax rate varied from the
statutory rate for the three months ended March 31, 2007
primarily due to tax benefits related to tax-exempt interest
income and domestic
19
KING
PHARMACEUTICALS, INC.
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
manufacturing deductions, which benefits were partially offset
by state taxes. The Companys effective tax rate varied
from the statutory rate for the three months ended
March 31, 2006 primarily due to tax benefits related to
charitable contributions of inventory, tax-exempt interest
income, and domestic manufacturing deductions, which benefits
were partially offset by state taxes.
The Company adopted the provisions of FIN 48 on
January 1, 2007. As a result of the implementation of
FIN 48, we recorded a $1,523 increase to the net liability
for unrecognized tax positions, which was recorded as a
reduction to the opening balance of retained earnings as of
January 1, 2007. The total liability recorded under
FIN 48, as of January 1, 2007, was $34,152, including
interest and penalties of $3,147 and $2,702, respectively.
As of March 31, 2007, the total liability recorded under
FIN 48 was $35,137. The total amount of unrecognized tax
benefits as of March 31, 2007, was $28,819, all of which
would benefit the effective tax rate if recognized. In
accordance with its accounting policy, the Company recognizes
accrued interest and penalties related to unrecognized tax
benefits as a component of tax expense. The Companys
Condensed Consolidated Balance Sheet as of March 31, 2007
includes interest and penalties of $3,590 and $2,728,
respectively.
Included in the balance of unrecognized tax benefits at
March 31, 2007, was $5,792 related to tax positions for
which it is reasonably possible that the total amounts could
significantly change during the next twelve months. This amount
is comprised primarily of items related to expiring statutes.
As of March 31, 2007, the Company is subject to
U.S. Federal income tax examinations for the tax years 2003
through 2006, and to
non-U.S. income
tax examinations for the tax years of 2002 through 2006. In
addition, the Company is subject to state and local income tax
examinations for the tax years 2002 through 2006.
The Companys business is classified into five reportable
segments: branded pharmaceuticals, Meridian Medical Technologies
(Meridian), royalties, contract manufacturing and
all other. Branded pharmaceuticals includes a variety of branded
prescription products that are separately categorized into four
therapeutic areas: cardiovascular/metabolic, neuroscience,
hospital/acute care, and other. These branded prescription
products are aggregated because of the similarity in regulatory
environment, manufacturing processes, methods of distribution,
and types of customer. Meridian develops, manufactures, and
sells to both commercial and government markets pharmaceutical
products that are administered with an auto-injector. The
principal source of revenues in the commercial market is the
EpiPen®
product, an epinephrine filled auto-injector, which is primarily
prescribed for the treatment of severe allergic reactions and
which is marketed, distributed and sold by Dey, L.P. except in
Canada where it is marketed, distributed and sold by the
Company. Government revenues are principally derived from the
sale of nerve agent antidotes and other emergency medicine
auto-injector products marketed to the U.S. Department of
Defense and other federal, state and local agencies,
particularly those involved in homeland security, as well as to
approved foreign governments. Contract manufacturing primarily
includes pharmaceutical manufacturing services the Company
provides to third-party pharmaceutical and biotechnology
companies. Royalties include revenues the Company derives from
pharmaceutical products after the Company has transferred the
manufacturing or marketing rights to third parties in exchange
for licensing fees or royalty payments.
The Company primarily evaluates its segments based on segment
profit. Reportable segments were separately identified based on
revenues, segment profit (excluding depreciation, amortization
and impairments) and total assets. Revenues among the segments
are presented in the individual segments and removed through
eliminations in the information below. Substantially all of the
eliminations relate to sales from the contract manufacturing
segment to the branded pharmaceuticals segment. The
Companys revenues are substantially all derived from
activities within the United States and Puerto Rico where
substantially all of its assets are located.
20
KING
PHARMACEUTICALS, INC.
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
The following represents selected information for the
Companys reportable segments for the periods indicated:
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
March 31,
|
|
|
|
2007
|
|
|
2006
|
|
|
Total revenues:
|
|
|
|
|
|
|
|
|
Branded pharmaceuticals
|
|
$
|
449,087
|
|
|
$
|
417,620
|
|
Meridian Medical Technologies
|
|
|
43,015
|
|
|
|
41,284
|
|
Royalties
|
|
|
20,324
|
|
|
|
19,636
|
|
Contract manufacturing
|
|
|
158,386
|
|
|
|
121,282
|
|
Other
|
|
|
396
|
|
|
|
|
|
Eliminations
|
|
|
(155,178
|
)
|
|
|
(115,587
|
)
|
|
|
|
|
|
|
|
|
|
Consolidated total net revenues
|
|
$
|
516,030
|
|
|
$
|
484,235
|
|
|
|
|
|
|
|
|
|
|
Segment profit:
|
|
|
|
|
|
|
|
|
Branded pharmaceuticals
|
|
$
|
362,213
|
|
|
$
|
352,229
|
|
Meridian Medical Technologies
|
|
|
24,575
|
|
|
|
22,037
|
|
Royalties
|
|
|
17,881
|
|
|
|
17,266
|
|
Contract manufacturing
|
|
|
204
|
|
|
|
299
|
|
Other
|
|
|
(297
|
)
|
|
|
|
|
Other operating costs and expense
|
|
|
(236,721
|
)
|
|
|
(319,590
|
)
|
Other income (expense)
|
|
|
6,698
|
|
|
|
3,488
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations
before tax
|
|
$
|
174,553
|
|
|
$
|
75,729
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of
|
|
|
As of
|
|
|
|
March 31,
|
|
|
December 31,
|
|
|
|
2007
|
|
|
2006
|
|
|
Total assets:
|
|
|
|
|
|
|
|
|
Branded pharmaceuticals
|
|
$
|
2,994,917
|
|
|
$
|
2,994,580
|
|
Meridian Medical Technologies
|
|
|
296,091
|
|
|
|
294,455
|
|
Royalties
|
|
|
28,110
|
|
|
|
21,626
|
|
Contract manufacturing
|
|
|
14,352
|
|
|
|
18,870
|
|
Other
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Consolidated total assets
|
|
$
|
3,333,470
|
|
|
$
|
3,329,531
|
|
|
|
|
|
|
|
|
|
|
21
KING
PHARMACEUTICALS, INC.
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
The following represents branded pharmaceutical revenues by
therapeutic area:
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
March 31,
|
|
|
|
2007
|
|
|
2006
|
|
|
Total revenues:
|
|
|
|
|
|
|
|
|
Cardiovascular/metabolic
|
|
$
|
194,390
|
|
|
$
|
203,868
|
|
Neuroscience
|
|
|
145,370
|
|
|
|
119,893
|
|
Hospital/acute care
|
|
|
94,930
|
|
|
|
81,016
|
|
Other
|
|
|
14,397
|
|
|
|
12,843
|
|
|
|
|
|
|
|
|
|
|
Consolidated branded
pharmaceutical revenues
|
|
$
|
449,087
|
|
|
$
|
417,620
|
|
|
|
|
|
|
|
|
|
|
|
|
12.
|
Restructuring
Activities
|
During 2006, the Company decided to streamline manufacturing
activities in order to improve operating efficiency and reduce
costs, including the decision to transfer the production of
Levoxyl®
from its St. Petersburg, Florida facility to its Bristol,
Tennessee facility by the end of 2008. As a result of these
steps, the Company expects to incur restructuring charges
totaling approximately $13,000 through the end of 2008, of which
approximately $11,000 is associated with accelerated
depreciation and approximately $2,000 is associated with
employee termination costs.
The types of costs accrued and incurred are summarized below:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accrued
|
|
|
|
|
|
|
|
|
|
|
|
Accrued
|
|
|
|
Balance at
|
|
|
Income
|
|
|
|
|
|
|
|
|
Balance at
|
|
|
|
December 31,
|
|
|
Statement
|
|
|
Cash
|
|
|
Non-Cash
|
|
|
March 31,
|
|
|
|
2006
|
|
|
Impact
|
|
|
Payments
|
|
|
Costs
|
|
|
2007
|
|
|
First quarter of 2007
action
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Employee separation payments
|
|
$
|
|
|
|
$
|
460
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
460
|
|
Third quarter of 2006
action
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Employee separation payments
|
|
|
2,163
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,163
|
|
Accelerated depreciation(1)
|
|
|
|
|
|
|
1,500
|
|
|
|
|
|
|
|
(1,500
|
)
|
|
|
|
|
Fourth quarter of 2005
action
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Employee separation payments
|
|
|
521
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
521
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
2,684
|
|
|
$
|
1,960
|
|
|
$
|
|
|
|
$
|
(1,500
|
)
|
|
$
|
3,144
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Included in depreciation and amortization on the Consolidated
Statements of Operations. |
The restructuring charges in 2007 relate to the branded
pharmaceutical segment. The accrued employee separation payments
as of March 31, 2007 are expected to be paid by the end of
2008.
|
|
13.
|
Investments
in Debt Securities
|
The Company invests its excess cash in auction rate securities
as part of its cash management strategy. Auction rate securities
are long-term variable rate bonds tied to short-term interest
rates that are reset through an auction process generally every
seven to 35 days. As of the three months ended
March 31, 2007 and December 31, 2006, there were no
cumulative gross unrealized gains or losses on investments in
debt securities.
22
KING
PHARMACEUTICALS, INC.
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
|
|
14.
|
Marketable
Securities
|
As of March 31, 2007 and December 31, 2006, the
Companys investment in Palatin Technologies, Inc. common
stock had a cost basis of $12,242 and there were cumulative
unrealized holding losses of $1,742 and $664, respectively.
|
|
15.
|
Stock-Based
Compensation
|
During March 2007, under its Incentive Plan, the Company granted
to certain employees 179,210 RSAs, 655,840 LPUs with a one year
performance cycle, 158,610 LPUs with a three year performance
cycle and 352,510 nonqualified stock options.
The RSAs are grants of shares of common stock restricted from
sale or transfer for three years from grant date.
The LPUs are rights to receive common stock of the Company in
which the number of shares ultimately received depends on the
Companys performance over time. LPUs with a one-year
performance cycle, followed by a two-year restriction period,
will be earned based on 2007 operating targets. LPUs with a
three-year performance cycle will be earned based on
market-related performance targets over the years 2007 through
2009. At the end of the applicable performance period, the
number of shares of common stock awarded is determined by
adjusting upward or downward from the performance target in a
range between 0% and 200%. The final performance percentage on
which the number of shares of common stock issued is based,
considering performance metrics established for the performance
period, will be determined by the Companys Board of
Directors or a committee of the Board at its sole discretion.
The nonqualified stock options were granted at option prices
equal to the fair market value of the common stock at the date
of grant and vest approximately in one-third increments on each
of the first three anniversaries of the grant date.
The Companys calculation of its product returns reserves
is based on historical sales and return rates over the period
during which customers have a right of return. The Company also
considers current wholesale inventory levels of the
Companys products. Because actual returns related to sales
in prior periods were lower than the Companys original
estimates, it recorded a decrease in its reserve for returns in
each of the first quarter of 2007 and the first quarter of 2006.
During the first quarter of 2007, the Company decreased its
reserve for returns by approximately $8,000 and increased its
net sales from branded pharmaceuticals, excluding the adjustment
to sales classified as discontinued operations, by the same
amount. The effect of the change in estimate on first quarter
2007 operating income was an increase of approximately $5,000.
During the first quarter of 2006, the Company decreased its
reserve for returns by approximately $8,000 and increased its
net sales from branded pharmaceuticals, excluding the adjustment
to sales classified as discontinued operations, by the same
amount. The effect of the change in estimate on first quarter
2006 operating income was an increase of approximately $6,000.
|
|
17.
|
Discontinued
Operations
|
On March 30, 2004, the Companys Board of Directors
approved managements decision to market for divestiture
some of the Companys womens health products. On
November 22, 2004, the Company sold all of its rights in
Prefest®
for approximately $15,000. On December 23, 2004, the
Company sold all of its rights in
Nordette®
for approximately $12,000.
The
Prefest®
and
Nordette®
product rights had identifiable cash flows that were largely
independent of the cash flows of other groups of assets and
liabilities and are classified as discontinued operations in the
23
KING
PHARMACEUTICALS, INC.
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
accompanying financial statements.
Prefest®
and
Nordette®
formerly were included in the Companys branded
pharmaceuticals segment.
Summarized financial information for the discontinued operations
is as follows:
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
March 31,
|
|
|
|
2007
|
|
|
2006
|
|
|
Total revenues
|
|
$
|
(222
|
)
|
|
$
|
(250
|
)
|
Operating loss
|
|
|
(220
|
)
|
|
|
(247
|
)
|
Net loss
|
|
$
|
(141
|
)
|
|
$
|
(158
|
)
|
Discontinued operations during 2007 and 2006 are primarily due
to changes in estimated reserves for returns and rebates.
|
|
18.
|
Guarantor
Financial Statements
|
On April 23, 2002, the Company established a $400,000
five-year Senior Secured Revolving Credit Facility which was
scheduled to mature in April 2007 (the 2002 Credit
Facility). On April 19, 2007, this facility was
terminated and replaced with a new $475,000 five-year Senior
Secured Revolving Credit Facility which matures in April 2012
(the 2007 Credit Facility).
Each of the Companys subsidiaries, except Monarch
Pharmaceuticals Ireland Limited (the Guarantor
Subsidiaries), guaranteed on a full, unconditional and
joint and several basis the Companys performance under the
$400,000 aggregate principal amount of the Notes and under the
2002 Credit Facility on a joint and several basis.
Four of the Guarantor Subsidiaries, King Pharmaceuticals
Research and Development, Inc., Monarch Pharmaceuticals, Inc.,
Meridian Medical Technologies, Inc., and Parkedale
Pharmaceuticals, Inc., have guaranteed on a full, unconditional
and joint and several basis the Companys performance under
the 2007 Credit Facility.
There are no restrictions under the Companys current
financing arrangements, and there were no restrictions under the
2002 Credit Facility, on the ability of the Guarantor
Subsidiaries to distribute funds to the Company in the form of
cash dividends, loans or advances. The following combined
financial data provides information regarding the financial
position, results of operations and cash flows of the Guarantor
Subsidiaries (condensed consolidating financial data). Separate
financial statements and other disclosures concerning the
Guarantor Subsidiaries are not presented because management has
determined that such information would not be material to the
holders of the debt.
24
KING
PHARMACEUTICALS, INC.
