As Filed with the Securities and Exchange Commission on November 5, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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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
Incorporation or Organization) Number)
2503 South Hanley Road, St. Louis, Missouri 63144
(314) 645-6600
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
Frank M. D'Amore, Esq.
Vice President and General Counsel
2503 South Hanley Road, St. Louis, Missouri 63144
(314) 645-6600
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
Copies of all correspondence to:
John P. Walsh, Esq.
Gallop, Johnson & Neuman, L.C.
101 South Hanley Road, 16th Floor
St. Louis, Missouri 63105
(314) 862-1200
Approximate date of commencement of proposed sale to public: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering.|_|
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of each class Amount maximum maximum Amount of
of securities to be to be offering price Aggregate registration
registered Registered per share(1) offering price fee
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Class A common stock, 259,110 $17.00 $ 4,404,870 $ 1,225
$.01 par value
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) based on the average of the high and low prices
on October 29, 1999 as reported by the New York Stock Exchange.
<PAGE>
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
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<PAGE>
SUBJECT TO COMPLETION, DATED NOVEMBER 5, 1999
259,110 Shares
K-V PHARMACEUTICAL COMPANY
Class A Common Stock
The stockholder named in the Section entitled "Selling Stockholder" is
offering up to 259,110 shares of Class A common stock of K-V Pharmaceutical
Company.
Our Class A common stock is quoted on the New York Stock Exchange under
the symbol "KV.A." On November 4, 1999, the last reported sale price for the
Class A common stock on the New York Stock Exchange was $19.25 per share.
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Investing in the Class A common stock involves risk.
See "Risk Factors" beginning on page 2.
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We will not receive any proceeds from the sale of the shares. The
selling stockholder may sell the shares in transactions on the New York Stock
Exchange, in negotiated transactions or otherwise, at market prices prevailing
at the time of the sale or at negotiated or fixed prices. The selling
stockholder may sell some or all of its shares in transactions involving
broker-dealers, who may act either as agent or principal. To the extent
required, the aggregate amount of Class A common stock being offered and the
terms of the offering, the names of any agents, dealers or underwriters and any
applicable commission or discount with respect to a particular offer will be set
forth in an accompanying prospectus supplement. The aggregate proceeds to the
selling stockholder from the sale of the Class A common stock will be the
selling price of the Class A common stock sold less the aggregate agents'
commissions and underwriter discounts, if any, and other expenses of issuance
and distribution. See "Selling Stockholder" and "Plan of Distribution."
Neither the Securities and Exchange Commission nor any other regulatory
body has approved or disapproved of these securities or passed upon the adequacy
or accuracy of this prospectus. Any representation to the contrary is a criminal
offense.
The date of this Prospectus is __________, 1999
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The information in this prospectus is not complete and may be changed. The
selling stockholder may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and it is not soliciting an
offer to buy these securities in any state where the offer or sale is not
permitted.
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<PAGE>
TABLE OF CONTENTS
Page
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Cautionary Statement Regarding Forward-Looking Information................ ii
Prospectus Summary........................................................ 1
Risk Factors.............................................................. 2
Use of Proceeds........................................................... 6
Selling Stockholder....................................................... 6
Plan of Distribution...................................................... 6
Legal Matters............................................................. 6
Experts................................................................... 7
How to Get Additional Information......................................... 7
Information Incorporated by Reference..................................... 7
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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING INFORMATION
This prospectus contains forward-looking statements that involve risks
and uncertainties, some of which are beyond our control. We use words such as
"anticipates," "believes," "plans," "expects," "future," "intends" and similar
expressions to identify forward-looking statements. Our actual results could
differ materially from those anticipated in the forward-looking statements as a
result of any number of factors and possible events, including, but not limited
to, the risks highlighted in the section entitled "Risk Factors" as well as
those discussed elsewhere in this prospectus and any documents incorporated
herein by reference. You should not place a lot of weight on these statements.
These statements speak only as of the date of this document or, in the case of
any document incorporated by reference, the date of that document. All
subsequent written and oral forward-looking statements attributable to us or any
person acting on our behalf are qualified by the cautionary statements in this
section. We expressly disclaim any obligation or undertaking to release publicly
any updates or revisions to any forward-looking statement contained within or
incorporated by reference in this prospectus to reflect any change in our
expectations with regard to those forward-looking statements or any change in
events, conditions or circumstances on which any such statement is based.
