Exhibit 99.1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
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| | x | | |
| | : | | |
In re: | | : | | Chapter 11 |
| | : | | |
| SAVIENT PHARMACEUTICALS, INC., | | : | | Case No. 13-12680 (MFW) |
| etal., | | : | | |
| | : | | Jointly Administered |
| Debtors.1 | | : | | |
| | : | | Related Docket No. 94 |
| | x | | |
NOTICE OF FILING OF SUPPLEMENT TO
INITIAL MONTHLY OPERATING REPORT
PLEASE TAKE NOTICE that on October 29, 2013, the debtors and debtors-in-possession in the above-captioned jointly administered bankruptcy cases (collectively, the “Debtors”) filed the Initial Monthly Operating Report (Docket No. 94) (the “Initial Monthly Operating Report”).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
| 1 | The Debtors and the last four digits of their respective taxpayer identification numbers are as follows: Savient Pharmaceuticals, Inc. (3811), Savient Pharma Holdings, Inc. (0701). The address of the Debtors’ corporate headquarters is 400 Crossing Boulevard, 3rd Floor, Bridgewater, New Jersey 08807. |
PLEASE TAKE FURTHER NOTICE that the Debtors have herewith filed their supplement to the Initial Monthly Operating Report to provide the certificate of insurance regarding the Debtors’ Directors and Officers Liability insurance coverage, a copy of which is attached hereto asExhibit A.
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| Dated: | | Wilmington, Delaware |
| | November 5, 2013 |
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| SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP |
|
/s/ Dain A. De Souza |
| Anthony W. Clark (I.D. No. 2051) |
| Dain A. De Souza (I.D. No. 5737) |
| One Rodney Square |
| P.O. Box 636 |
| Wilmington, Delaware 19899-0636 |
| Telephone: (302) 651-3000 |
| Fax: (302) 651-3001 |
|
| - and - |
|
| Kenneth S. Ziman |
| David M. Turetsky |
| Four Times Square |
| New York, New York 10036-6522 |
| Telephone: (212) 735-3000 |
| Fax: (212) 735-2000 |
|
| Proposed Counsel for Debtors and Debtors in Possession |
2
EXHIBIT A
3
| | |
 | | Confirmation of Insurance PAGE 1 OF 8 | 11/5/2013 | SAVIENT PHARMACEUTICALS, INC. |
| | |
DATE | | November 4, 2013 |
CONFIRMATION | | S13032726 |
INSURED | | Savient Pharmaceuticals, Inc. |
ADDRESS | | 400 Crossing Boulevard, 3rd Floor Bridgewater, NJ 08807 |
COVERAGE CLASS | | Public Company Directors and Officers Liability |
| POLICY TERM | | 3/30/2013 to Six (6) Years from Completion of Asset Sale (First $30,000,000) 3/30/2013 to 3/30/2014 ($15,000,000 xs $30,000,000) |
THIS IS TO CERTIFY that the Insurer(s) scheduled below has (have) confirmed to RT ProExec that the insurance described herein has been effected subject to the terms, conditions and effective date(s) summarized below. While RT ProExec endeavors to negotiate coverage pursuant to any specifications requested by the Insured or their representative, such specifications are frequently unavailable from Insurer(s). It is agreed that the Insurer(s) scheduled below has (have) been selected solely by the Insured.
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INSURER | | POLICY NUMBER | | PREMIUMS | | | REGULATORY
TAXES & FEES | |
| National Union Fire Ins Co Pittsburgh PA | | 01-843-95-53 | | $ | 1,594,000.00 | | | $ | 14,346.00 | |
| AXIS Insurance Company | | MBN759085/01/2013 | | $ | 795,000.00 | | | $ | 7,155.00 | |
| XL Specialty Insurance Company | | ELU129278-13 | | $ | 553,125.00 | | | $ | 4,978.13 | |
| Beazley Insurance Company, Inc. | | V117D513031 | | $ | 103,750.00 | | | $ | 933.75 | |
| National Union Fire Ins Co Pittsburgh PA | | 01-855-78-11 | | $ | 33,831.00 | | | $ | 304.00 | |
| | | |
| | | | $ | 3,079,706.00 | | | $ | 27,716.88 | |
| | | |
| | | | | Sub-Total | | | $ | 3,079,706.00 | |
| | | |
| | | | | TOTAL | | | $ | 3,107,422.88 | |
Conner Strong & Buckelew Companies, Inc. - Parsippany
9 Campus Drive
Parsippany, NJ 7054
RT ProExec
BY:
DATE: November 4, 2013
IMPORTANT: Please review this document carefully and advise RT ProExec of any apparent errors or inaccuracies.
