Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Indicate by check mark whether the registrant is an emerging
growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of
the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement
On October 8, 2019, AMAG Pharmaceuticals, Inc. (the “Company”)
entered into a Settlement Agreement (the “Settlement Agreement”) with Caligan Partners LP (“Caligan”),
Caligan Partners CV II LP, David E. Johnson and Paul Fonteyne (the foregoing, collectively with each of their
respective affiliates, the “Investor Group”).
Effective upon execution and delivery of the Settlement Agreement,
the Board of Directors (the “Board”) of the Company (i) expanded the size of the Board from nine members to eleven
members, (ii) appointed Paul Fonteyne and David Johnson (each, an “Investor Group Designee” and together, the “Investor
Group Designees”) to the Board for terms expiring at the Company’s 2020 annual meeting of stockholders (the “2020
Annual Meeting”) and (iii) appointed Mr. Fonteyne to the Compensation Committee of the Board and Mr. Johnson to the Audit
Committee of the Board. The Board also agreed to nominate the Investor Group Designees for election to the Board at the 2020 Annual
Meeting.
Also effective upon execution and delivery of the Settlement
Agreement, the Investor Group withdrew its definitive consent statement soliciting written consents from the stockholders of the
Company to approve certain proposals of the Investor Group.
The Settlement Agreement further provides, among other things,
as follows:
|
●
|
At the conclusion of the 2020 Annual Meeting, the size of the Board will be decreased to nine directors (including the Investor
Group Designees) and will not be increased unless at least two-thirds of the Board approves the increase.
|
|
●
|
In the event the Investor Group ceases to beneficially own a net long position of the lesser
of (x) at least five percent of the Company’s then outstanding common stock and (y) 1,700,000 shares of common
stock, in each case subject to adjustment for stock splits,
combinations and recapitalizations (the “Ownership Minimum”), the Investor Group Designees will immediately
resign from the Board.
|
|
●
|
During the term of the Settlement Agreement and as long as the Investor Group owns shares of the Company’s common stock
exceeding the Ownership Minimum, the Investor Group is entitled to designate a replacement independent director in the event (i)
Mr. Johnson ceases to be a director of the Company due to death, disability or other incapacity or (ii) Mr. Fonteyne is no longer
able or willing to serve as a director of the Company for any reason, subject to approval (not to be unreasonably withheld) of
any replacement independent director by the Governance and Risk Committee of the Board.
|
|
●
|
During the term of the Settlement Agreement, the Investor Group is subject to customary standstill
restrictions, including with respect to acquiring beneficial ownership of more than 12.5% of the Company’s outstanding common
stock, nominating or recommending for nomination any persons for election to the Board (except as expressly permitted by the Settlement
Agreement), submitting any proposal for consideration at any stockholder meeting and soliciting any proxy, consent or other authority
to vote from stockholders or conducting any other referendum (including any “withhold,” “vote no” or similar
campaign).
|
|
●
|
During the term of the Settlement Agreement, the Investor Group will vote all of its shares of the Company’s common stock
at all annual and special meetings and any consent solicitations of the Company’s stockholders in accordance with the Board’s
recommendations, subject to certain exceptions relating to extraordinary transactions and the recommendations of Institutional
Shareholder Services, Inc. and Glass Lewis & Co., LLC.
|
|
●
|
Each party agrees not to make public statements about the other party, subject to certain exceptions.
|
|
●
|
Each party agrees not to sue the other party, subject to certain exceptions.
|
|
●
|
The Investor Group and the Investor Group Designees have entered into a confidentiality agreement with the Company, in a form
attached to the Settlement Agreement.
|
|
●
|
The Settlement Agreement will terminate 30 days prior to the director nomination deadline for the Company’s 2021 annual
meeting of stockholders (the “2021 Annual Meeting”). However, the term of the Settlement Agreement will be extended
to 30 days prior to the director nomination deadline for the Company’s 2022 annual meeting of stockholders if (i) at least
45 days prior to the director nomination deadline for the 2021 Annual Meeting, the Company notifies the Investor Group that it
intends to renominate the Investor Group Designees at the 2021 Annual Meeting; and (ii) at least 31 days prior to the director
nomination deadline for the 2021 Annual Meeting, the Investor Group and each Investor Group Designee irrevocably consents to such
renominations.
|
The summary above is qualified in its entirety by reference
to the full text of the Settlement Agreement, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is
incorporated herein by reference.