<PAGE>
PROSPECTUS SUMMARY
This summary highlights selected information about us and may not
contain all of the information that is important to you. The other information
is important, so please read carefully this entire prospectus, together with the
more detailed information about us, the Class A common stock being sold and our
financial statements and the notes thereto incorporated into this prospectus by
reference. Generally, when we use the words "we," "our," "us" or the "Company"
we are referring to K-V Pharmaceutical Company and its wholly-owned subsidiaries
ETHEX Corporation, Ther-Rx Corporation, Particle Dynamics, Inc. and DrugTech
Corporation.
Our Company
Our Company is a specialty pharmaceutical company which acquires,
internally develops and markets brand name and generic prescription products for
many therapeutic areas, including cardiovascular, women's health, pain
management and respiratory. We are a pioneer in the use of advanced drug
delivery technologies, and most of our products incorporate technology from our
proprietary drug delivery systems. We have developed and patented a wide variety
of drug delivery and formulation technologies, including four oral controlled
release, eight oral and topical site-specific, three tastemasking and one quick
dissolving tablet systems. We use these systems in the development of the
products we market to improve and control the human body's absorption and
utilization of the active pharmaceutical compounds. This allows the compounds to
be administered less frequently with potentially reduced side effects, improved
drug efficacy and/or enhanced patient compliance.
Our business is currently organized into three principal business
units, including Ther-Rx Corporation for brand name pharmaceutical products,
ETHEX Corporation for specialty generic pharmaceutical products and Particle
Dynamics, Inc. for value-added raw materials.
Our principal executive offices are located at 2503 South Hanley Road,
St. Louis, Missouri 63144, and our phone number is (314) 645-6600.
The Offering
Class A common stock offered by
the selling stockholder................ Up to 259,110 shares
Use of Proceeds........................ We will not receive any of the proceeds
of the offering.
Risk Factors........................... See "Risk Factors" for a discussion of
factors you should carefully consider
before deciding to invest in shares of
our Class A common stock.
Dividend Policy........................ We historically have not paid cash
dividends on our common stock and do not
plan to do so in the near future.
New York Stock Exchange symbols:
Class A common stock........ KV.A
Class B common stock........ KV.B
<PAGE>
RISK FACTORS
Before you buy our Class A common stock, you should know that making
such an investment involves some risks, including the risks described below. The
risks that we have highlighted here are not the only ones that we face.
Additional risks presently unknown to us or that we currently consider unlikely
to occur could also affect our operations.
If any of the risks actually occur, our business, financial condition
or results of operations could be negatively affected. In that case, the trading
price of our stock could decline, and you may lose all or part of your
investment.
Our Future Acquisitions May Not Be Successful
We intend to acquire pharmaceutical products, novel drug delivery
technologies and/or companies that fit into our research, manufacturing,
distribution or sales and marketing operations or that could provide us with
additional products, technologies or sales and marketing capabilities. We may
not be able to successfully identify, evaluate and acquire any such products,
technologies or companies or, if acquired, we may not be able to successfully
integrate such acquisitions into our business. In March 1999, we acquired the
Micro-K(R) product line from the Wyeth-Ayerst division of American Home
Products. In August 1999, we acquired the Precare(R) product line from UCB PHIP
Inc. and UCB Pharma, Inc. Our sales personnel have little experience with either
of these products. As a result, there is a risk we will be unable to achieve our
sales objectives for either product.
Our Industry Is Susceptible to Product Related Liabilities
Like all pharmaceutical companies, we face the risk of loss related to
the use of products we market from such actions as lawsuits. We cannot assure
you that we can avoid such claims. We cannot be sure that our product liability
insurance will be adequate to cover claims or that we will be able to get
adequate insurance coverage in the future at acceptable costs. A successful
product liability claim in excess of our coverage could require us to pay
substantial sums.
We May Be Adversely Affected by Changes in Third Party Reimbursement Practices
and Related Pricing Pressures
The market for our products may be limited by actions of third party
payors, such as government and private health insurers and managed care
organizations. For example, many managed health care organizations are now
controlling the pharmaceuticals that appear on their lists of reimbursable
medications. The resulting competition among pharmaceutical companies to place
their products on these formulary lists has created a trend of downward pricing
pressure in the industry. In addition, many managed care organizations are
pursuing various ways to reduce pharmaceutical costs and are considering
formulary contracts primarily with those pharmaceutical companies that can offer
a full line of products for a given therapy sector or disease state. Our
products might not be included in the formulary lists of managed care
organizations. Also, downward pricing pressure in the industry generally may
negatively impact our results of operations.