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
GUARANTOR
SUBSIDIARIES
CONDENSED
CONSOLIDATING BALANCE SHEETS
(In thousands)
(Unaudited)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
March 31, 2007
|
|
|
December 31, 2006
|
|
|
|
|
|
|
|
|
|
Non
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non
|
|
|
|
|
|
|
|
|
|
|
|
|
Guarantor
|
|
|
Guarantor
|
|
|
Eliminating
|
|
|
King
|
|
|
|
|
|
Guarantor
|
|
|
Guarantor
|
|
|
Eliminating
|
|
|
King
|
|
|
|
King
|
|
|
Subsidiaries
|
|
|
Subsidiaries
|
|
|
Entries
|
|
|
Consolidated
|
|
|
King
|
|
|
Subsidiaries
|
|
|
Subsidiaries
|
|
|
Entries
|
|
|
Consolidated
|
|
|
ASSETS
|
Current assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
48,514
|
|
|
$
|
6,531
|
|
|
$
|
5,166
|
|
|
$
|
|
|
|
$
|
60,211
|
|
|
$
|
101,210
|
|
|
$
|
8,749
|
|
|
$
|
3,818
|
|
|
|
|
|
|
$
|
113,777
|
|
Investments in debt securities
|
|
|
758,205
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
758,205
|
|
|
|
890,185
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
890,185
|
|
Accounts receivable, net
|
|
|
441
|
|
|
|
262,239
|
|
|
|
862
|
|
|
|
|
|
|
|
263,542
|
|
|
|
3,056
|
|
|
|
260,353
|
|
|
|
2,058
|
|
|
|
|
|
|
|
265,467
|
|
Inventories
|
|
|
167,546
|
|
|
|
39,909
|
|
|
|
430
|
|
|
|
|
|
|
|
207,885
|
|
|
|
176,389
|
|
|
|
38,814
|
|
|
|
255
|
|
|
|
|
|
|
|
215,458
|
|
Deferred income tax assets
|
|
|
11,552
|
|
|
|
49,600
|
|
|
|
|
|
|
|
|
|
|
|
61,152
|
|
|
|
30,051
|
|
|
|
51,940
|
|
|
|
|
|
|
|
|
|
|
|
81,991
|
|
Prepaid expenses and other current
assets
|
|
|
35,943
|
|
|
|
12,345
|
|
|
|
31
|
|
|
|
|
|
|
|
48,319
|
|
|
|
99,678
|
|
|
|
6,891
|
|
|
|
26
|
|
|
|
|
|
|
|
106,595
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current assets
|
|
|
1,022,201
|
|
|
|
370,624
|
|
|
|
6,489
|
|
|
|
|
|
|
|
1,399,314
|
|
|
|
1,300,569
|
|
|
|
366,747
|
|
|
|
6,157
|
|
|
|
|
|
|
|
1,673,473
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Property, plant and equipment, net
|
|
|
113,639
|
|
|
|
193,023
|
|
|
|
|
|
|
|
|
|
|
|
306,662
|
|
|
|
109,572
|
|
|
|
197,464
|
|
|
|
|
|
|
|
|
|
|
|
307,036
|
|
Intangible assets, net
|
|
|
|
|
|
|
1,112,838
|
|
|
|
2,906
|
|
|
|
|
|
|
|
1,115,744
|
|
|
|
|
|
|
|
848,425
|
|
|
|
2,966
|
|
|
|
|
|
|
|
851,391
|
|
Goodwill
|
|
|
|
|
|
|
121,152
|
|
|
|
|
|
|
|
|
|
|
|
121,152
|
|
|
|
|
|
|
|
121,152
|
|
|
|
|
|
|
|
|
|
|
|
121,152
|
|
Marketable securities
|
|
|
10,500
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10,500
|
|
|
|
11,578
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
11,578
|
|
Deferred income tax assets
|
|
|
(1,613
|
)
|
|
|
281,079
|
|
|
|
820
|
|
|
|
|
|
|
|
280,286
|
|
|
|
(2,111
|
)
|
|
|
272,868
|
|
|
|
797
|
|
|
|
|
|
|
|
271,554
|
|
Other assets
|
|
|
41,190
|
|
|
|
58,622
|
|
|
|
|
|
|
|
|
|
|
|
99,812
|
|
|
|
40,142
|
|
|
|
53,205
|
|
|
|
|
|
|
|
|
|
|
|
93,347
|
|
Investments in subsidiaries
|
|
|
1,568,095
|
|
|
|
|
|
|
|
|
|
|
|
(1,568,095
|
)
|
|
|
|
|
|
|
2,615,029
|
|
|
|
|
|
|
|
|
|
|
|
(2,615,029
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
$
|
2,754,012
|
|
|
$
|
2,137,338
|
|
|
$
|
10,215
|
|
|
$
|
(1,568,095
|
)
|
|
$
|
3,333,470
|
|
|
$
|
4,074,779
|
|
|
$
|
1,859,861
|
|
|
$
|
9,920
|
|
|
$
|
(2,615,029
|
)
|
|
$
|
3,329,531
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND
SHAREHOLDERS EQUITY
|
Current liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts payable
|
|
$
|
46,997
|
|
|
$
|
19,631
|
|
|
$
|
433
|
|
|
$
|
|
|
|
$
|
67,061
|
|
|
$
|
51,671
|
|
|
$
|
25,063
|
|
|
$
|
424
|
|
|
$
|
|
|
|
$
|
77,158
|
|
Accrued expenses
|
|
|
31,419
|
|
|
|
322,252
|
|
|
|
4
|
|
|
|
|
|
|
|
353,675
|
|
|
|
134,089
|
|
|
|
376,051
|
|
|
|
(3
|
)
|
|
|
|
|
|
|
510,137
|
|
Income taxes payable
|
|
|
42,936
|
|
|
|
1,279
|
|
|
|
|
|
|
|
|
|
|
|
44,215
|
|
|
|
28,045
|
|
|
|
2,456
|
|
|
|
|
|
|
|
|
|
|
|
30,501
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities
|
|
|
121,352
|
|
|
|
343,162
|
|
|
|
437
|
|
|
|
|
|
|
|
464,951
|
|
|
|
213,805
|
|
|
|
403,570
|
|
|
|
421
|
|
|
|
|
|
|
|
617,796
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Long-term debt
|
|
|
400,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
400,000
|
|
|
|
400,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
400,000
|
|
Other liabilities
|
|
|
51,314
|
|
|
|
7,498
|
|
|
|
|
|
|
|
|
|
|
|
58,812
|
|
|
|
16,243
|
|
|
|
6,886
|
|
|
|
|
|
|
|
|
|
|
|
23,129
|
|
Intercompany payable (receivable)
|
|
|
(228,361
|
)
|
|
|
228,038
|
|
|
|
323
|
|
|
|
|
|
|
|
|
|
|
|
1,156,125
|
|
|
|
(1,168,516
|
)
|
|
|
12,391
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities
|
|
|
344,305
|
|
|
|
578,698
|
|
|
|
760
|
|
|
|
|
|
|
|
923,763
|
|
|
|
1,786,173
|
|
|
|
(758,060
|
)
|
|
|
12,812
|
|
|
|
|
|
|
|
1,040,925
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shareholders equity
|
|
|
2,409,707
|
|
|
|
1,558,640
|
|
|
|
9,455
|
|
|
|
(1,568,095
|
)
|
|
|
2,409,707
|
|
|
|
2,288,606
|
|
|
|
2,617,921
|
|
|
|
(2,892
|
)
|
|
|
(2,615,029
|
)
|
|
|
2,288,606
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities and
shareholders equity
|
|
$
|
2,754,012
|
|
|
$
|
2,137,338
|
|
|
$
|
10,215
|
|
|
$
|
(1,568,095
|
)
|
|
$
|
3,333,470
|
|
|
$
|
4,074,779
|
|
|
$
|
1,859,861
|
|
|
$
|
9,920
|
|
|
$
|
(2,615,029
|
)
|
|
$
|
3,329,531
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
25
KING
PHARMACEUTICALS, INC.
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
GUARANTOR
SUBSIDIARIES
CONDENSED
CONSOLIDATING STATEMENTS OF INCOME
(In thousands)
(Unaudited)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, 2007
|
|
|
Three Months Ended March 31, 2006
|
|
|
|
|
|
|
|
|
|
Non
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non
|
|
|
|
|
|
|
|
|
|
|
|
|
Guarantor
|
|
|
Guarantor
|
|
|
|
|
|
King
|
|
|
|
|
|
Guarantor
|
|
|
Guarantor
|
|
|
|
|
|
King
|
|
|
|
King
|
|
|
Subsidiaries
|
|
|
Subsidiaries
|
|
|
Eliminations
|
|
|
Consolidated
|
|
|
King
|
|
|
Subsidiaries
|
|
|
Subsidiaries
|
|
|
Eliminations
|
|
|
Consolidated
|
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net sales
|
|
$
|
127,762
|
|
|
$
|
495,261
|
|
|
$
|
49
|
|
|
$
|
(127,366
|
)
|
|
$
|
495,706
|
|
|
$
|
97,832
|
|
|
$
|
462,668
|
|
|
$
|
1,557
|
|
|
$
|
(97,458
|
)
|
|
$
|
464,599
|
|
Royalty revenue
|
|
|
|
|
|
|
20,324
|
|
|
|
|
|
|
|
|
|
|
|
20,324
|
|
|
|
|
|
|
|
19,636
|
|
|
|
|
|
|
|
|
|
|
|
19,636
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues
|
|
|
127,762
|
|
|
|
515,585
|
|
|
|
49
|
|
|
|
(127,366
|
)
|
|
|
516,030
|
|
|
|
97,832
|
|
|
|
482,304
|
|
|
|
1,557
|
|
|
|
(97,458
|
)
|
|
|
484,235
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating costs and expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of revenues
|
|
|
47,186
|
|
|
|
191,442
|
|
|
|
192
|
|
|
|
(127,366
|
)
|
|
|
111,454
|
|
|
|
37,355
|
|
|
|
151,782
|
|
|
|
725
|
|
|
|
(97,458
|
)
|
|
|
92,404
|
|
Selling, general and administrative
|
|
|
70,867
|
|
|
|
97,574
|
|
|
|
(129
|
)
|
|
|
|
|
|
|
168,312
|
|
|
|
49,086
|
|
|
|
121,661
|
|
|
|
(404
|
)
|
|
|
|
|
|
|
170,343
|
|
Research and development
|
|
|
788
|
|
|
|
31,483
|
|
|
|
|
|
|
|
|
|
|
|
32,271
|
|
|
|
873
|
|
|
|
114,009
|
|
|
|
|
|
|
|
|
|
|
|
114,882
|
|
Depreciation and amortization
|
|
|
4,797
|
|
|
|
30,821
|
|
|
|
60
|
|
|
|
|
|
|
|
35,678
|
|
|
|
4,010
|
|
|
|
30,295
|
|
|
|
60
|
|
|
|
|
|
|
|
34,365
|
|
Restructuring charges
|
|
|
460
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
460
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating costs and expenses
|
|
|
124,098
|
|
|
|
351,320
|
|
|
|
123
|
|
|
|
(127,366
|
)
|
|
|
348,175
|
|
|
|
91,324
|
|
|
|
417,747
|
|
|
|
381
|
|
|
|
(97,458
|
)
|
|
|
411,994
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss)
|
|
|
3,664
|
|
|
|
164,265
|
|
|
|
(74
|
)
|
|
|
|
|
|
|
167,855
|
|
|
|
6,508
|
|
|
|
64,557
|
|
|
|
1,176
|
|
|
|
|
|
|
|
72,241
|
|
Other income (expense):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income
|
|
|
9,223
|
|
|
|
39
|
|
|
|
4
|
|
|
|
|
|
|
|
9,266
|
|
|
|
5,853
|
|
|
|
107
|
|
|
|
|
|
|
|
|
|
|
|
5,960
|
|
Interest expense
|
|
|
(2,003
|
)
|
|
|
(22
|
)
|
|
|
|
|
|
|
|
|
|
|
(2,025
|
)
|
|
|
(2,981
|
)
|
|
|
(3
|
)
|
|
|
|
|
|
|
|
|
|
|
(2,984
|
)
|
Gain on early extinguishment of debt
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,022
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,022
|
|
Other, net
|
|
|
(559
|
)
|
|
|
(45
|
)
|
|
|
61
|
|
|
|
|
|
|
|
(543
|
)
|
|
|
(57
|
)
|
|
|
(534
|
)
|
|
|
81
|
|
|
|
|
|
|
|
(510
|
)
|
Equity in earnings (loss) of
subsidiaries
|
|
|
108,944
|
|
|
|
|
|
|
|
|
|
|
|
(108,944
|
)
|
|
|
|
|
|
|
51,218
|
|
|
|
|
|
|
|
|
|
|
|
(51,218
|
)
|
|
|
|
|
Intercompany dividend income
|
|
|
969,849
|
|
|
|
|
|
|
|
|
|
|
|
(969,849
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Intercompany interest (expense)
income
|
|
|
(4,937
|
)
|
|
|
4,995
|
|
|
|
(58
|
)
|
|
|
|
|
|
|
|
|
|
|
(10,649
|
)
|
|
|
10,781
|
|
|
|
(132
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total other income (expense)
|
|
|
1,080,517
|
|
|
|
4,967
|
|
|
|
7
|
|
|
|
(1,078,793
|
)
|
|
|
6,698
|
|
|
|
44,406
|
|
|
|
10,351
|
|
|
|
(51
|
)
|
|
|
(51,218
|
)
|
|
|
3,488
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from continuing
operations before income taxes
|
|
|
1,084,181
|
|
|
|
169,232
|
|
|
|
(67
|
)
|
|
|
(1,078,793
|
)
|
|
|
174,553
|
|
|
|
50,914
|
|
|
|
74,908
|
|
|
|
1,125
|
|
|
|
(51,218
|
)
|
|
|
75,729
|
|
Income tax expense (benefit)
|
|
|
(1,581
|
)
|
|
|
60,104
|
|
|
|
(24
|
)
|
|
|
|
|
|
|
58,499
|
|
|
|
237
|
|
|
|
24,263
|
|
|
|
394
|
|
|
|
|
|
|
|
24,894
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from continuing
operations
|
|
|
1,085,762
|
|
|
|
109,128
|
|
|
|
(43
|
)
|
|
|
(1,078,793
|
)
|
|
|
116,054
|
|
|
|
50,677
|
|
|
|
50,645
|
|
|
|
731
|
|
|
|
(51,218
|
)
|
|
|
50,835
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Discontinued operations:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Loss) income from discontinued
operations, including loss on impairment
|
|
|
|
|
|
|
(220
|
)
|
|
|
|
|
|
|
|
|
|
|
(220
|
)
|
|
|
|
|
|
|
(247
|
)
|
|
|
|
|
|
|
|
|
|
|
(247
|
)
|
Income tax (benefit) expense
|
|
|
|
|
|
|
(79
|
)
|
|
|
|
|
|
|
|
|
|
|
(79
|
)
|
|
|
|
|
|
|
(89
|
)
|
|
|
|
|
|
|
|
|
|
|
(89
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Loss) income from discontinued
operations, net
|
|
|
|
|
|
|
(141
|
)
|
|
|
|
|
|
|
|
|
|
|
(141
|
)
|
|
|
|
|
|
|
(158
|
)
|
|
|
|
|
|
|
|
|
|
|
(158
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
$
|
1,085,762
|
|
|
$
|
108,987
|
|
|
$
|
(43
|
)
|
|
$
|
(1,078,793
|
)
|
|
$
|
115,913
|
|
|
$
|
50,677
|
|
|
$
|
50,487
|
|
|
$
|
731
|
|
|
$
|
(51,218
|
)
|
|
$
|
50,677
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
26
KING
PHARMACEUTICALS, INC.
