Filing Details

 

	UNITED STATES
	SECURITIES AND EXCHANGE COMMISSION
	Washington, D.C. 20549
	SCHEDULE 13D

 

Under the Securities Exchange Act of 1934
(Amendment No.     )*

 

(Name of Issuer)

 

(Title of Class of Securities)

 

(CUSIP Number)

 

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

 

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box   o.

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934, as amended (the Act), or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 

* Fresenius SE & Co. KGaA disclaims beneficial ownership as described under Item 5.

 

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* Fresenius Kabi AG disclaims beneficial ownership as described under Item 5.

 

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Item 1.                             Security and Issuer

 

This statement on Schedule 13D (this Statement) relates to the common shares, no par value, of Akorn, Inc., a corporation organized and existing under the laws of Louisiana (Akorn). The principal executive offices of Akorn are located at 1925 West Field Court, Suite #300, Lake Forest, Illinois 60045.

 

 

Item 2.                             Identity and Background

 

(a)  (c)  The name of the companies filing this Statement are Fresenius SE & Co. KGaA, a German partnership limited by shares (Fresenius SE), and Fresenius Kabi AG, a German stock corporation (Fresenius Kabi and, together with Fresenius SE, the Reporting Persons). The principal business address of the Reporting Persons is Else-Kröner-Str. 1, 61352 Bad Homburg Germany. Fresenius SE is a health care company and is listed on the Frankfurt Stock Exchange.   Fresenius Kabi is a German stock corporation and is a wholly owned subsidiary of Fresenius SE.

 

(d)  (f) The name, business address, citizenship and principal occupation or employment of each of the directors and executive officers of the Reporting Persons as of the date hereof are set forth in Schedule A hereto, and are incorporated herein by reference.

 

Neither Reporting Person nor, to the Reporting Persons knowledge, any person named on Schedule A attached hereto is required to disclose legal proceedings pursuant to Item 2(d).

 

Neither Reporting Person nor, to the Reporting Persons knowledge, any person named on Schedule A attached hereto is required to disclose legal proceedings pursuant to Item 2(e).

 

Item 3.                             Source and Amount of Funds or Other Consideration

 

As a condition to the willingness of Fresenius Kabi to enter into the Merger Agreement (as defined below), certain shareholders of Akorn listed on Schedule B attached hereto (the Shareholders) entered into voting agreements dated as of April 24, 2017, forms of which are attached as Exhibit 2 (the Voting Agreements). Pursuant to, and subject to the terms and conditions contained in, the Voting Agreements, the Reporting Persons may be deemed to have acquired beneficial ownership of the Subject Shares (as defined below) by virtue of the execution of the Voting Agreements by Fresenius Kabi, Akorn and the Shareholders. Fresenius Kabi did not pay additional consideration to the Shareholders in connection with the execution and delivery of the Voting Agreements.

 

Item 4.                             Purpose of Transaction

 

(a)  (b) On April 24, 2017, Akorn entered into an Agreement and Plan of Merger (the Merger Agreement) with Fresenius Kabi, Quercus Acquisition, Inc., a Louisiana corporation and a wholly owned subsidiary of Fresenius Kabi (Merger Sub), and, solely for purposes of Article VIII thereof, Fresenius SE.  The Merger Agreement, which has been adopted by the Board of Directors of Akorn, provides for the merger of Merger Sub with and into Akorn (the Merger), with Akorn surviving the Merger as a wholly owned subsidiary of Fresenius Kabi (the Surviving Corporation).

 

Subject to the terms and conditions set forth in the Merger Agreement, at the effective time of the Merger (the Effective Time), each of Akorns issued and outstanding shares of common stock, no par value per share (the Shares) (other than Shares owned by Akorn or by Fresenius Kabi, Merger Sub or any direct or indirect wholly owned subsidiary of Akorn or of Fresenius Kabi (other than Merger Sub) immediately prior to the Effective Time), will be converted into the right to receive $34.00 in cash per Share (the Merger Consideration), without interest.

 

Completion of the Merger is subject to customary closing conditions, including (1) the approval of the Merger Agreement by the affirmative vote of the holders of at least a majority of all the Shares (the Shareholder Approval), (2) there being no judgment or law enjoining or otherwise prohibiting the consummation of the Merger and (3) the expiration of the waiting period applicable to the Merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. The obligation of each of Akorn and Fresenius Kabi to consummate the Merger is also conditioned on the other partys representations and warranties being true and correct (subject to certain materiality exceptions) and the other party having performed in all material respects its obligations under the Merger Agreement.

