Commission (the “SEC”) on October 1, 2018, as amended on October 25, 2018 and October 29, 2018, and declared effective on October 30, 2018.
The Merger Agreement contains representations, warranties, covenants and other terms, provisions and conditions that the parties made to each other as of specific dates. The assertions embodied therein were made solely for purposes of the Merger Agreement, and may be subject to important qualifications and limitations agreed to by the parties in connection with negotiating their respective terms. Moreover, they may be subject to a contractual standard of materiality that may be different from what may be viewed as material to stockholders, or may have been used for the purpose of allocating risk between the parties rather than establishing matters as facts. For the foregoing reasons, no person should rely on such representations, warranties, covenants or other terms, provisions or conditions as statements of factual information at the time they were made or otherwise.
The description of the Merger Agreement and related transactions (including, without limitation, the Merger) in this Current Report on Form8-K (this “Form8-K”) is subject, and qualified in its entirety by reference, to the full text of the Merger Agreement, which is filed herewith as Exhibit 2.1 and is incorporated herein by reference.
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
On December 12, 2018, in connection with the consummation of the Merger and pursuant to the Merger Agreement, Muneer A. Satter, Michael D. Clayman, Duane Nash, Ronald C. Renaud, Jr., and Michael S. Wyzga resigned from the Board of Directors of Akebia (the “Board”) and ceased serving on the Board and any and all committees thereof. No director resigned as a result of any disagreement with Akebia on any matter relating to Akebia’s operations, policies or practices.
Pursuant to the Merger Agreement and as previously disclosed, the Board elected and designated Adrian Adams to serve as the Board’s Chairperson effective as of the consummation of the Merger.
In connection with the consummation of the Merger and pursuant to the Merger Agreement, on December 12, 2018, the Board elected and designated Mark J. Enyedy, Steven C. Gilman, Michael T. Heffernan, Jodie P. Morrison, and Michael Rogers (collectively, the “New Directors”), who were previously members of the Keryx Board of Directors, to serve on the Board effective immediately after the consummation of the Merger.
Other than as set forth herein, there are no arrangements or understandings with any of the New Directors or any other person pursuant to which such New Director was selected and none of the New Directors has a direct or indirect material interest in any related party transaction required to be disclosed under Item 404(a) of RegulationS-K.
In connection with the New Directors’ service on the Board, each New Director will be entitled to receive compensation pursuant to the Company’s Amended and RestatedNon-Employee Director Compensation Program (the “Program”) applicable to all of the Company’snon-employee directors. In accordance with the Program, the New Directors will be eligible for an annual cash retainer of $40,000 for serving on the Board, additional cash remuneration for committee service, and, upon commencement of service on the Board, will be granted options to purchase 25,000 shares of Common Stock. The New Directors will also have the same right to indemnification by the Company as granted to the Company’sother non-employee directors.
Following the Merger, the composition of the Board and their respective classes are as follows:
| | | | |
| Class I – Term Expiring in 2021 | | Class II – Term Expiring in 2019 | | Class III – Term Expiring in 2020 |
| Scott A. Canute | | John P. Butler | | Adrian Adams |
| Cynthia Smith | | Michael T. Heffernan | | Michael Rogers |
| Steven C. Gilman | | Jodie P. Morrison | | Maxine Gowen |
| Mark J. Enyedy | | | | |
The Board committees on which the above individuals will be named to serve have not yet been determined as of the date of this filing.
On December 11, 2018, the Board approved an amendment (the “Plan Amendment”) to the Akebia Therapeutics, Inc. 2014 Incentive Plan (as it may be amended or restated from time to time, the “Plan”). The Plan Amendment provides, among other things, that in connection with an entity’s merger or consolidation with the Company or any of its subsidiaries or the acquisition by the Company or any of its subsidiaries of an entity’s property or stock, awards may be granted under the Plan in substitution for options or other stock or stock-based awards granted before such merger or consolidation by such entity or its affiliate, and such substitute awards will generally not count against the number of shares of Common Stock that are reserved for issuance under the Plan. Furthermore, the Plan Amendment provides that in the event that a company acquired by the Company or any of its subsidiaries or with which the Company,