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
GUARANTOR
SUBSIDIARIES
CONDENSED
CONSOLIDATING STATEMENTS OF CASH FLOWS
(In thousands)
(Unaudited)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, 2007
|
|
|
Three Months Ended March 31, 2006
|
|
|
|
|
|
|
|
|
|
Non
|
|
|
|
|
|
|
|
|
|
|
|
Non
|
|
|
|
|
|
|
|
|
|
Guarantor
|
|
|
Guarantor
|
|
|
King
|
|
|
|
|
|
Guarantor
|
|
|
Guarantor
|
|
|
King
|
|
|
|
King
|
|
|
Subsidiaries
|
|
|
Subsidiaries
|
|
|
Consolidated
|
|
|
King
|
|
|
Subsidiaries
|
|
|
Subsidiaries
|
|
|
Consolidated
|
|
|
Cash flows from operating
activities of continuing operations
|
|
$
|
10,345
|
|
|
$
|
96,714
|
|
|
$
|
1,025
|
|
|
$
|
108,084
|
|
|
$
|
(38,462
|
)
|
|
$
|
33,187
|
|
|
$
|
(317
|
)
|
|
$
|
(5,592
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing
activities of continuing operations:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Transfers from (to) restricted cash
|
|
|
(148
|
)
|
|
|
|
|
|
|
|
|
|
|
(148
|
)
|
|
|
130,279
|
|
|
|
|
|
|
|
|
|
|
|
130,279
|
|
Purchases of investments in debt
securities
|
|
|
(383,925
|
)
|
|
|
|
|
|
|
|
|
|
|
(383,925
|
)
|
|
|
(192,275
|
)
|
|
|
|
|
|
|
|
|
|
|
(192,275
|
)
|
Proceeds from maturities and sales
of investments in debt securities
|
|
|
515,905
|
|
|
|
|
|
|
|
|
|
|
|
515,905
|
|
|
|
200,784
|
|
|
|
|
|
|
|
|
|
|
|
200,784
|
|
Acquisition of
Avinza®
|
|
|
(23
|
)
|
|
|
(290,528
|
)
|
|
|
|
|
|
|
(290,551
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loan repayment from Ligand
|
|
|
37,750
|
|
|
|
|
|
|
|
|
|
|
|
37,750
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchases of property, plant and
equipment
|
|
|
(8,105
|
)
|
|
|
(3,680
|
)
|
|
|
|
|
|
|
(11,785
|
)
|
|
|
(5,095
|
)
|
|
|
(3,673
|
)
|
|
|
|
|
|
|
(8,768
|
)
|
Proceeds from sale of property and
equipment
|
|
|
|
|
|
|
3
|
|
|
|
|
|
|
|
3
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchases of product rights
|
|
|
|
|
|
|
(6,452
|
)
|
|
|
|
|
|
|
(6,452
|
)
|
|
|
|
|
|
|
(23,926
|
)
|
|
|
|
|
|
|
(23,926
|
)
|
Arrow International Limited
collaboration agreement
|
|
|
|
|
|
|
(25,000
|
)
|
|
|
|
|
|
|
(25,000
|
)
|
|
|
|
|
|
|
(35,000
|
)
|
|
|
|
|
|
|
(35,000
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in)
investing activities of continuing operations
|
|
|
161,454
|
|
|
|
(325,657
|
)
|
|
|
|
|
|
|
(164,203
|
)
|
|
|
133,693
|
|
|
|
(62,599
|
)
|
|
|
|
|
|
|
71,094
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from financing
activities of continuing operations:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Proceeds from exercise of stock
options, net
|
|
|
2,462
|
|
|
|
|
|
|
|
|
|
|
|
2,462
|
|
|
|
6,468
|
|
|
|
|
|
|
|
|
|
|
|
6,468
|
|
Excess tax benefit from stock-based
compensation
|
|
|
91
|
|
|
|
|
|
|
|
|
|
|
|
91
|
|
|
|
274
|
|
|
|
|
|
|
|
|
|
|
|
274
|
|
Proceeds from issuance of long-term
debt
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
400,000
|
|
|
|
|
|
|
|
|
|
|
|
400,000
|
|
Payments on long-term debt
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(163,350
|
)
|
|
|
|
|
|
|
|
|
|
|
(163,350
|
)
|
Debt issuance costs
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(10,610
|
)
|
|
|
|
|
|
|
|
|
|
|
(10,610
|
)
|
Intercompany
|
|
|
(227,048
|
)
|
|
|
226,725
|
|
|
|
323
|
|
|
|
|
|
|
|
(29,304
|
)
|
|
|
28,761
|
|
|
|
543
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in)
financing activities of continuing operations
|
|
|
(224,495
|
)
|
|
|
226,725
|
|
|
|
323
|
|
|
|
2,553
|
|
|
|
203,478
|
|
|
|
28,761
|
|
|
|
543
|
|
|
|
232,782
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Increase (decrease) in cash and
cash equivalents
|
|
|
(52,696
|
)
|
|
|
(2,218
|
)
|
|
|
1,348
|
|
|
|
(53,566
|
)
|
|
|
298,709
|
|
|
|
(651
|
)
|
|
|
226
|
|
|
|
298,284
|
|
Cash and cash equivalents,
beginning of period
|
|
|
101,210
|
|
|
|
8,749
|
|
|
|
3,818
|
|
|
|
113,777
|
|
|
|
26,802
|
|
|
|
1,071
|
|
|
|
2,141
|
|
|
|
30,014
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents, end of
period
|
|
$
|
48,514
|
|
|
$
|
6,531
|
|
|
$
|
5,166
|
|
|
$
|
60,211
|
|
|
$
|
325,511
|
|
|
$
|
420
|
|
|
$
|
2,367
|
|
|
$
|
328,298
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
27
|
|
Item 2.
|
Managements
Discussion and Analysis of Financial Condition and Results of
Operations
|
The following discussion contains certain forward-looking
statements that reflect managements current views of
future events and operations. This discussion should be read in
conjunction with the following: (a) Risk
Factors set out below and in our Annual Report on
Form 10-K
for the year ended December 31, 2006, which are
supplemented by the discussion which follows; (b) our
audited consolidated financial statements and related notes
which are included in our Annual Report on
Form 10-K
for the year ended December 31, 2006; and (c) our
unaudited consolidated financial statements and related notes
which are included in this report on
Form 10-Q.
Please see the sections entitled Risk Factors and
A Warning About Forward-Looking Statements for a
discussion of the uncertainties, risks and assumptions
associated with these statements.
Our
Business
We are a vertically integrated pharmaceutical company that
develops, manufactures, markets and sells branded prescription
pharmaceutical products. To capitalize on opportunities in the
pharmaceutical industry, we seek to develop, in-license, acquire
or obtain commercialization rights to novel branded prescription
pharmaceutical products in attractive markets.
Our corporate strategy is focused on three key therapeutic
areas: cardiovascular/metabolic, neuroscience, and
hospital/acute care products. We believe each of our key
therapeutic areas has significant market potential and our
organization is aligned accordingly. We work to achieve organic
growth by maximizing the potential of our currently marketed
products through sales and marketing and product life-cycle
management. We also work to achieve organic growth through the
successful development of new branded pharmaceutical products.
Additionally, we seek to achieve growth through the acquisition
or in-licensing of novel branded pharmaceutical products in
various stages of development and technologies that have
significant market potential that complement our three key
therapeutic areas. We may also seek company acquisitions which
add products or products in development, technologies or sales
and marketing capabilities to our key therapeutic areas or that
otherwise complement our operations.
Utilizing our internal resources and a disciplined business
development process, we strive to be a leader and partner of
choice in bringing innovative, clinically-differentiated
therapies and technologies to market in our key therapeutic
areas.
Recent
Developments
On September 6, 2006, we entered into a definitive asset
purchase agreement and related agreements with Ligand
Pharmaceuticals Incorporated (Ligand) to acquire
rights to
Avinza®
(morphine sulfate extended release).
Avinza®
is an extended release formulation of morphine and is indicated
as a once-daily treatment for moderate to severe pain in
patients who require continuous opioid therapy for an extended
period of time. We completed our acquisition of
Avinza®
on February 26, 2007, acquiring all the rights to
Avinza®
in the United States, its territories and Canada. For additional
information, please see Note 5, Acquisitions,
Dispositions, Co-Promotions and Alliances, in Part I,
Financial Statements.
On January 9, 2007, we obtained an exclusive license to
certain of Vascular Solutions, Inc.s (Vascular
Solutions) hemostatic products, including products which
we expect to market as
Thrombi-Padtm
and
Thrombi-Gel®
hemostats. The license also includes a product we expect to
market as
Thrombi-Pastetm,
which is currently in development. Each of these products
includes our
Thrombin-JMI®
product as a component. Vascular Solutions will manufacture for
us the products covered by the license. For additional
information, please see Note 5, Acquisitions,
Dispositions, Co-Promotions and Alliances, in Part I,
Financial Statements.
On April 19, 2007, we announced that we have positive
top-line results from the Phase III clinical trial evaluating
the efficacy and safety of our
Altace®
diuretic fixed-dose combination product. We are evaluating the
trial data and expect to present the findings in detail at an
upcoming scientific conference.
28
II. RESULTS
OF OPERATIONS
Three
Months Ended March 31, 2007 and 2006
The following table summarizes total revenues and cost of
revenues by operating segment:
|
|
|
|
|
|
|
|
|
|
|
For the Three Months
|
|
|
|
Ended March 31,
|
|
|
|
2007
|
|
|
2006
|
|
|
|
(In thousands)
|
|
|
Total Revenues
|
|
|
|
|
|
|
|
|
Branded pharmaceuticals
|
|
$
|
449,087
|
|
|
$
|
417,620
|
|
Meridian Medical Technologies
|
|
|
43,015
|
|
|
|
41,284
|
|
Royalties
|
|
|
20,324
|
|
|
|
19,636
|
|
Contract manufacturing
|
|
|
3,208
|
|
|
|
5,695
|
|
Other
|
|
|
396
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues
|
|
$
|
516,030
|
|
|
$
|
484,235
|
|
Cost of Revenues, exclusive of
depreciation, amortization and impairments
|
|
|
|
|
|
|
|
|
Branded pharmaceuticals
|
|
$
|
86,874
|
|
|
$
|
65,391
|
|
Meridian Medical Technologies
|
|
|
18,440
|
|
|
|
19,247
|
|
Royalties
|
|
|
2,443
|
|
|
|
2,370
|
|
Contract manufacturing
|
|
|
3,004
|
|
|
|
5,396
|
|
Other
|
|
|
693
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total cost of revenues
|
|
$
|
111,454
|
|
|
$
|
92,404
|
|
The following table summarizes our gross to net sales deductions:
|
|
|
|
|
|
|
|
|
|
|
For the Three Months
|
|
|
|
Ended March 31,
|
|
|
|
2007
|
|
|
2006
|
|
|
|
(In thousands)
|
|
|
Gross Sales
|
|
$
|
634,839
|
|
|
$
|
607,859
|
|
Commercial Rebates
|
|
|
48,938
|
|
|
|
56,278
|
|
Medicare Part D Rebates
|
|
|
14,966
|
|
|
|
11,168
|
|
Medicaid Rebates
|
|
|
8,718
|
|
|
|
8,712
|
|
Chargebacks
|
|
|
23,645
|
|
|
|
29,390
|
|
Returns
|
|
|
(1,254
|
)
|
|
|
(702
|
)
|
Trade Discounts/Other
|
|
|
24,018
|
|
|
|
19,028
|
|
|
|
|
|
|
|
|
|
|
|
|
|
515,808
|
|
|
|
483,985
|
|
Discontinued Operations
|
|
|
(222
|
)
|
|
|
(250
|
)
|
|
|
|
|
|
|
|
|
|
Net Sales
|
|
$
|
516,030
|
|
|
$
|
484,235
|
|
|
|
|
|
|
|
|
|
|
Gross sales were higher in 2007 compared to 2006 primarily due
to price increases and the acquisition of
Avinza®
on February 26, 2007.
During January 2006, the Medicare Prescription Drug Improvement
and Modernization Act became effective, which provides
outpatient prescription drug coverage to senior citizens and
certain disabled citizens in the United States. We have
contracts with organizations that administer the Medicare
Part D Program which require us to pay rebates based on
contractual pricing and actual utilization under the plans.
Initial enrollment in the Medicare Part D Program was open
through the middle of the second quarter of 2006.
29
The following tables provide the activity and ending balances
for our significant gross to net categories.
Accrual
for Rebates, including Administrative Fees:
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
|
2006
|
|
|
Balance at January 1, net of
prepaid amounts
|
|
$
|
53,765
|
|
|
$
|
126,240
|
|
Current provision related to sales
made in current period
|
|
|
72,088
|
|
|
|
79,690
|
|
Current provision related to sales
made in prior periods
|
|
|
534
|
|
|
|
(3,532
|
)
|
Rebates paid
|
|
|
(67,255
|
)
|
|
|
(115,998
|
)
|
|
|
|
|
|
|
|
|
|
Balance at March 31, net of
prepaid amounts
|
|
$
|
59,132
|
|
|
$
|
86,400
|
|
|
|
|
|
|
|
|
|
|
Rebates include commercial rebates and Medicaid and Medicare
rebates.
During the first quarter of 2006, we paid approximately
$129.3 million related to (i) the settlement
agreements with the Office of Inspector General of the United
States Department of Health and Human Services
(HHS/OIG) and the Department of Veterans Affairs, to
resolve the governmental investigations related to our
underpayment of rebates owed to Medicaid and other governmental
pricing programs during the period from 1994 to 2002 and
(ii) similar state settlement agreements. For a discussion
regarding this settlement, please see Settlement of
Governmental Pricing Investigation included in
Note 8, Commitments and Contingencies, in
Part I, Financial Statements. Of the
$129.3 million paid in the first quarter of 2006,
approximately $64.0 million reduced the rebate accrual and
is reflected in Rebates paid in the table above.
In addition, during the first quarter of 2006, we delayed our
regular periodic Medicaid rebate payments as a result of prior
overpayments. During the second quarter of 2006, we began
reducing our payments for Medicaid rebates to utilize
overpayments made to the government related to Medicaid during
the government pricing investigation in 2003, 2004 and 2005.
During the period of the investigation, we made actual Medicaid
payments in excess of estimated expense to avoid any
underpayments to the government. As a result of refining the AMP
and Best Price calculations in the third quarter of 2005, we
discontinued the practice of making payments in excess of the
amounts expensed. We expect to recover the remaining
overpayments to the government and will continue to reduce cash
payments in the future until this overpayment is fully
recovered. For a discussion regarding this investigation, please
see Note 8, Commitments and Contingencies, in
Part I, Financial Statements. In 2007, the
utilization of overpayments reduced our rebate payments by
approximately $2.3 million and has therefore reduced
Rebates paid in the table above.
