HITK Hi-Tech Pharmacal Co., Inc. (MM)

Projected Financial Information

The Company does not as a matter of course make public projections as to future performance or earnings beyond the current fiscal year and is especially wary of making projections for extended earnings periods due to the unpredictability of the underlying assumptions and estimates. However, general financial forecasts for fiscal years 2014 - 2017 prepared by management were made available to Akorn and Purchaser as well as provided to the Board and our financial advisor, Nomura, and supplemental financial forecasts for fiscal years 2014 - 2020 with respect to a product development prepared by management were provided to the Board and Nomura. We have included a summary of these projections below (the “Projections”) to give our stockholders access to certain nonpublic information provided to Akorn, Purchaser and our financial advisor for purposes of considering and evaluating the Merger. The inclusion of the Projections should not be regarded as an indication that the Board, the Company, Akorn, Purchaser or Nomura or any other recipient of this information considered, or now considers, it to be an assurance of the achievement of future results.

The Company advised the recipients of the Projections that its internal financial forecasts upon which the Projections were based are subjective in many respects. The Projections reflect numerous assumptions with respect to industry performance, general business, economic, market and financial conditions and other matters, many of which are difficult to predict, subject to significant economic and competitive uncertainties and beyond the Company’s control. As a result, there can be no assurance that the Projections will be realized or that actual results will not be significantly higher or lower than projected. The Projections were prepared for internal use and to assist Akorn, Purchaser and Nomura with their respective due diligence investigations of the Company and were not prepared with a view toward public disclosure or toward compliance with United States generally accepted accounting principles (“GAAP”), published guidelines of the SEC or the guidelines established by the American Institute of Certified Public Accountants for preparation and presentation of prospective financial information. The prospective financial information included in this proxy statement has been prepared by, and is

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the responsibility of, the Company’s management. EisnerAmper LLP, the Company’s independent registered public accounting firm, has neither examined, compiled nor performed any procedures with respect to the accompanying prospective financial information, and accordingly, EisnerAmper LLP does not express an opinion or any other form of assurance with respect thereto.

Projections of this type are based on estimates and assumptions that are inherently subject to factors such as industry performance, general business, economic, regulatory, market and financial conditions, as well as changes to the business, financial condition or results of operations of the Company, including the factors described under “ Cautionary Statement Concerning Forward-Looking Statements ,” which factors may cause the Projections or the underlying assumptions to be inaccurate. Because the Projections cover multiple years, such information by its nature becomes less reliable with each successive year. The Projections do not take into account any circumstances or events occurring after the date they were prepared. Specifically, but without limitation, the general financial forecasts included in the Projections do not take into account the occurrence, in August 2013, of a potential favorable development with respect to a Company product, but certain forecasts with respect to this product development are summarized in the supplemental financial forecasts included in the Projections.

The following is a summary of the Projections:

Summary of the general financial forecasts

(dollars in millions)

EBITDA, as presented above, may be considered a non-GAAP financial measure. The Company provided this information to certain parties that executed a confidentiality agreement with the Company because the Company believed it could be useful in evaluating, on a prospective basis, the Company’s potential operating performance and cash flow. Non-GAAP financial measures should not be considered in isolation from, or as a substitute for, financial information presented in compliance with GAAP, and non-GAAP financial measures as used by the Company may not be comparable to similarly titled amounts used by other companies. The following table reconciles Net Income to EBITDA.

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Summary of the supplemental financial forecasts

(dollars in millions)

Readers of this proxy statement are cautioned not to place undue reliance on the specific portions of the Projections set forth above. No one has made or makes any representation to any stockholder regarding the information included in the Projections.

For the foregoing reasons, as well as the basis and assumptions on which the Projections were compiled, the inclusion of specific portions of the Projections in this proxy statement should not be regarded as an indication that the Projections will be an accurate prediction of future events, and they should not be relied on as such. Except as required by applicable securities laws, the Company does not intend to update or otherwise revise the Projections or the specific portions presented to reflect circumstances existing after the date when made or to reflect the occurrence of future events, even in the event that any or all of the assumptions are shown to be in error.

Opinion of Nomura Securities International, Inc., Financial Advisor to the Board

On August 26, 2013, at a meeting of the Board held to evaluate the proposed Merger, Nomura delivered to the Board an oral opinion, confirmed by delivery of a written opinion dated August 26, 2013, to the effect that, as of that date and based on and subject to various assumptions, matters considered, qualifications and limitations described in its opinion, the $43.50 per share merger consideration to be received in the Merger by holders of shares of Common Stock was fair, from a financial point of view, to such holders.

The full text of Nomura’s opinion describes the assumptions made, procedures followed, matters considered and limitations on the review undertaken by Nomura. This opinion is attached as Annex B and is incorporated into this proxy statement by reference. Holders of Hi-Tech’s Common Stock are encouraged to read Nomura’s opinion carefully in its entirety. Nomura’s opinion was provided for the benefit of the Board (in its capacity as such) in connection with, and for the purpose of, its evaluation of the per share merger consideration from a financial point of view and did not address any other aspect of the Merger. The opinion did not address the relative merits of the Merger as compared to other business strategies or transactions that might be available with respect to the Company or the Company’s underlying business decision to effect the Merger. The opinion does not constitute a recommendation to any stockholder as to how to vote or act with respect to the Merger. The following summary of Nomura’s opinion is qualified in its entirety by reference to the full text of Nomura’s opinion.

In arriving at its opinion, Nomura, among other things:

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In connection with its review, with the consent of the Board, Nomura did not assume any responsibility for independent verification of any of the information provided to or reviewed by it for the purpose of its opinion and, with the consent of the Board, Nomura relied on such information being complete and accurate in all material respects. In addition, with the consent of the Board, Nomura did not make any independent evaluation or appraisal of any of the assets or liabilities (contingent or otherwise) of the Company or Akorn, nor was Nomura furnished with any such evaluation or appraisal. Nomura also did not evaluate, and did not express an opinion as to the impact of the Merger on, the solvency, viability or fair value of the Company or Akorn under any state or federal law relating to bankruptcy, insolvency or similar matters or the ability of the Company or Akorn to pay its obligations when they become due. With respect to the financial forecasts and estimates referred to above, Nomura assumed, at the direction of the Board, that they had been reasonably prepared on a basis reflecting the best currently available estimates and judgments of the management of the Company as to the future financial performance of the Company. Nomura assumed no responsibility for and expressed no view as to any such forecasts and estimates or the assumptions on which they are based. Nomura expressed no opinion regarding the fairness of the amount or nature of the compensation to any of the Company’s officers, directors or employees, or class of such persons, whether relative to the Merger consideration or otherwise. Nomura’s opinion is necessarily based on economic, monetary, market and other conditions as in effect on, and the information available to Nomura as of, the date of its opinion. It should be understood that subsequent developments may affect Nomura’s opinion, and Nomura does not have any obligation to update, revise or reaffirm its opinion.

Although Nomura’s opinion was approved by its Fairness Opinion Review Group, it does not address the relative merits of the Merger as compared to other business strategies or transactions that might be available to the Company or the Company’s underlying business decision to effect the Merger. Nomura’s opinion does not constitute a recommendation to any stockholder as to how such stockholder should vote or act with respect to the Merger. Nomura’s opinion does not address the terms, other than the per share merger consideration to the extent expressly specified therein, of the Merger Agreement or the form of the Merger. Nomura expressed no opinion as to the prices at which the Hi-Tech Common Stock will trade at any time. In rendering its opinion, Nomura assumed, with the consent of the Board, that (i) the final executed form of the Merger Agreement would not differ in any material respect from the draft that Nomura reviewed, (ii) the Company, Akorn and Akorn Enterprises, Inc. would comply with all material terms of the Merger Agreement, and (iii) the Merger would be consummated in accordance with the terms of the Merger Agreement without any adverse waiver or amendment of any material term or condition thereof. Nomura also assumed that all governmental, regulatory or other consents and approvals necessary for the consummation of the Merger would be obtained without any adverse effect on the Company, Akorn or the expected benefits of the Merger in any way meaningful to Nomura’s analysis. Nomura did not express any opinion as to any tax or other consequences that might result from the Merger, nor does Nomura’s opinion address any legal, regulatory, tax or accounting issues and Nomura relied on the assessments made by the Company and its advisors with respect to such issues. At the direction of the Board, Nomura was authorized to assist the Company in connection with expressions of interest in a business combination with Company received from third parties and to solicit such expressions from a limited number of other parties.

In connection with rendering its opinion to the Board, Nomura performed a variety of financial and comparative analyses which are summarized below. The following summary is not a complete description of all

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analyses performed and factors considered by Nomura in connection with its opinion. The preparation of a financial opinion is a complex process involving subjective judgments and is not necessarily susceptible to partial analysis or summary description. With respect to the selected companies analysis and the selected transactions analysis summarized below, no company or transaction used as a comparison was identical to the Company or the Merger. These analyses necessarily involve complex considerations and judgments concerning financial and operating characteristics and other factors that could affect the public trading or acquisition values of the companies concerned.

Nomura believes that its analyses and the summary below must be considered as a whole and that selecting portions of its analyses and factors or focusing on information presented in tabular format, without considering all analyses and factors or the narrative description of the analyses, could create a misleading or incomplete view of the processes underlying Nomura’ analyses and opinion. Nomura did not draw, in isolation, conclusions from or with regard to any one factor or method of analysis for purposes of its opinion, but rather arrived at its ultimate opinion based on the results of all analyses undertaken by it and assessed as a whole.

For purposes of its analyses, Nomura utilized publicly available research analysts’ estimates with respect to comparable company forecasts and Company management’s forecasts for the Company. As summarized above under “ Projected Financial Information ”, Nomura was provided by Company management with a base case financial forecast through the fiscal year ending April 30, 2017 (“Base Case”) and Nomura was also provided by Company management with a forecast of incremental revenue and profitability through the fiscal year ending April 30, 2020 estimated to derive from a potential licensing agreement (“Brand X Agreement”) being negotiated at the time of delivery of Nomura’s opinion between the Company and a third party relating to one of the Company’s drug formulations (as supplementing the Base Case, the “Brand X Case”).

Additionally, at the time of delivery of Nomura’s opinion, the Company was in discussions with the Texas Health and Human Services Commission (“THHSC”) exploring the potential for settling certain potential liabilities against the Company arising in connection with the investigation by the THHSC relating to the submission of price information against which the Company had, in the fourth quarter of the fiscal year ended April 30, 2013 established a $15.5 million loss contingency. For the information of the Board, for each of the analyses performed by Nomura in connection with the delivery of its opinion, Nomura also conducted a sensitivity analysis (the “THHSC Sensitivity”) which assumed a settlement of such potential liability at the high end of the range then being discussed.

Discounted Cash Flow Analysis

As part of its analysis, and in order to estimate a range of present values for the Company’s Common Stock, Nomura performed a discounted cash flow analysis. Nomura’s discounted cash flow analysis provides an estimated net present value of the Company’s future “unlevered cash flows” (calculated as earnings before interest and taxes, as adjusted for certain items as applicable, less taxes at a normalized rate of 33.5% as advised by Company management, less capital expenditures, less the amount of any increase or plus the amount of any decrease in net working capital, plus depreciation and amortization) that Company management forecast through the fiscal year ending April 30, 2017. Nomura then calculated a terminal value for the Company by applying a range of perpetuity growth rates to the Company’s fiscal year 2017 estimated unlevered free cash flow.