 

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On April 24, 2017, concurrently with the execution of the Merger Agreement, Fresenius Kabi entered into a Voting Agreement with each of the Shareholders, who, collectively and in the aggregate, hold voting power over approximately 25% of the Shares (the Subject Shares). Pursuant to the Voting Agreements and as more fully described therein, each Shareholder, among other things, has agreed (a) that at any meeting of the shareholders of Akorn called to vote upon the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, or at any postponement or adjournment thereof, and in any other circumstances upon which a vote, consent, adoption or other approval with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, or any Takeover Proposal (as defined in the Merger Agreement), is sought, such Shareholder will (i) appear at such meeting or otherwise cause its Subject Shares to be counted as present thereat for purposes of calculating a quorum and (ii) vote (or cause to be voted) all of such Shareholders Subject Shares, among other things, (A) in favor of, and shall consent to (or cause to be consented to), the approval of the Merger Agreement and of the Merger and each of the other transactions contemplated by the Merger Agreement and any related proposal in furtherance of the foregoing, including in favor of any proposal to adjourn or postpone to a later date any meeting of the shareholders of Akorn at which any of the foregoing matters are submitted for consideration and vote of the shareholders of Akorn if there are not sufficient votes for approval of such matters on the date on which the meeting is held; and (B) against any Takeover Proposal (as defined in the Merger Agreement); provided that, in each case, the Merger Agreement has not been amended or modified without such Shareholders consent to (1) decrease the Merger Consideration or (2) change the form of Merger Consideration, (b) that such Shareholder will not, and will not commit or agree to, directly or indirectly, sell, transfer, pledge, exchange, assign, tender, encumber, hypothecate or otherwise dispose of (including by gift, merger (including by conversion into securities or other consideration) or tendering into a tender or exchange offer), by operation of law or otherwise, either voluntarily or involuntarily (collectively, Transfer), any Subject Shares (or beneficial ownership thereof or any other interest therein) or any rights to acquire any securities or equity interests of Akorn, or enter into any Contract (as defined in the Merger Agreement), option, call or other arrangement with respect to the Transfer (including any profit-sharing or other derivative arrangement) of any Subject Shares (or beneficial ownership thereof or any other interest therein) or any rights to acquire any securities or equity interests of Akorn, to any person other than pursuant to such Voting Agreement or the Merger Agreement, unless such Transfer is to an Affiliate (as defined in the Merger Agreement) who, prior to any such Transfer,  is a party to such Voting Agreement, enters into a voting agreement in form and substance reasonably acceptable to Fresenius Kabi or agrees to become a party to such Voting Agreement pursuant to a customary joinder agreement and (c) that such Shareholder will not commit or agree to take any action inconsistent with the transactions contemplated by, or the terms of, such Voting Agreement or the Merger Agreement.

 

The Voting Agreements will terminate upon the earlier of (a) the Effective Time or (b) the termination of the Merger Agreement in accordance with its terms.

 

(c) Not applicable.

 

(d) As of the Effective Time, the directors of Merger Sub immediately prior to the Effective Time will be the directors of the Surviving Corporation immediately following the Effective Time, until their respective successors are duly elected or appointed and qualified, or their earlier death, resignation or removal in accordance with the articles of incorporation and bylaws of the Surviving Corporation.

 

(e) Other than as a result of the Merger described in Item 4(a) above, not applicable.

 

(f) Not applicable.

 

(g) As of the Effective Time, the articles of incorporation of Akorn will be amended as provided in the Merger Agreement, and, as so amended, such articles of incorporation will be the articles of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable law. The by-laws of Merger Sub, as in effect immediately prior to the Effective Time (except with respect to the name of Merger Sub), will be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable law.

 

(h) and (i). Upon the consummation of the Merger, the Shares will become eligible for termination of registration pursuant to Section 12(g)(4) of the Act, and Fresenius Kabi will cause them to be deregistered. In addition, Fresenius Kabi will cause the Shares to be delisted from the NASDAQ Global Market Exchange.

 

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(j) Other than described above, the Reporting Persons currently have no plans or proposals that relate to, or may result in, any of the matters listed in Items 4(a)-(j) of Schedule 13D (although the Reporting Persons reserve the right to develop such plans).

 

References to, and descriptions of, the Merger, the Merger Agreement and the Voting Agreements as set forth herein are qualified in their entirety by reference to the copies of the Merger Agreement and Voting Agreements, respectively, included as Exhibits 1, 2.1, 2.2, 2.3 and 2.4, respectively, to this Statement, and such agreements are incorporated herein in the their entirety where such references and descriptions appear.

