Item 1.01 Entry into a Material Definitive Agreement.
On October 1, 2018, Akebia Therapeutics, Inc., a Delaware corporation (Akebia) entered into the First Amendment to Agreement and Plan of Merger
(the First Amendment) with Alpha Therapeutics Merger Sub, Inc., a Delaware corporation and a direct, wholly owned subsidiary of Akebia (Merger Sub), and Keryx Biopharmaceuticals, Inc., a Delaware corporation
(Keryx), amending the Agreement and Plan of Merger dated June 28, 2018, by and among Akebia, Merger Sub, and Keryx (the Merger Agreement). As was previously disclosed, pursuant to the Merger Agreement, and subject to the
satisfaction or waiver of the conditions specified therein, Merger Sub shall be merged with and into Keryx, with Keryx surviving as a wholly owned subsidiary of Akebia (the Merger).
The First Amendment provides that, as of the effective time of the Merger (the Effective Time), Akebia must take all necessary corporate action to
cause an increase in the size of the Akebia Board of Directors (the Akebia Board) to ten (10) directors, comprising (i) four (4) directors designated by the Akebia Board, each of whom shall be a director of Akebia prior to the
Effective Time and be reasonably acceptable to Keryx (the Continuing Directors), (ii) five (5) directors designated by the Keryx Board of Directors (the Keryx Board), each of whom shall be a director of Keryx prior to
the Effective Time and be reasonably acceptable to Akebia (the Keryx Board Designees), and (iii) one (1) additional independent director to be designated by the Akebia Board and the Keryx Board (the Additional Director),
who is neither a member of the Akebia Board nor a member of the Keryx Board prior to the Effective Time. The Additional Director shall serve as chairperson of the Akebia Board as of the Effective Time. Pursuant to the First Amendment, Akebia and
Keryx shall designate the Continuing Directors, the Keryx Board Designees and the Additional Director, as applicable, as soon as practicable, but no later than immediately prior to the Effective Time. The First Amendment also provides that, as of
the Effective Time, the Continuing Directors, the Keryx Board Designees, and the Additional Director shall be allocated among the three classes of directors as follows:
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Class II (up for
re-election
in 2019): 1 Continuing Director, 2
Keryx Board Designees;
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Class III (up for
re-election
in 2020): Additional Director, 1
Continuing Director, 1 Keryx Board Designee; and
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Class I (up for
re-election
in 2021): 2 Continuing Directors, 2
Keryx Board Designees.
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Other than as expressly modified pursuant to the First Amendment, the Merger Agreement remains in full force and
effect as originally executed on June 28, 2018. The foregoing summary does not purport to be a complete description and is qualified in its entirety by reference to the full text of the First Amendment, which is attached hereto as Exhibit 2.1
and incorporated herein by reference.
Additional Information and Where to Find It
In connection with the proposed merger, Akebia Therapeutics and Keryx Biopharmaceuticals plan to file with the SEC and mail or otherwise provide to their
respective shareholders a joint proxy statement/prospectus regarding the proposed transaction. BEFORE MAKING ANY VOTING DECISION, AKEBIAS AND KERYXS RESPECTIVE SHAREHOLDERS ARE URGED TO READ THE JOINT PROXY STATEMENT/PROSPECTUS IN ITS
ENTIRETY WHEN IT BECOMES AVAILABLE AND ANY OTHER DOCUMENTS FILED BY EACH OF AKEBIA AND KERYX WITH THE SEC IN CONNECTION WITH THE PROPOSED MERGER OR INCORPORATED BY REFERENCE THEREIN BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED
TRANSACTION AND THE PARTIES TO THE PROPOSED TRANSACTION. Investors and shareholders will be able to obtain a free copy of the joint proxy statement/prospectus and other documents containing important information about Akebia and Keryx, once such
documents are filed with the SEC, through the website maintained by the SEC at www.sec.gov. Akebia and Keryx make available free of charge at www.akebia.com and www.keryx.com, respectively (in the Investors section), copies of materials
they file with, or furnish to, the SEC.
Participants in the Solicitation
This document does not constitute a solicitation of proxy, an offer to purchase or a solicitation of an offer to sell any securities. Akebia Therapeutics,
Keryx Biopharmaceuticals and their respective directors, executive officers and
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