Further, a number of legislative and regulatory proposals aimed at
changing the health care system have been proposed. We cannot predict whether
any such proposals will be adopted or the effect such proposals may have on our
business. The fact that such proposals are pending, the nature of such
proposals, and the adoption of any proposal are likely to increase industry-wide
pricing pressures.
We Need to Develop New Products
To maintain ETHEX's growth we will need to identify, develop and
commercialize technologically distinguished brand name drugs that are either off
patent or approaching patent expiration and that can be produced and sold by us
using our drug delivery technologies. If we are unable to identify, develop and
commercialize new products, we will need to license additional rights to generic
products, which could decrease our gross margins.
We May Not Be Able to Commercialize Products Under Development
We are developing numerous products using our drug delivery
technologies. These products will require significant additional development and
investment, including preclinical and clinical testing where required, prior to
their commercialization. We expect that many of the products will not be
commercially available for several years, if at all. We cannot be sure that such
products or future products will:
o be successfully developed;
o prove to be safe and effective in clinical trials (if required);
o meet applicable regulatory standards; or
o be capable of being manufactured in commercial quantities at
reasonable cost.
<PAGE>
Our Business Is Subject to Extensive Government Regulation
Our business is subject to extensive regulation by numerous
governmental authorities in the United States and other countries, particularly
the United States Food and Drug Administration. Failure to comply with
applicable FDA or other regulatory requirements may result in criminal
prosecution, civil penalties, injunctions, recall or seizure of products, total
or partial suspension of production, as well as other regulatory action against
our products and us.
We market certain drug products in the United States without FDA
approval under certain "grandfather" clauses and statutory and regulatory
exceptions to the pre-market approval requirement for "new drugs" under the
Federal Food, Drug and Cosmetic Act. These provisions exempt certain categories
of drugs from some or all pre-market approval requirements or apply to drug
products that fall outside the legal definition of a "new drug." A determination
as to whether a particular product does or does not require FDA pre-market
review and approval can involve consideration of numerous complex and imprecise
factors. If a determination is made by the FDA that any product marketed without
approval requires pre-market approval, the FDA may institute enforcement
actions, including product seizure, or an action seeking an injunction against
further marketing. As a consequence of such actions, we could be required or
could decide to cease distribution of a product until such pre-market approval
is obtained. In addition, we may not be able to obtain any such approval or such
approvals may not be obtained on a timely basis. The FDA also has the authority
to revoke for cause drug approvals previously granted.
In addition to compliance with current Good Manufacturing Practices
requirements, drug manufacturers must register each manufacturing facility with
the FDA. Manufacturers also must be registered with the Drug Enforcement
Administration and similar state and local regulatory authorities if they handle
controlled substances, and with the Environmental Protection Agency and similar
state and local regulatory authorities if they generate toxic or dangerous
wastes. KV is currently in material compliance with Good Manufacturing Practices
and is registered with the appropriate agencies. Noncompliance with applicable
Good Manufacturing Practices requirements or the rules and regulations of these
agencies can result in fines, recall or seizure of products, total or partial
suspension of production and/or distribution, refusal of government agencies to
approve pre-market approval or other applications and criminal prosecution.
Our Industry Is Competitive
Numerous pharmaceutical companies are involved or becoming involved in
the development and commercialization of products incorporating advanced drug
delivery systems. Such business is highly competitive, and we believe that
competition will substantially increase in the future. Many pharmaceutical
companies have invested, and are continuing to invest, significant resources in
the development of proprietary drug delivery systems. In addition, several
companies have been formed to develop specific advanced drug delivery systems.
Many of these pharmaceutical and other companies who may develop drug delivery
systems have greater financial, research and development and other resources
than we do, as well as more experience in commercializing pharmaceutical and
drug delivery products. Such companies may develop products using their drug
delivery systems more rapidly than we do or develop drug delivery systems that
are more effective than ours and thus may represent significant potential
competitors.