Accrual
for Returns (in thousands):
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
|
2006
|
|
|
Balance at January 1
|
|
$
|
42,001
|
|
|
$
|
50,902
|
|
Current provision
|
|
|
(1,254
|
)
|
|
|
(702
|
)
|
Actual returns
|
|
|
(6,295
|
)
|
|
|
(7,692
|
)
|
|
|
|
|
|
|
|
|
|
Ending balance at March 31
|
|
$
|
34,452
|
|
|
$
|
42,508
|
|
|
|
|
|
|
|
|
|
|
Our calculation for product returns reserves is based on
historical sales and return rates over the period during which
customers have a right of return. We also consider current
wholesale inventory levels of our products. Because actual
returns related to sales in prior periods were lower than our
original estimates, we recorded a decrease in our reserve for
returns in each of the first quarter of 2007 and the first
quarter of 2006. During the first quarter of 2007, we decreased
our reserve for returns by approximately $8.0 million and
increased our net sales from branded pharmaceuticals, excluding
the adjustment to sales classified as discontinued operations,
by the same amount. The effect of the change in estimate on
first quarter 2007 operating income was an increase of
approximately $5.0 million. During the first quarter of
2006, we decreased our reserve for returns by approximately
$8.0 million and increased our net sales from branded
pharmaceuticals, excluding the adjustment to sales classified as
discontinued operations, by the same amount. The Accrual
for Returns table above reflects these adjustments as a
reduction in the current provision. The
30
effect of the change in estimate on first quarter 2006 operating
income was an increase of approximately $6.0 million.
Accrual
for Chargebacks (in thousands):
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
|
2006
|
|
|
Balance at January 1
|
|
$
|
13,939
|
|
|
$
|
13,153
|
|
Current provision
|
|
|
23,645
|
|
|
|
29,390
|
|
Actual chargebacks
|
|
|
(26,557
|
)
|
|
|
(25,972
|
)
|
|
|
|
|
|
|
|
|
|
Ending balance at March 31
|
|
$
|
11,027
|
|
|
$
|
16,571
|
|
|
|
|
|
|
|
|
|
|
Branded
Pharmaceuticals Segment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months
|
|
|
Change
|
|
|
|
Ended March 31,
|
|
|
2007 vs. 2006
|
|
|
|
2007
|
|
|
2006
|
|
|
$
|
|
|
%
|
|
|
|
(In thousands)
|
|
|
|
|
|
|
|
|
Branded pharmaceutical revenue:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Altace®
|
|
$
|
156,620
|
|
|
$
|
158,848
|
|
|
$
|
(2,228
|
)
|
|
|
(1.4
|
)%
|
Skelaxin®
|
|
|
112,118
|
|
|
|
98,626
|
|
|
|
13,492
|
|
|
|
13.7
|
|
Thrombin-JMI®
|
|
|
63,975
|
|
|
|
58,197
|
|
|
|
5,778
|
|
|
|
9.9
|
|
Avinza®
|
|
|
9,399
|
|
|
|
|
|
|
|
9,399
|
|
|
|
|
|
Levoxyl®
|
|
|
22,057
|
|
|
|
30,955
|
|
|
|
(8,898
|
)
|
|
|
(28.7
|
)
|
Sonata®
|
|
|
23,853
|
|
|
|
21,267
|
|
|
|
2,586
|
|
|
|
12.2
|
|
Other
|
|
|
61,065
|
|
|
|
49,727
|
|
|
|
11,338
|
|
|
|
22.8
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenue
|
|
|
449,087
|
|
|
|
417,620
|
|
|
|
31,467
|
|
|
|
7.5
|
|
Cost of revenues, exclusive of
depreciation, amortization and impairments
|
|
|
86,874
|
|
|
|
65,391
|
|
|
|
21,483
|
|
|
|
32.9
|
|
Net sales from branded pharmaceutical products were higher in
2007 than in 2006 primarily due to price increases and the
acquisition of
Avinza®
on February 26, 2007. Based on inventory data provided to
us by our customers, we believe that wholesale inventory levels
of our key products,
Altace®,
Skelaxin®,
Thrombin-JMI®,
Avinza®,
Levoxyl®,
and
Sonata®
remain at normalized levels as of March 31, 2007. We
estimate that wholesale and retail inventories of our products
as of March 31, 2007 represent gross sales of approximately
$180.0 million to $190.0 million. For a discussion
regarding the potential risk of generic competition for
Altace®,
Skelaxin®,
and
Sonata®,
please see Note 8 Commitments and
Contingencies, in Part I, Financial
Statements.
Sales
of Key Products
Altace®
Net sales of
Altace®
decreased slightly in 2007 from 2006. We increased prices on
Altace®
during the fourth quarter of 2006, which was offset by a
decrease in prescriptions. Total prescriptions for
Altace®
decreased approximately 4.9% in 2007 from 2006 according to IMS
America, Ltd. (IMS) monthly prescription data.
For a discussion regarding the risk of potential generic
competition for
Altace®,
please see Note 8, Commitments and
Contingencies in Part I, Financial
Statements.
Skelaxin®
Net sales of
Skelaxin®
increased in 2007 from 2006 primarily due to a price increase
taken in the fourth quarter of 2006 and a reduction in reserves
for returns as discussed above. Total prescriptions for
Skelaxin®
increased approximately 0.3% in 2007 from 2006 according to IMS
monthly prescription data. We do not believe net sales of
Skelaxin®
will continue to increase at the rate experienced in the first
quarter of 2007.
31
For a discussion regarding the risk of potential generic
competition for
Skelaxin®,
please see Note 8, Commitments and
Contingencies, in Part I, Financial
Statements.
Thrombin-JMI®
Net sales of
Thrombin-JMI®
increased in 2007 compared to 2006 primarily due to a price
increase taken in the fourth quarter of 2006. We believe
Thrombin-JMI®
net sales in 2007 may not continue to increase at the rate
experienced in the first quarter of 2007 due to the potential
introduction of new competitors in the market in the second half
of 2007.
Avinza®
On September 6, 2006, the Company entered into a definitive
asset purchase agreement and related agreements with Ligand
Pharmaceuticals Incorporated (Ligand) to acquire
rights to
Avinza®
(morphine sulfate extended release).
Avinza®
is an extended release formulation of morphine and is indicated
as a once-daily treatment for moderate to severe pain in
patients who require continuous opioid therapy for an extended
period of time. The Company completed its acquisition of
Avinza®
on February 26, 2007, acquiring all the rights to
Avinza®
in the United States, its territories and Canada. First-quarter
2007 net sales of
Avinza®
reflect sales occurring from February 26, 2007 through
March 31, 2007.
Levoxyl®
Net sales of
Levoxyl®
decreased in 2007 compared to 2006 primarily due to a decrease
in prescriptions in 2007, partially offset by price increases
taken in the fourth quarter of 2006. During the first quarter of
2006, net sales of
Levoxyl®
benefited from a favorable change in estimate of approximately
$7.0 million in the products reserve for Medicaid
rebates as a result of the government pricing investigation
settlement. This benefit was substantially offset by increases
in Medicaid rebate reserves for other products as a result of
the settlement. Total prescriptions for
Levoxyl®
were approximately 11.4% lower in 2007 than in 2006 according to
IMS monthly prescription data. While prescriptions for this
product may continue to decline in 2007, we believe the rate of
any decline may be lower than that experienced in 2006.
Sonata®
Net sales of
Sonata®
were higher in 2007 than in 2006 primarily due to an increase in
wholesale inventory levels of
Sonata®
in 2007 and price increases taken in the fourth quarter of 2006,
partially offset by a decrease in prescriptions during 2007
compared to 2006. Total prescriptions for
Sonata®
decreased approximately 14.1% in 2007 from 2006 according to IMS
monthly prescription data. The decrease in prescriptions during
2007 was primarily due to new competitors that entered the
market in 2005. We do not believe net sales of
Sonata®
will continue to increase at the rate experienced in the first
quarter of 2007. We have experienced periodic stock-outs in our
inventory of
Sonata®
due to problems with production experienced by the third-party
manufacturer of
Sonata®.
Based on our conversations with the manufacturer, and our
current levels of inventory and demand for the product, we do
not currently anticipate further stock-outs. However, if we do
experience additional stock-outs, they would likely negatively
affect net sales of
Sonata®
in future quarters. We are currently working to transfer the
manufacture of
Sonata®
to another manufacturer.
For a discussion regarding the risk of potential generic
competition for
Sonata®,
please see Note 8, Commitments and
Contingencies, in Part I, Financial
Statements.
Other
Net sales of other branded pharmaceutical products were higher
in 2007 compared to 2006 primarily due to an increase in net
sales of
Bicillin®
and price increases which were partially offset by decreases in
prescriptions. We completed construction of facilities to
produce
Bicillin®
at our Rochester, Michigan location and began commercial
production in the fourth quarter of 2006 and replenished
wholesale inventories of the product during the first quarter of
2007. Accordingly, we believe net sales of
Bicillin®
may be lower in future quarters than that experienced in the
first quarter of 2007. Additionally, most of our other branded
32
pharmaceutical products are not promoted through our sales force
and prescriptions for many of these products are declining.
Considering all of these factors, we do not believe net sales of
other branded pharmaceutical products will continue to increase
at the rate experienced in the first quarter of 2007.
Cost
of Revenues
Cost of revenues from branded pharmaceutical products increased
in 2007 from 2006 primarily due to an increase in royalties
associated with
Skelaxin®
and
Avinza®.
Meridian
Medical Technologies
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months
|
|
|
Change
|
|
|
|
Ended March 31,
|
|
|
2007 vs. 2006
|
|
|
|
2007
|
|
|
2006
|
|
|
$
|
|
|
%
|
|
|
|
(In thousands)
|
|
|
|
|
|
|
|
|
Meridian Medical
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Technologies revenue
|
|
$
|
43,015
|
|
|
$
|
41,284
|
|
|
$
|
1,731
|
|
|
|
4.2
|
%
|
Cost of revenues, exclusive of
depreciation, amortization and impairments
|
|
|
18,440
|
|
|
|
19,247
|
|
|
|
(807
|
)
|
|
|
(4.2
|
)
|
Revenues from Meridian Medical Technologies increased in 2007
compared to 2006 primarily due to increases in unit sales of
Epipen®
to Dey, L.P., as well as revenues derived from our acquisition
of the rights to market and sell
Epipen®
in Canada that we purchased from Allerex Laboratory LTD on
March 1, 2006, partially offset by decreases in unit sales
of other products to the government. Most of our
Epipen®
sales are based on our supply agreement with Dey, L.P., which
markets, distributes and sells the product worldwide, except for
Canada where it is marketed, distributed and sold by us.
Revenues from Meridian Medical Technologies fluctuate based on
the buying patterns of Dey, L.P. and the government. Total
prescriptions for
Epipen®
in the United States increased approximately 5.1% in 2007
compared to 2006 according to IMS monthly prescription data.
Royalties
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months
|
|
|
Change
|
|
|
|
Ended March 31,
|
|
|
2007 vs. 2006
|
|
|
|
2007
|
|
|
2006
|
|
|
$
|
|
|
%
|
|
|
|
(In thousands)
|
|
|
|
|
|
|
|
|
Royalty revenue
|
|
$
|
20,324
|
|
|
$
|
19,636
|
|
|
$
|
688
|
|
|
|
3.5
|
%
|
Cost of revenues, exclusive of
depreciation, amortization and impairments
|
|
|
2,443
|
|
|
|
2,370
|
|
|
|
73
|
|
|
|
3.1
|
|
Revenues from royalties are derived primarily from payments we
receive based on sales of
Adenoscan®.
We are not responsible for the marketing of this product and,
thus, are not able to predict whether revenue from royalties
will increase or decrease in future periods. For a discussion
regarding the potential risk of generic competition for
Adenoscan®,
please see Note 8, Commitments and
Contingencies, in Part I, Financial
Statements.
Contract
Manufacturing
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months
|
|
|
Change
|
|
|
|
Ended March 31,
|
|
|
2007 vs. 2006
|
|
|
|
2007
|
|
|
2006
|
|
|
$
|
|
|
%
|
|
|
|
(In thousands)
|
|
|
|
|
|
|
|
|
Contract manufacturing revenue
|
|
$
|
3,208
|
|
|
$
|
5,695
|
|
|
$
|
(2,487
|
)
|
|
|
(43.7
|
)%
|
Cost of revenues, exclusive of
depreciation, amortization and impairments
|
|
|
3,004
|
|
|
|
5,396
|
|
|
|
(2,392
|
)
|
|
|
(44.3
|
)
|
Revenues and cost of revenues from contract manufacturing
decreased in 2007 compared to 2006 due to a lower volume of
units manufactured for third parties.
33
Operating
Costs and Expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months
|
|
|
Change
|
|
|
|
Ended March 31,
|
|
|
2007 vs. 2006
|
|
|
|
2007
|
|
|
2006
|
|
|
$
|
|
|
%
|
|
|
|
(In thousands)
|
|
|
|
|
|
|
|
|
Cost of revenues, exclusive of
depreciation, amortization and impairments
|
|
$
|
111,454
|
|
|
$
|
92,404
|
|
|
$
|
19,050
|
|
|
|
20.6
|
%
|
Selling, general and administrative
|
|
|
168,312
|
|
|
|
170,343
|
|
|
|
(2,031
|
)
|
|
|
(1.2
|
)
|
Research and development
|
|
|
32,271
|
|
|
|
114,882
|
|
|
|
(82,611
|
)
|
|
|
(71.9
|
)
|
Depreciation and amortization
|
|
|
35,678
|
|
|
|
34,365
|
|
|
|
1,313
|
|
|
|
3.8
|
|
Restructuring charges
|
|
|
460
|
|
|
|
|
|
|
|
460
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating costs and expenses
|
|
$
|
348,175
|
|
|
$
|
411,994
|
|
|
$
|
(63,819
|
)
|
|
|
(15.5
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling,
General and Administrative Expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months
|
|
|
Change
|
|
|
|
Ended March 31,
|
|
|
2007 vs. 2006
|
|
|
|
2007
|
|
|
2006
|
|
|
$
|
|
|
%
|
|
|
|
(In thousands)
|
|
|
|
|
|
|
|
|
Selling, general and
administrative, exclusive of
co-promotion
fees
|
|
$
|
122,354
|
|
|
$
|
105,054
|
|
|
$
|
17,300
|
|
|
|
16.5
|
%
|
Co-promotion fees
|
|
|
45,958
|
|
|
|
65,289
|
|
|
|
(19,331
|
)
|
|
|
(29.6
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total selling, general and
administrative
|
|
$
|
168,312
|
|
|
$
|
170,343
|
|
|
$
|
(2,031
|
)
|
|
|
(1.2
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As a percentage of total revenues, total selling, general, and
administrative expenses were 32.6% and 35.2% in 2007 and 2006,
respectively.
Total selling, general and administrative expenses decreased in
2007 compared to 2006 primarily due to a decrease in
co-promotion fees that we pay to Wyeth under the Amended and
Restated Co-Promotion Agreement (the Amended Co-Promotion
Agreement), partially offset by an increase in operating
expenses associated with sales and marketing. While
Altace®
net sales were consistent, the co-promotion fee decreased due to
a lower co-promotion fee average rate during 2007 as a result of
the Amended Co-Promotion Agreement. For additional discussion
regarding the Amended
Co-Promotion
Agreement, please see General within the
Liquidity and Capital Resources section below. For a
discussion regarding net sales of
Altace®,
please see
Altace®
within the Sales of Key Products section above.