 

Item 5.                             Interest in Securities of the Issuer

 

(a) and (b) Not including Subject Shares that the Shareholders may subsequently receive due to the Shareholders exercise of options or vesting of restricted stock units, as a result of the Voting Agreements, as of the date hereof, the Reporting Persons may be deemed to have acquired beneficial ownership of 31,057,036 Shares, which are either owned directly by the Shareholders or which the Shareholders have the power to vote or dispose. Such 31,057,036 Shares represent approximately 25% of the outstanding Shares as of April 21, 2017, based upon 124,533,605 Shares outstanding as of such date (as represented by Akorn in the Merger Agreement).

 

Including Subject Shares that the Shareholders may subsequently receive due to the Shareholders exercise of options or vesting of restricted stock units within 60 days of the date of this Statement, as a result of the execution of the Voting Agreements, as of the date hereof, the Reporting Persons may be deemed to have acquired beneficial ownership of 32,384,752 Shares, which are either owned directly by the Shareholders or over which the Shareholders have the power to vote or dispose. Such 32,384,752 Shares represent approximately 25.73% of the outstanding Shares as of April 21, 2017 (plus the additional shares issued as a result of such exercise of options or vesting of restricted stock units), based upon 124,533,605 Shares outstanding as of such date (as represented by Akorn in the Merger Agreement).

 

The Reporting Persons may be deemed to have shared power to vote the Subject Shares with respect to those matters described above. The Reporting Persons may also be deemed to share with the Shareholders the power to dispose, or direct the disposition, of the Subject Shares solely to the extent the Voting Agreements restrict the ability of the Shareholders to transfer the Subject Shares, as more fully described in Item 4 of this Statement and in the Voting Agreements. However, the Reporting Persons are not entitled to any other rights as shareholders of Akorn as to the Subject Shares.

 

Other than the Subject Shares, which may be deemed to be beneficially owned by the Reporting Persons as a result of the execution of the Voting Agreements, the Reporting Persons do not beneficially own any other Shares, and, to the knowledge of the Reporting Persons, none of the persons listed on Schedule A hereto beneficially own any Shares.

 

The Reporting Persons hereby disclaim that they constitute a group (within the meaning of Section 13(d)(3) of the Act) with the Shareholders and, pursuant to Rule 13d-4 under the Act, hereby disclaim beneficial ownership of any Shares beneficially owned by the Shareholders or any of their affiliates including, without limitation, the Subject Shares.

 

(c) As described in Items 3 and 4 of this Statement, Fresenius Kabi entered into the Voting Agreements and the Merger Agreement within the last 60 days.

 

(d) To the knowledge of the Reporting Persons, no person, other than the Shareholders as set forth on Schedule B, has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the securities of Akorn deemed to be beneficially owned by the Reporting Persons.

 

(e) Not applicable.

 

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Item 6.                             Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

 

Neither the Reporting Persons nor, to the best knowledge of the Reporting Persons, any person set forth on Schedule A hereto, has any contracts, arrangements, understandings or relationships (legal or otherwise) with  any other person with respect to any securities of Akorn or its subsidiaries other than the Merger Agreement and the Voting Agreements.

 

The description of the Merger Agreement and the Voting Agreements in Item 4 of this Statement is incorporated herein by reference.

 

Item 7.                             Material to be Filed as Exhibits

 

Exhibit No.		Description
2.1		Agreement and Plan of Merger dated as of April 24, 2017 (the Merger Agreement), by and among Fresenius Kabi AG, Quercus Acquisition, Inc., a Louisiana corporation and wholly owned subsidiary of Fresenius Kabi (Merger Sub), Akorn, Inc. and Fresenius SE & Co. KAaG (solely for the purposes of Article VIII of the Merger Agreement)
2.2		Voting Agreement dated as of April 24, 2017, among Fresenius Kabi AG, John N. Kapoor Trust Dated September 20, 1989, Dr. John Kapoor, Akorn Holdings, L.P., EJ Financial / Akorn Management L.P., EJ Funds LP and Certain trusts for the benefit of Dr. Kapoors children and other family members, the trustee of which is Rao Akella
2.3		Voting Agreement dated as of April 24, 2017, among Fresenius Kabi AG, Rajat Rai 2016 GRAT and Rajat Rai
2.4		Voting Agreement dated as of April 24, 2017, among Fresenius Kabi AG and Joseph Bonaccorsi
2.5		Voting Agreement dated as of April 24, 2017, among Fresenius Kabi AG and Bruce Kutinsky
99.1		Joint Filing Agreement

 

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SIGNATURE

 

After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned hereby certify as of May 4, 2017 that the information set forth in this statement is true, complete and correct.