The Company's generic pharmaceutical business is subject to competitive
pressures from a number of companies, some of which have greater financial
resources and broader product lines. Competition is generally on price, which
can have an adverse effect on profitability as falling prices erode margins. In
addition, the continuing consolidation of the customer base (wholesale
distributors and retail drug chains) will increase competition as suppliers
compete for fewer customers. Consolidation of competitors will increase
competitive pressures as larger suppliers are able to offer a broader product
line.
The Company's branded pharmaceutical business is also subject to
competition from larger companies, with greater financial resources, that can
support a larger sales force. The ability of a sales force to compete is
affected by the number of physician calls it can make which is directly related
to its size, the brand name recognition it has in the marketplace and its
advertising and promotional efforts. The Company is in the start-up phase with
its branded sales initiative and could be adversely effected by competition from
companies with a larger, more established sales force.
Our Industry Experiences Rapid Technological Change
The drug delivery industry is a rapidly evolving field. A number of
companies, including major pharmaceutical companies, are developing and
marketing advanced delivery systems for the controlled delivery of drugs.
Products currently on the market or under development by competitors deliver the
same drugs, or other drugs to treat the same indications, as many of the
products we market or are developing. The first pharmaceutical generic or
branded product to reach the market in a therapeutic area often obtains and
maintains significant market share relative to later entrants to the market. Our
products also compete with drugs marketed not only in similar delivery systems
but also in traditional dosage forms. New drugs, new therapeutic approaches or
future developments in alternative drug delivery technologies may provide
advantages over the drug delivery systems and products that we are marketing or
have developed.
Changes in drug delivery technology will require substantial
investments by companies to maintain their competitive position and may provide
opportunities for new competitors to enter the industry. We cannot assure you
that developments by others will not render our drug delivery products or other
technologies uncompetitive or obsolete. If others develop drugs which are
cheaper or more effective or which are first to market, sales or prices of our
products could decline.
We Depend on Our Patents and Proprietary Rights
Our success depends, in large part, on our ability to protect our
current and future technologies and products and to defend our intellectual
property rights. We have been issued numerous patents covering our technologies,
and have filed, and expect to continue to file, patent applications seeking to
protect newly developed technologies and products. Patent applications in the
United States are maintained in secrecy until the patent is issued. Since
publication of discoveries in the scientific or patent literature tends to
follow actual discovery by several months, we cannot be certain that we were the
first to file patent applications on such discoveries. We cannot be sure that
patents will issue with respect to any of our patent applications or that any
existing or future patents issued to or licensed by us will provide competitive
advantages for our products or will not be challenged, invalidated or
circumvented by competitors. We also rely on trade secrets, unpatented
proprietary know-how and continuing technological innovation that we seek to
protect, in part by confidentiality agreements with licensees, suppliers,
employees and consultants. We cannot assure that these agreements will not be
breached. We also cannot be certain that we will have adequate remedies for any
breach. Disputes may arise concerning the ownership of intellectual property or
the applicability of confidentiality agreements. Furthermore we cannot be sure
that our trade secrets and proprietary technology will not otherwise become
known or be independently developed by our competitors or, if patents are not
issued with respect to products arising from research, that we will be able to
maintain the confidentiality of information relating to such products.
Third Parties May Claim That We Infringe on Their Proprietary Rights
We may be required to defend against charges of infringement of patent
or proprietary rights of third parties. This is especially true with respect to
the sale of the generic version of products on which the patent covering the
branded product is expiring, an area where infringement litigation is prevalent.
Such defense could require us to incur substantial expense and to divert
significant effort of our technical and management personnel, and could result
in our loss of rights to develop or make certain products or require us to pay
monetary damages or royalties to license proprietary rights from third parties.
Although patent and intellectual property disputes in the pharmaceutical product
area have often been settled through licensing or similar arrangements, costs
associated with such arrangements may be substantial and could include ongoing
royalties. Furthermore, we cannot be certain that the necessary licenses would
be available to us on terms we believe to be acceptable. Accordingly, an adverse
determination in a judicial or administrative proceeding or failure to obtain
necessary licenses could prevent us from manufacturing and selling certain of
our products.