Special items are those particular material income or expense
items that our management believes are not related to our
ongoing, underlying business, are not recurring, or are not
generally predictable. These items include, but are not limited
to, merger and restructuring expenses; non-capitalized expenses
associated with acquisitions, such as in-process research and
development charges and one-time inventory valuation adjustment
charges; charges resulting from the early extinguishments of
debt; asset impairment charges; expenses of drug recalls; and
gains and losses resulting from the divestiture of assets. We
believe the identification of special items enhances an analysis
of our ongoing, underlying business and an analysis of our
financial results when comparing those results to that of a
previous or subsequent like period. However, it should be noted
that the determination of whether to classify an item as a
special item involves judgments by us.
Selling, general and administrative expense includes special
items of $1.1 million and $3.0 million during 2007 and
2006, respectively, primarily due to professional fees related
to the now-completed investigation of our company by the
HHS/OIG and
the partially completed investigation by the SEC and private
plaintiff securities litigation. For additional information,
please see Note 8, Commitments and
Contingencies, in Part I, Financial
Statements.
34
Research
and Development Expense
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months
|
|
|
Change
|
|
|
|
Ended March 31,
|
|
|
2007 vs. 2006
|
|
|
|
2007
|
|
|
2006
|
|
|
$
|
|
|
Research and development
|
|
$
|
32,271
|
|
|
$
|
29,882
|
|
|
$
|
2,389
|
|
Research and
development in process upon acquisition
|
|
|
|
|
|
|
85,000
|
|
|
|
(85,000
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total research and development
|
|
$
|
32,271
|
|
|
$
|
114,882
|
|
|
$
|
(82,611
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Research and development represents expenses associated with the
ongoing development of investigational drugs and product
life-cycle management projects in our research and development
pipeline. These expenses have continued to increase over time as
our development programs have progressed to later stages of
clinical development, which later stages are much more expensive
than earlier stages. Additionally, research and development
expense has continued to increase as we have added late-stage
products in development to our portfolio. Our business model
continues to focus on adding to our research and development
pipeline through the acquisition of novel branded pharmaceutical
products and technologies in later stages of development.
Accordingly, we anticipate this category of expense to continue
to increase in 2007.
Research and development in-process upon acquisition
represents the actual cost of acquiring rights to novel branded
pharmaceutical projects in development from third parties, which
costs we expense at the time of acquisition. We classify these
costs as special items, and in 2006 they included a charge
equaling $85.0 million for our acquisition of in-process
research and development associated with our collaboration with
Arrow to commercialize one or more novel formulations of
ramipril, the active ingredient in our
Altace®
product. Under a series of agreements, Arrow has granted us
rights to certain current and future NDAs regarding novel
formulations of ramipril and intellectual property, including
patent rights and technology licenses relating to these novel
formulations. Arrow will have responsibility for the manufacture
and supply of new formulations of ramipril for us. However,
under certain conditions, we may manufacture and supply the
formulations of ramipril instead of Arrow. Arrow will earn fees
for the manufacture and supply of the new formulations of
ramipril. Arrow filed an NDA for a tablet formulation of
ramipril in January 2006. At the time of our acquisition of this
project, its success was dependent on additional development
activities and FDA approval. The estimated cost to complete the
project at the execution of these agreements was approximately
$3.5 million. The FDA approved the NDA for the tablet
formulation of ramipril on February 27, 2007. We expect to
launch the tablet formulation of ramipril during the fourth
quarter of 2007 or the first quarter of 2008.
Depreciation
and Amortization Expense
Depreciation and amortization expense in 2007 was consistent
with 2006. On February 26, 2007, we completed our
acquisition of
Avinza®
and began amortizing the associated intangible assets as of that
date. As a result, we expect depreciation and amortization
expense to increase in the second quarter of 2007. For
additional information, please see, Note 5,
Acquisitions, Dispositions, Co-Promotions and
Alliances, in Part 1, Financial
Statements. Depreciation and amortization expense in 2007
includes a special item consisting of a $1.5 million charge
associated with accelerated depreciation on certain assets,
including those associated with our decision to transfer the
production of
Levoxyl®
from our St. Petersburg, Florida facility to our Bristol,
Tennessee facility by the end of 2008.
As of March 31, 2007, the net intangible assets associated
with
Intal®,
Tilade®
and
Synercid®
totaled approximately $123.7 million. We believe that these
intangible assets are not currently impaired based on estimated
undiscounted cash flows associated with these assets. However,
if our estimates regarding future cash flows prove to be
incorrect or adversely change, we may have to reduce the
estimated remaining useful life
and/or write
off a portion or all of these intangible assets.
In addition, certain generic companies have challenged patents
on
Altace®
and
Skelaxin®.
For additional information, please see Note 8,
Commitments and Contingencies, in Part I,
Financial Statements. If a
35
generic version of
Altace®
or
Skelaxin®
enters the market, we may have to write-off a portion or all of
the intangible assets associated with these products.
Our Rochester, Michigan facility manufactures products for us
and various third parties. As of March 31, 2007, the net
carrying value of the property, plant and equipment at the
Rochester facility, excluding that associated with the
Bicillin®
production facility, was $62.2 million. Overall production
volume at this facility declined in recent years. We are
currently transferring to this facility the manufacture of
certain products that are currently manufactured by us at other
facilities or for us by third parties. These transfers should
increase production and cash flow at the Rochester facility. We
currently believe that the long-term assets associated with the
Rochester facility are not impaired based on estimated
undiscounted future cash flows. However, if production volumes
decline further or if we are not successful in transferring
additional production to the Rochester facility, we may have to
write-off a portion of the property, plant, equipment associated
with this facility.
The net book value of some of our manufacturing facilities
currently exceeds fair market value. Management currently
believes that the long-term assets associated with these
facilities are not impaired based on estimated undiscounted
future cash flows. However, if we were to approve a plan to sell
or close any of the facilities for which the carrying value
exceeds fair market value, we would have to write off a portion
of the assets or reduce the estimated useful life of the assets
which would accelerate depreciation.
Non-Operating
Items
|
|
|
|
|
|
|
|
|
|
|
For the Three Months
|
|
|
|
Ended March 31,
|
|
|
|
2007
|
|
|
2006
|
|
|
|
(In thousands)
|
|
|
Interest income
|
|
$
|
9,266
|
|
|
$
|
5,960
|
|
Interest expense
|
|
|
(2,025
|
)
|
|
|
(2,984
|
)
|
Gain on early extinguishment of
debt
|
|
|
|
|
|
|
1,022
|
|
Other, net
|
|
|
(543
|
)
|
|
|
(510
|
)
|
|
|
|
|
|
|
|
|
|
Total other income
|
|
|
6,698
|
|
|
|
3,488
|
|
Income tax expense
|
|
|
58,499
|
|
|
|
24,894
|
|
Discontinued operations
|
|
|
(141
|
)
|
|
|
(158
|
)
|
Total other income in 2006 includes a special item consisting of
income of $1.0 million resulting from the early retirement
of $165.0 million of our
23/4% Convertible
Debentures due November 15, 2021.
Interest
Income
Interest income increased during 2007 compared to 2006 primarily
due to an increase in interest rates and a higher total balance
of cash, cash equivalents and investments in debt securities in
the first quarter of 2007.
Income
Tax Expense
During 2007 and 2006, our effective income tax rate for
continuing operations was 33.5% and 32.9%, respectively. This
rate differs from the federal statutory rate of 35% in 2007 and
2006 primarily due to tax benefits related to tax-exempt
interest income, domestic manufacturing and the effect of
special items, which benefits were partially offset by state
taxes. Additionally, the 2006 rate benefited from charitable
contributions of inventory.
Discontinued
Operations
During the first quarter of 2004, our Board of Directors
approved managements decision to market for divestiture
some of our womens health products, including
Prefest®
and
Nordette®,
which we sold in the fourth quarter of 2004. These product
rights had identifiable cash flows that were largely independent
of the cash flows of other groups of assets and liabilities and
are classified as discontinued operations. Accordingly,
36
all net sales, cost of revenues, selling, general and
administrative costs, amortization and other operating costs
associated with
Prefest®
and
Nordette®
are included in discontinued operations in 2007 and 2006.
Discontinued operations during 2007 and 2006 are primarily
related to changes in estimated reserves for returns and rebates.
Liquidity
and Capital Resources
General
We believe that existing balances of cash, cash equivalents,
investments in debt securities and marketable securities, cash
generated from operations, our existing revolving credit
facility and funds potentially available to us under our
universal shelf registration are sufficient to finance our
current operations and working capital requirements on both a
short-term and long-term basis. However, we cannot predict the
amount or timing of our need for additional funds under various
circumstances, which could include a significant acquisition of
a business or assets, new product development projects,
expansion opportunities, or other factors that may require us to
raise additional funds in the future. We cannot assure you that
funds will be available to us when needed on favorable terms, or
at all.
On April 23, 2002, we established a $400.0 million
five-year Senior Secured Revolving Credit Facility which was
scheduled to mature in April 2007. On April 19, 2007, this
facility was terminated and replaced with a new
$475.0 million five-year Senior Secured Revolving Credit
Facility which matures in April 2012.
On September 6, 2006, we entered into a definitive asset
purchase agreement and related agreements with Ligand
Pharmaceuticals Incorporated (Ligand) to acquire
rights to
Avinza®
(morphine sulfate extended release).
Avinza®
is an extended release formulation of morphine and is indicated
as a once-daily treatment for moderate to severe pain in
patients who require continuous opioid therapy for an extended
period of time. We completed the acquisition of
Avinza®
on February 26, 2007, acquiring all the rights to
Avinza®
in the United States, its territories and Canada. Under the
terms of the asset purchase agreement the purchase price was
$289.6 million, consisting of $289.3 million in cash
consideration and $0.3 million for the assumption of a
short-term liability. Additionally, we incurred acquisition
costs of $0.9 million. Of the cash payments made to Ligand,
$15.0 million is set aside in an escrow account to fund
potential liabilities that Ligand could later owe the Company.
As part of the transaction, we have agreed to pay Ligand an
ongoing royalty and assume payment of Ligands royalty
obligations to third parties. The royalty the we will pay to
Ligand consists of a 15% royalty during the first 20 months
after the closing date. Subsequent royalty payments to Ligand
will be based upon calendar year net sales of
Avinza®
as follows:
|
|
|
|
|
If calendar year net sales are less than $200.0 million,
the royalty payment will be 5% of all net sales.
|
|
|
|
If calendar year net sales are greater than $200.0 million,
then the royalty payment will be 10% of all net sales up to
$250.0 million, plus 15% of net sales greater than
$250.0 million.
|
In connection with the transaction, on October 12, 2006, we
entered into a loan agreement with Ligand for the amount of
$37.8 million. The principal amount of the loan was to be
used solely for the purpose of paying a specific liability
related to
Avinza®.
The loan was subject to certain market terms, including a 9.5%
interest rate and security interest in the assets that comprise
Avinza®
and certain of the proceeds of Ligands sale of certain
assets. On January 8, 2007, Ligand repaid the principal
amount of the loan of $37.8 million and accrued interest of
$0.9 million. Pursuant to the terms of the loan agreement
with Ligand, we forgave the interest on the loan and repaid
Ligand the interest at the time of closing the transaction to
acquire
Avinza®.
Accordingly, we have not recognized interest income on the note
receivable.
On January 9, 2007, we obtained an exclusive license to
certain hemostatic products owned by Vascular
Solutions, Inc. (Vascular Solutions), including
products which we expect to market as
Thrombi-Padtm
and
Thrombi-Gel®.
The license also includes a product we expect to market as
Thrombi-Pastetm,
which is currently in development. Each of these products
includes our
Thrombin-JMI®
topical hemostatic agent as a component. Vascular Solutions will
manufacture and supply the products for us. Upon execution of
the agreements, we
37
made an initial payment to Vascular Solutions of
$6.0 million, a portion of which is refundable in the event
FDA approval for certain of these products is not received. In
addition, we could make additional milestone payments of up to
$2.0 million in cash.
On June 22, 2000, we entered into a Co-Promotion Agreement
with Wyeth to
promote Altace®
in the United States and Puerto Rico through October 29,
2008, with possible extensions as outlined in the
Co-Promotion
Agreement. Under the agreement, Wyeth paid an upfront fee to us
of $75.0 million. In connection with the Co-Promotion
Agreement, we agreed to pay Wyeth a promotional fee based on
annual net sales of
Altace®.
On July 5, 2006, we entered into an Amended and Restated
Co-Promotion Agreement with Wyeth regarding
Altace®.
Effective January 1, 2007, we assumed full responsibility
for selling and marketing
Altace®.
For all of 2006, the Wyeth sales force promoted the product with
us and Wyeth shared marketing expenses. We have paid or will pay
Wyeth a reduced annual fee as follows:
|
|
|
|
|
For 2006, 15% of
Altace®
net sales up to $165.0 million, 42.5% of
Altace®
net sales in excess of $165.0 million and less than or
equal to $465.0 million, and 52.5% of
Altace®
net sales that are in excess of $465.0 million and less
than or equal to $585.0 million.
|
|
|
|
For 2007, 30% of
Altace®
net sales, with the fee not to exceed $178.5 million.
|
|
|
|
For 2008, 22.5% of
Altace®
net sales, with the fee not to exceed $134.0 million.
|
|
|
|
For 2009, 14.2% of
Altace®
net sales, with the fee not to exceed $84.5 million.
|
|
|
|
For 2010, 25% of
Altace®
net sales, with the fee not to exceed $5.0 million.
|
The annual fee is accrued quarterly based on a percentage of
Altace®
net sales at a rate equal to the expected relationship of the
expected fee for the quarter to applicable expected
Altace®
net sales for the year.
Wyeth will pay us a $20.0 million milestone fee if a
specified
Altace®
net sales threshold is achieved in 2008.
On June 27, 2006, we entered into a co-exclusive agreement
with Depomed, Inc. (Depomed) to commercialize
Depomeds
Glumetzatm
product.
Glumetzatm
is a once-daily, extended-release formulation of metformin for
the treatment of patients with Type II diabetes that
Depomed developed utilizing its proprietary
Acuformtm
drug delivery technology. Under the terms of the agreement, we
assumed responsibility for promoting
Glumetzatm
in the United States and Puerto Rico, while Depomed has the
right to co-promote the product using its own sales force at
some point in the future. Depomed will pay us a fee from gross
profit, as defined in the agreement, generally net sales less
cost of goods sold less a royalty Depomed must pay a third
party. Depomed is responsible for the manufacture and
distribution of
Glumetzatm,
while we bear all costs related to the utilization of our sales
force for the product. We launched the promotion of
Glumetzatm
in the third quarter of 2006.
On March 1, 2006, we acquired the exclusive right to
market, distribute, and sell
EpiPen®
throughout Canada and other specific assets from Allerex
Laboratory LTD. Under the terms of the agreements, the initial
purchase price was approximately $23.9 million, plus
acquisition costs of approximately $0.7 million. As an
additional component of the purchase price, we pay Allerex an
earn-out equal to a percentage of future sales of
EpiPen®
in Canada over a fixed period of time. As these additional
payments accrue, we will increase intangible assets by the
amount of the accrual. The aggregate amount of these payments
will not exceed $13.2 million.