 

 

	FRESENIUS SE & CO. KGAA Represented by Fresenius Management SE, its general partner
	By:	/s/ Dr. Jürgen Götz
	Name:	Dr. Jürgen Götz
	Title:	Member of the Management Board, Chief Legal and Compliance Officer, Labor Relations Director
	By:	/s/ Mats Henriksson
	Name:	Mats Henriksson
	Title:	Member of the Management Board, President and CEO of Fresenius Kabi AG
	FRESENIUS KABI AG
	By:	/s/ Mats Henriksson
	Name:	Mats Henriksson
	Title:	Chairman of the Management Board, President and CEO
	By:	/s/ Philipp Schulte-Noelle
	Name:	Philipp Schulte-Noelle
	Title:	Member of the Management Board, Chief Financial Officer, Chief Compliance Officer

 

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SCHEDULE A

 

DIRECTORS AND EXECUTIVE OFFICERS OF FRESENIUS SE & CO. KGAA

 

The following table sets forth the name, business address, present principal occupation or employment and citizenship of each of the directors and executive officers of Fresenius SE & Co. KGaA or Fresenius Management SE (FMSE), its general partner, respectively, as of the date of this Statement.  Each individual identified below has his or her business address at Else-Kröner-Str. 1, 61352 Bad Homburg v.d.H. Germany, and, unless otherwise indicated below, each occupation set forth opposite such individuals name refers to employment or position with Fresenius SE & Co. KGaA or FMSE, its general partner, respectively.

 

Name		Relationship to Fresenius SE		Principal Occupation		Citizenship
Supervisory Board of Fresenius SE & Co. KGaA
Dr. Gerd Krick		Chairman of Supervisory Board		Chairman of Supervisory Board, Chairman of Supervisory Board FMSE, Chairman of Supervisory Board Fresenius Medical Care AG & Co. KGaA		Austria
Prof. Dr. med. D. Michael Albrecht		Member of Supervisory Board		Medical Director and Spokesman of Management Board of University Hospital Carl Gustav Carus Dresden		Germany
Michael Diekmann		Deputy Chairman of Supervisory Board		Deputy Chairman of Supervisory Board		Germany
Konrad Kölbl		Member of Supervisory Board		Full-time Works Council Member		Austria
Stefanie Lang		Member of Supervisory Board		Full-time Works Council Member		Germany
Frauke Lehmann		Member of Supervisory Board		Full-time Works Council Member		Germany
Prof. Dr. Med. Iris Löw-Friedrich		Member of Supervisory Board		Chief Medical Officer and Executive Vice President, Head of Development and Medical Patient Value Practices, UCB S.A.		Germany
Klaus-Peter Müller		Member of Supervisory Board		Chairman of Supervisory Board Commerzbank AG		Germany
Oscar Romero de Paco		Member of Supervisory Board		Staff member production / Laboratory Technician		Spain
Hauke Stars		Member of Supervisory Board		Member of the Executive Board Deutsche Börse AG		Germany
Rainer Stein		Member of Supervisory Board		Full-time Works Council Member		Germany
Niko Stumpfögger		Deputy Chairman of Supervisory Board		Secretary of the Trade Union ver.di Vereinte Dienstleistungsgewerkschaft		Germany

 

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Name		Relationship to Fresenius SE		Principal Occupation		Citizenship
Management Board of Fresenius Management SE
Stephan Sturm		Chairman of Management Board		Chairman of Management Board, CEO		Germany
Dr. Francesco De Meo		Member of Management Board; CEO of Fresenius Helios		Member of Management Board; CEO of Fresenius Helios		Germany
Dr. Jürgen Götz		Member of Management Board; Chief Legal and Compliance Officer and Labor Relations Director		Member of Management Board; Chief Legal and Compliance Officer and Labor Relations Director		Germany
Mats Henriksson		Member of Management Board; CEO of Fresenius Kabi AG		Member of Management Board; President and CEO of Fresenius Kabi AG		Sweden
Rice Powell		Member of Management Board; CEO of Fresenius Medical Care		Member of Management Board; CEO of Fresenius Medical Care		USA
Dr. Ernst Wastler		Member of Management Board; CEO of Fresenius Vamed		Member of Management Board; CEO of Fresenius Vamed		Austria
Supervisory Board of Fresenius Management SE
Dr. Gerd Krick		Chairman of Supervisory Board		Chairman of Supervisory Board, Chairman of Supervisory Board Fresenius SE, Chairman of Supervisory Board Fresenius Medical Care AG & Co. KGaA		Austria
Dr. Dieter Schenk		Deputy Chairman of Supervisory Board		Lawyer and Tax Consultant Noerr LLP (law firm)		Germany
Dr. Kurt Bock		Member of Supervisory Board		CEO, BASF SE		Germany
Michael Diekmann		Member of Supervisory Board		Deputy Chairman of Supervisory Board Fresenius SE		Germany
Klaus-Peter Müller		Member of Supervisory Board		Chairman of Supervisory Board Commerzbank AG		Germany
Dr. Karl Schneider		Member of Supervisory Board		Member of Supervisory Board Fresenius SE		Germany

