Can Akorn Win Its Fight Against Fresenius?

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Akorn Inc. (NASDAQ: AKRX) shares were crushed on Monday (although not as bad as at Prothena) after it was announced that the German firm Fresenius would no longer be purchasing Akorn. Fresenius noted that this was the result of alleged breaches and data integrity requirements. However, Akorn intends to fight this, but who will win is still yet to be seen.

Fresenius said Sunday it would terminate the $4.3 billion deal to acquire Akorn as the result of its “failure to fulfill several closing conditions.”

Akorn has said in its response that it “categorically disagrees” with Fresenius’ accusations and intends to fight this in court. The firm issued a statement saying:

We categorically disagree with Fresenius’ accusations. The previously disclosed ongoing investigation, which is not a condition to closing, 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. We intend to vigorously enforce our rights, and Fresenius’ obligations, under our binding merger agreement.

In a separate statement, Akorn further detailed its plan:

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.

Excluding Monday’s move, Akorn had underperformed the broad markets, with its stock down about 40% in the past 52 weeks.

Shares of Akorn were last seen down 34% at $13.10, with a consensus analyst price target of $30.17 and a 52-week range of $12.40 to $34.00.

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