On February 12, 2006, we entered into a collaboration with
Arrow to commercialize one or more novel formulations of
ramipril, the active ingredient in our
Altace®
product. Under a series of agreements, Arrow granted us rights
to certain current and future New Drug Applications
(NDAs) regarding novel formulations of ramipril and
intellectual property, including patent rights and technology
licenses relating to these novel formulations. On
February 27, 2007, the FDA approved an NDA arising from
this collaboration for an
Altace®
tablet formulation. Arrow will have responsibility for the
manufacture and supply of the new formulations of ramipril for
us. However, under certain conditions we may manufacture and
supply new formulations of ramipril.
38
Upon execution of the agreements, we made an initial payment to
Arrow of $35.0 million. During the fourth quarter of 2006
and the first quarter of 2007, we made additional payments of
$25.0 million in each quarter to Arrow. Arrow will also
receive aggregate future payments from us of $25.0 million
during the second quarter of 2007. We classified these payments
as in-process research and development expense in 2006.
Additionally, Arrow will earn fees for the manufacture and
supply of the new formulations of ramipril.
We entered into an agreement with Cobalt Pharmaceuticals, Inc.
(Cobalt), an affiliate of Arrow International
Limited, whereby Cobalt will have the non-exclusive right to
distribute a generic version of our currently marketed
Altace®
product in the U.S. market, which would be supplied by us.
In December 2005, we entered into a cross-license agreement with
Mutual. Under the terms of the agreement, each of the parties
has granted the other a worldwide license to certain
intellectual property, including patent rights and know-how,
relating to metaxalone. As of January 1, 2006, we began
paying royalties on net sales of products containing metaxalone
to Mutual. This royalty increased in the fourth quarter of 2006
due to the achievement of a certain milestone and may continue
to increase depending on the achievement of certain regulatory
and commercial milestones in the future. The royalty we pay to
Mutual is in addition to the royalty we pay to Elan Corporation,
plc (Elan) on our current formulation of metaxalone,
which we refer to as
Skelaxin®.
During the fourth quarter of 2005, we entered into a strategic
alliance with Pain Therapeutics, Inc. to develop and
commercialize
Remoxytm
and other abuse-deterrent opioid painkillers.
Remoxytm
is an investigational drug in late-stage clinical development by
Pain Therapeutics for the treatment of
moderate-to-severe
chronic pain. Under the strategic alliance, we made an upfront
cash payment of $150.0 million in December 2005 and
made a milestone payment of $5.0 million in July 2006 to
Pain Therapeutics. In addition, we may pay additional milestone
payments of up to $145.0 million in cash based on the
successful clinical and regulatory development of
Remoxytm
and other abuse-deterrent opioid products. This amount includes
a $15.0 million cash payment upon acceptance of a
regulatory filing for
Remoxytm
and an additional $15.0 million upon its approval. We are
responsible for all research and development expenses related to
this alliance, which could total $100.0 million over four
years. After regulatory approval and commercialization of
Remoxytm
or other products developed through this alliance, we will pay a
royalty of 15% of the cumulative net sales up to
$1.0 billion and 20% of the cumulative net sales over
$1.0 billion.
In August 2004, we entered into a collaborative agreement with
Palatin Technologies, Inc. to jointly develop and, on obtaining
necessary regulatory approvals, commercialize Palatins
bremelanotide for the treatment of male and female sexual
dysfunction. In connection with this agreement, we agreed to pay
potential milestone payments to Palatin of up to
$100.0 million upon achieving certain development and
regulatory approval targets, $10.0 million of which was
paid in September 2005. In the event of regulatory approval
and commercialization of bremelanotide, we may also pay
potential net sales milestone payments to Palatin of up to
$130.0 million.
Elan was working to develop a modified release formulation of
Sonata®,
which we refer to as
Sonata® MR,
pursuant to an agreement we had with them which we refer to as
the
Sonata® MR
Development Agreement. In early 2005, we advised Elan that we
considered the
Sonata®
MR Development Agreement terminated for failure to satisfy the
target product profile required by us. Elan disputed the
termination and initiated an arbitration proceeding. During
December of 2006, the arbitration panel reached a decision in
favor of Elan and ordered us to pay Elan certain milestone
payments and other research and development-related expenses of
approximately $49.8 million, plus interest from the date of
the decision. In January 2007, we paid Elan $50.1 million,
which included interest of $0.4 million.
Settlement
of Governmental Pricing Investigation
As previously reported, during the first quarter of 2006, we
paid approximately $129.3 million, comprising (i) all
amounts due under the settlement agreements resolving the
governmental investigations related to our underpayment of
rebates owed to Medicaid and other governmental pricing programs
during the period from 1994 to 2002 (the Settlement
Agreements) and (ii) all our obligations to reimburse
other parties for
39
expenses related to the settlement, including the previously
disclosed legal fees of approximately $0.8 million and the
previously disclosed settlement costs of approximately
$1.0 million.
The individual purportedly acting as a relator under
the False Claims Act has appealed certain decisions of the
District Court denying the relators request to be
compensated out of the approximately $31 million that was
paid by us to those states that do not have legislation
providing for a relators share. The purported
relator has asserted for the first time on appeal that we should
be responsible for making such a payment to this individual.
Oral argument of the appeal before the United States Court of
Appeals for the Third Circuit was heard on May 8, 2007. We
believe that this claim against us is without merit and do not
expect the result of the appeal to have a material effect on us.
In addition to the Settlement Agreements, we have entered into a
five-year corporate integrity agreement with HHS/OIG (the
Corporate Integrity Agreement) pursuant to which we
are required, among other things, to keep in place our current
compliance program, to provide periodic reports to HHS/OIG and
to submit to audits relating to our Medicaid rebate calculations.
The Settlement Agreements do not resolve any of the previously
disclosed civil suits that are pending against us and related
individuals and entities discussed in the section
Securities Litigation below.
The foregoing description of the settlement, the Settlement
Agreements and the Corporate Integrity Agreement is qualified in
its entirety by our Current Report on
Form 8-K
filed November 4, 2005, which is incorporated herein by
reference.
SEC
Investigation
As previously reported, the Securities and Exchange Commission
(SEC) has also been conducting an investigation
relating to our underpayments to governmental programs, as well
as into our previously disclosed errors relating to reserves for
product returns. While the SECs investigation is
continuing with respect to the product returns issue, the Staff
of the SEC has advised us that it has determined not to
recommend enforcement action against us with respect to the
aforementioned governmental pricing matter. The Staff of the SEC
notified us of this determination pursuant to the final
paragraph of Securities Act Release 5310. Although the SEC could
still consider charges against individuals in connection with
the governmental pricing matter, we do not believe that any
governmental unit with authority to assert criminal charges is
considering any charges of that kind.
We continue to cooperate with the SECs ongoing
investigation. Based on all information currently available to
us, we do not anticipate that the results of the SECs
ongoing investigation will have a material adverse effect on us,
including by virtue of any obligations to indemnify current or
former officers and directors.
Securities
Litigation
As previously reported, on July 31, 2006 the parties
entered into a stipulation of settlement and a supplemental
agreement (together, the Settlement Agreement) to
resolve the federal securities litigation related to our
underpayments of rebates owed to Medicaid and other governmental
pricing programs and certain other matters. On January 9,
2007, the court granted final approval of the Settlement
Agreement. The Settlement Agreement provides for a settlement
amount of $38.3 million, which has been fully funded by our
insurance carriers on our behalf and placed into an escrow
account controlled by the court. For additional information
about this settlement, please see Note 8, Commitments
and Contingencies, in Part I, Financial
Statements.
Beginning in March 2003, four purported shareholder derivative
complaints were also filed in Tennessee state court alleging a
breach of fiduciary duty, among other things, by some of our
current and former officers and directors, with respect to the
same events at issue in the federal securities litigation
described above. These cases have been consolidated, and on
October 11, 2006, plaintiffs voluntarily dismissed Brian
Markison and Elizabeth Greetham. Discovery with respect to the
remaining claims in the case has commenced. No trial date has
been set.
40
Beginning in March 2003, three purported shareholder derivative
complaints were likewise filed in Tennessee Federal Court,
asserting claims similar to those alleged in the state
derivative litigation. These cases have been consolidated, and
on December 2, 2003 plaintiffs filed a consolidated amended
complaint. On March 9, 2004, the Court entered an order
indefinitely staying these cases in favor of the state
derivative action.
During the third quarter of 2006, we recorded an anticipated
insurance recovery of legal fees in the amount of
$6.8 million for the class action and derivative suits
described above. In November of 2006, we received payment for
the recovery of these legal fees.
We are currently unable to predict the outcome or to reasonably
estimate the range of potential loss, if any, except as noted
above, in the pending litigation. If we were not to prevail in
the pending litigation, the outcome of which we cannot predict
or reasonably estimate at this time, our business, financial
condition, results of operations and cash flows could be
materially adversely affected.
Patent
Challenges
Certain generic companies have challenged patents on
Altace®,
Skelaxin®,
Sonata®
and
Adenoscan®.
For additional information, please see Note 8,
Commitments and Contingencies, in Part I,
Financial Statements. If a generic version of
Altace®,
Skelaxin®,
Sonata®
or
Adenoscan®
enters the market, our business, financial condition, results of
operations and cash flows could be materially adversely affected.
Cash
Flows
Operating
Activities
|
|
|
|
|
|
|
|
|
|
|
For the Three Months
|
|
|
|
Ended March 31,
|
|
|
|
2007
|
|
|
2006
|
|
|
|
(In thousands)
|
|
|
Net cash provided by (used in)
operating activities
|
|
$
|
108,084
|
|
|
$
|
(5,592
|
)
|
Our net cash from operations was higher in 2007 than in 2006
primarily due to our payment in 2006 of $129.3 million
pursuant to the Settlement Agreements described in
the section entitled Settlement of Government Pricing
Investigation above. Our net cash flows from operations in
2007 includes a payment of $50.1 million resulting from a
binding arbitration proceeding with Elan in 2006.
The following table summarizes the changes in operating assets
and liabilities and deferred taxes for the three months ended
March 31, 2007 and 2006.
|
|
|
|
|
|
|
|
|
|
|
For the Three Months
|
|
|
|
Ended March 31,
|
|
|
|
2007
|
|
|
2006
|
|
|
|
(In thousands)
|
|
|
Accounts receivable, net of
allowance
|
|
$
|
1,663
|
|
|
$
|
(44,588
|
)
|
Inventories
|
|
|
10,373
|
|
|
|
10,807
|
|
Prepaid expenses and other current
assets
|
|
|
(12,446
|
)
|
|
|
(22,750
|
)
|
Accounts payable
|
|
|
(8,888
|
)
|
|
|
(14,730
|
)
|
Accrued expenses and other
liabilities
|
|
|
(92,037
|
)
|
|
|
(128,460
|
)
|
Income taxes payable
|
|
|
47,498
|
|
|
|
53,021
|
|
Deferred revenue
|
|
|
(1,170
|
)
|
|
|
(2,273
|
)
|
Other assets
|
|
|
(7,008
|
)
|
|
|
(3,579
|
)
|
Deferred taxes
|
|
|
12,367
|
|
|
|
(27,295
|
)
|
|
|
|
|
|
|
|
|
|
Total changes from operating
assets and liabilities and deferred taxes
|
|
$
|
(49,648
|
)
|
|
$
|
(179,847
|
)
|
|
|
|
|
|
|
|
|
|
41
Investing
Activities
|
|
|
|
|
|
|
|
|
|
|
For the Three Months
|
|
|
|
Ended March 31,
|
|
|
|
2007
|
|
|
2006
|
|
|
|
(In thousands)
|
|
|
Net cash (used in) provided by
investing activities
|
|
$
|
(164,203
|
)
|
|
$
|
71,094
|
|
Investing activities in 2007 were driven by the acquisition of
Avinza®
during the first quarter of 2007 for $290.6 million,
payments of $25.0 million under our collaboration agreement
with Arrow and $6.0 million associated with the exclusive
licenses acquired from Vascular Solutions. Capital expenditures
during 2007 totaled $11.8 million which included property,
plant and equipment purchases, building improvements for
facility upgrades and costs associated with improving our
production capabilities, as well as costs associated with moving
production of some of our pharmaceutical products to our
facilities in St. Louis, Bristol and Rochester. These
payments were partially offset by net sales in investments in
debt securities of $132.0 million and the collection of the
loan to Ligand of $37.8 million.
Investing activities in 2006 were driven by transfers from
restricted cash of $130.3 million due to the payment
associated with the Settlement Agreements noted
above in cash flows from operating activities. We made payments
totaling $58.9 million for our collaboration agreement with
Arrow and certain of its affiliates and our acquisition from
Allerex Laboratory LTD of the exclusive right to market
Epipen®
in Canada. Capital expenditures during 2006 totaled
$8.8 million which included property, plant and equipment
purchases, building improvements for facility upgrades and costs
associated with improving our production capabilities, as well
as costs associated with moving production of some of our
pharmaceutical products to our facilities in St. Louis,
Bristol and Rochester. Additionally in the first quarter 2006,
our net investments in debt securities were $8.5 million.
We anticipate capital expenditures, including capital lease
obligations, for the year ending December 31, 2007 of
approximately $65.0 million, which will be funded with cash
from operations. The principal capital expenditures are
anticipated to include property and equipment purchases,
information technology systems and hardware, building
improvements for facility upgrades, costs associated with
improving our production capabilities, and costs associated with
moving production of some of our pharmaceutical products to our
facilities in St. Louis, Bristol and Rochester.
Financing
Activities
|
|
|
|
|
|
|
|
|
|
|
For the
|
|
|
|
Three Months
|
|
|
|
Ended March 31,
|
|
|
|
2007
|
|
|
2006
|
|
|
|
(In thousands)
|
|
|
Net cash provided by financing
activities
|
|
$
|
2,553
|
|
|
$
|
232,782
|
|
During 2006, we issued $400.0 million of
11/4% Convertible
Senior Notes due April 1, 2026 and repurchased a portion of
our outstanding
23/4% Convertible
Debentures due November 15, 2021 for $163.4 million.
Certain
Indebtedness and Other Matters
During the first quarter of 2006, we issued $400.0 million
of
11/4%
Convertible Senior Notes due April 1, 2026
(Notes). The Notes are unsecured obligations and are
guaranteed by each of our domestic subsidiaries on a joint and
several basis. The Notes accrue interest at an initial rate of
11/4%.
Beginning with the six-month interest period that commences on
April 1, 2013, we will pay additional interest during any
six-month interest period if the average trading price of the
Notes during the five consecutive trading days ending on the
second trading day immediately preceding the first day of such
six-month period equals 120% or more of the principal amount of
the Notes. Interest is payable on April 1 and
October 1 of each year, beginning October 1, 2006.
42
On or after April 5, 2013, we may redeem for cash some or
all of the Notes at any time at a price equal to 100% of the
principal amount of the Notes to be redeemed, plus any accrued
and unpaid interest, and liquidated damages, if any, to but
excluding the date fixed for redemption. Holders may require us
to purchase for cash some or all of their Notes on April 1,
2013, April 1, 2016 and April 1, 2021, or upon the
occurrence of a fundamental change, at 100% of the principal
amount of the Notes to be purchased, plus any accrued and unpaid
interest, and liquidated damages, if any, to but excluding the
purchase date.
