1 |
NAMES
OF REPORTING PERSONS
| ||||
I.R.S.
IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
| |||||
The Baupost Group, L.L.C. 04-3402144 | |||||
2 |
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
| (a) | o | ||
(b) | x | ||||
3 |
SEC
USE ONLY
| ||||
4 |
SOURCE
OF FUNDS
| ||||
AF | |||||
5 |
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(e)
or 2(f)
| o | |||
6 |
CITIZENSHIP
OR PLACE OF ORGANIZATION
| ||||
Commonwealth of Massachusetts | |||||
NUMBER
OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
| 7 |
SOLE
VOTING POWER
| |||
0 | |||||
8 |
SHARED
VOTING POWER
| ||||
42,016,276 | |||||
9 |
SOLE
DISPOSITIVE POWER
| ||||
0 | |||||
10 |
SHARED
DISPOSITIVE POWER
| ||||
42,016,276 | |||||
11 |
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
| ||||
42,016,276 | |||||
12 |
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
| o | |||
13 |
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
| ||||
34.61%
| |||||
14 |
TYPE
OF REPORTING PERSON
| ||||
IA | |||||
1 |
NAMES
OF REPORTING PERSONS
| ||||
I.R.S.
IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
| |||||
SAK Corporation 04-3334541 | |||||
2 |
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
| (a) | o | ||
(b) | x | ||||
3 |
SEC
USE ONLY
| ||||
4 |
SOURCE
OF FUNDS
| ||||
AF | |||||
5 |
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(e)
or 2(f)
| o | |||
6 |
CITIZENSHIP
OR PLACE OF ORGANIZATION
| ||||
Commonwealth of Massachusetts | |||||
NUMBER
OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
| 7 |
SOLE
VOTING POWER
| |||
0 | |||||
8 |
SHARED
VOTING POWER
| ||||
42,016,276 | |||||
9 |
SOLE
DISPOSITIVE POWER
| ||||
0 | |||||
10 |
SHARED
DISPOSITIVE POWER
| ||||
42,016,276 | |||||
11 |
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
| ||||
42,016,276 | |||||
12 |
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
| o | |||
13 |
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
| ||||
34.61%
| |||||
14 |
TYPE
OF REPORTING PERSON
| ||||
HC | |||||
1 |
NAMES
OF REPORTING PERSONS
| ||||
I.R.S.
IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
| |||||
Seth A. Klarman | |||||
2 |
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
| (a) | o | ||
(b) | x | ||||
3 |
SEC
USE ONLY
| ||||
4 |
SOURCE
OF FUNDS
| ||||
AF | |||||
5 |
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(e)
or 2(f)
| o | |||
6 |
CITIZENSHIP
OR PLACE OF ORGANIZATION
| ||||
The United States of America | |||||
NUMBER
OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
| 7 |
SOLE
VOTING POWER
| |||
0 | |||||
8 |
SHARED
VOTING POWER
| ||||
42,016,276 | |||||
9 |
SOLE
DISPOSITIVE POWER
| ||||
0 | |||||
10 |
SHARED
DISPOSITIVE POWER
| ||||
42,016,276 | |||||
11 |
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
| ||||
42,016,276 | |||||
12 |
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
| o | |||
13 |
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
| ||||
34.61%
| |||||
14 |
TYPE
OF REPORTING PERSON
| ||||
HC | |||||
Item 1. | Security and Issuer |
This statement on Schedule 13D relates to the Common Stock, $0.001 par value (the “Common Stock”) of Keryx Biopharmaceuticals, Inc., a Delaware corporation (the “Issuer”). The principal executive offices of the Issuer are located at 750 Lexington Avenue, New York, New York 10022. |
Item 2. | Identity and Background |
(a) | This statement on Schedule 13D is being jointly filed by The Baupost Group, L.L.C. ("Baupost"), a Massachusetts limited liability company, SAK Corporation ("SAK"), a Massachusetts corporation, and Seth A. Klarman ("Mr. Klarman") (collectively, the "Reporting Persons"). The Reporting Persons are filing jointly, and the agreement among them to file jointly is attached hereto as Exhibit A and incorporated herein by reference. The execution and filing of such joint filing agreement shall not be construed as an admission that the Reporting Persons are a group, or have agreed to act as a group. |
(b) | The address of the principal business and principal office of each of the Reporting Persons is 10 St. James Avenue, Suite 1700, Boston, Massachusetts 02116. |
