Akorn filed a complaint in Delaware Chancery Court asking that Fresenius Kabi AG be required to fulfill its obligations under the definitive merger agreement, and issued the following statement:
“Fresenius’ attempt to terminate the transaction on the pretext that the findings from the ongoing investigation are a breach of the merger agreement is completely without merit. The previously disclosed ongoing investigation, of which we have voluntarily notified and are in regular communication with the Food and Drug Administration, has not found any facts that would result in a material adverse effect on Akorn’s business and therefore there is no basis to terminate the transaction. The investigation is not a condition to closing and the only remaining condition is approval from the Federal Trade Commission. We intend to vigorously enforce our rights, and Fresenius’ obligations, under our binding merger agreement.”
The transaction was announced on April 24, 2017 after the boards of directors of both companies approved the sale of Akorn to Fresenius Kabi for $34.00 a share in cash. Akorn shareholders voted overwhelmingly to approve the transaction on July 19, 2017.
Fresenius Kabi announced on Sunday that it has decided to abandon its planned takeover of Akorn, citing the latter’s “failure to fulfill several closing conditions.” The company noted that among other factors, it found “material breaches of FDA data integrity requirements relating to Akorn’s operations.”