Management Stockholders Control Our Company
As of September 30, 1999, our directors and executive officers
beneficially owned approximately 25% of our Class A common stock and
approximately 57% of our Class B common stock, respectively. As a result, these
persons controlled approximately 54% of the combined voting power represented by
our securities. These persons will retain effective voting control of the
Company and will continue to have the ability to effectively determine the
outcome of any matter being voted on by our stockholders, including the election
of directors and any merger, sale of assets or other change in control of the
Company.
We Have Enacted Charter Provisions That May Have Anti-Takeover Effects
Our Certificate of Incorporation authorizes the issuance of common
stock in two classes, Class A common stock and Class B common stock. Each share
of Class A common stock entitles the holder to one-twentieth (1/20) vote on all
matters to be voted upon by stockholders, while each share of Class B common
stock entitles the holder to one full vote on each matter considered by the
stockholders. In addition, our directors have the authority to issue shares of
preferred stock and to determine the price, rights, preferences, privileges and
restrictions of those shares without any further vote or action by the
stockholders. The rights of the holders of common stock will be subject to, and
may be adversely affected by, the rights of the holders of any preferred stock
that may be issued in the future. The existence of two classes of common stock
with different voting rights and the ability of our directors to issue
additional shares of preferred stock could have the effect of making it more
difficult for a third party to acquire a majority of our voting stock. Other
provisions of our Certificate of Incorporation and Bylaws, such as staggered
directorships, also may have the effect of discouraging, delaying or preventing
a merger, tender offer or proxy contest, which could have an adverse effect on
the market price of the Class A common stock.
<PAGE>
The Market Price of Our Stock Has Been and May Continue to Be Volatile
The market prices of securities of companies engaged in pharmaceutical
development and marketing activities historically have been highly volatile. In
addition, any or all of the following may have a significant impact on the
market price of the Class A common stock:
o announcements of technological innovations or new commercial
products;
o delays in the development or approval of products;
o developments or disputes concerning patent or proprietary rights;
o publicity regarding actual or potential medical results relating to
products under development;
o regulatory developments in both the United States and foreign
countries;
o publicity regarding actual or potential acquisitions;
o public concern as to the safety of drug technologies; and
o economic and other external factors, as well as period to period
fluctuations in financial results.
We May Be Unable to Manage Our Growth
Recently, our businesses and product offerings have grown
substantially. This growth and expansion have placed, and is expected to
continue to place, a significant strain on our management, operational and
financial resources. To manage our growth, we must (1) continue to expand our
operational, customer support and financial control systems and (2) hire, train
and retain qualified personnel.
We May Have Future Capital Needs
We anticipate that the funds generated internally together with funds
available under our credit facility will be sufficient to implement our business
plan for the foreseeable future, subject to such additional needs as may arise
if acquisition opportunities become available. We could need additional capital
if unexpected events occur or opportunities arise. Such additional capital might
be raised through our public or private sale of debt or equity securities. If we
sell equity securities, your percentage ownership of the Company will decrease
and you could experience dilution. Furthermore, such securities could have
rights, preferences and privileges more favorable than those of the Class A
common stock. We cannot assure you that additional funding will be available, or
available on terms favorable to us. If the funding is not available, we may not
be able to fund our expansion, take advantage of acquisition opportunities or
respond to competitive pressures.
Our New Products May Not Pass Testing Procedures
Some of our new products will require FDA approval. FDA approval
typically involves lengthy, detailed and costly laboratory and clinical testing
procedures. We cannot be certain that the products we are developing will be
determined to be safe and effective in these testing procedures.
Our Computer Systems, and Those of Others on Whom We Rely, May Not Achieve Year
2000 Readiness
We are working to resolve the potential impact of the year 2000 on the
ability of the computerized information systems we use to process accurately
information that may be date-sensitive. Any of the programs we or our vendors
use that recognize a date using "00" as the year 1900 rather than the year 2000
could result in errors or system failures. This could require us to curtail
operations pending resolution of the problem. We believe our principal risk lies
in the potential inability of our outside vendors and service providers to
process date-sensitive information involving the year 2000.
USE OF PROCEEDS
We will not receive any proceeds from the offering. The selling
stockholder will receive all the proceeds from the offering. We will pay all
expenses incurred in connection with the offering other than any commissions or
discounts paid or allowed by the selling stockholder to any dealers or brokers.