 

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DIRECTORS AND EXECUTIVE OFFICERS OF FRESENIUS KABI AG

 

The following table sets forth the name, business address, present principal occupation or employment and citizenship of each of the directors and executive officers of Fresenius Kabi AG as of the date of this Statement.  Each individual identified below has his or her business address at c/o Fresenius Kabi AG, Else-Kröner-Str. 1, 61352 Bad Homburg v.d.H. Germany, and, unless otherwise indicated below, each occupation set forth opposite such individuals name refers to employment with Fresenius Kabi AG.

 

Name		Relationship to Fresenius Kabi AG		Principal Occupation		Citizenship
Management Board of Fresenius Kabi AG
Mats Henriksson		Chairman of Management Board; Chief Executive Officer		President and Chief Executive Officer		Sweden
Marc Crouton		Member of Management Board		President, Fresenius Kabi Region ELAMA		France
John Ducker		Member of Management Board		President, Region North America		England
Dr. Christian Hauer		Member of Management Board		President, Medical Devices Division		Germany
Philipp Schulte-Noelle		Member of Management Board		Chief Financial Officer and Chief Compliance Officer		Germany
Dr. Michael Schoenhofen		Member of Management Board		President, Pharmaceutical Division		Germany
Gerrit Steen		Member of Management Board		President, Region Asia		Germany
Supervisory Board of Fresenius Kabi AG
Stephan Sturm		Chairman of Supervisory Board		CEO, Fresenius Management SE		Germany
Dr. Karl-Dieter Schwab		Deputy Chairman of Supervisory Board		SVP Finance, Fresenius SE		Germany
Christian Fischer		Member of Supervisory Board		SVP Group Controlling, Fresenius SE		Germany

 

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SCHEDULE B

 

SHAREHOLDERS PARTY TO A VOTING AGREEMENT WITH FRESENIUS KABI AG

 

Shareholder Name		Common Shares Beneficially Owned
John N. Kapoor Trust Dated September 20, 1989		1,907,445
Dr. John N. Kapoor		501,896
Akorn Holdings, L.P.		15,050,000
EJ Financial / Akorn Management L.P.		2,970,644
EJ Funds LP		3,590,445
Certain trusts for the benefit of Dr. Kapoors children and other family members, the trustee of which is Rao Akella		4,427,462
Bruce Kutinsky		158,960
Joseph Bonaccorsi		376,909
Rajat Rai 2016 GRAT		2,000,000
Rajat Rai		73,275

 

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INDEX OF EXHIBITS

 

Exhibit No.		Description
2.1		Agreement and Plan of Merger dated as of April 24, 2017 (the Merger Agreement), by and among Fresenius Kabi AG, Quercus Acquisition, Inc., a Louisiana corporation and wholly owned subsidiary of Fresenius Kabi (Merger Sub), Akorn, Inc. and Fresenius SE & Co. KAaG (solely for the purposes of Article VIII of the Merger Agreement)
2.2		Voting Agreement dated as of April 24, 2017, among Fresenius Kabi AG, John N. Kapoor Trust Dated September 20, 1989, Dr. John Kapoor, Akorn Holdings, L.P., EJ Financial / Akorn Management L.P., EJ Funds LP and Certain trusts for the benefit of Dr. Kapoors children and other family members, the trustee of which is Rao Akella
2.3		Voting Agreement dated as of April 24, 2017, among Fresenius Kabi AG, Rajat Rai 2016 GRAT and Rajat Rai
2.4		Voting Agreement dated as of April 24, 2017, among Fresenius Kabi AG and Joseph Bonaccorsi
2.5		Voting Agreement dated as of April 24, 2017, among Fresenius Kabi AG and Bruce Kutinsky
99.1		Joint Filing Agreement

 

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