During the fourth quarter of 2001, we issued $345.0 million
of
23/4%
Convertible Debentures due November 15, 2021
(Debentures). On March 29, 2006, we repurchased
$165.0 million of the Debentures prior to maturity. On
May 16, 2006, the interest rate on the Debentures reset to
3.5%. On June 2, 2006, we completed a tender offer,
repurchasing $175.7 million of the Debentures. On
November 20, 2006, we redeemed the remaining Debentures of
$4.3 million.
We also had available as of March 31, 2007 up to
$399.0 million under a five-year senior secured revolving
credit facility that we established in April 2002 (the
2002 Credit Facility). The 2002 Credit Facility was
scheduled to mature in April 2007. On April 19, 2007, this
facility was terminated and replaced with a new
$475.0 million five-year Senior Secured Revolving Credit
Facility which is scheduled to mature in April 2012 (the
2007 Credit Facility).
The 2002 Credit Facility was collateralized in general by all of
our real estate with a value of $5.0 million or more and
all of our personal property and that of our significant
subsidiaries. Our obligations under this facility were
unconditionally guaranteed on a senior basis by most of our
subsidiaries. The 2002 Credit Facility accrued interest at our
option, at either (a) the base rate, which was based on the
greater of (1) the prime rate or (2) the federal funds
rate plus one-half of 1%, plus an applicable spread ranging from
0.0% to 0.75% (based on a leverage ratio) or (b) the
applicable LIBOR rate plus an applicable spread ranging from
1.0% to 1.75% (based on a leverage ratio). In addition, the
lenders under the 2002 Credit Facility were entitled to
customary facility fees based on (a) unused commitments
under the facility and (b) letters of credit outstanding.
We incurred $5.1 million of deferred financing costs in
connection with the establishment of this facility, which we
amortized over five years, the life of the facility. The 2002
Credit Facility required us to maintain a minimum net worth of
no less than $1.2 billion plus 50% of our consolidated net
income for each fiscal quarter after April 23, 2002,
excluding any fiscal quarter for which consolidated income was
negative; an EBITDA (earnings before interest, taxes,
depreciation and amortization) to interest expense ratio of no
less than 3.00 to 1.00; and a funded debt to EBITDA ratio of no
greater than 3.50 to 1.00 prior to April 24, 2004 and of no
greater than 3.00 to 1.00 on or after April 24, 2004. As of
March 31, 2007, we were in compliance with these covenants.
As of March 31, 2007, we had $1.0 million outstanding
for letters of credit under the 2002 Credit Facility.
The 2007 Credit Facility is collateralized by a pledge of 100%
of the equity of most of our domestic subsidiaries and by a
pledge of 65% of the equity of our foreign subsidiaries. Our
obligations under this facility are unconditionally guaranteed
on a senior basis by four of our subsidiaries, King
Pharmaceuticals Research and Development, Inc., Monarch
Pharmaceuticals, Inc., Meridian Medical Technologies, Inc., and
Parkedale Pharmaceuticals, Inc.
The 2007 Credit Facility accrues interest at our option, at
either (a) the base rate, which is based on the greater of
(1) the prime rate or (2) the federal funds rate plus
one-half of 1%, plus an applicable spread ranging from 0.0% to
0.5% (based on a leverage ratio) or (b) the applicable
LIBOR rate plus an applicable spread ranging from 0.875% to
1.50% (based on a leverage ratio). In addition, the lenders
under the 2007 Credit Facility are entitled to customary
facility fees based on (a) unused commitments under the
facility and (b) letters of credit outstanding. The
facility provides availability for the issuance of up to $30.0
million in letters of credit. We incurred $1.7 million of
deferred financing costs in connection with the establishment of
this facility, which we will amortize over five years, the life
of the facility. This facility requires us to maintain a minimum
net worth of no less than $1.5 billion plus 50% of our
consolidated net income for each fiscal quarter after
April 19, 2007, excluding any fiscal quarter for which
consolidated income is negative; an EBITDA (earnings before
interest, taxes, depreciation and amortization) to interest
expense ratio of no less than 3.00 to 1.00; and a funded debt to
EBITDA ratio of no greater than 3.50 to 1.00. As of closing on
the
43
new facility on April 19, 2007, we have available
$474.0 million under this facility, with $1.0 million
outstanding for letters of credit.
On September 20, 2001, our universal shelf registration
statement on
Form S-3
was declared effective by the Securities and Exchange
Commission. This universal shelf registration statement
registered a total of $1.3 billion of our securities for
future offers and sales in one or more transactions and in any
combination of debt
and/or
equity. During November 2001, we completed the sale of
17,992,000 newly issued shares of common stock for
$38.00 per share ($36.67 per share net of commissions
and expenses) resulting in net proceeds of $659.8 million.
As of March 31, 2007, there was $616.3 million of
securities remaining registered for future offers and sales
under the shelf registration statement.
Impact
of Inflation
We have experienced only moderate raw material and labor price
increases in recent years. While we have passed some price
increases along to our customers, we have primarily benefited
from sales growth negating most inflationary pressures.
Recently
Issued Accounting Standards
In September 2006, the Financial Accounting Standards Board
(FASB) issued Statement of Financial Accounting
Standards No. 157, Fair Value Measurements
(SFAS No. 157). This statement defines
fair value, establishes a framework for measuring fair value,
and expands disclosures about fair value measurements. The
statement is effective for financial statements issued for
fiscal years beginning after November 15, 2007, and interim
periods within those fiscal years. We are in the process of
evaluating the effect of SFAS No. 157 on our financial
statements and are planning to adopt this standard in the first
quarter of 2008.
In February 2007, the FASB issued Statement of Financial
Accounting Standards No. 159, The Fair Value Option for
Financial Assets and Financial Liabilities
(SFAS No. 159). This statement permits
entities to choose to measure many financial instruments and
certain other items at fair value. SFAS No. 159 also
establishes presentation and disclosure requirements designed to
facilitate comparisons between entities that choose different
measurement attributes for similar types of assets and
liabilities. The statement is effective for financial statements
issued for fiscal years beginning after November 15, 2007.
We are in the process of evaluating the effect of
SFAS No. 159 on our financial statements and are
planning to adopt this standard in the first quarter of 2008.
Effective January 1, 2007, we adopted Financial Accounting
Standards Board (FASB) Interpretation No. 48,
Accounting for Uncertainty in Income Taxes
(FIN 48). FIN 48 is an interpretation of
FASB Statement No. 109, Accounting for Income Taxes,
and it seeks to reduce the variability in practice associated
with measurement and recognition of tax benefits. FIN 48
prescribes a recognition threshold and measurement attribute for
the financial statement recognition and measurement of a tax
position that an entity takes or expects to take in a tax
return. Additionally, FIN 48 provides guidance on
de-recognition, classification, interest and penalties,
accounting in interim periods, disclosure, and transition. Under
FIN 48, an entity may only recognize or continue to
recognize tax positions that meet a more likely than
not threshold. We recorded the cumulative effect of
applying FIN 48 of $1.5 million as a reduction to the
opening balance of retained earnings as of January 1, 2007.
The total net liability under FIN 48 as of January 1,
2007 was $34.2 million. See Note 10, Income
Taxes, in Part I, Financial Statements,
for additional information.
Critical
Accounting Policies and Estimates
We have chosen accounting policies that we believe are
appropriate to accurately and fairly report our operating
results and financial position, and apply those accounting
policies in a consistent manner.
The preparation of financial statements in conformity with
generally accepted accounting principles 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 amounts of revenues and expenses during the reporting
period.
44
Significant estimates for which it is reasonably possible that a
material change in estimate could occur in the near term include
forecasted future cash flows used in testing for impairments of
intangible and tangible assets and loss accruals for excess
inventory and fixed purchase commitments under our supply
contracts. Forecasted future cash flows in particular require
considerable judgment and are subject to inherent imprecision.
In the case of impairment testing, changes in estimates of
future cash flows could result in a material impairment charge
and, whether they result in an immediate impairment charge,
could result prospectively in a reduction in the estimated
remaining useful life of tangible or intangible assets, which
could be material to the financial statements.
Other significant estimates include accruals for Medicaid,
Medicare, and other rebates, returns and chargebacks, allowances
for doubtful accounts and estimates used in applying the revenue
recognition policy and accounting for the Co-Promotion Agreement
with Wyeth.
We are subject to risks and uncertainties that may cause actual
results to differ from the related estimates, and our estimates
may change from time to time in response to actual developments
and new information.
The significant accounting estimates that we believe are
important to aid in fully understanding our reported financial
results include the following:
|
|
|
|
|
Intangible assets, goodwill, and other long-lived
assets. When we acquire product rights in
conjunction with either business or asset acquisitions, we
allocate an appropriate portion of the purchase price to
intangible assets, goodwill and other long-lived assets. The
purchase price is allocated to product rights and trademarks,
patents, acquired research and development, if any, and other
intangibles using the assistance of valuation consultants. We
estimate the useful lives of the assets by factoring in the
characteristics of the products such as: patent protection,
competition by products prescribed for similar indications,
estimated future introductions of competing products, and other
issues. The factors that drive the estimate of the life of the
asset are inherently uncertain. However, patents have specific
legal lives over which they are amortized. Conversely,
trademarks and product rights have no specific legal lives.
Trademarks and product rights will continue to be an asset to us
after the expiration of the patent, as their economic value is
not tied exclusively to the patent. We believe that by
establishing separate lives for the patent versus the trademark
and product rights, we are in essence using an accelerated
method of amortization for the product as a whole. This results
in greater amortization in earlier years when the product is
under patent protection, as we are amortizing both the patent
and the trademark and product rights, and less amortization when
the product faces potential generic competition, as the
amortization on the patent is eliminated. Because we have no
discernible evidence to show a decline in cash flows for
trademarks and product rights, or for patents, we use the
straight-line method of amortization for both intangibles.
|
We review our property, plant and equipment and intangible
assets for possible impairment whenever events or circumstances
indicate that the carrying amount of an asset may not be
recoverable. We review our goodwill for possible impairment
annually, or whenever events or circumstances indicate that the
carrying amount may not be recoverable. In any event, we
evaluate the remaining useful lives of our intangible assets
each reporting period to determine whether events and
circumstances warrant a revision to the remaining period of
amortization. This evaluation is performed through our quarterly
evaluation of intangibles for impairment. Further, on an annual
basis, we review the life of each intangible asset and make
adjustments as deemed appropriate. In evaluating goodwill for
impairment, we estimate the fair value of our individual
business reporting units on a discounted cash flow basis.
Assumptions and estimates used in the evaluation of impairment
may affect the carrying value of long-lived assets, which could
result in impairment charges in future periods. Such assumptions
include projections of future cash flows and, in some cases, the
current fair value of the asset. In addition, our depreciation
and amortization policies reflect judgments on the estimated
useful lives of assets.
We may incur impairment charges in the future if prescriptions
for, or sales of, our products are less than current
expectations and result in a reduction of our estimated
undiscounted future cash flows. This may be caused by many
factors, including competition from generic substitutes,
significant delays
45
in the manufacture or supply of materials, the publication of
negative results of studies or clinical trials, new legislation
or regulatory proposals.
The gross carrying amount and accumulated amortization as of
March 31, 2007 are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accumulated
|
|
|
Net Book
|
|
|
|
Cost
|
|
|
Amortization
|
|
|
Value
|
|
|
|
(In thousands)
|
|
|
Branded
|
|
|
|
|
|
|
|
|
|
|
|
|
Altace®
|
|
$
|
276,150
|
|
|
$
|
89,201
|
|
|
$
|
186,949
|
|
Other Cardiovascular/metabolic
|
|
|
80,770
|
|
|
|
47,215
|
|
|
|
33,555
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cardiovascular/metabolic
|
|
|
356,920
|
|
|
|
136,416
|
|
|
|
220,504
|
|
Intal®
|
|
|
61,726
|
|
|
|
23,876
|
|
|
|
37,850
|
|
Other Hospital/acute care
|
|
|
189,018
|
|
|
|
61,391
|
|
|
|
127,627
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Hospital/acute care
|
|
|
250,744
|
|
|
|
85,267
|
|
|
|
165,477
|
|
Skelaxin®
|
|
|
203,015
|
|
|
|
52,066
|
|
|
|
150,949
|
|
Sonata®
|
|
|
23,146
|
|
|
|
23,146
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Neuroscience
|
|
|
226,161
|
|
|
|
75,212
|
|
|
|
150,949
|
|
Other
|
|
|
144,674
|
|
|
|
63,900
|
|
|
|
80,774
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Branded
|
|
|
978,499
|
|
|
|
360,795
|
|
|
|
617,704
|
|
Meridian Medical
Technologies
|
|
|
172,970
|
|
|
|
26,450
|
|
|
|
146,520
|
|
Royalties
|
|
|
2,470
|
|
|
|
2,135
|
|
|
|
335
|
|
Contract
manufacturing
|
|
|
|
|
|
|
|
|
|
|
|
|
All other
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total trademark and product rights
|
|
$
|
1,153,939
|
|
|
$
|
389,380
|
|
|
$
|
764,559
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
46
The amounts for impairments and amortization expense and the
amortization period used for the three months ended
March 31, 2007 and 2006 are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
|
|
Three Months Ended
|
|
|
|
March 31, 2007
|
|
|
|
|
|
March 31, 2006
|
|
|
|
|
|
|
Amortization
|
|
|
Life
|
|
|
|
|
|
Amortization
|
|
|
|
Impairments
|
|
|
Expense
|
|
|
(Years)
|
|
|
Impairments
|
|
|
Expense
|
|
|
|
(In thousands)
|
|
|
|
|
|
(In thousands)
|
|
|
Branded
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Altace®
|
|
$
|
|
|
|
$
|
3,977
|
|
|
|
20
|
|
|
$
|
|
|
|
$
|
3,677
|
|
Other Cardiovascular/metabolic
|
|
|
|
|
|
|
1,802
|
|
|
|
|
|
|
|
|
|
|
|
1,823
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cardiovascular/metabolic
|
|
|
|
|
|
|
5,779
|
|
|
|
|
|
|
|
|
|
|
|
5,500
|
|
Intal®
|
|
|
|
|
|
|
1,402
|
|
|
|
11
|
|
|
|
|
|
|
|
1,902
|
|
Other Hospital/acute care
|
|
|
|
|
|
|
3,054
|
|
|
|
|
|
|
|
|
|
|
|
3,402
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Hospital/acute care
|
|
|
|
|
|
|
4,456
|
|
|
|
|
|
|
|
|
|
|
|
5,304
|
|
Skelaxin®
|
|
|
|
|
|
|
3,887
|
|
|
|
13.5
|
|
|
|
|
|
|
|
3,887
|
|
Other
|
|
|
|
|
|
|
1,871
|
|
|
|
|
|
|
|
|
|
|
|
2,060
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Branded
|
|
|
|
|
|
|
15,993
|
|
|
|
|
|
|
|
|
|
|
|
16,751
|
|
Meridian Medical
Technologies
|
|
|
|
|
|
|
1,966
|
|
|
|
|
|
|
|
|
|
|
|
1,494
|
|
Royalties
|
|
|
|
|
|
|
11
|
|
|
|
|
|
|
|
|
|
|
|
11
|
|
Contract
manufacturing
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All other
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total trademark and product rights
|
|
$
|
|
|
|
$
|
17,970
|
|
|
|
|
|
|
$
|
|
|
|
$
|
18,256
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The remaining patent amortization period compared to the
remaining amortization period for trademarks and product rights
associated with significant products is as follows:
|
|
|
|
|
|
|
|
|
|
|
Remaining Life at March 31, 2007
|
|
|
|
|
|
|
Trademark &
|
|
|
|
Patent
|
|
|
Product Rights
|
|
|
Altace®
|
|
|
2 years 1 month
|
|
|
|
11 years 9 months
|
|
Skelaxin®
|
|
|
|
|
|
|
9 years 9 months
|
|
Avinza®
|
|
|
10 years 8 months
|
|
|
|
|
|
Intal®
|
|
|
|
|
|
|
6 years 9 months
|
|
|
|
|
|
|
Inventories. Our inventories are valued at the
lower of cost or market value. We evaluate our entire inventory
for short dated or slow moving product and inventory commitments
under supply agreements based on projections of future demand
and market conditions. For those units in inventory that are so
identified, we estimate their market value or net sales value
based on current realization trends. If the projected net
realizable value is less than cost, on a product basis, we make
a provision to reflect the lower value of that inventory. This
methodology recognizes projected inventory losses at the time
such losses are evident rather than at the time goods are
actually sold. We maintain supply agreements with some of our
vendors which contain minimum purchase requirements. We estimate
future inventory requirements based on current facts and trends.