SELLING STOCKHOLDER
The selling stockholder is UCB PHIP, Inc., which holds, as of September
30, 1999, 259,110 shares of Class A common stock. The selling stockholder
acquired these shares in connection with our acquisition of the Precare(R)
product line from the selling stockholder and UCB Pharma, Inc. Assuming all the
shares offered hereby are sold, the selling stockholder will not hold any shares
of Class A common stock after completion of this offering.
<PAGE>
PLAN OF DISTRIBUTION
The 259,110 shares of Class A common stock offered pursuant to this
prospectus are being offered for the account of the selling stockholder.
The selling stockholder may sell the shares being offered hereby in
transactions on the New York Stock Exchange, in negotiated transactions or
otherwise, at market prices prevailing at the time of the sale or at negotiated
fixed prices. The selling stockholder may sell some or all of its shares in
transactions involving broker-dealers, who may act either as agent or principal,
and who may receive compensation in the form of discounts, commissions or
concessions from the selling stockholder or the purchaser of shares for whom
such broker-dealers act as agent or to whom they sell as principal, or both.
We have advised the selling stockholder of its obligation under the
Securities Act of 1933, as amended, to deliver copies of this prospectus to the
purchaser of shares of Class A common stock. At the time a particular offering
of the Class A common stock is made hereunder, to the extent required by law, a
prospectus supplement will be distributed which will set forth the aggregate
number of shares of Class A common stock being offered and the material terms of
the offering, including the name or names of any underwriters, dealers or
agents, the purchase price to be paid by any underwriter or dealer for the Class
A common stock being purchased, any discounts, commissions and other items
constituting compensation from the selling stockholder and any discounts,
commissions or concessions allowed or reallowed or paid to dealers, and the
proposed selling price to the public.
The selling stockholder and any broker-dealers that participate in the
distribution of the shares of Class A common stock may be deemed to be
"underwriters" within the meaning of the Securities Act in connection with
sales, and any profit on the sale of shares of Class A common stock by the
selling stockholder and any fees and commissions received by any such
broker-dealers may be deemed to be underwriting discounts and commissions.
LEGAL MATTERS
Our attorneys, Gallop, Johnson & Neuman, L.C., St. Louis, Missouri,
will opine as to the validity of the Class A common stock offered by this
prospectus.
EXPERTS
The consolidated financial statements of K-V Pharmaceutical Company as
of March 31, 1999 and 1998 and for each of the three years in the period ended
March 31, 1999, incorporated by reference and in the registration statement of
which this prospectus is a part, have been audited by BDO Seidman, L.L.P.,
independent certified public accountants as set forth in their report dated May
14, 1999, and are included in reliance on such report given upon the authority
of such firm as experts in accounting and auditing.
HOW TO GET ADDITIONAL INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission. You can read and
obtain a copy of any document we file:
o At the Public Reference Room of the SEC at 450 Fifth Street, Room
1024, N.W., Washington, D.C. 20549;
o At the public reference facilities of the SEC's regional offices at
Seven World Trade Center, Suite 1300, New York, New York 10048; or
Citicorp Center, Suite 1400, 500 West Madison Street, Chicago,
Illinois 60661;
o At the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005; or
o From the SEC's web site at WWW.SEC.GOV.
You may obtain information on the operation of the Public Reference
Room by calling the SEC at 1-800-SEC-0330. The SEC's web site contains reports,
proxy statements and other information about issuers, including us, who file
electronically with the SEC. Some of the locations described above may charge a
fee for copies.
We have filed with the SEC a registration statement on Form S-3
(herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended, covering
the shares of Class A common stock offered hereby. This Prospectus does not
contain all of the information set forth in the Registration Statement, certain
parts of which are omitted in accordance with the rules and regulations of the
SEC. For further information, you should examine the Registration Statement that
can be obtained at the locations listed above. Statements contained in this
prospectus concerning the contents of contracts and other documents are not
necessarily complete. You should refer to the contract or other document for
additional information.
<PAGE>
INFORMATION INCORPORATED BY REFERENCE
The SEC permits us to "incorporate by reference" the information that
we have filed with it. This means that important information, not presented in
this prospectus, may be contained elsewhere. We incorporate by reference the
following documents and any future filings made with the SEC until the selling
stockholder completes its offering of shares:
o Our Annual Report on Form 10-K for the fiscal year ended March 31,
1999;
o Our Quarterly Report on Form 10-Q for the fiscal quarter ended June
30, 1999;
o Our Current Reports on Form 8-K and Form 8-K/A filed on April 5, 1999
and June 4, 1999, respectively;
o Our definitive proxy statement for the 1999 Annual Meeting of
Stockholders; and
o The description of our common stock set forth in the registration
statement on Form 8-A filed on March 22, 1999.
