Washington, D.C. 20549
Hi-Tech Pharmacal Co., Inc.
Akorn, Inc.
1925 W. Field Court, Suite 300
Keith S. Crow, P.C.
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
Item 1. Security and Issuer
This statement on Schedule 13D (the “Schedule 13D”) relates to the common stock, par value $0.01 per share (“Issuer Common Stock”), of Hi-Tech Pharmacal Co., Inc., a Delaware corporation (“Hi-Tech” or the “Issuer”). The principal executive office of Hi-Tech is located at 369 Bayview Avenue, Amityville, New York 11701.
Item 2. Identity and Background
This statement is being jointly filed by Akorn, Inc., a Louisiana corporation (“Akorn”), and Akorn Enterprises, Inc., a Delaware corporation and wholly owned subsidiary of Akorn (“Merger Sub”).
The principal executive office of Akorn is located at 1925 W. Field Court, Suite 300, Lake Forest, Illinois 60045. Akorn’s telephone number is (847) 279-6100. Information as to each of the executive officers and directors of Akorn is set forth on Schedule I. Akorn is a niche 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 and Panota Sahib, India where it manufactures ophthalmic and injectable pharmaceuticals.
The principal executive office of Merger Sub is located at 1925 W. Field Court, Suite 300, Lake Forest, Illinois 60045. Merger Sub’s telephone number is (847) 279-6100. Information as to each of the officers and directors of Merger Sub is set forth on Schedule I. Merger Sub is a wholly owned subsidiary of Parent. Merger Sub was formed solely for the purpose of effecting the transactions contemplated by the Merger Agreement (defined below) and has not engaged in any activities except in connection with these transactions.
Akorn and Merger Sub are collectively hereinafter referred to as the “Reporting Persons”.
The Reporting Persons have entered into a Joint Filing Agreement, a copy of which is filed with this Schedule 13D as Exhibit 5.
During the last five years, none of the Reporting Persons nor, to the best knowledge of the Reporting Persons, any of the other persons identified in Schedule I: (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors); or (ii) was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
The Voting Agreement and irrevocable proxies contained therein (the “Voting Agreement”) and the Joinders to the Voting Agreement (the “Joinders”) described in Item 4 of this statement (the terms of which are hereby incorporated by reference) were entered into by Akorn and certain stockholders of Hi-Tech (the “Stockholders”) as an inducement for Akorn to enter into an Agreement and Plan of Merger (the “Merger Agreement”), dated as of August 26, 2013, by and among Akorn, Hi-Tech, and Merger Sub. Akorn did not pay any additional consideration to the Stockholders in connection with the execution and delivery of the Voting Agreement or the Joinders.
Akorn presently expects that the merger consideration to be paid by it to the holders of Issuer Common Stock following consummation of the transactions contemplated by the Merger Agreement will be funded through a combination of debt financing to be obtained by Akorn and cash on hand at Hi-Tech.
Akorn has received a debt commitment letter (the “Debt Commitment Letter”) from JPMorgan Chase Bank, N.A. and J.P. Morgan Securities LLC (collectively, the “Debt Commitment Parties”) to provide, subject to the conditions set forth in the Debt Commitment Letter, credit facilities (the “Credit Facilities”) to Akorn, consisting of: (a) up to $600 million in a senior secured term loan facility with a term of seven (7) years (the “Term Loan”), and (b) up to $75 million of a senior secured revolving loan facility with a term of five (5) years (the “Revolving Facility”). The purpose of the Term Loan is to provide financing for the Merger, allow repayment of certain existing indebtedness of Hi-Tech, and pay related fees and expenses (including any original issue discount). The Revolving Facility may be used by Akorn to fund working capital and for other corporate purposes.