Should our minimum purchase requirements under supply agreements
or if our estimated future inventory requirements exceed actual
inventory quantities that we will be able to sell to our
customers, we record a charge in costs of revenues.
|
|
|
|
Accruals for rebates, returns, and
chargebacks. We establish accruals for returns,
chargebacks and Medicaid, Medicare, and commercial rebates in
the same period we recognize the related sales. The accruals
reduce revenues and are included in accrued expenses. At the
time a rebate or chargeback payment is made or a product return
is received, which occurs with a delay after the related sale,
we
|
47
|
|
|
|
|
record a reduction to accrued expenses and, at the end of each
quarter, adjust accrued expenses for differences between
estimated and actual payments. Due to estimates and assumptions
inherent in determining the amount of returns, chargebacks and
rebates, the actual amount of product returns and claims for
chargebacks and rebates may be different from our estimates.
|
Our product returns accrual is primarily based on estimates of
future product returns over the period during which customers
have a right of return which is in turn based in part on
estimates of the remaining shelf life of our products when sold
to customers. Future product returns are estimated primarily on
historical sales and return rates. We also consider the level of
inventory of our products in the distribution channel. We base
our estimate of our Medicaid rebate, Medicare rebate, and
commercial rebate accruals on estimates of usage by
rebate-eligible customers, estimates of the level of inventory
of our products in the distribution channel that remain
potentially subject to those rebates, and the terms of our
commercial and regulatory rebate obligations. We base our
estimate of our chargeback accrual on our estimates of the level
of inventory of our products in the distribution channel that
remain subject to chargebacks, and specific contractual and
historical chargeback rates. The estimate of the level of our
products in the distribution channel is based on data provided
by our three key wholesalers under inventory management
agreements.
Our accruals for returns, chargebacks and rebates are adjusted
as appropriate for specific known developments that may result
in a change in our product returns or our rebate and chargeback
obligations. In the case of product returns, we monitor demand
levels for our products and the effects of the introduction of
competing products and other factors on this demand. When we
identify decreases in demand for products or experience higher
than historical rates of returns caused by unexpected discrete
events, we further analyze these products for potential
additional supplemental reserves.
|
|
|
|
|
Revenue recognition. Revenue is recognized
when title and risk of loss are transferred to customers,
collection of sales is reasonably assured, and we have no
further performance obligations. This is generally at the time
products are received by the customer. Accruals for estimated
returns, rebates and chargebacks, determined based on historical
experience, reduce revenues at the time of sale and are included
in accrued expenses. Medicaid and certain other governmental
pricing programs involve particularly difficult interpretations
of relevant statutes and regulatory guidance, which are complex
and, in certain respects, ambiguous. Moreover, prevailing
interpretations of these statutes and guidance can change over
time. Royalty revenue is recognized based on a percentage of
sales (namely, contractually
agreed-upon
royalty rates) reported by third parties.
|
48
A WARNING
ABOUT FORWARD-LOOKING STATEMENTS
This report includes forward-looking statements within the
meaning of the Private Securities Litigation Reform Act of 1995.
These statements relate to analyses and other information which
are based on forecasts of future results and estimates of
amounts that are not yet determinable. These statements also
relate to our future prospects, developments and business
strategies.
These forward-looking statements are identified by their use of
terms and phrases, such as anticipate,
believe, could, estimate,
expect, intend, may,
plan, predict, project,
will and other similar terms and phrases, including
references to assumptions. These statements are contained in the
Managements Discussion and Analysis of Financial
Condition and Results of Operations section, as well as
other sections of this report.
Forward-looking statements in this report include, but are not
limited to:
|
|
|
|
|
the future potential of, including anticipated net sales and
prescription trends for our branded pharmaceutical products,
particularly
Altace®,
Skelaxin®,
Thrombin-JMI®,
Sonata®
and
Levoxyl®;
|
|
|
|
expectations regarding the enforceability and effectiveness of
product-related patents, including in particular patents related
to
Altace®,
Skelaxin®,
Sonata®
and
Adenoscan®;
|
|
|
|
expected trends and projections with respect to particular
products, reportable segment and income and expense line items;
|
|
|
|
the timeliness and accuracy of wholesale inventory data provided
by our customers;
|
|
|
|
the adequacy of our liquidity and capital resources;
|
|
|
|
anticipated capital expenditures;
|
|
|
|
the development, approval and successful commercialization of
Remoxytm,
an investigational drug for the treatment of
moderate-to-severe
chronic pain; bremelanotide, an investigational new drug for the
treatment of erectile dysfunction and female sexual dysfunction;
and product life-cycle development projects;
|
|
|
|
the successful execution of our growth strategies;
|
|
|
|
anticipated developments and expansions of our business;
|
|
|
|
our plans for the manufacture of some of our products;
|
|
|
|
the cost and uncertainty of research, clinical trials and other
development activities involving pharmaceutical products;
|
|
|
|
the development of product line extensions;
|
|
|
|
the unpredictability of the duration or future findings and
determinations of proceedings of the FDA and other regulatory
agencies worldwide;
|
|
|
|
products developed, acquired or in-licensed that may be
commercialized;
|
|
|
|
the intent, belief or current expectations, primarily with
respect to our future operating performance;
|
|
|
|
expectations regarding sales growth, gross margins,
manufacturing productivity, capital expenditures and effective
tax rates;
|
|
|
|
expectations regarding the outcome of various pending legal
proceedings including the
Altace®
and
Skelaxin®
patent challenges, the SEC investigation, other possible
governmental investigations, securities litigation, and other
legal proceedings described in this report; and
|
|
|
|
expectations regarding our financial condition and liquidity as
well as future cash flows and earnings.
|
49
These forward-looking statements involve known and unknown
risks, uncertainties and other factors that may cause actual
results to be materially different from those contemplated by
our forward-looking statements. These known and unknown risks,
uncertainties and other factors are described in detail in
Part II, Item 1A, Risk Factors and in the
Risk Factors section, found in Part I,
Item 1A of our 2006
Form 10-K,
which we incorporate by reference.
|
|
Item 3.
|
Quantitative
and Qualitative Disclosures about Market Risk
|
Certain of our financial instruments are subject to market
risks, including interest rate risk. Our financial instruments
are not currently subject to foreign currency risk or commodity
price risk. We have no financial instruments held for trading
purposes.
As of March 31, 2007, there were no significant changes in
our qualitative or quantitative market risk since the end of our
fiscal year ended December 31, 2006.
We have marketable securities which are carried at fair value
based on current market quotes. Gains and losses on securities
are based on the specific identification method.
The fair market value of long-term fixed interest rate debt is
subject to interest rate risk. Generally, the fair market value
of fixed interest rate debt will decrease as interest rates rise
and increase as interest rates fall. In addition, the fair value
of our convertible debentures is affected by our stock price.
|
|
Item 4.
|
Controls
and Procedures
|
As of the end of the period covered by this report, we carried
out an evaluation, under the supervision and with the
participation of our Chief Executive Officer and Chief Financial
Officer, of the effectiveness of the design and operation of our
disclosure controls and procedures (as such term is defined in
Rules 13a-15(e)
and
15d-15(e)
under the Securities Exchange Act of 1934 (the Exchange
Act)). Based on this evaluation, our Chief Executive
Officer and Chief Financial Officer concluded that our
disclosure controls and procedures are effective to reasonably
ensure that information required to be disclosed in our reports
filed under the Exchange Act is recorded, processed, summarized
and reported within the time periods specified, and that
management will be timely alerted to material information
required to be included in our periodic reports filed with the
Securities and Exchange Commission.
During our most recent fiscal quarter, there has not occurred
any change in our internal control over financial reporting (as
such term is defined in
Rules 13a-15(f)
and
15d-15(f)
under the Exchange Act) that has materially affected, or is
reasonably likely to materially affect, our internal control
over financial reporting.
50
PART II
OTHER INFORMATION
|
|
Item 1.
|
Legal
Proceedings
|
The information required by this Item is incorporated by
reference to Note 8, Commitments and
Contingencies in Part I, Financial
Statements.
We have disclosed a number of material risks under Item 1A
of our annual report on
Form 10-K
for the year ended December 31, 2006 which we filed with
the Securities and Exchange Commission on March 1, 2007.
The following risk factor has changed materially since we filed
that report.
Any
significant delays or difficulties in the manufacture of, or
supply of materials for, our products may reduce our profit
margins and revenues, limit the sales of our products, or harm
our products reputations.
Many of our product lines, including
Altace®,
Skelaxin®,
Sonata®,
Intal®,
Tilade®,
Synercid®
and
Cortisporin®,
are currently manufactured in part or entirely by third parties.
Our dependence upon third parties for the manufacture of our
products may adversely affect our profit margins or may result
in unforeseen delays or other problems beyond our control. For
example, if any of these third parties are not in compliance
with applicable regulations, the manufacture of our products
could be delayed, halted or otherwise adversely affected. If for
any reason we are unable to obtain or retain third-party
manufacturers on commercially acceptable terms, we may not be
able to distribute our products as planned. If we encounter
delays or difficulties with contract manufacturers in producing
or packaging our products, the distribution, marketing and
subsequent sales of these products could be adversely affected,
and we may have to seek alternative sources of supply or abandon
product lines or sell them on unsatisfactory terms. We might not
be able to enter into alternative supply arrangements at
commercially acceptable rates, if at all. We also cannot assure
you that the manufacturers we use will be able to provide us
with sufficient quantities of our products or that the products
supplied to us will meet our specifications.
We have experienced periodic stock-outs in our inventory of
Sonata®
due to problems with production experienced by the third-party
manufacturer of
Sonata®.
Based on our conversations with the manufacturer, and our
current levels of inventory and demand for the product, we do
not currently anticipate further stock-outs. However, if we do
experience additional stock-outs, they would likely negatively
affect net sales of
Sonata®
in future quarters. We are currently working to transfer the
manufacture of
Sonata®
to another manufacturer.
We have completed construction of facilities to produce
Bicillin®
at our Rochester, Michigan location. We began commercial
production of
BicillinLA®
and began shipping this product to our customers during the
fourth quarter of 2006. We expect to begin commercial production
of
BicillinCR®
during the third quarter of 2007. The third-party manufacturer
that produced
Bicillin®
for us closed its plant. If our inventory of
BicillinCR®
is not sufficient to sustain demand while we are obtaining
regulatory authorizations or
experiencing production difficulties at our
Bicillin®
manufacturing facility, sales of this product may be reduced or
the market for the product may be permanently diminished, either
of which could have a material adverse effect on our business,
financial condition, results of operations and cash flows. For
the last twelve months ended March 31, 2007, net sales of
Bicillin®
were $54.2 million, representing 2.7% of our total revenues.
We are currently working to expand our production capacity for
Thrombin-JMI®.
We cannot assure you that our plans to expand our production
capacity for
Thrombin-JMI®
will be successful
and/or
timely. If we cannot successfully and timely expand our
production capacity for
Thrombin-JMI®,
our ability to increase production of
Thrombin-JMI®
will be limited, which could in turn limit our unit sales growth
for this product.
51
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description
|
|
|
10
|
.1(1)*
|
|
Form of Option Certificate and
Nonstatutory Stock Option Agreement
|
|
10
|
.2(1)*
|
|
Form of Restricted Stock
Certificate and Restricted Stock Grant Agreement
|
|
10
|
.3(1)*
|
|
Form of Long-Term Performance Unit
Award Agreement One Year Performance Cycle
|
|
10
|
.4(1)*
|
|
Form of Long-Term Performance Unit
Award Agreement Three Year Performance Cycle
|
|
10
|
.5(2)
|
|
Amendment No. 2 to Purchase
Agreement, by and between King Pharmaceuticals, Inc., King
Pharmaceuticals Research and Development, Inc. and Ligand
Pharmaceuticals Incorporated, effective as of February 26,
2007
|
|
10
|
.6(3)
|
|
Amendment No. 1 to Purchase
Agreement, Contract Sales Force Agreement and Confidentiality
Agreement by and between King Pharmaceuticals, Inc., King
Pharmaceuticals Research and Development, Inc. and Ligand
Pharmaceuticals Incorporated, dated as of January 3, 2007,
effective as of November 30, 2006
|
|
10
|
.7(3)
|
|
Side Letter among King
Pharmaceuticals, Inc., King Pharmaceuticals Research and
Development, Inc. and Ligand Pharmaceuticals Incorporated dated
December 29, 2006
|
|
10
|
.8*
|
|
2007 Executive Management
Incentive Award
|
|
|
|
* |
|
Denotes management contract or compensatory plan or arrangement. |
|
|
|
Pursuant to Rule 24b-2 of the Securities Exchange Act of 1934,
as amended, confidential portions of this exhibit have been
omitted and filed separately with the Securities and Exchange
Commission (SEC) pursuant to a Confidential
Treatment Request filed with the SEC. |
|
(1) |
|
Incorporated by reference to Kings Current Report on
Form 8-K
filed March 27, 2007. |
|
(2) |
|
Incorporated by reference to Kings Current Report on
Form 8-K
filed March 2, 2007. |
|
(3) |
|
Incorporated by reference to Kings Current Report on
Form 8-K
filed January 5, 2007. |
52
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 thereunto duly authorized.
KING PHARMACEUTICALS, INC.
|
|
|
|
By:
|
/s/ BRIAN
A. MARKISON
|
Brian A. Markison
President and Chief Executive Officer
Date: May 10, 2007
|
|
|
|
By:
|
/s/ JOSEPH
SQUICCIARINO
|
Joseph Squicciarino
Chief Financial Officer
Date: May 10, 2007
53