Akorn Fresenius Merger Agreement
In addition, the Tribunal found that, in conjunction with MMA`s results, the Tribunal found that Fresenius also had the right to terminate the merger agreement on the grounds that Akorn had not carried out its activities between the signing and the closure as part of a “normal transaction”. Factors cited by the Court in this finding included: failure to conduct periodic audits and correct compliance deficiencies, refusal to maintain company data integrity systems, transmission of dummy data to the FDA, and inadequate investigations into allegations of misconduct filed in several alert letters. According to Akorn, the target company is required to act in similar circumstances as a reasonable company in the same sector. In other words, the obligation to act “properly” does not only mean maintaining the status quo; a target company must respond reasonably and appropriately to new circumstances, regardless of the fact that a merger agreement has been reached.5 Under the common law, an offence is essential when it concerns the basis or substance of the agreement between the parties. or affects the fundamental purpose of the contract and contradicts the parties` purpose at the conclusion of the contract. According to this doctrine, it is determined whether an offence is material, balancing the consequences, in the light of the actual practices of men in the execution of contracts that end in the concrete case, using five key factors: (i) the extent to which the victim is deprived of the advantage he reasonably expected. (ii) the extent to which the victim can be properly compensated for the portion of the benefit for which he or she is deprived; (iii) to what extent the party that does not comply or offers a benefit will collapse; (iv) the likelihood that the party who does not comply or offers the offer to the benefit will not default, taking into account all the circumstances, including appropriate assurances, and (v) the extent to which the party`s conduct does not comply or does not offer a benefit; to meet good faith and fair trade standards. Non-performance will reach this level of importance if the und worked alliance is of such importance that the contract would not have been concluded without it. The notice is, in some places, a virtual manual on the design principles of the M-A contracts, the MAE provisions, the joint representations of merger contracts, the terms and rights of termination, as well as other common concepts and concepts contained in the merger contracts.