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ITEM 1.01
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ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT
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On
November 13, 2007, Abraxis BioScience, Inc. (“Abraxis”) completed a reorganization into a holding company structure in accordance with Section 251(g) of the Delaware General Corporation Law (the “DGCL”). Abraxis
effected this reorganization to facilitate a previously-announced transaction (the “Spin Transaction”) involving the spin-off Abraxis’ proprietary products business. The Spin Transaction is anticipated to be completed as 11:59 p.m.
Eastern Standard Time, on November 13, 2007. Following completion of the Spin Transaction, the proprietary products business will be operated by New Abraxis, Inc. (“New Abraxis”) and its subsidiaries.
The Reorganization was effected pursuant to an Agreement and Plan of Reorganization (the “Merger Agreement”) among Abraxis, APP
Pharmaceuticals, Inc. (the “Company”) and Abraxis BioScience, LLC, a Delaware limited liability company and a wholly owned subsidiary of the Company (“MergerCo”). The Merger Agreement provided for the merger of Abraxis into
MergerCo, with MergerCo surviving as a wholly owned subsidiary of the Company (the “Merger”). Prior to the Merger, the Company was a direct, wholly-owned subsidiary of Abraxis that was organized for the sole purpose of implementing the
Merger. Pursuant to Section 251(g) of the DGCL, stockholder approval of the Merger was not required.
As a result of the Merger, all
of the outstanding capital stock of Abraxis was converted, on a share-for-share basis, into capital stock of the Company. As a result, each former stockholder of Abraxis became the owner of an identical number of shares of capital stock of the
Company. Additionally, each outstanding option to purchase or other right to acquire shares of common stock of Abraxis was automatically converted into an option to purchase or right to acquire, upon the same terms and conditions, an identical
number of shares of the Company’s common stock.
The conversion of shares of capital stock in the Merger occurred without an exchange
of certificates. Accordingly, certificates formerly representing shares of outstanding capital stock of Abraxis are deemed to represent the same number of shares of capital stock of the Company. The Company’s common stock will continue to be
listed on The NASDAQ Global Market, but its shares will commence trading under the symbol “APPX” as of November 14, 2007.
In the Merger, each stockholder received securities of the same class, evidencing the same proportional interests in the Company and having the same designations, rights, powers and preferences, and qualifications, limitations and
restrictions, as those that the stockholder held in Abraxis. Pursuant to Section 251(g) of the DGCL, the provisions of the certificate of incorporation and bylaws of the Company are substantially identical to those of Abraxis prior to the
Merger. The authorized capital stock of the Company, the designations, rights, powers and preferences of such capital stock and the qualifications, limitations and restrictions thereof are also substantially identical to those of the capital stock
of Abraxis immediately prior to the Merger. The directors and executive officers of the Company immediately following the Merger were the same individuals who were directors and executive officers, respectively, of Abraxis immediately prior to the
Merger.
Upon consummation of the Merger, the Company’s common stock was deemed to be registered under Section 12(b) of the
Securities Exchange Act of 1934, as amended, pursuant to Rule 12g-3(a) promulgated thereunder. For purposes of Rule 12g-3(a) the Company is the successor issuer to Abraxis.