(c) | Baupost is a registered investment adviser. The principal business of Baupost is to act as an investment adviser to various private investment limited partnerships and securities reported on this Schedule 13D as being beneficially owned by Baupost were purchased on behalf of certain of such partnerships. SAK is the Manager of Baupost. Mr. Klarman, a United States citizen, is the sole shareholder of SAK and a controlling person of Baupost. Mr. Klarman, as the sole shareholder of SAK Corporation and a controlling person of Baupost, may be deemed to have beneficial ownership under Section 13 of the Securities Exchange Act of 1934 (the “Exchange Act”), as amended, of the securities beneficially owned by Baupost. Pursuant to Exchange Act Rule 13d-4, Seth A. Klarman and SAK Corporation declare that the filing of this statement on Schedule 13D shall not be deemed an admission by either or both of them that they are, for the purposes of Section 13 of the Securities Exchange Act of 1934, as amended, the beneficial owner of any securities covered by this statement on Schedule 13D. |
(d) | None of the Reporting Persons have been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) during the past five years. |
(e) | None of the Reporting Persons have been a party to any civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which such person 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 during the last five years. |
(f) | The Baupost Group, L.L.C. is a Massachusetts limited liability company. SAK Corporation is a Massachusetts corporation and Seth A. Klarman is a citizen of the United States of America. |
Item 3. |
Source
and Amount of Funds or Other Consideration
|
On October 14, 2015, certain private investment limited partnerships advised by Baupost agreed to purchase $125 million aggregate principal amount of Zero Coupon Convertible Senior Notes due 2020 (the “Notes”) from the Issuer in a private placement. The notes are convertible into a combination of shares of Common Stock and cash. Prior to shareholder approval increasing the number of authorized shares of the Issuer’s Common Stock sufficient to satisfy the conversion obligation in full, the Notes are convertible into a maximum of up to 16,224,598 shares of Common Stock at a conversion rate of 267.3797, with the remaining principal amount convertible into cash. Following shareholder approval, the Notes will only be convertible into shares of the Issuer’s Common Stock. The cash conversion portion of the Notes may only be exercised from and after July 1, 2016, except under limited circumstances. The total amount of funds used for the purchase of the Notes was $125 million. In addition, Baupost previously acquired 25,791,678 shares of the Issuer’s Common Stock for an aggregate purchase price of $353,324,326.69. The source of funds for the purchase of the Notes and the shares of Common Stock is the capital of the private investment limited partnerships. |
Item 4. |
Purpose
of Transaction
|
In connection with the acquisition of the Notes by Baupost, the Issuer agreed to use its best efforts to obtain stockholder approval for an increase in its authorized shares of Common Stock sufficient to convert the entire aggregate principal amount of Notes into shares of Common Stock and Baupost has agreed to vote in favor of any such proposal. The Issuer also agreed to increase the size of its board of directors by one and appoint a director designated by Baupost to serve until its next annual meeting of shareholders (“Annual Meeting”). For as long as Baupost continues to beneficially own at least 20% of Issuer’s Common Stock, the Issuer has agreed to nominate a director designated by Baupost for election to the Issuer’s board of directors at each Annual Meeting. Issuer also agreed to permit Baupost to appoint one non-voting board observer to its board of directors for as long as Baupost continues to beneficially own at least 10% of Issuer’s Common Stock. In addition, the Issuer granted Baupost certain registration rights with respect to the Notes and any shares of Common Stock beneficially owned by Baupost.