Item 5.02 Departure of Directors or Certain Officers; Election
of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
The information set forth in Item 1.01 of this Current Report
on Form 8-K is incorporated herein by reference.
In connection with the Settlement Agreement described in Item
1.01 hereof, on October 8, 2019, the Board increased its size from nine to eleven directors and appointed Paul Fonteyne and David
Johnson to the Board as directors. Each of Mr. Fonteyne’s and Mr. Johnson’s terms will expire at the 2020 Annual Meeting.
If Mr. Fonteyne and Mr. Johnson, respectively, are re-elected at the 2020 Annual Meeting, they each will serve a one-year term
expiring at the 2021 Annual Meeting. Mr. Fonteyne was also appointed to the Compensation Committee of the Board and Mr. Johnson
was appointed to the Audit Committee of the Board.
Other than the Settlement Agreement and the Nomination Agreement
(a form of which was attached as Exhibit D to the Schedule 13D/A filed by members of the Investor Group on September 4, 2019),
there is no arrangement or understanding between either of the Investor Group Designees and any other person pursuant to which
an Investor Group Designee was appointed as a director. Since the beginning of the last fiscal year, there have been no related
party transactions between the Company and either of the Investor Group Designees that would be reportable under Item 404(a) of
Regulation S-K, except for Mr. Johnson. Pursuant to the Settlement Agreement, the Company agreed to reimburse Caligan, of which
Mr. Johnson is a managing partner, up to $750,000 of its reasonable, documented out-of-pocket fees and expenses incurred in connection
with the Settlement Agreement.
Mr. Fonteyne and Mr. Johnson will each receive compensation
and indemnification consistent with that provided to all non-employee directors of the Company as described in the Company’s
Non-Employee Director Compensation Policy as described starting on page 21 of the Proxy Statement for the Company’s
2019 annual meeting of stockholders. The Company will enter into an indemnification agreement with each of Mr. Fonteyne and Mr.
Johnson in substantially the same form entered into with the other members of the Company’s Board.
Item 8.01 Other Events.
On October 8, 2019, the Company issued a press release announcing
the matters described above. A copy of the press release is attached as Exhibit 99.1 hereto and is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits:
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
AMAG PHARMACEUTICALS, INC.
|
|
|
|
By:
|
/s/ Joseph D. Vittiglio
|
|
|
Joseph D. Vittiglio
Executive Vice President, General Counsel, Quality & Corporate
Secretary
|
|
|
|
Date: October 8, 2019
|
Exhibit 10.1
SETTLEMENT AGREEMENT
This SETTLEMENT AGREEMENT
(this “Agreement”) is made and entered into as of October 8, 2019, by and among AMAG Pharmaceuticals, Inc.,
a Delaware corporation (the “Company”), on the one hand, and Caligan Partners LP, a Delaware limited partnership,
Caligan Partners CV II LP, a Cayman Islands exempted limited partnership, David E. Johnson, an individual, and Paul Fonteyne, an
individual (the foregoing, collectively with each of their respective Affiliates, the “Investor Group”), on
the other hand. The Company and the Investor Group are each herein referred to as a “party” and collectively, the “parties.”
WHEREAS, on
August 15, 2019, certain members of the Investor Group filed a Schedule 13D with the SEC, which was subsequently amended on September
4, 2019 (as amended, the “Schedule 13D”);
WHEREAS, on September
16, 2019, the Investor Group and certain other participants filed a definitive consent statement (the “Consent Statement”)
soliciting written consents from the stockholders of the Company (the “Consent Solicitation”) to vote in favor
of certain proposals, including the removal of four incumbent members of the Board of Directors of the Company (the “Board”)
and the election of David Johnson, Paul Fonteyne, Kenneth Shea and Lisa Gersh to fill the resulting vacancies; and
WHEREAS, the Company
and the Investor Group have determined to come to an agreement with respect to the composition of the Board and certain other matters,
as provided in this Agreement;
NOW, THEREFORE, in
consideration of the foregoing premises and the mutual covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound hereby,
agree as follows:
1. Board
Composition and Related Matters.
