UNITED STATES 

SECURITIES AND EXCHANGE COMMISSION 

Washington, D.C. 20549

 

 

 

FORM 8-K

 

CURRENT REPORT

 

Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934

 

 

 

Date of Report (Date of earliest event reported): March 1, 2019

 

  Akorn, Inc.  

(Exact name of registrant as specified in charter)

 

Louisiana

001-32360

72-0717400

(State or Other Jurisdiction
of Incorporation)
(Commission File Number) (IRS Employer
Identification No.)

 

1925 W. Field Court, Suite 300, Lake Forest, Illinois 60045
(Address of Principal Executive Offices) (Zip Code)

 

(847) 279-6100
(Registrant’s telephone number, including area code)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).

 

Emerging growth company ¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Securities Act. ¨

 

 

 

 

 

Item 7.01Regulation FD Disclosure

 

On March 1, 2019, Akorn, Inc. (“Akorn” or the “Company”) issued a press release announcing that the Delaware Court of Chancery has denied a request by Fresenius Kabi AG to bring a fraud claim against Akorn. A copy of the press release is furnished as Exhibit 99.1 to this Current Report on Form 8-K.

 

The information in this Item 7.01, including exhibit 99.1 attached hereto, shall not be deemed to be "filed" for purposes of Section 18 of the Securities Exchange Act of 1934 (the "Exchange Act") or otherwise subject to the liabilities of that section, nor shall it be deemed to be incorporated by reference in any filing under the Securities Act of 1933 or the Exchange Act, except as shall be expressly set forth by specific reference in such a filing.

 

 

 

Item 9.01.Financial Statements and Exhibits

 

(d) Exhibits.

 

Exhibit No.   Description of Exhibit
99.1   Press release dated March 1, 2019, entitled “Akorn Comments on Favorable Court Order.”

 

 

 

 

SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

  AKORN, INC.  
       
Date:  March 1, 2019 By:  /s/ Duane A. Portwood  
    Name:  Duane A. Portwood  
    Title:    Chief Financial Officer  

 

 

 

 

Exhibit 99.1

 

 

 

Akorn Comments on Favorable Court Order

 

LAKE FOREST, Ill., Mar. 1, 2019 (GLOBE NEWSWIRE) -- Akorn, Inc. (Nasdaq: AKRX) announced today that the Delaware Court of Chancery has denied a request by Fresenius Kabi AG to bring a fraud claim against Akorn.

 

On February 20, Fresenius filed a proposed amended counterclaim seeking to add a new claim for fraud to its existing request for contract damages associated with the termination of the merger agreement with Akorn last year. The Court of Chancery denied Fresenius's motion on February 28, noting that "Fresenius did not previously assert a claim for fraud, and the liability phase of the case has concluded. Fresenius could have asserted a claim for fraud at the outset of the case, or amended its pleadings during discovery or before trial. The parties chose to litigate breach of contract claims. It is too late now to introduce a new theory of liability."

 

“Akorn believes Fresenius’s remaining request for contractual damages is without merit, and we will continue to vigorously defend ourselves against it,” President and CEO Douglas Boothe said. “We are pleased that the Court has ruled in our favor on this motion. This is an important development for us, as we focus on our future and on strengthening the business to enhance shareholder value.”

 

Cautionary Statement Regarding Forward-Looking Statements

This press release includes statements that may constitute "forward looking statements", including expectations regarding financial performance, rebuilding shareholder value, capital expenditures, growth, and other Akorn plans and strategy. When used in this document, the words “will,” “expect,” “continue," “believe,” “estimate,” “intend,” “could,” “strives” and similar expressions are generally intended to identify forward-looking statements. These statements are made pursuant to the safe harbor provisions of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. A number of important factors could cause actual results of Akorn and its subsidiaries to differ materially from those indicated by such forward-looking statements. These factors include, but are not limited to: (i) the effect of the Delaware court’s recent decision against Akorn on Akorn’s ability to retain and hire key personnel, its ability to maintain relationships with its customers, suppliers and others with whom it does business, or its operating results and business generally, (ii) the risk that ongoing or future litigation related to the court’s decision may result in significant costs of defense, indemnification and/or liability, (iii) the outcome of the investigation conducted by Akorn with the assistance of outside consultants, into alleged breaches of FDA data integrity requirements relating to product development at Akorn and any actions taken by Akorn, third parties or the FDA as a result of such investigations, (iv) the difficulty of predicting the timing or outcome of product development efforts, including FDA and other regulatory agency approvals and actions, if any, (v) the timing and success of product launches, (vi) difficulties or delays in manufacturing, and (vii) such other risks and uncertainties outlined in the risk factors detailed in Part I, Item 1A, “Risk Factors,” of Akorn’s Annual Report on Form 10-K and other risk factors identified from time to time in our filings with the SEC. Readers should carefully review these risk factors, and should not place undue reliance on our forward-looking statements. These forward-looking statements are based on information, plans and estimates at the date of this report. Akorn undertakes no obligation to update any forward-looking statements to reflect changes in underlying assumptions or factors, new information, future events or other changes.

 

About Akorn

Akorn, Inc. is a specialty generic pharmaceutical company engaged in the development, manufacture and marketing of multisource and branded pharmaceuticals. Akorn has manufacturing facilities located in Decatur, Illinois; Somerset, New Jersey; Amityville, New York; Hettlingen, Switzerland and Paonta Sahib, India that manufacture ophthalmic, injectable and specialty sterile and non-sterile pharmaceuticals. Additional information is available on Akorn’s website at www.akorn.com.

 

Investors:

(847) 279-6162

Investor.relations@akorn.com

 

Media:

Robert Stanislaro / Camilla White

212-850-5600

Robert.Stanislaro@fticonsulting.com / Camilla.White@fticonsulting.com