You may obtain a copy of any or all documents referred to above,
without charge, by making a written or telephone request to Investor Relations,
2503 South Hanley Road, St. Louis, Missouri 63144, telephone: (314) 645-6600.
<PAGE>
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259,110 Shares
K-V Pharmaceutical Company
Class A Common Stock
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PROSPECTUS
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November _____, 1999
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You should rely only on information contained in this prospectus. We
have not authorized anyone to provide you with information or make any
representation about K-V Pharmaceutical Company different from, or in addition
to, that contained in this prospectus. This prospectus does not offer to sell or
seek an offer to buy, shares of Class A common stock in jurisdictions where
offers and sales are not permitted. The information contained in this prospectus
is accurate only as of the date of this prospectus, regardless of the time of
delivery of this prospectus or of any sale of the Class A common stock.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the estimated expenses of the Company in
connection with the issuance and distribution of the shares offered hereby*:
SEC registration fee ............................. $ 1,225
Legal and accounting fees and expenses............ 12,500
Miscellaneous..................................... 1,000
Total.................................... $ 14,725
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* The selling stockholder will pay any sale commissions incurred in connection
with its sale of shares registered hereunder.
Item 15. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware
permits indemnification by a corporation of certain officers, directors,
employees and agents. Consistent therewith, Article IX of the Company's Bylaws
requires that the Company indemnify all persons whom it may indemnify pursuant
thereto to the fullest extent permitted by Section 145. Article IX also provides
that expenses incurred by an officer or director of the Company or any of its
direct or indirect wholly-owned subsidiaries in defending a civil or criminal
action, suit or proceeding will be paid by the Company in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such officer, director, employee or agent to repay such amount
if it shall ultimately be determined that he is not entitled to be indemnified
by the Company as authorized. Such expenses incurred by other employees and
agents may be so paid upon such terms and conditions, if any, as the Board of
Directors deems appropriate.
In addition, Article 12 of the Company's Certificate of Incorporation
provides that directors of the Company shall not be personally liable for
monetary damages to the Company or its stockholders for a breach of fiduciary
duty as a director, except for liability as a result of (i) a breach of the
director's duty of loyalty to the Company or its stockholders; (ii) acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law; (iii) an act related to the unlawful stock repurchase or
payment of a dividend under Section 174 of Delaware General Corporation Law; and
(iv) transactions from which the director derived an improper personal benefit.
The Company maintains a policy of insurance under which the directors
and officers of the Company are insured, subject to the limits of the policy,
against certain losses arising from claims made against such directors and
officers by reason of any acts or omissions covered under such policy in their
respective capacities as directors or officers.
Item 16. Exhibits
Exhibit
Number Description
- ------ -----------
5(a) Opinion of Gallop, Johnson & Neuman, L.C.
23(a) Consent of BDO Seidman, L.L.P.
23(b) Consent of Gallop, Johnson & Neuman, L.C. (included in Exhibit 5(a))
24(a) Power of Attorney (set forth on signature page)
<PAGE>
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement;
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement; and
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
Provided, however, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended, that
are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes, that for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's Annual Report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an Employee Benefit
Plan's Annual Report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and this Offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) The undersigned registrant hereby undertakes that:
(1) For purposes of determining liability under the Securities
Act of 1933, the information omitted from the form of Prospectus filed
as part of this Registration Statement in reliance upon Rule 430A and
contained in a form of Prospectus filed by the registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be
deemed to be part of this Registration Statement as of the time it was
declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post effective amendment that contains a
form of Prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and this Offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
<PAGE>
(d) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the undersigned registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the County of St. Louis and State of Missouri on the 5th day of
November, 1999.
K-V PHARMACEUTICAL COMPANY
(Registrant)
By: /s/ Marc S. Hermelin
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Marc S. Hermelin
Vice Chairman of the Board and
Chief Executive Officer
Each of the undersigned hereby appoints Gerald R. Mitchell and Alan G.