For the Base Case discounted cash flow analysis, Nomura calculated terminal values by applying a range of perpetuity growth rates of 0.0% to 2.0% to the Company’s fiscal year 2017 estimated unlevered free cash flow. The unlevered free cash flows and terminal values were then discounted to present values using a range of discount rates from 11.0% to 13.0% which were based on a weighted average cost of capital (or WACC) analysis of the companies utilized by Nomura in its “ Comparable Companies Analysis ” summarized below. WACC is a measure of the average expected return on all of a given company’s equity securities and debt based on their proportions in such company’s capital structure. Nomura took into account certain financial metrics, including

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betas, for the selected companies in estimating the weighted average cost of capital. Based on these calculations, this analysis implied value ranges as shown on the table below:

For the Brand X Case, Nomura performed a discounted cash flow analysis of the Company’s Base Case unlevered free cash flows plus the incremental unlevered free cash flows forecast by Company management from a potential Brand X licensing agreement. Nomura calculated Base Case terminal values by applying a range of perpetuity growth rates of 0.0% to 2.0% to the Company’s fiscal year 2017 Base Case estimated unlevered free cash flow. Nomura calculated Brand X terminal value by applying a perpetuity growth rate of -5.0% as provided by Company management to the Company’s fiscal year 2020 Brand X estimated unlevered free cash flow, as adjusted. The unlevered free cash flows and terminal values were then discounted to present values using a range of discount rates from 11.0% to 13.0%. Based on these calculations, this analysis implied value ranges as shown on the table below:

Precedent Transactions Analysis

Nomura reviewed and analyzed certain publicly available financial information relating to selected publicly announced merger and acquisition transactions with an aggregate value below $2 billion in the generic pharmaceutical industry announced from May 2005 to February 2013. It was Nomura’s judgment that transactions of this size during this time frame and involving target companies in the generic pharmaceutical industry were most relevant, for comparative purposes, to the proposed acquisition of the Company. In performing these analyses, Nomura analyzed certain financial information and transaction multiples relating to the target companies and compared such information to the corresponding information about the Company.

Nomura reviewed the following transactions:

For each of the transactions Nomura calculated and, to the extent information was publicly available, compared the enterprise value of each target company as a multiple of the target company’s earnings before interest, taxes, depreciation and amortization, referred to as EBITDA, for the twelve months prior to the date that the relevant transaction was announced. Based on the analysis of such metric for each transaction noted above, Nomura selected a representative range of multiples of the transactions of 8.0x to 10.0x and applied this range of

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multiples to the Company’s reported EBITDA for the year ended April 30, 2013. Based on these calculations, this analysis implied value ranges as shown on the table below:

No company or transaction utilized in the selected transactions analysis is identical to the Company or the Merger. In evaluating the selected transactions, Nomura made judgments and assumptions with regard to general business, market and financial conditions and other matters, many of which are beyond the control of the Company, such as the impact of competition on the business of the Company or the industry generally, industry growth and the absence of any adverse material change in the financial condition of the Company or the industry or in the financial markets in general, which could affect the public trading value of the companies and the aggregate value of the transactions to which they are being compared. Mathematical analysis, such as determining the arithmetic mean or median, or the high or low, is not in itself a meaningful method of using selected company data.

Comparable Companies Analysis

Nomura reviewed and analyzed certain publicly available financial information, valuation multiples and market trading data relating to the following publicly traded companies with operations in the generic pharmaceuticals sector, which is the industry in which the Company operates:

Although none of the companies listed above are directly comparable to the Company, the companies were selected by Nomura for this analysis because they are publicly traded companies with operations and/or other criteria, such as lines of business, markets, business risks and a size and scale of business, which Nomura considered similar to the Company for purposes of analysis. Nomura reviewed enterprise values of these companies, calculated as market value, based on reported fully-diluted common shares outstanding and closing stock prices on August 23, 2013, plus debt outstanding, preferred stock, and minority interest, less cash and cash equivalents, as multiples of latest 12 months and estimated one fiscal year forward (calendarized for the Company’s April 30 fiscal year-end) EBITDA, as adjusted for certain items. Nomura then applied a range of selected multiples of latest 12 months and one fiscal year forward EBITDA derived from the selected companies to the Company’s latest 12 months (as of April 30, 2013) and fiscal year ending April 30, 2014 EBITDA. Nomura also reviewed closing stock prices on August 23, 2013 of the selected companies as multiples of latest 12 months and estimated one fiscal year forward (calendarized for the Company’s April 30 fiscal year-end) earnings per share, as adjusted for certain items (“P/E multiples”). Nomura then applied a range of selected P/E multiples derived from the selected companies to the Company’s latest 12 months (as of April 30, 2013) and fiscal year ending April 30, 2014 earnings per share, as adjusted for certain items. Financial data for the

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Company were based on internal latest 12 months data and the Base Case projections prepared by the Company’s management. Financial data for the selected companies were based on publicly available research analysts’ estimates, public filings and other publicly available information.

The table below illustrates the representative ranges of multiples selected by Nomura based on the above analysis and the implied value ranges:

No company included in the selected company analysis is identical to Hi-Tech. In evaluating the selected companies, Nomura made judgments and assumptions with regard to industry performance, general business, economic, market and financial conditions and other matters. Many of these matters are beyond the control of the Company, such as the impact of competition on the business of the Company and the industry in general, industry growth and the absence of any material adverse change in the financial condition and prospects of the Company or the industry or in the financial markets in general. Mathematical analysis, such as determining the arithmetic mean or median, or the high or low, is not in itself a meaningful method of using selected company data.

Other Metrics

The analyses and data described below were presented by Nomura to the Board for informational purposes, but were not considered part of Nomura’s financial analyses with respect to its opinion.

Equity Research Analyst Price Target Statistics .    Nomura reviewed public market trading price targets for the Company’s Common Stock as prepared and published in July 2013 by the three equity research analysts that issued reports containing price targets for the Company’s Common Stock. These targets reflect each analyst’s estimate of the future public market trading price of the Company’s Common Stock and are not discounted to reflect present value. Nomura noted that the range of undiscounted equity analyst price targets of the Company’s Common Stock was between $34.00 and $43.00 per share.

Historical Trading Performance .    Nomura reviewed the historical trading performance of the Company’s Common Stock for the 52 weeks prior to August 23, 2013. Nomura noted that the low and high trading prices of the Company’s Common Stock during such period were $28.70 and $38.17 per share, respectively.

Analysis of Implied Premia .    Nomura calculated the implied premium represented by the $43.50 per share consideration to be received by the stockholders over selected dates and selected periods. The $43.50 per share consideration represented:

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Miscellaneous

Nomura’s opinion and its presentation to the Board was one of many factors taken into consideration by the Board in deciding to approve, adopt and authorize the Merger Agreement. Consequently, the analyses as described above should not be viewed as determinative of the opinion of the Board with respect to the per share merger consideration or of whether the Board would have been willing to agree to different merger terms. The per share merger consideration and other terms of the Merger was determined through arm’s-length negotiations between the Company and Akorn and was approved by the Board. Nomura did not recommend any specific merger consideration to the Company.

Under the terms of Nomura’s engagement, the Company has agreed to pay Nomura for its financial advisory services in connection with the Merger an aggregate fee currently estimated to be approximately $8 million, of which $750,000 was payable upon issuance of Nomura’s opinion, and the balance of which is contingent upon consummation of the Merger. In addition, the Company has agreed to reimburse Nomura for its reasonable expenses, including fees, disbursements and other charges of counsel, and to indemnify Nomura and related parties against liabilities, including liabilities under federal securities laws, relating to, or arising out of, its engagement.

Nomura and its affiliates are engaged in financial services, including, without limitation, investment banking, financial advisory, corporate finance, retail banking, securities and derivatives trading, asset finance, merchant banking and asset management. In the ordinary course of business, Nomura, its successors and affiliates may hold or trade, for their own accounts and the accounts of their customers, the equity, debt or other securities or financial instruments (including bank loans and other obligations) of the Company and/or Akorn or any currency or commodity that may be involved in the Merger and, accordingly, may at any time hold a long or short position in such securities, instruments, currencies or commodities (or in related derivatives).

The Board selected Nomura as its financial advisor in connection with the Merger because Nomura is an internationally recognized investment banking firm with substantial experience in similar transactions and because of Nomura’s familiarity with the Company and its business. Nomura is regularly engaged in the valuation of businesses and their securities in connection with mergers and acquisitions, leveraged buyouts, negotiated underwritings, private placements and other transactions.

Certain Effects of the Merger

If the Merger is completed, all of our equity interests will be owned by Akorn. Except for any members of our management team who may be granted options in connection with their continued employment with the Company or Akorn, none of our current stockholders will have any ownership interest in, or be a stockholder of, the Company after the completion of the Merger. As a result, our current stockholders (other than any members of our management team who may be granted options in connection with their continued employment with the Company or Akorn) will no longer benefit from any increase in our value, nor will they bear the risk of any decrease in our value. Following the Merger, Akorn will benefit from any increase in our value and also will bear the risk of any decrease in our value.

Upon completion of the Merger, each share of Common Stock issued and outstanding immediately prior to the closing (other than treasury shares owned by the Company, shares owned by the Company, Akorn, Purchaser, or any other wholly-owned subsidiary of Akorn or the Company and shares owned by stockholders who have exercised, perfected and not withdrawn a demand for, or lost the right to, appraisal rights under the DGCL) will convert into the right to receive the per share merger consideration, without interest, less any applicable withholding taxes, upon surrender of the outstanding shares.

Prior to the effective time, our Board (or, if appropriate, any committee thereof) will adopt appropriate resolutions and take all other actions necessary, including obtaining the consent of the individual holders, to provide for the cancellation, effective at the effective time, of all the outstanding options, restricted stock grants,

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restricted stock subject to vesting or similar rights to purchase or acquire shares (which we refer to as “Stock Rights” in this proxy statement), whether or not vested, heretofore granted under any stock option or similar plan of the Company or other agreement or arrangement (which we refer to as the “Stock Plans” in this proxy statement), without any payment therefor except as otherwise provided in the Merger Agreement. Immediately prior to the effective time, the Company will accelerate the vesting of all unvested Stock Rights and each then vested Stock Right will thereafter no longer be exercisable but will entitle each holder thereof, in cancellation and settlement therefor, to a payment in cash, at the effective time, equal to the per share merger consideration, less the applicable exercise price of such Stock Right, if any (which we refer to as the “Stock Rights Payment” in this proxy statement). See “ The Merger — Interests of the Company’s Directors and Named Executive Officers in the Merger ” beginning on page 47 of this proxy statement; and “ The Merger Agreement — Treatment of Common Stock, Options, Restricted Shares and Other Equity Awards ” beginning on page 58 of this proxy statement.

Following the Merger, shares of Company Common Stock will no longer be traded on the NASDAQ Global Select Market (“ Nasdaq ”) or any other public market.

Our Common Stock is registered as a class of equity security under the Exchange Act. Registration of our Common Stock under the Exchange Act may be terminated upon the Company’s application to the SEC if our Common Stock is not listed on a national securities exchange and there are fewer than 300 record holders of the outstanding shares. Termination of registration of our Common Stock under the Exchange Act will substantially reduce the information required to be furnished by the Company to our stockholders and the SEC, and would make certain provisions of the Exchange Act, such as the short-swing trading provisions of Section 16(b) of the Exchange Act and the requirement of furnishing a proxy statement in connection with stockholders’ meetings pursuant to Section 14(a) of the Exchange Act, no longer applicable to the Company.

Akorn does not currently own any interest in the Company. Following consummation of the Merger, Akorn will own 100% of our outstanding Common Stock and will have a corresponding interest in our net book value and net earnings.

Effects on the Company if Merger is Not Completed

If our stockholders do not adopt the Merger Agreement or if the Merger is not completed for any other reason, our stockholders will not receive any payment for their shares of Company Common Stock, unless the Company is sold to a third party or enters into a different merger or similar type of transaction. Instead, unless the Company enters into such a transaction, we will remain an independent public company, our Common Stock will continue to be listed and traded on Nasdaq, and our stockholders will continue to be subject to similar risks and opportunities as they currently are with respect to their ownership of our Common Stock. If the Merger is not completed, there is no assurance as to the effect of these risks and opportunities on the future value of your shares of Company Common Stock, including the risk that the market price of our Common Stock may decline to the extent that the current market price of our stock reflects a market assumption that the Merger will be completed. From time to time, the Board will evaluate and review the business operations, dividend policy and capitalization of the Company and, among other things, make such changes as are deemed appropriate and continue to seek to maximize stockholder value. If our stockholders do not adopt the Merger Agreement or if the Merger is not completed for any other reason, there is no assurance that any other transaction acceptable to the Company will be offered or that the business, prospects or results of operations of the Company will not be adversely impacted. Pursuant to the Merger Agreement, under certain circumstances the Company is permitted to terminate the Merger Agreement and recommend an alternative transaction. See “ The Merger Agreement — Termination ” beginning on page 74 of this proxy statement.

Under certain circumstances, if the Merger is not completed, the Company may be obligated to pay to Akorn a termination fee. See “ The Merger Agreement — Termination Fees ” beginning on page 76 of this proxy statement.