(a) Simultaneous with
the execution and delivery of this Agreement, the Investor Group has withdrawn, and has caused the other participants to the Consent
Solicitation Group to withdraw, the Consent Solicitation by submitting a withdrawal to the Company in the form attached hereto
as Exhibit A.
(b) Simultaneous with
the execution and delivery of this Agreement, Paul Fonteyne and David Johnson (each, an “Investor Group Designee”
and together, the “Investor Group Designees”) have each executed and delivered to the Company an irrevocable
conditional letter of resignation from the Board in the form attached hereto as Exhibit B (the “Resignation Letter”).
(c) Effective upon the
execution and delivery of this Agreement, the Board shall increase the size of the Board to eleven directors and appoint the Investor
Group Designees to the Board to fill the vacancies resulting from the increase in the size of the Board. Effective at the conclusion
of the Company’s 2020 Annual Meeting of Stockholders (the “2020 Annual Meeting”), the size of the Board
shall be reduced to nine directors (including the Investor Group Designees, provided they are elected by the Company’s shareholders
at the 2020 Annual Meeting) and shall not thereafter exceed nine directors until the Termination Date unless at least two-thirds
of the members of the Board approve an increase in the size of the Board.
(d) Subject to the Company’s
Corporate Governance Guidelines and applicable stock exchange rules, concurrently with their appointments to the Board, Mr. Fonteyne
shall be appointed to the Compensation Committee of the Board and Mr. Johnson shall be appointed to the Audit Committee of the
Board, and the Company agrees to maintain such committee appointments during the term of this Agreement, as long as Mr. Fonteyne
and Mr. Johnson, respectively, continue to serve on the Board.
(e) Until the Termination
Date, the Company shall, with respect to any Stockholder Meeting at which directors are to be elected, (i) include the Investor
Group Designees as nominees for election to the Board in the Company’s proxy statement and proxy card for such meeting, (ii)
recommend to the stockholders of the Company the election of the Investor Group Designees to the Board and (iii) solicit proxies
in favor of the election of the Investor Group Designees to the Board in a manner no less rigorous and favorable than the manner
in which the Company supports its other nominees. In connection with the foregoing, each Investor Group Designee consents to be
named by the Company as a nominee for election to the Board in any applicable proxy statement, proxy card or other solicitation
materials of the Company, and agrees, if elected to continue to act in the capacity of a director of the Company and to serve the
full term as a director.
(f) The Investor Group
and each of the Investor Group Designees agree that, in each Investor Group Designee’s capacity as a director of the Company,
such Investor Group Designee shall comply with the terms of the Company’s Amended and Restated Certificate of Incorporation
(as may be amended from time to time, the “Charter”), Amended and Restated By-Laws (as may be amended from time
to time, the “By-Laws”), committee charters, corporate governance, ethics, conflict of interest, confidentiality,
stock ownership and trading policies and guidelines and similar governance documents that are generally applicable to the Company’s
directors.
(g) The Investor Group
and each of the Investor Group Designees agree that the Board or any committee thereof, in the exercise of its fiduciary duties,
may recuse the Investor Group Designees from any portion of a Board or committee meeting, and restrict access to information of
the Company, to the extent relating to (i) this Agreement, including the interpretation and enforcement thereof; (ii) any demand
made by any member of the Investor Group or any of their respective Affiliates if such demand is coupled, expressly or implied,
with the threat to take any of the actions prohibited in Sections 3(a) through 3(m); (iii) any proposed transaction
between the Company and any member of the Investor Group or any participant to the Consent Solicitation, or any of their respective
Affiliates; or (iv) Ypsomed AG, solely with respect to Mr. Fonteyne and only so long as Mr. Fonteyne sits on the Board of Directors
of Ypsomed AG. For the avoidance of doubt, the Investor Group acknowledges and agrees that: (A) consistent with his fiduciary duties
as a director of the Company, each Investor Group Designee is obligated to consider in good faith, to the same extent as any other
director of the Company, recusal from any Board or committee meeting in the event there is any other actual or potential conflict
of interest between the Investor Group or an Investor Group Designee, on the one hand, and the Company, on the other hand; and
(B) the Board may restrict the Investor Group Designees’ access to information of the Company to the same extent it would
for any other director of the Company, in accordance with applicable law.
