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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Commission File Number 1-9601
Date of Report (date of earliest event reported): November 30, 2007
K-V PHARMACEUTICAL COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 43-0618919
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
2503 SOUTH HANLEY ROAD
ST. LOUIS, MISSOURI 63144
(Address of principal executive offices) (Zip Code)
(314) 645-6600
(Registrant's telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of
the following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act.
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act.
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act.
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act.
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ITEM 3.01 NOTICE OF DELISTING OR FAILURE TO SATISFY A CONTINUED LISTING
RULE OR STANDARD; TRANSFER OF LISTING.
NYSE Regulation, Inc. ("NYSE Regulation") has granted the request of
KV Pharmaceutical Company (the "Company") for a trading extension through
February 15, 2008 for the Company's securities, subject to ongoing
reassessment. The extension was required under the exchange's rules because
the Company has been delayed in filing its fiscal 2007 Annual Report on Form
10-K. The Company expects to have all outstanding quarterly and annual SEC
reports for fiscal 2007 filed with the SEC by February 15, 2008.
As the Company has previously reported, the Company's Board of
Directors has accepted a final report on the findings of an internal
investigation of historical stock option granting practices conducted by a
special committee of independent board members. Based on that report, the
Audit Committee concluded that the Company must restate its financial
statements for fiscal years 1996-2006 to record additional non-cash stock
compensation expense, as well as additional tax expense, as a result of the
above-noted investigation. In addition, income tax expense, unrelated to stock
compensation expense, will be included in the restatement of the Company's
consolidated financial statements for the fiscal periods 2004 through 2006.
Due to the pending restatement, the Company has not been able to file
its June 30 (as amended), September 30 and December 31, 2006 Form 10-Q's, its
March 31, 2007 Form 10-K, Form 10-Q's for the quarters ended June 30 and
September 30, 2007, or a proxy statement for its 2007 annual stockholders'
meeting.
Because of the delay in the filing of the Company's 2007 Form 10-K
and proxy statement, the Company could not make certain annual corporate
governance disclosures required to be made in those filings under Section 303A
of the New York Stock Exchange ("NYSE") Listed Company Manual as more fully
discussed below. On November 30, 2007, the Company advised NYSE Regulation
that the finalization of its financial statements for the fiscal year ended
March 31, 2007 and the accompanying audit were ongoing and, the Company was
not prepared to file its 2007 Form 10-K and proxy statement which would
include the required disclosures. In discussions with the Company, NYSE
Regulation permitted the Company to provide the required corporate governance
disclosures through the filing of this Current Report on Form 8-K.
Under its corporate governance disclosure requirements, the NYSE
requires listed companies to:
o disclose the board's evaluation of each director's relationship with
the company, whether the board has adopted categorical standards of
independence, and its determination as to the independence of each
director;
o identify the non-management director who presides at all regularly
scheduled executive sessions of the non-management members of the
board of directors;
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o disclose a method by which interested parties may communicate
directly with the presiding director or the non-management directors
as a group;
o disclose the availability of such company's corporate governance
guidelines, code of business conduct and ethics and charters for the
board's audit, compensation and corporate governance committees on
its website and in print upon stockholder request; and
o disclose that (i) such company's chief executive officer and chief
financial officer have filed the certifications required by Section
302 of the Sarbanes-Oxley Act with the company's most recently filed
annual report on Form 10-K, and (ii) such company's chief executive
officer has certified to the NYSE that he is not aware of any
violation of the NYSE corporate governance listing standards by the
company.
The Company intends to provide the following disclosures in its
Annual Report/or Proxy Statement to be distributed to stockholders in
substantially the form presented below. The Company is diligently working to
complete its 2007 Form 10-K and Proxy Statement, and will make both filings as
soon as possible.
DIRECTOR INDEPENDENCE
Under the NYSE rules, a director of the Company only qualifies as
"independent" if the Company's Board of Directors affirmatively determines
that the director has no material relationship with the Company (either
directly or as a partner, shareholder or officer of an organization that has a
relationship with the Company). The Company's Board of Directors has
established guidelines to assist it in determining whether a director has a
material relationship with the Company. Under these guidelines, a director is
not considered to have a material relationship with the Company if he or she
does not meet any of the exceptions for determining independence under Section
303A.02 of the NYSE Listed Company Manual.
The Company's Board of Directors has determined that Messrs.
Schellenger, Killmer, Carlie, Bellin and Hatfield are "independent" as
determined under Section 303A.02 of the NYSE Listed Company Manual.
PRESIDING DIRECTOR FOR EXECUTIVE SESSIONS
The Company's non-management directors are scheduled to meet twice
annually in executive sessions in conjunction with the regularly scheduled
in-person meetings of the Board of Directors and that the presiding director
of such meetings rotates among the non-management directors.
COMMUNICATION WITH NON-MANAGEMENT DIRECTORS
A stockholder or interested party who wishes to communicate with our
Board of Directors, specific individual directors or the non-management
directors as a group may do so by
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directing a written request addressed to such director(s) in care of the
Company's Assistant Secretary at 2503 South Hanley Road, St. Louis, Missouri
63144 (or via e-mail through our website at http//:www.kvph.com). Such
communication will be forwarded to the intended director, group of directors
or the entire Board of Directors, as the case may be, with the Assistant
Secretary having the authority to screen-out inappropriate communications.
CORPORATE GOVERNANCE GUIDELINES, CODE OF BUSINESS CONDUCT AND COMMITTEE CHARTERS
The Company's Corporate Governance Guidelines, Code of Business
Conduct and charters for the Audit, Compensation and Corporate Governance
Committees are available on its website at http://www.kvph.com and can be
obtained free of charge by written request to the attention of the Assistant
Secretary of the Company at 2503 South Hanley Road, St. Louis, Missouri 63144
or by telephone at (314) 645-6600. The Company will post to its website any
amendments to the Code of Business Conduct, or waivers to the provisions
thereof for principal officers or directors.
ANNUAL CEO CERTIFICATION
The chief executive officer and chief financial officer
certifications required under Section 302 of the Sarbanes-Oxley Act of 2002
have been filed as exhibits to the Company's Annual Report on Form 10-K for
the fiscal year ended March 31, 2006. The certification required by the
Company's chief executive officer under Section 303A.12(a) of the NYSE
corporate governance rules was submitted to the NYSE for 2006.
ITEM 5.03. AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGES IN
FISCAL YEAR
Effective November 30, 2007, the Company's Bylaws were amended to add
a bylaw to allow all classes and series of shares of Company stock to be
represented by uncertificated shares. The text of the Bylaw amendment is
attached hereto as Exhibit 99.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS.
(d) The following exhibit is furnished as part of this
report:
Exhibit Number Description
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99 Text of Bylaw amendment
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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 hereunto duly authorized.
Dated: December 28, 2007
K-V PHARMACEUTICAL COMPANY
By: /s/ Richard H. Chibnall
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Richard H. Chibnall
Vice President, Finance
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