By accepting this Confirmation of Insurance, the Insured further agrees: (i) that the terms and conditions summarized herein may substantially vary from specifications that may have been previously requested; (ii) to the terms and conditions of the policy form(s) listed herein and endorsements to be attached thereto including, but not limited to, applicable cancellation conditions which may obligate the Insured to pay earned premium(s) irrespective of which party cancels the policy; and (iii) that RT ProExec is not an Insurer and shall not be liable in any way for the payment of any claim.
Binders issued by insurers will be held on file by RT ProExec. Copies are available upon request.
The Insured is urged to review this Confirmation of Insurance carefully. Please note that the terms and conditions summarized herein are intended for descriptive purposes only and the actual policy wording will dictate in the event of a claim. Some Insurers included in this placement may have recently been downgraded or placed on a watch list by one or more rating agencies. Please contact your Insurance Broker for additional information. Sample copies of policy forms and endorsements are available on request from RT ProExec.
IMPORTANT NOTE: The Home State of the Named Insured shall be determined in accordance with the provisions of the Nonadmitted and Reinsurance Act of 2010, 15. U.S.C. §8201, etc. (“NRRA”), and the applicable law of the Home State governing cancellation or non-renewal of insurance shall apply to this Policy.
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RT ProExec is a division of R-T Specialty, LLC (in California: dba R-T Specialty Insurance Services, LLC License #OG97516) 40 Fulton Street, 15th Floor, New York, NY 10038 Phone - (212) 619-4220 Fax - (212) 766-1019 |
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 | | Confirmation No. S13032726 PAGE 2 OF 8 | 11/5/2013 | SAVIENT PHARMACEUTICALS, INC. |
SUBJECTIVITIES
Coverage under the following policy(ies) is subject to underwriter’s receipt and approval of the following materials:
| 1 | Payment of the premium by the date indicated on the attached invoice. |
Failure to meet these subjectivities within ten (10) business days (unless otherwise specified) may result in coverage being cancelled or voided ab initio.
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PRIMARY LAYER | | POLICY FORM |
National Union Fire Ins Co Pittsburgh PA POL#01-843-95-53 | | D&O 2/2000 |
| | |
COVERAGE SECTION | | P&P DATE(S) |
D&O | | 6/01/1992 |
D&O
$10,000,000 Aggregate Limit
$10,000,000 Per Claim Limit
$ 0 each Claim for non-indemnifiable Loss
$ 500,000 each Claim with respect to company reimbursement
$ 500,000 each Securities Claim
$1,500,000 each Mergers & Acquisitions Claim
| | 1. | Securities Claim Panel Counsel Addendum |
| | 2. | Appendix B – Crisis Fund Addendum ($25,000 Crisis Loss; $25,000 Delisting Crisis Loss) |
| | 3. | 97886 – Policyholder Notice Regarding e-Discovery Consultant Services |
| | 4. | 96557 Terrorism Exclusion |
| | 5. | MANU - Continuity Dates / Prior & Pending Litigation exclusion effective as of June 1, 1992 with respect to the first $3,000,000; as of August 1, 1997 with respect to the $2,000,000 excess of $3,000,000; and as of January 1, 2002 with respect to the $5,000,000 excess of $5,000,000 |
| | 6. | Double Excess Outside Directorship Liability coverage for non-profit organizations (In Form) |
| | 7. | 52158 – New Jersey Cancellation / Non-Renewal endorsement |
| | 8. | 83550 - Nuclear Energy Liability exclusion |
RT ProExec is a division of R-T Specialty, LLC (in California: dba R-T Specialty Insurance Services, LLC License #OG97516)
40 Fulton Street, 15th Floor, New York, NY 10038
Phone - (212) 619-4220 Fax - (212) 766-1019
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| | Confirmation No. S13032726 PAGE 3 OF 8 | 11/5/2013 | SAVIENT PHARMACEUTICALS, INC. |
| | 9. | 90496 - Amend ERISA exclusion (m) to reference the Fair Labor Standards Act and include a retaliation carveback |
| | 10. | 89371 - Delete No Liability Retention Waiver |
| | 11. | MANU – Separate Retention for Patent / Copyright Claims - $1,000,000 |
| | 12. | 99758 - Notice of Claim – Reporting by e-Mail |