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Financing of the Merger

In connection with entering into the Merger Agreement, Akorn entered into a commitment letter with JPMorgan Chase Bank, N.A. and J.P. Morgan Securities LLC (collectively, “JPMorgan”). Pursuant to the commitment letter, among other things, JPMorgan has agreed to provide debt financing comprised of (i) up to $600 million in a senior secured term loan facility and (ii) up to $75 million (or, at Akorn’s election, up to $150 million) in a senior secured asset-based revolving credit facility (which we refer to as the “ ABL facility ” in this proxy statement), the proceeds of which are to be used to finance the Merger and other transactions contemplated by the Merger Agreement and for the working capital needs of, and general corporate purposes of, Akorn and its subsidiaries.

The commitments of JPMorgan to provide the debt financing are subject to the satisfaction of a number of customary conditions, including the following:

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The commitment letter expires on the earliest of (i) 11:59 p.m., New York City time, on February 23, 2014 (subject to certain extensions in accordance with the Merger Agreement), (ii) the consummation of the Merger with or without financing and (iii) the termination of the Merger Agreement in accordance with its terms prior to the closing of the Merger.

Interests of the Company’s Directors and Named Executive Officers in the Merger

Details of the beneficial ownership of the Company’s directors and executive officers of the Company’s Common Stock are set out in the section titled “ Stock Ownership ” beginning on page 107. In considering the recommendation of the Board with respect to the Merger Agreement, you should be aware that certain of the Company’s directors and executive officers have interests in the Merger that may be different from, or in addition to, the interests of our stockholders generally, as more fully described below. The Board was aware of these interests and considered them, among other matters, in reaching the decision to approve the Merger Agreement and recommend that the Company’s stockholders vote in favor of adopting the Merger Agreement. See “ The Merger — Background of the Merger ” beginning on page 22; and “ The Merger — Reasons for Recommending the Adoption of the Merger Agreement ” beginning on page 33 for a further discussion of these matters.

Treatment of Equity Awards

As of the date of this proxy statement, certain of the Company’s directors and executive officers hold stock options. For information regarding beneficial ownership of the Company’s Common Stock, other than the equity awards described below, by each of the Company’s directors and certain executive officers and all of such directors and executive officers as a group, see the section titled “ Stock Ownership ” beginning on page 107. The Company’s directors and executive officers will be entitled to receive, for each share of Common Stock that they own, the per share merger consideration in cash in the same manner as other stockholders.

Treatment of Outstanding Stock Options

The Merger Agreement provides that immediately prior to the effective time of the Merger, each stock option outstanding immediately prior to the effective time, whether vested or unvested, will become fully vested and will be canceled as of the effective time and converted into the right to receive an amount in cash equal to (i) the excess, if any, of the per share merger consideration over the exercise price per share of such stock option, multiplied by (ii) the total number of shares of the Company’s Common Stock then issuable upon exercise in full of such stock option, without interest and less any required withholding taxes. All stock options with an exercise price greater than the per share merger consideration will be cancelled at the effective time and the holders of such stock options will not have any right to receive any consideration in respect thereof. See “ The Merger Agreement — Treatment of Common Stock, Options, Restricted Shares and Other Equity Awards ” beginning on page 58.

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The table below, titled “Payments to Directors and Named Executive Officers in Respect of Vested Options”, along with its footnotes, sets forth, for each of our directors and Named Executive Officers holding stock options as of the Record Date, (a) the aggregate number of shares of Common Stock subject to vested stock options (taking into account any stock options that are expected to vest within sixty (60) days of November 7, 2013) and (b) the value of such vested stock options on a pre-tax basis, calculated by multiplying (i) the excess, if any, of the per share merger consideration over the respective per share exercise prices of those stock options by (ii) the number of shares of Common Stock subject to those stock options.

Potential Payments Upon Change in Control

We have employment agreements with each of our Named Executive Officers. Our employment agreements with each of our Named Executive Officers contain change in control provisions. The Merger, if consummated, would satisfy the Change in Control definitions in each of our employment agreements with our Named Executive Officers.

The following information and table set forth the amount of payments to each of our Named Executive Officers in the event of a termination of employment following the consummation of the Merger, which is a Change in Control.

Assumptions and General Principles.     The following assumptions and general principles apply with respect to the following table and any termination of employment of a Named Executive Officer: The amounts shown in the table assume that each Named Executive Officer is terminated in 2014 prior to May 1, 2014 (except where otherwise noted). The actual amounts to be paid to a Named Executive Officer can only be determined at the time the Change in Control occurs.

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Non-compete and Non-solicitation

Of the Named Executive Officers, only the employment agreements of Mr. David Seltzer, Dr. Kamel Egbaria and Dr. Cameron Durrant contain non-competition provisions.

Mr. David Seltzer’s employment agreement provides that Mr. Seltzer will be restricted, for the one year period following the termination of his employment, from engaging in any business competitive with the business conducted by the Company and from employing any employee, representative or agent of the Company. In connection with the Merger Agreement, Mr. David Seltzer entered into a separate non-competition, no-hire and non-solicitation letter agreement with Akorn, to be effective only upon the consummation of the contemplated Merger. Pursuant to the letter agreement, Mr. Seltzer will be restricted, for the one year period following the consummation of the contemplated Merger, from (i) engaging in the marketing or development of products that are competitive with products marketed, under development or planned for development by the Company or its subsidiaries (a “Competitive Product”); (ii) employing any employee, representative or agent of the Company or its subsidiaries for purposes of marketing or developing a Competitive Product; and (iii) soliciting any client or customer of the Company or its subsidiaries to reduce or terminate their relationship with the Company or its subsidiaries or to engage in any marketing or developing of a Competitive Product. The letter agreement, if the Merger is consummated, will modify and replace the terms of the non-compete.

Dr. Cameron Durrant’s employment agreement provides that Dr. Durrant will be restricted, for the period during which Dr. Durrant receives any severance payments from the Company, from (i) engaging in the development of products that are competitive with products marketed, under development or planned for development by the Company, its subsidiary, ECR Pharmaceuticals Co., Inc. (“ECR”) or their affiliates; (ii) employing any employee, representative or agent of the Company, ECR or its affiliates; and (iii) soliciting any supplier, vendor or contract manufacturer of the Company, ECR or their affiliates. The non-compete provisions of Dr. Durrant’s employment agreement will not change as a result of the Merger Agreement or the contemplated consummation of the Merger.

Dr. Kamel Egbaria’s employment agreement provides that Dr. Egbaria will be restricted, for the period during which Dr. Egbaria receives his regular salary and benefits from the Company, from (i) engaging in the development of products that are competitive with products marketed, under development or planned for development by the Company; (ii) employing any employee, representative or agent of the Company; and (iii) soliciting any supplier, vendor or contract manufacturer of the Company. The non-compete provisions of Dr. Egbaria’s employment agreement will not change as a result of the Merger Agreement or the contemplated consummation of the Merger.

Indemnification, Exculpation and Insurance

Pursuant to the Merger Agreement, Akorn agreed to indemnify and hold harmless the officers and directors of the Company from and against any and all losses, damages, liabilities, deficiencies, claims, interest, awards, judgments, penalties, costs, and expenses arising out of or related to any threatened or actual claim, action, suit, proceeding, or investigation based on, arising out of or related to, in whole or in part, any action or omission taken or foregone in such person’s position as a director or officer of the Company or any of its subsidiaries and pertaining to any matter existing or occurring at or prior to the effective time, including without limitation, any claims based in whole or in part on, or arising in whole or in part out of, or related to the Merger Agreement or the Merger, in each case to the full extent permitted under applicable law.

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Further, for a period of six years after the effective time, Akorn will maintain, and will cause the corporation surviving the Merger to maintain, in effect the current or substitute policies of officers’ and directors’ liability insurance maintained by the Company on terms and coverage amounts no less favorable in any material respect than the terms of such policies in effect on the date of the Merger Agreement; provided that neither Akorn nor the surviving corporation will be required to expend annually in excess of 300% of the annual premium paid by the Company in 2013 for such insurance coverage (on an annualized basis), but in such case will purchase the greatest amount of coverage available for such amount. Alternatively, the Company will be entitled to purchase, at or prior to the effective time, a “tail” insurance policy on terms and conditions providing coverage and amounts not materially less favorable as the current policies of directors’ and officers’ liability insurance maintained by the Company on the date of the Merger Agreement; provided that such “tail” insurance policy will not require the payment of an aggregate premium in excess of 300% of the annual premium paid by the Company in 2013 for such insurance coverage (on an annualized basis).

Akorn and its successors and assigns, after the effective time, have agreed not to institute any action or proceeding in any court or before any administrative agency or before any other tribunal against any of the current directors of the Company and its subsidiaries, in their capacity as such, with respect to any liabilities, actions or causes of actions, judgments, claims, or demands of any nature or description (consequential, compensatory, punitive, or otherwise), in each case to the extent resulting from their approval of the Merger Agreement or the transactions contemplated thereby.

Voting Agreement

In connection with the entry into the Merger Agreement, the directors of the Company and William J. Peters, the Company’s Executive Vice President and Chief Financial Officer (which we refer to collectively as the “Voting Stockholders” in this proxy statement), entered into a voting agreement with Akorn (which we refer to as the “Voting Agreement” in this proxy statement). Pursuant to the Voting Agreement, the Voting Stockholders agreed to appear at the stockholders meeting, in person or by proxy, and vote their shares in favor of, among other things, the Merger Agreement and against any (i) acquisition proposal 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 the Company contained in the Merger Agreement or of the Voting Stockholders contained in the Voting Agreement. In addition, the Voting Stockholders agreed not to transfer or sell any shares of Common Stock owned by them, except for certain transfers related to stock option exercises, certain transfers for payment of tax liabilities and certain other transfers, which in the aggregate do not exceed $1,000,000. The obligations of the Voting Stockholders apply whether or not the Merger is recommended by the Board, and the Voting Stockholders have appointed, only until the termination of the Voting Agreement, Akorn as attorney-in-fact in connection with their obligations. The Voting Agreement 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, including as a result of entering into definitive acquisition proposal documentation with respect to a superior proposal. In addition, the Voting Stockholders may terminate the Voting Agreement if there is a decrease or change of the per share merger consideration. Akorn may also terminate the Voting Agreement at any time. The Company, Akorn and the Voting Stockholders have agreed that there shall be no special, indirect, consequential, incidental, lost profits, exemplary or punitive damages arising out of a breach of the Voting Agreement. Certain spouses of and trusts of which a director is a trustee who hold shares of Common Stock have or may hereafter enter into a joinder to the Voting Agreement.

Dividends

Pursuant to the Merger Agreement, we are prohibited from declaring any dividends following execution of the Merger Agreement on August 26, 2013, except for dividends made by any wholly-owned subsidiary of the Company to the Company or any other wholly-owned subsidiary of the Company.

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Regulatory Matters

Under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (which we refer to as the “HSR Act” in this proxy statement), and the rules promulgated thereunder by the Federal Trade Commission (which we refer to as the “FTC” in this proxy statement), the Merger may not be completed until notification and report forms have been filed with the FTC and the Department of Justice (which we refer to as the “DOJ” in this proxy statement) and the applicable waiting period has expired or been terminated. Each of Akorn and the Company filed on September 10, 2013, notification and report forms under the HSR Act with the FTC and the DOJ. On October 10, 2013, Akorn and the Company received a request for additional information (commonly referred to as a “second request”) from the FTC. The waiting period imposed by the HSR Act is extended until 11:59 p.m. on the 30th calendar day following the date that the parties certify substantial compliance with such request. The Company and Akorn continue to cooperate with the FTC to obtain clearance under the HSR Act as promptly as possible. At any time before or after consummation of the Merger, notwithstanding the termination of the waiting period under the HSR Act, the DOJ or the FTC could take such action under the antitrust laws as it deems necessary or desirable in the public interest, including seeking to enjoin the consummation of the Merger or seeking divestiture of substantial assets of the Company or Akorn. At any time before or after the consummation of the Merger, and notwithstanding the termination of the waiting period under the HSR Act, any state could take such action under antitrust laws as it deems necessary or desirable in the public interest. Such action could include seeking to enjoin the consummation of the Merger or seeking divestiture of substantial assets of the Company or Akorn. Private parties may also seek to take legal action under antitrust laws under certain circumstances.