The commitment of the Debt Commitment Parties with respect to the Credit Facilities expires upon the earliest to occur of (i) 11:59 p.m. New York City time on the Termination Date (as defined in the Merger Agreement), (ii) the date of the funding of the Credit Facilities and the consummation of the Merger, (iii) the closing of the Merger without the use of the Credit Facilities and (iv) the date on which the Merger Agreement shall be terminated prior to the closing of the Merger. The documentation governing the debt financings has not been finalized and, accordingly, the actual terms of the debt financing may differ from those described in the Debt Commitment Letter. Under the terms of the Merger Agreement, each of Akorn and Merger Sub has agreed to use its reasonable best efforts to arrange the debt financing on terms and conditions not materially less favorable (taken as a whole) than the terms and conditions described in the Debt Commitment Letter, and to arrange alternative financing if the debt financing under the Debt Commitment Letter becomes unavailable.
The foregoing description of the Debt Commitment Letter is qualified in its entirety by reference to the full text of the Debt Commitment Letter, which is attached as Exhibit 4 and is incorporated herein by reference.
Item 4. Purpose of Transaction
Merger Agreement
On August 26, 2013, Akorn and Hi-Tech entered into the Merger Agreement, providing for the merger of Merger Sub with and into Hi-Tech, with Hi-Tech surviving the merger as a wholly-owned subsidiary of Akorn (the “Merger”). Subject to the terms and conditions of the Merger Agreement, upon completion of the Merger, each share of Issuer Common Stock (each a “Share”), issued and outstanding immediately prior to such time, other than shares of Common Stock owned by Hi-Tech, Akorn, Purchaser or any other wholly-owned subsidiary of Akorn or Hi-Tech (each of which will be cancelled), and other than shares of Common Stock as to which dissenters’ rights have been properly exercised, shall be cancelled and converted into the right to receive $43.50 in cash (the “Merger Consideration”), without interest, less any applicable withholding taxes, upon surrender of the outstanding Shares. In addition, each outstanding option, restricted stock grant, restricted stock subject to vesting or similar rights to purchase or acquire Shares (“Stock Rights”), whether or not vested, will be canceled in exchange for the right to receive a cash payment equal to the Merger Consideration, less the applicable exercise price of such Stock Right, if any.
At the closing of the Merger and pursuant to the Merger Agreement, the Issuer’s certificate of incorporation will be amended as a result of the Merger so as to read in its entirety as the certificate of incorporation of Merger Sub, except that the name of the surviving corporation in the Merger will be “Hi-Tech Pharmacal Co., Inc.”, and the Issuer’s bylaws will be amended as a result of the Merger so as to read in their entirety as the bylaws of Merger Sub. The directors of Merger Sub will become the directors of the surviving corporation in the Merger and the officers of the Issuer will become the officers of the surviving corporation in the Merger.
Pursuant to the Merger Agreement, Hi-Tech is required to seek the approval of the Merger by its stockholders at a meeting called for such purpose and will file a proxy statement with the Securities and Exchange Commission within 20 (twenty) business days of the date of the Merger Agreement.
Assuming approval of the Merger by Hi-Tech’s stockholders, following the Merger, the Shares will no longer be traded on The Nasdaq Stock Market, there will be no public market for the Shares and registration of the Shares under the Securities Exchange Act of 1934 will be terminated.
The foregoing description of the Merger Agreement is qualified in its entirety by reference to the full text of the Merger Agreement, which is attached as Exhibit 1 and is incorporated herein by reference.
Voting Agreement
In connection with the execution of the Merger Agreement, Akorn entered into the Voting Agreement with the Stockholders. Pursuant to the Voting Agreement, the Stockholders agreed to vote their Shares in favor of, among other things, the Merger Agreement and against any (i) Acquisition Proposal (as defined in the Merger Agreement) or (ii) corporate action the consummation of which would frustrate the purposes, or prevent or delay the consummation, of the transactions contemplated by the Merger Agreement or would result in a breach of any covenant, representation or warranty or any other obligation of Hi-Tech contained in the Merger Agreement or of the Stockholders contained in the Voting Agreement. Pursuant to the Voting Agreement, each Stockholder granted Akorn (or any senior executive officer thereof) an irrevocable proxy and power-of-attorney to vote their Shares or execute written consents in respect of their Shares in favor of the Merger and the approval of the Merger Agreement. A family member of a Stockholder executed a Joinder to the Voting Agreement on August 28, 2013. The Stockholders (including the party to the Joinder) together own approximately 15.1% of the outstanding Shares. In addition, certain of the Stockholders have agreed to seek Joinders from certain additional family members. Such additional family members together own approximately 3.5% of the outstanding Shares. The Voting Agreement and Joinders will terminate upon the earlier of (i) the closing date of the Merger or (ii) the termination of the Merger Agreement in accordance with its terms. In addition, the Stockholders may terminate the Voting Agreement and Joinders if there is a decrease in or change in the form of the Merger Consideration. Akorn may terminate the Voting Agreement and Joinders at any time.