| | 13. | 94188 - Amend definition of Application to reference only those public documents filed in the 12 months preceding the first submission to underwriters and up to policy expiration (from documents filed prior to policy inception) |
| | 14. | 91712 - Domestic Partner extension |
| | 15. | 96346 - Amend Insured versus Insured amended to include reference to a “creditors committee” in the Bankruptcy Trustee carveback and provide SOX whistleblower carveback |
| | 16. | 83547 – Medical Malpractice exclusion with a Securities Claims carveback |
| | 17. | 83553 – Amend definition of Outside Entity to any not-for-profit organization |
| | 18. | 83555 – Amend definition of Outside Entity Executive to delete requirement for such service to be at the “written request” of the Organization |
| | 19. | 96344 - Amend definition of Securities Claim to include reference to common law violations and exclude stock option claims by Executives or employees |
| | 20. | MANU – Amend definition of Claim to include a “Wells” notice |
| | 21. | 96345 - Provide punitive damages coverage for all Claims (except EPL claims) utilizing “most favorable jurisdiction” and “final adjudication” language |
| | 22. | 83531 – Employed Lawyers extension with $1,000,000 sublimit (Continuity Date: March 30,2008) |
| | 23. | MANU – Order of Payments provision amended |
| | 24. | 89386 - Derivative Demand Investigative Costs Coverage - $250,000 sublimit |
| | 25. | 98919 – Specific Investigation / Claim / Litigation / Event or Act exclusion: |
| | • | | Richard Sagall, Et al. (as expiring) |
| | • | | U.S. SEC Subpoena Re: Savient Pharmaceuticals, Inc. (P-1674); Claim #550-048376-001 |
| | • | | Tang Capital Partners, LP; Claim #550-086964-001 |
| | • | | FBI; Claim #550-108184-001 |
| | 26. | 98918 – Amend Pollution exclusion to include a Securities Claim carveback |
| | 27. | 100528 – Amend Subrogation provision to include final adjudication language |
| | 28. | 94681 - Full Severability of all exclusions (except for Prior Notice, Prior & Pending Litigation and Insured versus Insured) as to Insured Persons; impute knowledge of the CEO, CFO, General Counsel or equivalent to the entity |
| | 29. | 98916 – Amend the former Executive carveback to the Insured versus Insured exclusion to three (3) years |
| | 30. | 94039 - State Amendatory Inconsistency endorsement |
RT ProExec is a division of R-T Specialty, LLC (in California: dba R-T Specialty Insurance Services, LLC License #OG97516)
40 Fulton Street, 15th Floor, New York, NY 10038
Phone - (212) 619-4220 Fax - (212) 766-1019
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| | Confirmation No. S13032726 PAGE 4 OF 8 | 11/5/2013 | SAVIENT PHARMACEUTICALS, INC. |
| | 31. | 94680 - Severability of the Application endorsement |
| | • | | Full severability with respect to Insured Persons |
| | • | | Knowledge of the CEO, COO and CFO is imputed to the entity |
| | • | | Fully non-rescindable policy provision “under any circumstances” |
| | 32. | 103987 – Amend the anti-stacking language in the Other Insurance clause to provide a $30,000,000 limit threshold |
| | 33. | 83509 - Audit Committee Coverage extension – amends definition of Executive to include members of the Audit Committee |
| | 34. | 91490 - Extradition Coverage endorsement |
| | 35. | 96339 - Amend Notice of Claim provision to as soon as practicable after the Risk Manager, General Counsel or equivalent becomes aware of the claim; further amend post-policy reporting window to 60 days for any Claim made within 60 days prior to policy expiration |
| | 36. | MANU - Amend exclusion (d), Prior Notice, to refer to any directors and officers or employment practices liability policies, or any other policy which covers wrongful employment practices |
| | 37. | 101036 – Pro-Rata Cancellation endorsement |
| | 38. | 104002 - Amend Section 12(b), Subsidiary Additions, such that the total assets are established as those reported in the most recent public filing |
| | 39. | 97110 – E-Discovery Consultant Services Coverage - $25,000 sublimit |
| | 40. | 109079 - Public Offering endorsement – clarifies that the Insurer shall not assert that the portion of any settlement, judgment or defense costs in a Securities Claim that relates to alleged violations of Section 11, 12 or 15 of the ’33 Act constitutes uninsurable loss; further amends exclusions A and B to not apply to a Securities Claim arising out of a public offering of securities |