While there can be no assurance that the Merger will not be challenged by a governmental authority or private party on antitrust grounds, the Company, based on a review of information provided by Akorn relating to the businesses in which it and its affiliates are engaged, believes that the Merger can be effected in compliance with federal and state antitrust laws. The term “antitrust laws” means the Sherman Act, as amended, the Clayton Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, and all other Federal and state statutes, rules, regulations, orders, decrees, administrative and judicial doctrines, and other laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade. For a more detailed discussion of the requirements regarding regulatory matters under the Merger Agreement, see “ The Merger Agreement — Filings; Other Actions; Notification ” beginning on page 71 of this proxy statement.

Material U.S. Federal Income Tax Consequences

Certain United States Federal Income Tax Consequences

The following is a general summary of certain material United States federal income tax consequences to beneficial owners of shares of Company Common Stock upon the exchange of shares for cash pursuant to the Merger. This summary is general in nature and does not discuss all aspects of United States federal income taxation that may be relevant to a holder of shares in light of its particular circumstances. In addition, this summary does not describe any tax consequences arising under the laws of any local, state or foreign jurisdiction and does not consider any aspects of United States federal tax law other than income taxation (and therefore excludes, among other federal taxes, the medicare tax on net investment income). This summary deals only with shares of Company Common Stock held as capital assets within the meaning of Section 1221 of the Code (generally, property held for investment), and does not address tax considerations applicable to any holder of shares that may be subject to special treatment under the United States federal income tax laws, including:

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This summary is based on the Code, the Treasury regulations promulgated under the Code, and rulings and judicial decisions, all as in effect as of the date of this proxy statement, and all of which are subject to change or differing interpretations at any time, with possible retroactive effect. We have not sought, and do not intend to seek, any ruling from the United States Internal Revenue Service (the “IRS”) with respect to the statements made and the conclusions reached in the following summary, and no assurance can be given that the IRS will agree with the views expressed herein, or that a court will not sustain any challenge by the IRS in the event of litigation. This discussion does not address the United States federal income tax consequences to holders of shares who demand dissenters’ rights under Delaware law.

THE DISCUSSION SET OUT HEREIN IS INTENDED ONLY AS A GENERAL SUMMARY OF THE MATERIAL UNITED STATES FEDERAL INCOME TAX CONSEQUENCES TO A HOLDER OF SHARES. WE URGE YOU TO CONSULT YOUR TAX ADVISOR WITH RESPECT TO THE SPECIFIC TAX CONSEQUENCES TO YOU IN CONNECTION WITH THE MERGER IN LIGHT OF YOUR OWN PARTICULAR CIRCUMSTANCES, INCLUDING FEDERAL ESTATE, GIFT AND OTHER NON-INCOME TAX CONSEQUENCES, AND TAX CONSEQUENCES UNDER STATE, LOCAL OR FOREIGN TAX LAWS, INCLUDING POSSIBLE CHANGES IN SUCH LAWS.

For purposes of this discussion, the term “United States Holder” means a beneficial owner of shares that is, for United States federal income tax purposes:

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A “non-United States Holder” is any beneficial owner of shares that is not a United States Holder.

If a partnership (including any entity or arrangement treated as a partnership for United States federal income tax purposes) holds shares, the tax treatment of a holder that is a partner in the partnership generally will depend upon the status of the partner and the activities of the partner and the partnership. Such holder is urged to consult its tax advisor regarding the tax consequences of exchanging the shares pursuant to the Merger.

Certain Tax Consequences of the Merger to United States Holders

The exchange of shares pursuant to the Merger will be a taxable transaction for United States federal income tax purposes, and a United States Holder who receives cash for shares pursuant to the Merger will recognize gain or loss, if any, equal to the difference between the amount of cash received in exchange for such shares and such United States Holder’s adjusted tax basis in the shares exchanged therefor. Gain or loss will be determined separately for each block of shares (that is, shares acquired at the same cost in a single transaction). Such gain or loss will be capital gain or loss, and will be long-term capital gain or loss if such United States Holder’s holding period for the shares is more than one year at the time of the exchange. Long-term capital gain recognized by an individual holder generally is subject to tax at a reduced rate of United States federal income tax. There are limitations on the deductibility of capital losses.

Certain Tax Consequences of the Merger to Non-United States Holders

Payments made to a non-United States Holder with respect to shares exchanged for cash pursuant to the Merger generally will be exempt from United States federal income tax unless:

Gain described in the first bullet point above generally will be subject to tax at a flat rate of 30% (or such lower rate as may be specified under an applicable income tax treaty) on any gain from the exchange of the shares, net of applicable United States-source losses from sales or exchanges of other capital assets recognized by the holder during the year. Unless a tax treaty provides otherwise, gain described in the second bullet point above will be subject to United States federal income tax on a net income basis in the same manner as if the non-United States Holder were a resident of the United States. Non-United States Holders that are foreign corporations also may be subject to a 30% branch profits tax (or applicable lower treaty rate). Non-United States Holders are urged to consult any applicable tax treaties that may provide for different rules.

With respect to the third bullet point above, the determination whether the Company is a USRPHC depends on the fair market value of its United States real property interests relative to the fair market value of its other trade or business assets and its foreign real property interests. No determination has been made as to whether the Company is or has been a USRPHC for United States federal income tax purposes during the time period described in the third bullet point above. Because the shares are regularly traded on an established securities market (within the meaning of applicable Treasury regulations), even if the Company constitutes a USRPHC, any gain realized on the receipt of cash for shares pursuant to the Merger generally will be subject to United States federal income tax only if the non-United States Holder held (actually or constructively) more than five percent of the shares at any time during the five-year period ending on the date of exchange of the shares.

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Backup Withholding

All payments to which a holder would be entitled pursuant to the Merger will be subject to backup withholding at a rate of 28%, unless such holder (i) is a corporation, a non-United States Holder or another exempt recipient; or (ii) provides a taxpayer identification number (“TIN”) and certifies that no loss of exemption from backup withholding has occurred. A United States Holder should complete and sign the IRS Form W-9 that is included with the Letter of Transmittal, to be returned to the Depositary, in order to provide the information and certification necessary to avoid backup withholding, unless an applicable exception exists and is proved in a manner satisfactory to the Depositary. A non-United States Holder must generally submit an IRS Form W-8BEN (or other applicable IRS Form W-8) attesting to its exempt foreign status in order to qualify as an exempt recipient.

If a United States Holder does not provide a correct TIN, such United States Holder may be subject to penalties imposed by the IRS. Any amount paid as backup withholding does not constitute an additional tax and will be creditable against a holder’s United States federal income tax liability, provided the required information is given to the IRS in a timely manner. If backup withholding results in an overpayment of tax, a holder may obtain a refund by filing a United States federal income tax return in a timely manner. Holders are urged to consult their independent tax advisors as to qualifications for exemption from backup withholding and the procedure for obtaining the exemption.

THE FOREGOING SUMMARY DOES NOT DISCUSS ALL ASPECTS OF UNITED STATES FEDERAL INCOME TAXATION THAT MAY BE RELEVANT TO PARTICULAR HOLDERS OF SHARES. HOLDERS OF SHARES ARE URGED TO CONSULT THEIR TAX ADVISORS AS TO THE PARTICULAR TAX CONSEQUENCES TO THEM OF EXCHANGING THEIR SHARES FOR CASH IN THE MERGER UNDER ANY FEDERAL, STATE, FOREIGN, LOCAL OR OTHER TAX LAWS.

Delisting and Deregistration

If the Merger is completed, the Company’s Common Stock will be delisted from Nasdaq and deregistered under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”). As such, we would no longer file periodic reports with the Securities and Exchange Commission (“SEC”) on account of the Company Common Stock.

Litigation Related to the Merger

Following the announcement of the execution of the Merger Agreement, on August 30, 2013, an alleged stockholder of the Company filed a putative class action in the Court of Chancery of the State of Delaware captioned Karant v. Hi-Tech Pharmacal Co., Inc., et al. , C.A. No. 8854-VCP, alleging, among other things, that the Company and the Board breached fiduciary duties and that Akorn and Purchaser aided and abetted the alleged breaches. The Karant complaint seeks, among other things, injunctive relief enjoining the defendants from completing the Merger and directing defendants to account to the plaintiff and the purported class for damages allegedly sustained, and an award of fees, expenses and costs.

On October 18, 2013, an alleged stockholder of the Company filed a nearly identical complaint asserting a putative class action in Suffolk County, New York, captioned Wackstein v. Hi-Tech Pharmacal Co., Inc., et al., Index No. 063450/2013. This suit similarly alleges, among other things, that the Company and the Board breached fiduciary duties and that Akorn and Purchaser aided and abetted the alleged breaches. The Wackstein complaint also seeks, among other things, injunctive relief enjoining the defendants from completing the Merger and directing defendants to account to the plaintiff and the purported class for damages allegedly sustained, and an award of fees, expenses and costs.

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The outcome of these lawsuits cannot be predicted with any certainty. An adverse judgment for monetary damages could have a material adverse effect on the operations and liquidity of the Company. A preliminary injunction could delay or jeopardize the completion of the Merger, and an adverse judgment granting permanent injunctive relief could indefinitely enjoin completion of the Merger. The Company and the Board believe that the claims asserted against them in the lawsuits are without merit and are defending against them vigorously. Additional lawsuits arising out of or relating to the Merger Agreement or the Merger may be filed in the future.

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THE MERGER AGREEMENT

The following discussion of the Merger Agreement is only a summary of its material terms and may not include all of the information that is important to a particular stockholder. Stockholders are urged to read the Merger Agreement, a copy of which has been included as Annex A to this proxy statement and is incorporated by reference herein. The rights and obligations of the parties are governed by the express terms and conditions of the Merger Agreement and not the summary set forth in this section or any other information contained in this proxy statement.

Explanatory Note Regarding the Merger Agreement

The following discussion of the Merger Agreement, and a copy of the Merger Agreement attached hereto as Annex A to this proxy statement, have been provided solely to inform investors of its terms and are not intended to modify or supplement any factual disclosures about the Company in its public reports filed with the SEC. The representations, warranties and covenants contained in the Merger Agreement were made only for the purposes of such agreement and as of specific dates, and were made solely for the benefit of the parties to the Merger Agreement. Further, the representations and warranties in the Merger Agreement are not intended as a statement of fact but may instead represent an allocation among the parties to the Merger Agreement of the risks associated with particular matters regardless of the knowledge of any of the parties to the Merger Agreement. Such representations, warranties and covenants may have been qualified by certain disclosures not reflected in the text of the Merger Agreement and may apply standards of materiality and other qualifications and limitations in a way that is different from what may be viewed as material by stockholders of, or other investors in, the Company. The Company’s stockholders and other investors are not third-party beneficiaries under the Merger Agreement and should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or conditions of the Company, Akorn, Purchaser or any of their respective subsidiaries or affiliates. Disclosures about the Company and Akorn contained in public reports filed with the SEC may supplement, update or modify the disclosures contained in the Merger Agreement.

Effects of the Merger; Directors and Officers; Certificate of Incorporation; Bylaws

If the Merger Agreement is adopted by our stockholders and the other conditions to the closing of the Merger are either satisfied or waived (to the extent such conditions are waivable), Purchaser will be merged with and into the Company, with the Company continuing as the surviving corporation. At the effective time, our certificate of incorporation, as amended, will be amended and restated in full to read as the form of the certificate of incorporation of Purchaser as in effect immediately prior to the effective time, except that the name of the surviving corporation will be “Hi-Tech Pharmacal Co., Inc.” and with such modifications as may be required with respect to director and officer indemnification. Our bylaws will be amended at the effective time to read in its entirety as the bylaws of Purchaser in effect immediately prior to the effective time, except that the name of the surviving corporation will be “Hi-Tech Pharmacal Co., Inc.” and with such modifications as may be required with respect to director and officer indemnification.

The directors of the surviving corporation will, from and after the effective time, be the directors of Purchaser, until the earlier of their resignation or removal or until their respective successors are duly elected and qualified, as the case may be. The officers of the surviving corporation will, from and after the effective time, be the officers of the Company, until the earlier of their resignation or removal or until their respective successors are duly elected and qualified, as the case may be.

