Fresenius Terminates Merger Agreement With Akorn
Finally, the Court found that, prior to the closing date of the agreement, Akorn had undergone a general maE in respect of its activities. The Tribunal found that, while retaining market and other external risks, the Tribunal found that Akorn retained the „commercial risks” associated with its activities, which were under its control. The Court of First Instance found that the dramatic and repeated loss of turnover and operations suffered by Akorn during the four consecutive quarters following the conclusion of the merger agreement was substantially prejudicial. As these losses were not due to events not under Akorn`s control, the Tribunal found that Akorn`s repeated quarterly losses qualified as a general EAF and allowed Fresenius to refuse the conclusion of the concentration. In the two quarters following the closing of the agreement, Akorn`s revenue decreased by 29% and 30%, respectively. Akorn`s operating profit also decreased by 84% and 89% over the same period. Fresenius went so far as to propose an extension of the external date as part of the merger agreement in order to have time to further investigate these issues. In the end, the court concluded that „both thoughts Fresenius had about the merger treaty were justified by unexpected events at Akorn.” M&A practitioners have long reported that Delaware courts have not found a „significant adverse effect,” although many cases test the limits of this term. While it remains to be seen whether the Akorn decision will survive the appeal, the decision is important for its clear confirmation of the Delaware courts` willingness to respect freedom of contract and to illustrate the kind of monstrous fact model that might be needed to support a finding of „material adverse effects.”
Comments are closed.