| | 41. | 99817 – Retention Erosion Through A-Side Insurance Fill-In |
| | 42. | 86493 – Delete Entity Securities Claim coverage and provide a 100% pre-determined allocation provision for Securities Claims |
| | 43. | 109065 - Amend Personal Misconduct exclusions (a), (b) and (c) to “a final, non-appealable adjudication in any proceeding other than a proceeding initiated by the Insurer” |
| | 44. | MANU – Separate retention for Mergers & Acquisitions Claims - $1,500,000 |
| | 45. | 89644 - Coverage Territory endorsement – OFAC |
| | 46. | 78859 - Forms Index endorsement |
| | 47. | MANU – Six (6) Year Runoff Endorsement with Fully Earned Premium and Non-Cancelable provisions |
RT ProExec is a division of R-T Specialty, LLC (in California: dba R-T Specialty Insurance Services, LLC License #OG97516)
40 Fulton Street, 15th Floor, New York, NY 10038
Phone - (212) 619-4220 Fax - (212) 766-1019
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| | Confirmation No. S13032726 PAGE 5 OF 8 | 11/5/2013 | SAVIENT PHARMACEUTICALS, INC. |
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EXCESS LAYER 1 | | POLICY FORM |
| |
AXIS Insurance Company POL#MBN759085/01/2013 | | XS 0001 12 10 |
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COVERAGE SECTION | | P&P DATE(S) |
| |
D&O | | SEE ITEM #2 BELOW |
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LIMITS/RETENTIONS | | |
| |
Excess of: $10,000,000 | | |
| |
D&O | | |
| |
$ 10,000,000 Aggregate Limit | | |
$ 10,000,000 Per Claim Limit | | |
| |
$ 0 each Claim for non-indemnifiable Loss | | |
$ 500,000 each Claim with respect to company reimbursement | | |
$ 500,000 each Securities Claim | | |
$ 1,500,000 each Mergers & Acquisitions Claim | | |
TERMS AND CONDITIONS | | |
| | 1. | XS 0005-NJ 1210 - New Jersey Amendatory endorsement |
| | 2. | XS 1131 1210 – Prior and Pending Claims exclusion effective as of January 1, 2004 |
| | 3. | XS 1105 1010 – Follow Form of Underlying Runoff endorsement |
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EXCESS LAYER 2 | | POLICY FORM |
| |
XL Specialty Insurance Company POL#ELU129278-13 | | EX 71 01 09 99 |
| | |
COVERAGE SECTION | | P&P DATE(S) |
| |
D&O | | AS EXPIRING |
| |
LIMITS/RETENTIONS | | |
|
Excess of: $20,000,000 |
|
D&O |
|
$ 10,000,000 Aggregate Limit |
$ 10,000,000 Per Claim Limit |
|
$ 0 each Claim for non-indemnifiable Loss |
$ 500,000 each Claim with respect to company reimbursement |
$ 500,000 each Securities Claim |
$ 1,500,000 each Mergers & Acquisitions Claim |
RT ProExec is a division of R-T Specialty, LLC (in California: dba R-T Specialty Insurance Services, LLC License #OG97516)
40 Fulton Street, 15th Floor, New York, NY 10038
Phone - (212) 619-4220 Fax - (212) 766-1019
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| | Confirmation No. S13032726 PAGE 6 OF 8 | 11/5/2013 | SAVIENT PHARMACEUTICALS, INC. |
| | 1. | Terrorism Insurance Disclosure |
| | 3. | XL Privacy Notice / XL Fraud Notice |
| | 5. | EX 82 01 07 07 - Change of Address of Insurer / Preamble Correction endorsement |
| | 6. | EX 80 24 03 03 Terrorism Premium endorsement |
| | 7. | EX 80 107 10 03 – Excess Terrorism endorsement |
| | 8. | EX 80 75 09 02 - Excess endorsement |
| | 9. | EX 83 22 11 01 – Prior and Pending Litigation exclusion backdated to match expiring |
| | 10. | EX 83 46 02 03 – Prior Notice exclusion |
| | 11. | EX 80 131 06 04 - Limit Shaving endorsement – recognizes contribution by the Insured toward satisfaction of the underlying limit in situations where the underlying carrier pays less than their full limit of liability |
| | 12. | MANU – Follow Form of Underlying Runoff endorsement |
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EXCESS LAYER 3 | | POLICY FORM |
| |
Beazley Insurance Company, Inc. POL#V117D513031 | | F00021 032008 |
| | |
COVERAGE SECTION | | P&P Date(s) |
| |
| D&O | | See Item 1 Below |
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LIMITS/RETENTIONS |
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Excess of: $30,000,000 |
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D&O A-Side |
|
