KERX Keryx Biopharmaceuticals, Inc. (delisted)

Item 2.01 Completion of Acquisition or Disposition of Assets.

As previously announced, Keryx Biopharmaceuticals, Inc., a Delaware corporation (“Keryx”), entered into an Agreement and Plan of Merger on June 28, 2018, as amended on October 1, 2018 (the “Merger Agreement”) with Akebia Therapeutics, Inc., a Delaware corporation (“Akebia”), and Alpha Therapeutics Merger Sub, Inc., a Delaware corporation and wholly-owned subsidiary of Akebia (“Merger Sub”). Keryx’s stockholders adopted the Merger Agreement at a special meeting of stockholders held on December 11, 2018 (the “Special Meeting”). Pursuant to the terms of the Merger Agreement, on December 12, 2018, following the filing of a Certificate of Merger with the Secretary of the State of Delaware, Merger Sub merged with and into Keryx, and the separate corporate existence of Merger Sub thereupon ceased with Keryx continuing as the surviving corporation and a wholly-owned subsidiary of Akebia (the “Merger”).

Pursuant to the terms of the Merger Agreement, upon completion of the Merger, each share of common stock, par value $0.001 per share, of Keryx (a “Keryx Share”) issued and outstanding immediately prior to the effective time of the Merger (other than shares held by Akebia, Merger Sub, any subsidiary of Akebia or Keryx, or held by Keryx as treasury shares) was converted into the right to receive 0.37433 fully paid and non-assessable shares of common stock of Akebia, $0.00001 par value per share (an “Akebia Share”). No fractional Akebia Shares were issued in the Merger, and Keryx’s stockholders will receive cash in lieu of any fractional shares.

Further, at the effective time of the Merger, outstanding awards of Keryx restricted shares issued under a Keryx equity plan (“Keryx Restricted Shares”), other than those Keryx Restricted Shares that accelerated or lapsed as a result of the Merger, were cancelled and converted into restricted stock unit awards of Akebia, the number of shares underlying which was adjusted in accordance with the terms of the Merger Agreement. Each of those Keryx Restricted Shares whose restrictions (including vesting) accelerated or lapsed as a result of the Merger were cancelled and converted into the right to receive 0.37433 Akebia Shares. In addition, each outstanding and unexercised option award to acquire Keryx Shares granted under a Keryx equity plan was cancelled and converted into an option award to acquire Akebia Shares, with the number of shares and exercise price adjusted for the exchange ratio in accordance with the terms of the Merger Agreement. Each converted option and restricted stock unit award shall be subject to the same terms and conditions as had applied to the corresponding Keryx option or Keryx Restricted Share award as of immediately prior to the effective time, except for such terms rendered inoperative by reason of the Merger.

The issuance of Akebia Shares in connection with the Merger was registered under the Securities Act of 1933, as amended, pursuant to Akebia’s registration statement on Form S-4 (File No. 333-227622) filed with the Securities and Exchange Commission (the “Commission”) on October 1, 2018, as amended on October 25, 2018 and October 29, 2018 and declared effective on October 30, 2018. The registration statement contains additional information about the Merger, including information concerning the interests of directors, executive officers and affiliates of Keryx and Akebia in the Merger.

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.

Ms. Hadas joined Akebia in 2013 and is Senior Vice President, General Counsel and Corporate Secretary. Prior to joining Akebia, Ms. Hadas was Vice President and General Counsel at OvaScience, Inc. in 2013. Previously, Ms. Hadas served as Senior Vice President and General Counsel at Inspiration Biopharmaceuticals, Inc., a company that filed for protection under Chapter 11 of the U.S. Bankruptcy Code in October 2012 prior to the successful sale of its hemophilia assets to Cangene Corporation and Baxter International in early 2013 for a total aggregate consideration that could exceed $1 billion. From 2001 to 2011, Ms. Hadas worked at Genzyme Corporation, now Sanofi Genzyme, most recently as Senior Corporate Counsel. Prior to Genzyme, she was an associate at Foley Hoag representing biopharmaceutical companies and healthcare providers in a wide variety of matters. Ms. Hadas received a B.A. from the University of Michigan and a J.D. from Boston College Law School. The information set forth in Item 2.01 of this Current Report on Form 8-K regarding the conversion of Keryx equity awards is incorporated by reference into this Item 5.02.