(h) Other than as agreed
to by the Company, the Investor Group and each of the Investor Group Designees agree that there shall be no contracts, plans or
arrangements, written or otherwise, in effect during the term of this Agreement, between any members of the Investor Group (other
than the Investor Group Designees) and an Investor Group Designee providing for any compensation, reimbursement of expenses or
indemnification of such Investor Group Designee solely in connection with or related to such Investor Group Designee’s service
on the Board.
(i) The Investor Group
acknowledges and agrees that if at any time during the term of this Agreement, the Investor Group’s aggregate Net Long Position
falls below the lesser of (x) five percent of the outstanding common stock of the Company, par value $0.01 per share (the “Common
Stock”) or (y) 1,700,000 shares of Common Stock (in each case, subject to adjustment for stock splits, reclassifications
and combinations, the “Ownership Minimum”), (i) the rights of the members of the Investor Group and the obligations
of the Company pursuant to this Section 1 shall terminate immediately and (ii) the Investor Group Designees shall be
obligated to immediately tender their resignations pursuant to the Resignation Letters (it being understood that the Board shall
have the right to decline one or both of the resignations).
(j) Until the Termination
Date and as long as the Investor Group’s Net Long Position exceeds the Ownership Minimum, in the event that (x) David E.
Johnson (or any Replacement Designee for him) is no longer able to serve as a director of the Company due to death, disability
or other incapacity or (y) Paul Fonteyne (or any Replacement Designee for him) is no longer able or willing to serve as a director
of the Company for any reason, then the members of the Investor Group shall be entitled to designate, subject to the approval (not
to be unreasonably withheld) of the Governance and Risk Committee of the Board (the “Governance and Risk Committee”),
a candidate for replacement of such Investor Group Designee (such replacement, a “Replacement Designee”). Any
Replacement Designee shall qualify as an Independent Director (disregarding, solely in respect of any Replacement Designee for
Mr. Johnson, clause (ii) of such definition). The Governance and Risk Committee shall, in good faith and consistent with its fiduciary
duties, approve or deny any candidate for Replacement Designee within 10 Business Days after such candidate has: (i) successfully
completed a customary background check; (ii) completed a satisfactory interview with the Governance and Risk Committee; (iii) provided
the Company with (A) a completed director questionnaire (in the form to be provided by the Company), (B) executed a joinder to
this Agreement to join such Replacement Designee to this Agreement as an Investor Group Designee hereunder, (C) an executed Resignation
Letter and (D) such other information and agreements as may be reasonably requested by the Company and (iv) agreed to take all
necessary action not be considered to be “overboarded” under the applicable policies of Institutional Shareholder Services,
Inc. (“ISS”), Glass Lewis & Co., LLC (“Glass Lewis”), BlackRock, Inc., The Vanguard Group,
and/or State Street Corporation as a result of his or her appointment to the Board. In the event the Governance and Risk Committee
declines to approve a candidate for Replacement Designee, (x) any agreements provided by such candidate pursuant to the previous
sentence shall be null and void and of no effect and (y) the members of the Investor Group may propose one or more additional candidates,
subject to the approval process described above, until a Replacement Designee is approved by the Governance and Risk Committee.
Following the approval of a candidate for Replacement Designee by the Governance and Risk Committee, the Board shall promptly appoint
such Replacement Designee to the Board. Upon his or her appointment to the Board, such Replacement Designee shall be deemed an
Investor Group Designee for all purposes under this Agreement.
