This Amendment No. 1 to Schedule 13D (this
Amendment No. 1
) relates to the Schedule 13D filed with the Securities and Exchange Commission (the
SEC
) on May 4, 2017 (the
Schedule 13D
) by Fresenius SE & Co. KGaA (
Fresenius SE
) and Fresenius Kabi AG (
Fresenius Kabi
and, together with Fresenius SE, the
Reporting Persons
), relating to the common stock, no par value (the
Shares
), of Akorn, Inc., a corporation organized and existing under the laws of Louisiana (
Akorn
).
Capitalized terms used but not defined in this Amendment No. 1 shall have the meanings set forth in the Schedule 13D.
Except as set forth below, all items of the Schedule 13D remain unchanged.
This Amendment No. 1 represents the final amendment to the Schedule 13D and constitutes an exit filing for the Reporting Persons, as the Reporting Persons beneficially own less than five percent of the Shares.
Item 4. Purpose of Transaction
Item 4 of the Schedule 13D is hereby amended by inserting the following at the end of Item 4:
On April 22, 2018, Fresenius Kabi delivered a termination notice to Akorn pursuant to which Fresenius Kabi terminated the Merger Agreement in accordance with its terms, effective immediately (the
Termination
). The terms of the Voting Agreements provided that they would terminate upon the earlier of (a) the Effective Time or (b) the termination of the Merger Agreement in accordance with its terms. Following the Termination, Akorn filed an action in the Court of Chancery of the State of Delaware (the
Court of Chancery
) seeking a declaration that Fresenius Kabis attempt to terminate the Merger Agreement was invalid and a decree of specific performance compelling Fresenius Kabi to close the Merger. Fresenius Kabi answered and filed counterclaims, contending it validly terminated the Merger Agreement. On October 1, 2018 the Court of Chancery found that Fresenius Kabi had no obligation to close the Merger and that Fresenius Kabi validly terminated the Merger Agreement on April 22, 2018. On December 7, 2018, the Supreme Court of the State of Delaware affirmed the Court of Chancerys decision. By reason of the termination of the Merger Agreement and Voting Agreements, the Reporting Persons can no longer be deemed to have shared dispositive power or beneficial ownership over the Shares.
Item 5. Interest in Securities of the Issuer
Item 5 of the Schedule 13D is hereby deleted and replaced with the following:
(a) Not applicable.
(b) Not applicable.
(c) Not applicable.
(d) Not applicable.
(e) As of December 7, 2018, as a result of the termination of the Merger Agreement and the Voting Agreements and the affirmation of the Court of Chancerys decision by the Supreme Court of the State of Delaware, the Reporting Persons can no longer be deemed to have a beneficial ownership interest in any Shares in Akorn and expressly disclaim any such interest.
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