Closing and Effective Time of the Merger; Marketing Period

Closing

Unless the parties agree otherwise, the closing of the Merger will take place on the later of (i) the second business day after all conditions to the completion of the Merger have been satisfied or waived (other than those

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conditions that by their nature are to be satisfied at closing, but subject to the fulfillment or waiver of such conditions) and (ii) the earlier of (A) a date during the marketing period (described below under the section entitled “ The Merger Agreement — Closing and Effective Time of the Merger; Marketing Period — Marketing Period ”) to be specified by Akorn on no fewer than three business days’ notice to the Company and (B) the third business day following the final day of the marketing period, provided that in each case of subclauses (A) and (B), all conditions to the completion of the Merger have been satisfied or waived (other than those conditions that by their nature are to be satisfied at closing, but subject to the fulfillment or waiver of such conditions).

Marketing Period

The “marketing period” referred to above is the first period of 20 consecutive business days after August 26, 2013 throughout which (i) Akorn has the required information described below that the Company is required to provide to Akorn and (ii) the conditions to Akorn and Purchaser’s obligation to complete the Merger have been satisfied or waived (other than those conditions that by their nature are to be satisfied at closing). Such 20 consecutive day period shall not commence until 5 days after the Company’s delivery of the required financial information and is subject to the following further limitations: November 29, 2013 is not considered a business day for purposes of determining the marketing period, but in any event will not restart such period; and if such period has not ended prior to December 20, 2013, then it will not commence until January 6, 2014. The marketing period will not be deemed to have commenced if, prior to the completion of such 20 consecutive day period, (A) the Company’s auditor withdraws its audit opinion with respect to any year end audited financial statements set forth in the SEC documents, in which case the marketing period will be deemed not to commence unless and until a new audit opinion is issued with respect thereto by the Company’s auditor or another independent public accounting firm, (B) the Company publicly announces any intention to restate any material financial information included in the required information or that any such restatement is under consideration, in which case the marketing period will be deemed not to commence unless and until such restatement has been completed and the SEC documents have been amended or the Company has determined that no restatement shall be required, (C) the Company is delinquent (after all permitted extensions) in filing any annual, quarterly or periodic report with the SEC that would have been required to be filed by it with the SEC, in which case the marketing period will not be deemed to commence until all such delinquencies have been cured, or (D) the required information contains any untrue statement of a material fact or omits to state any material fact, in each case with respect to the Company and its subsidiaries, necessary in order to make the statement contained in such required information, in the context in which they were made, not misleading, in which case the marketing period will not be deemed to commence until all such required information has been corrected or disclosed. The marketing period will end on any earlier date on which the entire debt financing is consummated.

The required information refers to (i) the pertinent and customary information, to the extent reasonably available to the Company or its subsidiaries, regarding the Company and its subsidiaries, and any supplements thereto, as may be reasonably requested by Akorn or Purchaser to consummate the debt financing; (ii) as promptly as reasonably practicable following Akorn’s or Purchaser’s request, the information regarding the Company and its subsidiaries (including information to be used in the preparation of one or more information packages regarding the business, operations, financial projections and prospects of the Company and its subsidiaries) customary for the arrangement of loans contemplated by the debt financing, to the extent reasonably available to the Company, its subsidiaries or its representatives and to assist in preparation of customary rating agency or lender presentations relating to such arrangement of loans, and (iii) all consolidated financial statements, business and other financial data (other than pro forma financial statements but including, for the avoidance of doubt, any financial information of the Company and its subsidiaries reasonably necessary to permit Akorn to prepare pro forma financial statements required under the commitment letter, and excluding textual descriptions of the Company’s business and financial results (other than what is customarily contained in the notes to the Company’s financial statements)), and audit reports of the Company and its subsidiaries, and any supplements thereto required under the commitment letter and written financial information reasonably necessary for Akorn and the financing sources to prepare the “Confidential Information Memorandum” referred to in the commitment letter.

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Effective Time

The Merger will become effective upon the filing, acceptance and effectiveness of the Certificate of Merger with the Delaware Secretary of State or at such later time as is mutually agreed by the Company, Akorn and Purchaser and set forth in such filing.

Treatment of Common Stock, Options, Restricted Shares and Other Equity Awards

Common Stock

At the effective time, each share issued and outstanding immediately prior thereto (other than excluded shares described in this subsection) will convert into the right to receive the per share merger consideration, payable to the holder thereof, without any interest thereon. shares owned by the Company as treasury stock or owned by the Company, Akorn, Purchaser or any other wholly-owned subsidiary of Akorn or the company (other than shares in trust accounts, managed accounts, custodial accounts, and the like that are beneficially owned by third parties) will be automatically canceled and will cease to exist, and no cash or other consideration will be delivered or be deliverable in exchange therefor. Shares owned by stockholders who have properly exercised appraisal rights under the DGCL will not be converted into the right to receive the per share merger consideration and, at the effective time, will be cancelled and will cease to exist, and such stockholders will be entitled only to receive payment of the appraised value of such dissenting shares in accordance with the DGCL as described under “ Appraisal Rights ” beginning on page 80 of this proxy statement.

Options, Restricted Shares and Other Equity Awards

Prior to the effective time, our Board (or, if appropriate, any committee thereof) will adopt appropriate resolutions and take all other actions necessary, including obtaining the consent of the individual holders, to provide for the cancellation, effective at the effective time, of all Stock Rights, whether or not vested, heretofore granted under any Stock Plans, without any payment therefor except as otherwise provided in the Merger Agreement. Immediately prior to the effective time, the Company will accelerate the vesting of all unvested Stock Rights and each then vested Stock Right will thereafter no longer be exercisable but will entitle each holder thereof, in cancellation and settlement therefor, to receive the Stock Rights Payment. See “ The Merger — Interests of the Company’s Directors and Named Executive Officers in the Merger ” beginning on page 47 of this proxy statement; and “ The Merger Agreement — Treatment of Common Stock, Options, Restricted Shares and Other Equity Awards ” beginning on page 58 of this proxy statement.

As of the effective time, the Stock Plans will terminate and all rights under any provision of any other plan, program, or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any of its subsidiaries will be cancelled. At and after the effective time, no person will have any right under the Stock Rights, the Stock Plans, or any other plan, program, or arrangement with respect to equity securities of the surviving corporation or any subsidiary thereof, except the right to receive the Stock Rights Payment.

Exchange and Payment Procedures

Prior to the effective time, Akorn will deposit or cause to be deposited with or for the account of a bank or trust company designated by Akorn and reasonably acceptable to the Company (which we refer to as the “paying agent” in this proxy statement), for the benefit of the holders of shares of Common Stock, cash in an amount sufficient to pay the aggregate merger consideration payable upon conversion of shares.

Promptly (but in any event within two business days) after the effective time, each record holder of shares of Common Stock will be sent a letter of transmittal describing how it may exchange its shares for the per share merger consideration.

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You should not return your stock certificates with the enclosed proxy card, and you should not forward your stock certificates to the paying agent without a letter of transmittal.

You will not be entitled to receive the per share merger consideration until you surrender your stock certificate or certificates along with a duly completed and executed letter of transmittal to the paying agent.

No interest will be paid or accrued on the cash payable upon the surrender of any certificate. If payment is to be made to any person other than the person in whose name the surrendered certificate is registered, it will be a condition of payment that the surrendered certificate shall be properly endorsed and otherwise in proper form for transfer, and that the person requesting such payment shall pay any transfer or other taxes required by reason of the payment to a person other than the registered holder of the surrendered certificate or established to the satisfaction of Akorn and the surviving corporation that such taxes have been paid or are not applicable.

Akorn, the surviving corporation and the paying agent will be entitled to deduct and withhold any applicable taxes from the per share merger consideration. Any sum that is withheld will be deemed to have been paid to the person with regard to whom it is withheld.

At the effective time, the stock transfer books of the Company will be closed and there will be no further registration on the records of the Company that were outstanding immediately prior to the effective time. If, after the effective time, a certificate (other than treasury shares of the Company and shares of Common Stock owned by the Company, Akorn, Purchaser or any other wholly-owned subsidiary of Akorn or the Company, and other than shares as to which dissenters’ rights have been properly exercised) is presented to the surviving corporation, it will be cancelled and exchanged.

Any portion of the payment fund that remains undistributed to the holders of certificates for one year after the effective time will be delivered to Akorn. Record holders of Common Stock who have not complied with the above-described exchange and payment procedures will thereafter only look to Akorn for payment of the per share merger consideration. None of the surviving corporation, Akorn, the paying agent or any other person will be liable to any former record holders of Common Stock for any cash delivered to a public official pursuant to any applicable abandoned property, escheat or similar laws.

If you have lost a certificate, or if it has been stolen or destroyed, then before you will be entitled to receive the per share merger consideration, you will have to make an affidavit of the loss, theft or destruction, and if required by the surviving corporation, post a bond in such amount as the surviving corporation may direct, or otherwise indemnify against any claim that may be made against it with respect to such certificate. These procedures will be described in the letter of transmittal that you will receive, which you should read carefully in its entirety.

Financing Covenant; Company Cooperation

Akorn and Purchaser must use reasonable best efforts to arrange the financing on the terms and conditions described in the commitment letter. In the event any portion of the financing becomes unavailable on the terms and conditions contemplated in the commitment letter, Akorn and Purchaser must use reasonable best efforts to arrange and obtain alternative financing in an amount sufficient to consummate the transactions contemplated by the Merger Agreement with terms and conditions not materially less favorable (taken as a whole) to Akorn and Purchaser than the terms and conditions (taken as a whole) set forth in the commitment letter (which we refer to as “alternative committed financing” in this proxy statement), including from alternative sources, following the occurrence of such event. Akorn and Purchaser must give the Company prompt written notice upon becoming aware of any breach by any party of the commitment letters or any termination of the commitment letters. Akorn and Purchaser will keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the financing or the alternative committed financing, as the case may be, and will not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, any commitment

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letter if such amendment, modification or waiver would reasonably be expected to materially impair or delay the ability of Akorn or Purchaser to receive the financing or the alternative committed financing, as the case may be, at or before the closing or to consummate the transactions contemplated by the Merger Agreement. Akorn and Purchaser will provide written notice to the Company promptly upon receiving the financing or the alternative committed financing, as the case may be.

Prior to the closing, the Company will use its reasonable best efforts, and shall cause each of its subsidiaries to use its reasonable best efforts to provide and or cause its and its subsidiaries’ representatives to provide to Akorn and Purchaser, in each case at Akorn’s sole expense, all cooperation reasonably requested by Akorn or Purchaser that is customary in connection with the arrangement of the type of financing contemplated by the commitment letter (provided in all cases that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its subsidiaries), which reasonable best efforts shall include:

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Akorn will promptly, upon request by the Company, reimburse the Company for all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ and accountants costs and expenses) incurred by the Company or any of its subsidiaries in connection with the cooperation of the Company and its subsidiaries and will indemnify and hold harmless the Company, its subsidiaries and their respective representatives from and against any and all direct and actual losses (other than lost profits), damages, claims, costs or expenses suffered or incurred by any of them in connection with the arrangement of the financing, any action taken by them at the request of Akorn pursuant hereto and any information used in connection therewith (except with respect to any information provided in writing by the Company or any of its subsidiaries specifically for use in connection therewith), except, in each case, insofar as such losses, damages, claims, costs or expenses (i) arose out of or resulted from the common law fraud, willful misconduct or gross negligence of the Company, its subsidiaries or their representatives, (ii) directly resulted from the breach of any of the obligations of the Company, its subsidiaries or their representatives under the Merger Agreement or (iii) that were agreed to in a settlement without the written consent of Akorn.

No obligation of the Company or any of its subsidiaries under any agreement, certificate, document or instrument (other than the authorization letters referred to above) will be effective until the effective time (and

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nothing contained herein will require the Company or any of its subsidiaries, prior to the effective time, to be an obligor with respect to the financing) and none of the Company or any of its subsidiaries or representatives will be required to pay or incur any liability for any commitment or other fee or pay or incur any other liability in connection with the financing prior to the effective time.