2. Voting Commitment. Until the
Termination Date, the members of the Investor Group shall, or shall cause its Affiliates and Associates to, appear in person or
by proxy at each Stockholder Meeting and to vote all shares of Common Stock beneficially owned by it and over which it has voting
power in accordance with the Board’s recommendations as such recommendations of the Board are set forth in the applicable
definitive proxy or consent statement filed in respect thereof with respect to (a) the election, removal and/or replacement of
directors (a “Director Proposal”) and (b) any other proposal submitted to the stockholders at a Stockholder
Meeting, other than a proposal with respect to an Extraordinary Transaction; provided, however, that in the event either
ISS or Glass Lewis issues a voting recommendation that differs from the voting recommendation of the Board with respect to any
Company proposal (other than Director Proposals) presented at any Stockholder Meeting, the members of the Investor Group shall
be permitted to vote all or some shares of Common Stock they beneficially own and over which they have voting power at such Stockholder
Meeting in accordance with such ISS or Glass Lewis recommendation.
3. Standstill.
Prior to the Termination Date, except as otherwise provided in this Agreement (including Section 11(a)), without the prior
written consent of the Board, the members of the Investor Group shall not, and shall instruct their Affiliates, not to, directly
or indirectly (in each case, except as permitted by this Agreement):
(a) (i) acquire, offer
or seek to acquire, agree to acquire or acquire rights to acquire (except by way of stock dividends or other distributions or offerings
made available to holders of voting securities of the Company generally on a pro rata basis), directly or indirectly, whether by
purchase, tender or exchange offer, through the acquisition of control of another person, by joining a group, through swap or hedging
transactions or otherwise, any voting securities of the Company (other than through a broad-based market basket or index) or any
voting rights decoupled from the underlying voting securities which would result in the ownership or control of, or other beneficial
ownership interest in, 12.5% or more than of the then-outstanding shares of the Common Stock in the aggregate (the “Ownership
Cap”); provided, however, that the Board may increase the Ownership Cap by an affirmative vote of a majority
of the Board; or (ii) sell or otherwise transfer its shares of Common Stock, other than in open market sale transactions where
the identity of the purchaser is not known and in underwritten widely dispersed public offerings, to any Third Party that, to the
Investor Group’s knowledge (after due inquiry in connection with a private, non-open market transaction, it being understood
that such knowledge shall be deemed to exist with respect to any publicly available information, including information in documents
filed with the SEC), would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise
having any beneficial or other ownership interest in the aggregate of more than 4.9% of the shares of Common Stock outstanding
at such time or would increase the beneficial ownership interest of any Third Party who, together with its Affiliates and Associates,
has a beneficial or other ownership interest in the aggregate of more than 4.9% of the shares of Common Stock outstanding at such
time;
(b) (i) other than pursuant
to Section 1(j) of this Agreement, nominate, recommend for nomination or give notice of an intent to nominate or recommend
for nomination a person for election at any Stockholder Meeting at which the Company’s directors are to be elected; (ii)
knowingly initiate, encourage or participate in any solicitation of proxies or consents in respect of any election contest or removal
contest at any Stockholder Meeting with respect to the Company’s directors; (iii) submit, initiate, make or be a proponent
of any stockholder proposal for consideration at, or bring any other business before, any Stockholder Meeting; (iv) knowingly initiate,
encourage or participate in any solicitation of proxies or consents in respect of any stockholder proposal for consideration at,
or other business brought before, any Stockholder Meeting; or (v) knowingly initiate, encourage or participate in any “withhold,”
“against” or similar campaign with respect to any Stockholder Meeting;
(c) form, join or in
any way participate in any group or agreement of any kind with respect to any voting securities of the Company, including in connection
with any election or removal contest with respect to the Company’s directors or any stockholder proposal or other business
brought before any Stockholder Meeting (other than with the members of the Investor Group or one or more of their Affiliates and
Associates who are instructed to comply by the terms and conditions of this Agreement);
(d) deposit any voting
securities of the Company in any voting trust or subject any Company voting securities to any arrangement or agreement with respect
to the voting thereof (other than any such voting trust, arrangement or agreement solely among members of the Investor Group and
otherwise in accordance with this Agreement);
(e) seek publicly, alone
or in concert with others, to amend any provision of the Charter or By-Laws;