$ 10,000,000 each Claim and in the aggregate with respect to non-indemnifiable Loss only with “drop-down” |
$ 10,000,000 Per Claim Limit |
|
$ 0 each Claim for non-indemnifiable Loss |
$ 500,000 each Claim with respect to company reimbursement |
$ 500,000 each Securities Claim |
$ 1,500,000 each Mergers & Acquisitions Claim |
RT ProExec is a division of R-T Specialty, LLC (in California: dba R-T Specialty Insurance Services, LLC License #OG97516)
40 Fulton Street, 15th Floor, New York, NY 10038
Phone - (212) 619-4220 Fax - (212) 766-1019
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| | Confirmation No. S13032726 PAGE 7 OF 8 | 11/5/2013 | SAVIENT PHARMACEUTICALS, INC. |
| | 1. | E00610062008 – Amended Prior & Pending Litigation exclusion effective as of March 30, 2007 with respect to the first $5,000,000; as of March 30, 2011 with respect to the $5,000,000 excess of $5,000,000 of the policy |
| | 2. | E00751092008 - Specific Investigation / Claim / Litigation / Event or Act exclusion: |
| | • | | Richard Sagall, Et al. Docket No. 08-CV-10262 |
| | • | | U.S. SEC Subpoena Re: Savient Pharmaceuticals, Inc. (P-1674); AIG Claim #550-048376-001 |
| | • | | Tang Capital Partners, LP; Claim reference #BEAZL100002777362 |
| | • | | FBI; Claim reference #BEAZL100002791029 |
| | 3. | E00800102008 – Other Insurance, Indemnification, Drop-Down and Difference in Conditions endorsement |
| | 4. | E01352072009 – Amend definition of Claim to include a Written Request or Demand for an Interview of an Insured Person by any governmental or self-regulatory authority |
| | 5. | E00646082008 – Foreign Corrupt Practices Sublimit - $100,000 |
| | 6. | E01347072009 – Amend Domestic Partner coverage extension to refer to foreign laws |
| | 7. | E02481012011 – Amend Personal Conduct exclusions to not apply to the portion of any settlement resulting from alleged violations of Sections 11, 12 or 15 of the Securities Act of 1933 |
| | 8. | E00586062008 – Amend Subrogation provision to include “final adjudication” language |
| | 9. | E00588062008 – Waiver of Bankruptcy Stay and Order of Payments endorsement |
| | 10. | E01348072009 – Amend Consent to Defense Counsel to stipulate that underwriters prior written consent shall not be required in connection with selection of defense counsel to the extent the Claim for which defense counsel is selected to defend the Insured is covered under any other insurance or as indemnification from any source |
| | 11. | E02804032011 – (Re)insurer Sanction Limitation and Exclusion clause |
| | 12. | E01204062009 – Amend definition of Insured to include Kenneth Zuerblis as a Consultant to the Company |
RT ProExec is a division of R-T Specialty, LLC (in California: dba R-T Specialty Insurance Services, LLC License #OG97516)
40 Fulton Street, 15th Floor, New York, NY 10038
Phone - (212) 619-4220 Fax - (212) 766-1019
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| | Confirmation No. S13032726 PAGE 8 OF 8 | 11/5/2013 | SAVIENT PHARMACEUTICALS, INC. |
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EXCESS LAYER 4 | | POLICY FORM |
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National Union Fire Ins Co Pittsburgh PA POL#01-855-78-11 | | 103224 (02/10) |
| | |
COVERAGE SECTION | | P&P DATE(S) |
| |
| D&O | | 3/30/2011 |
Excess of: $40,000,000
D&O A-Side
$ 5,000,000 each Claim and in the aggregate
| | 1. | 96557 Terrorism exclusion |
| | 2. | 103425 - Prior & Pending Litigation exclusion effective as of March 30, 2011 |
| | 3. | 103435 - Specific Investigation / Claim / Litigation / Event or Act exclusion: |
| | • | | Richard Sagall, Et al. Docket No. 08-CV-10262 filed November 25, 2008 |
| | • | | U.S. SEC Subpoena Re: Savient Pharmaceuticals, Inc. (P-1674); Claim #550-048376-001 |
| | • | | Tang Capital Partners, LP; Claim #550-086964-001 |
| | • | | FBI; Claim #550-108184-001 |
| | 4. | 103933 – Side-A DIC Amendatory endorsement (clarifies that the policy follows the Beazley A-Side policy and includes “limit shaving” language) |
| | 5. | 89644 – Coverage Territory endorsement (OFAC) |
| | 6. | 78859 – Forms Index endorsement |
RT ProExec is a division of R-T Specialty, LLC (in California: dba R-T Specialty Insurance Services, LLC License #OG97516)
40 Fulton Street, 15th Floor, New York, NY 10038
Phone - (212) 619-4220 Fax - (212) 766-1019