Representations and Warranties

The Merger Agreement contains representations and warranties made by the Company, Akorn and Purchaser to each other as of specific dates. The statements embodied in those representations and warranties were made for purposes of the Merger Agreement and are subject to qualifications and limitations agreed by the parties in connection with negotiating the terms of the Merger Agreement (including the disclosure schedule delivered by the Company in connection therewith). In addition, some of those representations and warranties were made as of a specific date, may be subject to a contractual standard of materiality different from that generally applicable to stockholders or may have been used for the purpose of allocating risk between the parties to the Merger Agreement rather than establishing matters as facts. The representations and warranties made by the Company to Akorn and Purchaser include representations and warranties relating to, among other things:

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Many of the Company’s representations and warranties are qualified as to, among other things, “materiality” or “material adverse effect.” For purposes of the Merger Agreement, “material adverse effect” means any event, change, circumstance, effect or state of facts that has, or would reasonably be expected to have, a materially adverse effect on the financial condition, business, assets, or results of operations of the Company and its subsidiaries taken as a whole, other than:

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For purposes of the Merger Agreement, a “material adverse effect” also means any event, change, circumstance, effect or state of facts that prevents, materially impedes or materially delays, or would reasonably be expected to prevent, materially impede or materially delay the Company’s ability to consummate the transactions contemplated by Merger Agreement.

The representations and warranties made by Akorn and Purchaser to the Company include representations and warranties relating to, among other things:

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The representations and warranties in the Merger Agreement of each of the Company, Akorn and Purchaser will terminate upon the consummation of the Merger or the termination of the Merger Agreement pursuant to its terms. Many of Akorn’s and Purchaser’s representations and warranties are qualified as to, among other things “materiality” or “Akorn material adverse effect.” For purposes of the Merger Agreement, “Akorn material adverse effect” means any event, change, circumstance, effect or state of facts that is materially adverse to the ability of Akorn or Purchaser promptly to perform its obligations under the Merger Agreement or to consummate the transactions contemplated thereby.

Conduct of Business Pending the Merger

Under the Merger Agreement, the Company has agreed that, subject to certain exceptions in the Merger Agreement, between the date of the Merger Agreement and the effective time, unless Akorn otherwise agrees, the Company and its subsidiaries will carry on its business in the ordinary course in all material respects consistent with past practice and, to the extent consistent therewith, the Company and its subsidiaries will use their reasonable efforts to preserve their current business organizations intact in all material respects, keep available the services of its current key officers and employees, maintain in effect all material permits and healthcare regulatory authorizations, and preserve the goodwill of those engaged in material relationships with the Company.

Subject to certain exceptions set forth in the Merger Agreement, without the prior consent of Akorn (which consent cannot be unreasonably withheld, unless otherwise specified below), neither the Company nor any of its subsidiaries may:

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No Solicitation of Acquisition Proposals

The Company has agreed to immediately cease any encouragement, solicitation, discussion or negotiation with any parties with respect to an acquisition proposal (as defined below), and to seek to have returned to it or destroyed any confidential information regarding the Company or its subsidiaries.

From the date of the Merger Agreement until the effective time of the Merger or, if earlier, the termination of the Merger Agreement in accordance with its terms, the Company has agreed not to, and will cause each of its subsidiaries and each of its and their respective representatives not to:

However, in the event that, prior to the approval and adoption of the Merger Agreement by the Company’s stockholders, the Company or any of its representatives receives an unsolicited bona fide written acquisition proposal, the Company, its subsidiaries and their respective representatives may, if the Board determines in good faith, after consultation with independent financial advisors and outside legal counsel, that such acquisition proposal could reasonably be expected to lead to or constitute a superior proposal (as defined below) (i) furnish, pursuant to an acceptable confidentiality agreement, information with respect to the Company and each of its subsidiaries to the party making such acquisition proposal and promptly (and in any event within 24 hours) make available to Akorn any such non-public information not previously provided to Akorn and (ii) participate in discussions or negotiations regarding such acquisition proposal from a third party. The Company must promptly (and in any event within 24 hours) notify Akorn if it receives any inquiries, proposals or offers with respect to an acquisition proposal, and provide Akorn with a copy of any written acquisition proposal materials received. The Company has agreed to keep Akorn informed on a reasonably current basis of the status and content of any discussions regarding any acquisition proposal with a third party. The Company has also agreed not to enter into any confidentiality agreement with any party which prohibits the Company from providing any information to Akorn or otherwise prohibit the Company from complying with its obligations under the Merger Agreement relating to the non-solicitation provisions.

Except as described below, neither the Board nor any committee thereof is permitted to (1) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any acquisition proposal or acquisition proposal documentation, or fail to recommend against acceptance of any tender offer or exchange offer that constitutes an acquisition proposal that may be commenced, (2) withhold or withdraw (or modify or qualify in a manner adverse to Akorn or Purchaser), or publicly propose to withhold or withdraw (or modify or qualify in a manner adverse to Akorn or Purchaser), its recommendation; or (3) fail to include its recommendation in this proxy statement. We refer to these prohibited actions as a “change in recommendation” in this proxy statement. In addition, neither the Board nor any committee thereof is permitted to authorize or execute (or cause or allow the Company or any of its subsidiaries to execute) any letter of intent, memorandum of understanding, agreement

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in principle, Merger Agreement, acquisition agreement or other similar agreement with respect to, or that is intended to or would reasonably be expected to lead to, an acquisition proposal, other than an acceptable confidentiality agreement (any such agreement is referred to as “acquisition proposal documentation” in this proxy statement).

Notwithstanding the foregoing, prior to obtaining the required stockholder approval for the Merger, the Board or any committee thereof may, if the Company receives an acquisition proposal that has not been withdrawn and that the Board or any committee thereof determines in good faith, after consultation with its financial advisors and outside counsel, constitutes a superior proposal (A) effect a change of recommendation or (B) terminate the Merger Agreement to execute acquisition proposal documentation with respect to such superior proposal if and only if

Any amendment to the financial terms or any other material amendment of such acquisition proposal will require a new notice of superior proposal and the Company will be required to comply again with the above requirements, except the four (4) business day period will be a two (2) business day period.

In addition, prior to obtaining the required stockholder approval for the Merger, the Board or any committee thereof may, other than in connection with an acquisition proposal, effect a change of recommendation in response to an intervening event (as defined below), if and only if:

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Any material change to the facts and circumstances relating to such intervening event will require a new notice of intervening event and the Company will be required to comply again with the above requirements, except the four (4) business day period will be a two (2) business day period.

As used in the Merger Agreement, “acquisition proposal” means any bona fide offer or proposal (whether in writing or otherwise) from any person (other than Akorn, Purchaser or any affiliates thereof) relating to, or that is reasonably expected to lead to, (i) any Merger, consolidation, share exchange, recapitalization, liquidation, or other business combination involving the Company or any of its subsidiaries, (ii) the acquisition or purchase of more than 20% of any class of equity securities of the Company or any of its subsidiaries, (iii) any tender offer (including self-tenders) or exchange offer that if consummated would result in any person beneficially owning more than 20% of any class of equity securities of the Company, or (iv) the acquisition or purchase (including by way of license) of more than 20% of the consolidated assets of the Company or assets to which 20% or more of the Company’s revenues, net income or earnings before interest expense, taxes, depreciation and amortization on a consolidated basis are attributable, other than the transactions contemplated by the Merger Agreement.

As used in the Merger Agreement, a “superior proposal” means a bona fide written acquisition proposal to acquire directly or indirectly more than 50% of the shares of Common Stock then outstanding or all or substantially all of the assets of the Company that the Board concludes in good faith (after consultation with its independent financial advisors and outside counsel), taking into account all legal, financial, regulatory, and other aspects of the proposal, and the person making such proposal, would, if consummated, be more favorable to the Company’s stockholders, from a financial point of view, than the Merger (in each case, taking into account any revisions to the Merger Agreement made or proposed by Akorn).

As used in the Merger Agreement, an “intervening event” means a material event, development or change in circumstances with respect to the Company occurring, arising or coming to the attention of the Board after the date of the Merger Agreement and prior to obtaining the required stockholder approval for the Merger, and which was not known, and could not reasonably be expected to have been known or foreseen, to or by the Board as of or prior to the date of the Merger Agreement and was not known by the Company’s executive officers or reasonably foreseeable as of or prior to the date of the Merger Agreement. The following will not constitute an intervening event:

The Merger Agreement provides that nothing will prohibit the Company or the Board from taking and disclosing to the Company’s stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act (or any similar communications in connection with the making or amendment of a tender offer or exchange offer) or from making any disclosure required by applicable law.

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Stockholders Meeting

The Company is required to cooperate with Akorn to take all action necessary, in accordance with the DGCL and the Company’s governing documents, to convene and hold a special meeting of the stockholders of the Company (which we refer to as the “stockholders meeting” in this proxy statement) to be held as soon as reasonably practical for the purpose of considering and voting upon the adoption of the Merger Agreement and to solicit proxies pursuant to this proxy statement. Subject to the Company’s right to effect a change in recommendation and/or terminate the Merger Agreement (as described above), the Board is obligated to submit the Merger Agreement for stockholder approval at the stockholders meeting, to recommend that the holders of shares of Common Stock vote in favor of the adoption of the Merger Agreement at the stockholders meeting and to include in this proxy statement the recommendation of the Board that the Company’s stockholders vote in favor of the proposal to approve and adopt the Merger Agreement.

Filing; Other Actions; Notification

General

The Company, Akorn and Purchaser will use their reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated hereby, including the satisfaction of the respective conditions set forth in the Merger Agreement.

The Company, Akorn and Purchaser have agreed, subject to certain exceptions, to:

Antitrust Approvals

The Company, Akorn and Purchaser have agreed, subject to certain exceptions, to:

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None of Akorn, Purchaser or any of their affiliates are required, in connection with antitrust approval matters, to (i) waive any of the conditions to the Merger, or (ii) to agree to any restrictions on the conduct of their existing or future business activities or to divest or agree to divest or surrender control of any of their current or future assets or businesses in order to obtain any consents or approvals of any governmental authority or to otherwise remove any impediments to the consummation of the transactions contemplated by the Merger if so doing would result in a material adverse effect on the Company.

The Company will, subject to applicable law, consult and cooperate with Akorn as may be reasonably requested by Akorn, and Akorn and Purchaser, on the one hand, and the Company, on the other hand, will each consider in good faith the views of the other, in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party in connection with proceedings under or relating to any antitrust laws.

Each of Akorn, Purchaser and the Company, subject to any restrictions under applicable law, will promptly notify the other parties thereto of any communication made to or received by it from any applicable governmental authority regarding any of the transactions contemplated under the Merger Agreement, and, if practicable, permit the other parties thereto to review in advance any proposed written communication to any such governmental authority and incorporate the other parties’ reasonable comments, not agree to participate in any substantive meeting or discussion with any such governmental authority in respect of any filing, investigation or inquiry concerning the Merger Agreement or the transactions contemplated thereby unless, to the extent reasonably practicable, it consults with the other parties in advance and, to the extent permitted by such governmental authority, gives the other parties the opportunity to attend, and furnish the other parties with copies of all correspondence, filings and written communications between them and their affiliates and their respective representatives on one hand and any such governmental authority or its respective staff on the other hand, with respect to the Merger Agreement and the transactions contemplated thereby. Notwithstanding anything to the contrary, the parties agree that, except as otherwise provided by applicable law, any and all proceedings, hearings and other dealings with governmental authorities relating to antitrust matters shall be led by Akorn and its representatives; provided, that Akorn may make all final strategic decisions after consulting in good faith with the Company.

Akorn is responsible for the payment of all filing fees under any antitrust law.

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Employee Benefit Matters

Akorn has agreed that it will, and will cause the surviving corporation after the completion of the Merger to:

Conditions to the Merger

The respective obligation of the Company, Akorn and Purchaser to effect the Merger are subject to the satisfaction or waiver on or prior to the closing date of the following conditions:

The obligation of the Company to effect the Merger is subject to the fulfillment at or prior to the closing date of the following conditions, any of which may be waived in writing by the Company:

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The obligations of Akorn and Purchaser to effect the Merger are subject to the fulfillment at or prior to the closing date of the following conditions, any of which may be waived by Akorn and Purchaser:

Termination

The Merger Agreement may be terminated at any time prior to the effective time of the Merger by mutual written consent of each of Akorn and the Company. In addition, either Akorn or the Company may terminate the Merger Agreement prior to the effective time of the Merger if:

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The Merger Agreement may also be terminated by the Company if:

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The Merger Agreement may also be terminated by Akorn if:

Termination Fees

Company Termination Fee

Subject to certain exceptions, the Company must pay a termination fee of $20,189,000 in the event that:

Subject to certain exceptions, the Company must pay a termination fee of $32,030,000 in the event that the Merger Agreement is terminated (i) by Akorn or Purchaser as a result of a change of recommendation related to an intervening event or (ii) by the Company or Akorn as a result of the stockholders’ failure to approve the Merger Agreement following a change of recommendation relating to an intervening event.

