The Merger Agreement contains representations, warranties,
covenants and other terms, provisions and conditions that the
parties made to each other as of specific dates. The assertions
embodied therein were made solely for purposes of the Merger
Agreement, and may be subject to important qualifications and
limitations agreed to by the parties in connection with negotiating
their respective terms. Moreover, they may be subject to a
contractual standard of materiality that may be different from what
may be viewed as material to stockholders, or may have been used
for the purpose of allocating risk between the parties rather than
establishing matters as facts. For the foregoing reasons, no person
should rely on such representations, warranties, covenants or other
terms, provisions or conditions as statements of factual
information at the time they were made or otherwise.
The foregoing description of the Merger Agreement and the
transactions contemplated thereby is qualified in its entirety by
reference to the Merger Agreement, including the amendment thereto,
copies of which are incorporated herein by reference as Exhibits
2.1 and 2.2 to this Current Report on Form 8-K.
Item 3.01 Notice of Delisting or Failure to Satisfy a
Continued Listing Rule or Standard; Transfer of Listing.
In connection with the closing of the Merger, on December 12,
2018, Keryx notified The Nasdaq Stock Market LLC (“Nasdaq”) that
the Merger had been completed, and requested that trading of Keryx
Shares on The Nasdaq Capital Market be suspended. In addition,
Nasdaq has filed an application on Form 25 with the Commission to
remove the Keryx Shares from listing on the Nasdaq Capital Market
and from registration under Section 12(b) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”). Keryx
intends to file a certificate on Form 15 requesting that its
reporting obligations under Sections 13 and 15(d) of the Exchange
Act be terminated.
The information set forth in Item 2.01 is incorporated herein by
Item 3.03 Material Modification to Rights of Security
The information set forth in Items 2.01, 3.01 and 5.03 is
incorporated herein by reference.
Item 5.01 Changes in Control of Registrant.
As a result of the Merger, a change in control of Keryx occurred,
and Keryx is now a wholly owned subsidiary of Akebia. The
information set forth in Items 2.01 and 5.02 hereof is incorporated
herein by reference.
Item 5.02. Departure of Directors or Certain Officers;
Election of Directors; Appointment of Certain Officers;
Compensatory Arrangements of Certain Officers.
In connection with the closing of the Merger and pursuant to the
terms of the Merger Agreement, all of the members of Keryx’s Board
of Directors resigned as of the effective time of the Merger. As
previously disclosed, Mark J. Enyedy, Steven C. Gilman, Michael T.
Heffernan, Jodie P. Morrison and Michael Rogers will serve on the
Board of Directors of Akebia. No director resigned as a result of
any disagreement with Keryx on any matter relating to Keryx’s
operations, policies or practices.
Effective immediately following the resignations described above,
John P. Butler was appointed as the sole director of Keryx.
In addition, as of the closing of the Merger, (i) Jodie P.
Morrison’s service as Interim Chief Executive Officer of Keryx
ended pursuant to the terms of her employment agreement, which was
previously disclosed and (ii) the other executive officers of Keryx
prior to the Merger ceased to be executive officers of Keryx. No
officers resigned as a result of any disagreement with Keryx on any
matter relating to Keryx’s operations, policies or practices.
Pursuant to the terms of the Merger Agreement, Nicole R. Hadas, the
President and Secretary of Merger Sub, was appointed to the officer
positions of President and Secretary of Keryx, which will be the
only officer positions of Keryx immediately following the effective
time of the Merger.