The Reporting Persons intend to review their investment in the Issuer on a continuing basis and expect to engage in discussions with management and the board of directors of the Issuer, other holders of Common Stock, financing sources, and other relevant parties, including other industry participants (including companies in which the Reporting Persons may have an investment) concerning the business, operations, governance, strategy, capitalization, ownership and future plans of the Issuer and the management and board composition of the Issuer or commercial or strategic transactions with, or relating, to the Issuer. The Reporting Person may change its plans or proposals in the future. Depending on various factors including, without limitation, the Issuer's financial position, strategic direction, business and prospects, anticipated future developments, existing and anticipated market conditions from time to time, actions taken by the management and board of directors of the Issuer, price levels of the Common Stock, general economic conditions and regulatory matters, the Reporting Persons may in the future take such actions with respect to its investment in the Issuer as it deems appropriate including, without limitation, purchasing additional Common Stock or other securities of the Issuer, selling some or all of their Common Stock or engaging in short selling of or any hedging or similar transaction with respect to the Common Stock, to the extent permitted under applicable law, or engage, discuss, participate in, negotiate, or approve a transaction (including commercial or strategic transactions with, or relating to, the Issuer) with the purpose or effect of changing or influencing the control of the Issuer, including by entering into one or more confidentiality agreements, standstill agreements, voting or support agreements, or other similar agreements with the purpose or effect of facilitating such a transaction. Any such transactions, if they occur at all, may take place at any time and without prior notice. Except for the foregoing, the Reporting Persons do not have, as of the date of this filing, any plans or proposals that relate to or would result in any of the actions or events specified in clauses (a) through (j) of Item 4 of Schedule 13D. The Reporting Persons reserve the right to change their intention with respect to any or all of the matters referred to in this Item 4. |
(a) | Not applicable. |
(b) | Not applicable. |
(c) | Not applicable. |
(d) | Not applicable. |
(e) | Not applicable. |
(f) | Not applicable. |
(g) | Not applicable. |
(h) | Not applicable. |
(i) | Not applicable. |
(j) | Not applicable. |
Item 5. |
Interest
in Securities of the Issuer
|
(a) | The responses to Items 7-13 of the cover pages of this Schedule 13D are incorporated by reference herein. |
(b) | The responses to Items 7-13 of the cover pages of this Schedule 13D are incorporated by reference herein. |
(c) | The information set forth in response to Item 3 is incorporated by reference herein. |
Transaction Date | Shares or Unites Purchased (Sold) | Price Per Share or Unit |
10/14/2015 | See Item 3 above | See Item 3 above |
(d) | No other person has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the shares of Common Stock set forth above. |
(e) | Not applicable. |
Item 6. |
Contracts,
Arrangements, Understandings or Relationships with Respect to Securities
of the Issuer
|
In connection with the acquisition of the Notes, the Issuer and Baupost entered into a note purchase agreement and a registration rights agreement pursuant to which Baupost has agreed to vote in favor of an increase in the Issuer's authorized shares of Common Stock as set forth in Item 4 and the Issuer has agreed to indemnify Baupost for certain losses and to provide Baupost with the rights described in Items 3 and 4 above. The Notes will be issued pursuant to an indenture by and among the Issuer and the Bank of New York Mellon Trust Company, N.A., as trustee. Except for the foregoing, there are no contracts, arrangements, understandings or relationships (legal or otherwise) among the Reporting Persons or, to the knowledge of any of the Reporting Persons, any other person or entity referred to in Item 2, or 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 of the securities, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies. |
Item 7. |
Material
to Be Filed as Exhibits
|
Exhibit No.
A Joint Filing Agreement B Registration Rights Agreement filed by the Issuer as Exhibit 10.3 to its current report on Form 8-K on October 19, 2015. C Note Purchase Agreement filed by the Issuer as Exhibit 10.1 to its current report on Form 8-K on October 19, 2015. |
The Baupost Group, L.L.C. | |||
October 20, 2015 | By: |
/s/
Seth A. Klarman | |
Chief Executive Officer and President | |||
SAK Corporation | |||
October 20, 2015 | By: |
/s/
Seth A. Klarman | |
President | |||
Seth A. Klarman | |||
October 20, 2015 | By: |
/s/
Seth A. Klarman | |