Akorn Termination Fee

Akorn must pay a termination fee of $41,639,000 in the event that the Merger Agreement is terminated (i) by the Company as a result of a financing failure, (ii) by the Company as a result of a failure to obtain regulatory approval or clearance with respect to applicable antitrust laws or (iii) by Akorn or the Company due to a final and nonappealable order, decree or ruling enjoining or prohibiting or otherwise making illegal consummation of the Merger, in each case, under any antitrust law. In the event that the Merger Agreement is so terminated after April 26, 2014, such termination fee will increase to $48,045,000.

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Expenses

All fees and expenses incurred in connection with the Merger, the Merger Agreement, and the transactions contemplated thereby will be paid by the party incurring such fees or expenses, whether or not the Merger is consummated. In the event of termination of the Merger Agreement, the obligation of each party to pay its own expenses will be subject to any rights of such party arising from a breach of the Merger Agreement by another party and any rights of such party to receive any termination fee pursuant to the terms of the Merger Agreement.

Remedies

The Company’s right to receive the termination fee from Akorn will be, subject to certain rights to equitable relief, including specific performance as described below, the sole and exclusive remedy of the Company and its subsidiaries and stockholders against Akorn, Purchaser, Akorn’s financing sources or any of their respective former, current or future stockholders, controlling persons, management companies, members, managers, directors, officers, employees, agents, assignees or affiliates and any and all former, current or future heirs, executors, administrators, trustees, successors or assigns of the foregoing for any loss or damage suffered as a result of the failure of the Merger to be consummated or for a breach or failure to perform under the Merger Agreement or otherwise, and upon payment of such amount no such person shall have any further liability or obligation relating to or arising out of the Merger Agreement or the transactions contemplated thereby.

Payment of the termination fee by the Company in the circumstances in which such fee is payable will be the sole and exclusive remedy of Akorn and Purchaser (and the other parties described in the preceding paragraph) against the Company and its subsidiaries and any of their respective former, current or future stockholders, directors, officers, employees, agents or affiliates for any loss or damage suffered as a result of the failure of the Merger to be consummated or for a breach or failure to perform under the Merger Agreement or otherwise, and upon payment of such amount(s), no such person will have any further liability or obligation relating to or arising out of the Merger Agreement or the transactions contemplated thereby.

The parties are entitled to seek an injunction or injunctions, or any other appropriate form of equitable relief, to prevent breaches of the Merger Agreement and to enforce specifically the terms and provisions thereof, in addition to any other remedy to which they are entitled under the Merger Agreement at law or in equity. However, the right of the Company to obtain an injunction, or other appropriate form of equitable relief to cause, or to cause Akorn and Purchaser to cause, the Merger to be consummated are subject to the requirements that (i) the marketing period has ended and all conditions to the obligations of Akorn and Purchaser to effect the Merger would have been satisfied or waived if the closing were to have occurred at such time (other than those conditions that by their terms are to be satisfied by actions taken at the closing), (ii) Akorn and Purchaser fail to complete the closing of the Merger by the date the closing is required to have occurred, (iii) the financing has been funded or will be funded in accordance with the terms of the commitment, and (iv) the Company has confirmed to Akorn in writing that if specific performance is granted, then closing of the Merger would occur. While the Company may pursue both a grant of specific performance and the payment by Akorn of a termination fee, under no circumstances will the Company be permitted or entitled to receive both a grant of specific performance and payment by Akorn of a termination fee.

Notwithstanding anything to the contrary, nothing in the Merger Agreement relieves any party from liability for fraud or any willful and material breach of the Merger Agreement prior to termination.

Indemnification; Directors’ and Officers’ Insurance

From and after the effective time, Akorn and the surviving corporation and its subsidiaries will indemnify and hold harmless each person who is now, or has been at any time prior to the date of the Merger Agreement or who becomes prior to the effective time, an officer or director of the Company or any of its subsidiaries against any and all losses, damages, liabilities, deficiencies, claims, interest, awards, judgments, penalties, costs, and

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expenses (including reasonable attorneys’ fees, costs, and other reasonable and documented out-of-pocket expenses incurred in investigating, preparing, or defending the foregoing and including any liabilities, fees, costs or other out-of-pocket expenses incurred in enforcing rights under the Merger Agreement) arising out of or related to any threatened or actual claim, action, suit, proceeding, or investigation based on, arising out of or related to, in whole or in part, any action or omission taken or foregone in such person’s position as a director or officer of the Company or any of its subsidiaries and pertaining to any matter existing or occurring at or prior to the effective time and whether asserted or claimed prior to, or at or after, the effective time, including all such liabilities based in whole or in part on, or arising in whole or in part out of, or related to the Merger Agreement or the transactions contemplated thereby, in each case to the full extent permitted under applicable law (and Akorn, the surviving corporation or its Subsidiaries will pay expenses in advance of the final disposition of any such action or proceeding to each such person; provided, that in connection with any such advancement of expenses, such person will undertake to repay to the surviving corporation or its subsidiaries any amount for which it is determined by a court of competent jurisdiction that such person would not have been entitled to indemnification under applicable law or the provisions of the Merger Agreement). The indemnified person may retain counsel satisfactory to it and reasonably satisfactory to Akorn, and the surviving corporation or its subsidiaries will pay all fees and expenses of such counsel for such person promptly as statements therefor are received. The surviving corporation, its subsidiaries and each indemnified person will use all reasonable efforts to assist in the vigorous defense of any such matter; provided, that none of the surviving corporation, any of its subsidiaries or Akorn will be liable for any settlement or consent decree effected without its prior written consent, which consent shall not be unreasonably withheld. Any person wishing to claim such indemnification must notify Akorn upon learning of any such claim, action, suit, proceeding or investigation (but the failure so to notify shall not relieve a party from any liability which it may have except to the extent such failure prejudices Akorn, the surviving corporation or its subsidiaries).

For six years from the effective time, Akorn must cause the surviving corporation and its subsidiaries to maintain, if available, and cause the surviving corporation to pay the premiums associated with, officers’ and directors’ liability insurance covering the persons who are presently covered by officers’ and directors’ liability insurance policies (copies of which have heretofore been delivered to Akorn) with respect to actions and omissions occurring prior to the effective time, providing coverage not less favorable in the aggregate than provided by such insurance in effect on the date hereof; provided, however, that in no event will the surviving corporation be obligated to expend in order to obtain or maintain insurance coverage any amount per annum in excess of 300% of the aggregate premiums currently paid or payable by the Company in 2013 (on an annualized basis) for such purpose; provided, that in lieu of the foregoing insurance coverage, at any time after the date hereof, the Company may, or Akorn may direct the Company to, purchase a six-year prepaid “tail” policy that provides coverage no less favorable to the such individuals than the coverage, and the cost of such “tail” policy shall not exceed 300% of the aggregate premiums.

Akorn and its successors and assigns, after the effective time, has agreed not to institute any action or proceeding in any court or before any administrative agency or before any other tribunal against any of the current directors of the Company and its subsidiaries, in their capacity as such, with respect to any liabilities, actions, or causes of actions, judgments, claims, or demands of any nature or description (consequential, compensatory, punitive, or otherwise), in each case to the extent resulting from their approval of the Merger Agreement or the transactions contemplated hereby.

During the six-year period following the closing date, the surviving corporation may not amend, restate or otherwise modify the provisions of its certificate of incorporation or of its bylaws with respect to indemnification of and expense advancement or reimbursement to such indemnified person in a manner that adversely affects any such person.

Access

Until the effective time, upon reasonable notice, the Company and its subsidiaries must afford Akorn and its representatives reasonable access to the representatives, properties, offices, plants and other facilities, books and

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records of the Company and each of its subsidiaries, and must furnish Akorn with such financial, operating, correspondence with the FDA and other data and information as Akorn may reasonably request. Any such access or furnishing of information will be conducted at Akorn’s expense, during normal business hours, under the supervision of the Company’s personnel, and in such a manner as not unreasonably to interfere with the normal operations of the Company and its subsidiaries. Notwithstanding anything to the contrary in the Merger Agreement, neither the Company nor its subsidiaries is required to disclose any information to Akorn or its representatives if such disclosure would, in the Company’s reasonable good faith judgment, (i) jeopardize any attorney-client or other legal privilege or (ii) contravene any applicable laws, fiduciary duty, or binding agreement entered into prior to the date hereof; and in any such event, the parties will seek to make appropriate substitute disclosure arrangements.

Modification or Amendment

The Merger Agreement may be amended, modified, and supplemented by the parties, by action taken or authorized by their respective boards of directors at any time prior to the closing date (notwithstanding any stockholder approval). However, after approval of the Merger by the stockholders of the Company, no amendment may be made that, under applicable law or in accordance with the rules of any relevant stock exchange, requires further approval by such stockholders without such further approval. The Merger Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto. Certain sections may not be amended or modified in a manner that would be adverse to the financing sources without the prior written consent of the financing sources.

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APPRAISAL RIGHTS

If the Merger closes, any stockholder that does not vote “FOR” the adoption of the Merger Agreement at the Meeting, makes a written demand for appraisal prior to the taking of the vote on the adoption of the Merger Agreement and that otherwise complies with the applicable statutory procedures of Section 262 of the Delaware General Corporation Law (“ DGCL”) , summarized herein, may be entitled to appraisal rights under Section 262 of the DGCL. In order to perfect appraisal rights, a record holder of shares of Common Stock must follow the steps set forth in Section 262 of the DGCL properly and in a timely manner.

Section 262 of the DGCL is reprinted in its entirety as Annex C to this proxy statement. Set forth below is a summary description of Section 262 of the DGCL. The following summary is qualified in its entirety by reference to Annex C. All references in Section 262 of the DGCL and this summary to “stockholder” are to a record holder of shares of Company Common Stock. Failure to comply strictly with the procedures set forth in Section 262 of the DGCL will result in the loss of appraisal rights.

Under the DGCL, holders of shares of Common Stock who do not wish to receive the merger consideration provided by the Merger Agreement and that follow the procedures set forth in Section 262 of the DGCL will be entitled to have the “fair value” of their shares of Common Stock determined by the Delaware Court of Chancery and to receive payment in cash of that fair value, exclusive of any element of value arising from the accomplishment or expectation of the Merger, together with interest, if any, to be paid on the amount determined to be the fair value.

Under Section 262 of the DGCL, when a merger agreement relating to a proposed merger is to be submitted for adoption at a meeting of stockholders, as in the case of the Meeting, the corporation, not less than twenty (20) days prior to such meeting, must notify each of its stockholders who was a stockholder on the record date for notice of such meeting with respect to such shares for which appraisal rights are available that appraisal rights are so available, and must include in each such notice a copy of Section 262 of the DGCL. This proxy statement constitutes such notice to the holders of Company Common Stock and Section 262 of the DGCL is attached to this proxy statement as Annex C and incorporated herein by reference. Any stockholder who wishes to exercise such appraisal rights or who wishes to preserve his or her right to do so should review the following discussion and Annex C carefully, because failure to timely and properly comply with the procedures specified will result in the loss of appraisal rights under the DGCL.

If you wish to exercise appraisal rights in accordance with Section 262 of the DGCL, you must not vote “FOR” the adoption of the Merger Agreement and must deliver to the Company, before the vote on the proposal to adopt the Merger Agreement, a written demand for appraisal of your shares of Company Common Stock. If you sign and return a proxy card or vote by submitting a proxy by telephone or the Internet, without abstaining or expressly directing that your shares of Company Common Stock be voted against the adoption of the Merger Agreement, you will effectively be waiving your appraisal rights with respect to shares represented by the proxy because such shares will be voted “FOR” the adoption of the Merger Agreement and approval of the transactions contemplated by the Merger Agreement, including the Merger. Accordingly, if you wish to exercise and perfect appraisal rights with respect to any of your shares of Common Stock, you must either refrain from executing and returning the enclosed proxy card and from voting in person, or submitting a proxy by telephone or the Internet, in favor of the proposal to adopt the Merger Agreement or check either the “against” or the “abstain” box next to the proposal on such card or vote in person or by submitting a proxy by telephone or the Internet against the proposal or register in person an abstention with respect thereto. A vote or proxy against the adoption of the Merger Agreement will not, in and of itself, constitute a demand for appraisal.