Johnson, and each of them (with full power to act alone), as attorneys and
agents for the undersigned, with full power of substitution, for and in the
name, place and stead of the undersigned, to sign and file with the Securities
and Exchange Commission under the Securities Act of 1933 any and all amendments
and exhibits to this Registration Statement and any and all applications,
instruments and other documents to be filed with the Securities and Exchange
Commission pertaining to the registration of the securities covered hereby, with
full power and authority to do and perform any and all acts and things
whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons and in the
capacities and on the dates indicated.
Signature Title Date
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/s/ Victor M. Hermelin Director, Chairman of November 5, 1999
- --------------------------- the Board and Treasurer
Victor M. Hermelin
/s/ Marc S. Hermelin Director, Vice Chairman November 5, 1999
- --------------------------- of the Board and
Marc S. Hermelin Chief Executive Officer
(principal executive
officer)
/s/ Alan G. Johnson Director, Senior Vice November 5, 1999
- --------------------------- President and Secretary
Alan G. Johnson
/s/ Garnet E. Peck, Ph.D. Director November 5, 1999
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Garnet E. Peck, Ph.D.
/s/ Norman D. Schellenger Director November 5, 1999
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Norman D. Schellenger
/s/ Gerald R. Mitchell Vice President - Finance November 3, 1999
- --------------------------- (principal financial and
Gerald R. Mitchell accounting officer)
<PAGE>
EXHIBIT INDEX
Exhibit Number Description Page
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5(a) Opinion of Gallop, Johnson & Neuman, L.C.
23(a) Consent of BDO Seidman, L.L.P.
23(b) Consent of Gallop, Johnson & Neuman, L.C.
(included in Exhibit 5(a))
24(a) Power of Attorney (set forth on signature page)
Exhibit 5(a)
November 2, 1999
Board of Directors
K-V Pharmaceutical Company
2503 South Hanley Road
St. Louis, Missouri 63144
Re: Registration Statement on Form S-3 for Resale of
259,110 Shares of Class A Common Stock
Gentlemen:
We have acted as counsel for K-V Pharmaceutical Company, a Delaware
corporation (the "Company"), in connection with the various legal matters
relating to the filing of a Registration Statement on Form S-3 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Act"), relating to the sale by certain stockholders of the Company of up to
259,110 shares of the Class A common stock of the Company, $0.01 par value per
share (the "Shares"), as described in the Registration Statement.
We have examined such corporate records of the Company, such laws and
such other information as we have deemed relevant, including the Registration
Statement, the Company's Certificate of Incorporation, as amended, the Company's
Bylaws, as amended, and resolutions adopted by the Board of Directors of the
Company relating to the original issuance of the Shares in connection with an
acquisition by the Company completed August 2, 1999. In delivering this opinion,
we have assumed, without independent investigation, the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, and
the conformity to the originals of all documents submitted to us as certified,
photostatic or conformed copies.
Based solely on the foregoing, the undersigned is of the opinion that
the Shares are duly authorized, validly issued, fully paid and non-assessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name in the Registration Statement
and related Prospectus in the section of the Prospectus entitled "Legal
Matters." In giving this consent, we do not thereby admit that we are within the
category of persons whose consent is required under Section 7 of the Act, the
rules and regulations of the Securities and Exchange Commission promulgated
thereunder, or Item 509 of Regulation S-K.
This opinion letter is rendered as of the date first written above and
we disclaim any obligation to advise you of facts, circumstances, events or
other developments which hereafter may be brought to our attention and which may
alter, affect or modify the opinion expressed herein. Our opinion is expressly
limited to the matters set forth above and we render no opinion, whether by
implication or otherwise, as to any other matters relating to the Company or the
Shares.
Very truly yours,
/s/ Gallop, Johnson & Neuman, L.C.
GALLOP, JOHNSON & NEUMAN, L.C.
Consent of Independent
Certified Public Accountants
K-V Pharmaceutical Company
St. Louis, Missouri
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated May 14,
1999, relating to the consolidated financial statements of K-V Pharmaceutical
Company appearing in the Company's Annual Report on Form 10-K for the year ended
March 31, 1999.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
/s/ BDO Seidman, L.L.P.
BDO SEIDMAN, L.L.P.
St. Louis, Missouri
November 2, 1999