Schedule II lists the names and number of Shares that are beneficially held by each Stockholder and subject to this Schedule 13D.
Except as described above, the Reporting Persons currently have no plans or proposals that relate to, or which may result in, any of the matters listed in Items 4(a) through 4(j) of Schedule 13D. The Reporting Persons reserve the right to develop such plans.
The foregoing summaries of the Merger Agreement, the Voting Agreement and the form of Joinder to the Voting Agreement do not purport to be complete and are qualified in their entirety by reference to the complete text of such agreements attached hereto as Exhibit 1, Exhibit 2 and Exhibit 3, respectively.
Item 5. Interest in Securities of the Issuer
(a)-(b) Immediately prior to the execution of the Voting Agreement, the Reporting Persons did not own any shares of Issuer Common Stock. However, as of execution of the Voting Agreement on August 26, 2013 and a Joinder to the Voting Agreement on August 28, 2013, under the definition of “beneficial ownership” as set forth in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Reporting Persons may be deemed to have shared voting power with respect to (and therefore beneficially own) 2,058,615 shares of Issuer Common Stock, representing approximately 15.1% of the Issuer Common Stock outstanding as of August 23, 2013 (based on the number of shares outstanding as set forth in the Merger Agreement). Accordingly, the percentage of the outstanding shares beneficially owned by the Reporting Persons is approximately 15.1%.
Except as set forth above, none of the Reporting Persons nor, to the best of the Reporting Persons’ knowledge, any of the individuals named in Schedule I hereto, owns any shares of Issuer Common Stock.
Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission that the Reporting Persons are the beneficial owner of the Issuer Common Stock referred to herein for purposes of Section 13(d) of the Exchange Act or for any other purpose, and such beneficial ownership is expressly disclaimed.
(c) Except as set forth in this Item 5, to the best knowledge of the Reporting Persons, no person listed in Schedule I hereof has beneficial ownership of, or has engaged in any transaction during the past 60 days in, any shares of Issuer Common Stock.
(d) The Reporting Persons do not have the right to receive dividends from, or the proceeds from the sale of, the shares of Issuer Common Stock referred to in this Item 5.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.
Except as set forth in Item 4 of this Schedule 13D, to the best knowledge of the Reporting Persons, there are no other contracts, arrangements, understandings or relationships (legal or otherwise) among the Reporting Persons and the individuals named in Schedule I and between such persons and any other person with respect to any securities of the Issuer, including, but not limited to, transfer or voting of any securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or losses, or the giving or withholding of proxies.
Item 7. Material to be Filed as Exhibits
Exhibit Number | Description of Exhibits |
| |
1 | Agreement and Plan of Merger, dated as of August 26, 2013, by and among Akorn, Inc., Akorn Enterprises, Inc., and Hi-Tech Pharmacal Co., Inc., incorporated by reference to Exhibit 2.1 of the Current Report on Form 8-K filed by Akorn on August 28, 2013 (File No. 001-32360)). |
2 | Voting Agreement, dated as of August 26, 2013, by and among Akorn, Inc. and the Stockholders party thereto (incorporated by reference to Exhibit 99.1 of the Current Report on Form 8-K filed by Akorn on August 28, 2013 (File No. 001-32360)). |
3 | Form of Joinder to Voting Agreement. |
4 | Debt Commitment Letter, dated as of August 26, 2013, from JPMorgan Chase Bank, N.A. and J.P. Morgan Securities LLC to Akorn, Inc. |
5 | Joint Filing Agreement, dated September 5, 2013, by and among the Reporting Persons. |