A demand for appraisal will be sufficient if it reasonably informs the Company of the identity of the stockholder and that such stockholder intends thereby to demand appraisal of such stockholder’s shares of Common Stock. This written demand for appraisal must be separate from, and must be in addition to, any proxy or vote abstaining from or voting against the adoption of the Merger Agreement. If you wish to exercise your

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appraisal rights you must be the record holder of such shares of Common Stock on the date the written demand for appraisal is made and you must continue to hold such shares of Common Stock through the effective time of the Merger. Accordingly, a stockholder who is the record holder of shares of Common Stock on the date the written demand for appraisal is made, but who thereafter transfers such shares prior to the effective time of the Merger, will lose any right to appraisal for such shares.

Only a holder of record of Company Common Stock is entitled to assert appraisal rights for such shares of Common Stock registered in that holder’s name. A demand for appraisal should be executed by or on behalf of the holder of record, fully and correctly, as the holder’s name appears on the stock certificates, or in the case of uncertificated shares, as the holder’s name appears on the stockholder register, and must state that such person intends thereby to demand appraisal of his, her or its shares. If the shares are owned of record in a fiduciary capacity, such as by a broker, dealer, commercial bank, trust company or other nominee, execution of the demand for appraisal should be made in that capacity . If the shares are owned of record by more than one person, as in a joint tenancy or tenancy in common, the demand should be executed by or on behalf of all joint owners. An authorized agent, including one for two or more joint owners, may execute the demand for appraisal on behalf of a holder of record; however, the agent must identify the record owner or owners and expressly disclose the fact that, in executing the demand, such authorized agent is acting as agent for such owner or owners.

A record holder such as a broker, dealer, commercial bank, trust company or other nominee who holds shares as nominee for several beneficial owners may exercise appraisal rights with respect to the shares of Common Stock held for one or more beneficial owners while not exercising such rights with respect to the shares held for other beneficial owners. The written demand should set forth the number of shares as to which appraisal is sought. If the number of shares of Company Common Stock is not expressly stated, the demand will be presumed to cover all shares of Common Stock held in the name of the record owner. If you hold your shares in an account with a broker, dealer, commercial bank, trust company or other nominee and wish to exercise your appraisal rights, you are urged to consult with your broker, dealer, commercial bank, trust company or other nominee to determine the appropriate procedures for the making of a demand for appraisal on your behalf by such broker, dealer, commercial bank, trust company or other nominee.

All written demands for appraisal of shares of Company Common Stock must be mailed or delivered to: Hi-Tech Pharmacal Co., Inc., Attn: David S. Seltzer, Corporate Secretary, 369 Bayview Avenue, Amityville, NY 11701, or should be delivered to the Corporate Secretary at the Meeting, prior to the vote on the adoption of the Merger Agreement.

Within ten (10) days after the effective time of the Merger, if consummated, we will notify each stockholder who properly demanded appraisal rights under Section 262 of the DGCL and who has not voted for the adoption of the Merger Agreement of the effective time of the Merger. Within 120 days after the effective time of the Merger, but not thereafter, we or any stockholder who has complied with the statutory requirements summarized above may commence an appraisal proceeding by filing a petition in the Delaware Court of Chancery demanding a determination of the fair value of the shares of Common Stock held by all such stockholders. If no such petition is filed, appraisal rights will be lost for all stockholders who had previously demanded appraisal of their shares of Common Stock. We are not under any obligation, and we have no present intention, to file a petition with respect to appraisal of the value of the shares. Accordingly, if you wish to exercise your appraisal rights, you should regard it as your obligation to file such petition in the Delaware Court of Chancery.

Within 120 days after the effective time of the Merger, any stockholder who has complied with the provisions of Section 262 of the DGCL will be entitled, upon written request, to receive from us a statement setting forth the aggregate number of shares of Company Common Stock not voted in favor of the adoption of the Merger Agreement and with respect to which demands for appraisal were received by us, and the number of holders of such shares. Such statement must be mailed within 10 days after the written request therefor has been received by us or within 10 days after expiration of the period for delivery of appraisal demands, whichever is

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later. A person who is the beneficial owner of Company Common Stock held either in a broker, dealer, commercial bank, trust company or other nominee on behalf of such person may, in such person’s own name, file an appraisal petition or request from us the statement described in this paragraph.

If a petition for an appraisal is timely filed and a copy thereof served upon us, we will then be obligated, within twenty (20) days, to file with the Delaware Register in Chancery a duly verified list containing the names and addresses of the stockholders who have demanded appraisal of their shares and with whom agreements as to the value of their shares have not been reached. After notice to the stockholders as required by the Court of Chancery, the Court of Chancery is empowered to conduct a hearing on such petition to determine those stockholders who have complied with Section 262 of the DGCL and who have become entitled to appraisal rights thereunder. The Court of Chancery may require the stockholders who demanded appraisal rights of their shares of Common Stock to submit their stock certificates to the Register in Chancery for notation thereon of the pendency of the appraisal proceeding; and if any stockholder fails to comply with such direction, the Court of Chancery may dismiss the proceedings as to such stockholder.

After the Court of Chancery determines which stockholders are entitled to appraisal, the appraisal proceeding shall be conducted in accordance with the rules of the Court of Chancery, including any rules specifically governing appraisal proceedings. Through such proceeding, the Court of Chancery will determine the fair value of the shares exclusive of any element of value arising from the accomplishment or expectation of the Merger, together with interest, if any, to be paid upon the amount determined to be the fair value. In determining such fair value, the Court of Chancery shall take into account all factors, which in its opinion, are relevant.

If you are considering seeking appraisal, you should be aware that the fair value of your shares as determined under Section 262 of the DGCL could be more than, the same as or less than the per share merger consideration you are entitled to receive pursuant to the Merger Agreement if you did not seek appraisal of your shares and that investment banking opinions as to the fairness from a financial point of view of the per share merger consideration payable in the merger are not necessarily opinions as to fair value under Section 262 of the DGCL. In determining “fair value” of shares, the Court of Chancery will take into account all relevant factors. The Delaware Supreme Court has stated, in Weinberger v. UOP, Inc. , that such factors include “market value, asset value, dividends, earning prospects, the nature of the enterprise and any other facts which were known or which could be ascertained as of the date of the merger and which throw any light on future prospects of the merged corporation.” In Weinberger , the Delaware Supreme Court stated, among other things, that “proof of value by any techniques or methods which are generally considered acceptable in the financial community and otherwise admissible in court” should be considered in an appraisal proceeding. Section 262 of the DGCL provides that fair value is to be “exclusive of any element of value arising from the accomplishment or expectation of the merger.” In Cede & Co. v. Technicolor, Inc. , the Delaware Supreme Court stated that such exclusion is a “narrow exclusion [that] does not encompass known elements of value,” but which rather applies only to the speculative elements of value arising from such accomplishment or expectation. In Weinberger , the Delaware Supreme Court construed Section 262 of the DGCL to mean that “elements of future value, including the nature of the enterprise, which are known or susceptible of proof as of the date of the merger and not the product of speculation, may be considered.”

The Court of Chancery will direct the payment of the fair value of the shares of Common Stock, together with interest, if any, by the surviving corporation to the stockholders entitled thereto. The Court of Chancery will determine the amount of interest, if any, to be paid on the amounts to be received by persons whose shares of Company Common Stock have been appraised. Unless the Court of Chancery in its discretion determines otherwise for good cause shown, interest from the effective time of the Merger through the date of payment of the judgment shall be compounded quarterly and shall accrue at 5% over the Federal Reserve discount rate (including any surcharge) as established from time to time during the period between the effective time of the Merger and the date of payment of the judgment. The costs of the action (which do not include attorneys’ fees or expert fees or expenses) may be determined by the Court of Chancery and taxed upon the parties as the Court of Chancery deems equitable. The Court of Chancery may also order that all or a portion of the expenses incurred

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by any stockholder in connection with an appraisal, including without limitation reasonable attorneys’ fees and the fees and expenses of experts utilized in the appraisal proceeding, be charged pro rata against the value of all of the shares entitled to appraisal. In the absence of such determination or assessment, each party bears its own expenses.

Any stockholder who has duly demanded and perfected an appraisal in compliance with Section 262 of the DGCL will not, after the effective time of the Merger, be entitled to vote his or her shares for any purpose or be entitled to the payment of dividends or other distributions thereon, except dividends or other distributions payable to holders of record of shares of Common Stock as of a date prior to the effective time of the Merger.

At any time within sixty (60) days after the effective time of the Merger, any stockholder who has not commenced an appraisal proceeding or joined that proceeding as a named party will have the right to withdraw his or her demand for appraisal and to accept the per share merger consideration cash payment for his or her shares of Common Stock pursuant to the Merger Agreement. After this period, a stockholder may withdraw his or her demand for appraisal only with the Company’s written consent. If no petition for appraisal is filed with the Court of Chancery within 120 days after the effective time of the Merger, a stockholder’s right to appraisal will cease and he or she will be entitled to receive the per share merger consideration cash payment for his or her shares of Common Stock pursuant to the Merger Agreement, as if he or she had not demanded appraisal of his or her shares. No petition timely filed in the Court of Chancery demanding appraisal will be dismissed as to any stockholder without the approval of the Court of Chancery and such approval may be conditioned on such terms as the Court of Chancery deems just; provided, however, that any stockholder who has not commenced an appraisal proceeding or joined that proceeding as a named party may withdraw his, her or its demand for appraisal and accept the per share merger consideration offered pursuant to the Merger Agreement within sixty (60) days after the effective time of the Merger.

If you properly demand appraisal of your shares of Common Stock under Section 262 of the DGCL and you fail to perfect, or effectively withdraw or lose, your right to appraisal, as provided in the DGCL, your shares of Common Stock will be converted into the right to receive the per share merger consideration. You will fail to perfect, or effectively lose or withdraw, your right to appraisal if, among other things, no petition for appraisal is filed with the Delaware Court of Chancery within 120 days after the effective time of the Merger, or if you deliver to us a written withdrawal of your demand for appraisal as described above. Any such attempt to withdraw an appraisal demand more than sixty (60) days after the effective time will require the Company’s written approval.

If you desire to exercise your appraisal rights in accordance with Section 262 of the DGCL, you must NOT vote “FOR” adoption of the Merger Agreement and you must strictly comply with the procedures set forth in Section 262 of the DGCL.

Failure to take any required step in connection with the exercise of appraisal rights will result in the loss or waiver of such rights.

In view of the complexity of Section 262 of the DGCL, stockholders who may wish to pursue appraisal rights with respect to the Merger should consult their legal advisors.

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The Company does not pay regular dividends. On November 30, the Company announced that the Board had declared a special one-time dividend of $1.50 per share, payable on December 28, 2012 to stockholders of record on December 13, 2012. The foregoing table does not reflect any adjustment for the special dividend. The Company does not expect to declare or pay any further dividends prior to the Merger and, under the terms of the Merger Agreement, is prohibited from so doing .

The closing trading price of the Common Stock on August 26, 2013, the last trading day prior to our public announcement that we had entered into the Merger Agreement, was $35.21 per share. The per share merger consideration represents a 23.5% premium over the closing price of Common Stock on August 26, 2013, a 51.6% premium over the $28.70 trading price of Common Stock on November 29, 2012, which was the 52-week low for the Common Stock (and a 60% premium over such trading price if adjusted for the special dividend of $1.50), and a 14% premium over the $38.17 trading price of Common Stock on January 24, 2013, which was the 52-week high (for the period ending August 26, 2013) for the Common Stock. On November 7, 2013 the closing price per share was $43.09. You are encouraged to obtain current market quotations for shares of Common Stock in connection with voting your shares.

As of the close of business on November 7, 2013, there were approximately 2,665 record holders of shares of Common Stock.

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