(f) demand an inspection
of the Company’s books and records;
(g) (i) make any public
or private proposal with respect to or (ii) make any public statement or otherwise seek to encourage, advise or assist any person
in so encouraging or advising with respect to: (A) any change in the number or term of directors serving on the Board or the filling
of any vacancies on the Board, (B) any change in the capitalization or dividend policy of the Company, (C) any other change in
the Company’s management, governance, corporate structure, affairs or policies, (D) any Extraordinary Transaction, (E) causing
a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange
or (F) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section
12(g)(4) of the Exchange Act;
(h) knowingly initiate,
make or in any way participate, directly or indirectly, in any Extraordinary Transaction or make, directly or indirectly, any proposal,
either alone or in concert with others, to the Company or the Board that would reasonably be expected to require a public announcement
or disclosure regarding any such matter;
(i) effect or seek to effect,
offer or propose to effect, cause or participate in, or in any way knowingly assist or facilitate any other person to effect or
seek, offer or propose to effect or participate in, any (i) material acquisition of any assets or businesses of the Company or
any of its subsidiaries; (ii) tender offer or exchange offer, merger, acquisition, share exchange or other business combination
involving any of the voting securities or any of the material assets or businesses of the Company or any of its subsidiaries; or
(iii) recapitalization, restructuring, liquidation, dissolution or other material transaction with respect to the Company or any
of its subsidiaries or any material portion of its or their businesses;
(j) enter into any negotiations,
agreements or understandings with any Third Party with respect to the foregoing, or advise, assist, encourage or seek to persuade
any Third Party to take any action with respect to any of the foregoing, or otherwise take or cause any action inconsistent with
any of the foregoing;
(k) publicly make or
in any way advance publicly any request or proposal that the Company or the Board amend, modify or waive any provision of this
Agreement; or
(l) take any action challenging
the validity or enforceability of this Section 3 or this Agreement unless the Company is challenging the validity or enforceability
of this Agreement;
provided, however,
that (x) the restrictions in this Section 3 shall not prevent the members of the Investor Group from making (1) any factual
statement as required by applicable legal process, subpoena or legal requirement from any governmental authority with competent
jurisdiction over the party from whom information is sought (so long as such request did not arise as a result of action by any
of the members of the Investor Group) or (2) any confidential communication to the Company that would not be reasonably expected
to trigger public disclosure obligations for either party and (y) the restrictions in this Section 3 shall not restrict
the members of the Investor Group from tendering shares, receiving payment for shares or otherwise participating in any such transaction
on the same basis as the other stockholders of the Company or from participating in any such transaction that has been approved
by the Board, subject to the other terms of this Agreement. For the avoidance of doubt, nothing in this Section 3 shall
be deemed to limit the exercise in good faith by an Investor Group Designee of his fiduciary duties in his capacity as a director
of the Company.
4. No Public Statements.
Prior to the Termination Date, without the prior written consent of the other party, neither party shall, nor shall it permit any
of its Representatives to issue any press release, make any public statement, or speak on the record or on background with the
media about the other party, the other party’s current or former directors in their capacity as such, officers or employees
(including with respect to such persons’ service at the other party), the other party’s subsidiaries, or the business
of the other party’s subsidiaries or any of its or its subsidiaries’ current directors, officers or employees, including
the business and current or former directors, officers and employees of the other party’s controlled Affiliates, as applicable.
The restrictions in this Section 4 shall not (a) apply (i) in any compelled testimony or production of information,
whether by legal process, subpoena or as part of a response to a request for information from any governmental or regulatory authority
with jurisdiction over the party from whom information is sought, in each case, to the extent required, or (ii) to any disclosure
that such party reasonably believes, after consultation with outside counsel, to be legally required by applicable law, rules or
regulations; or (b) prohibit any party from reporting what it reasonably believes, after consultation with outside counsel, to
be violations of federal law or regulation to any governmental authority pursuant to Section 21F of the Exchange Act or Rule 21F
promulgated thereunder. Each party hereto agrees that, prior to the Termination Date, it shall not engage or continue to engage
or use any private investigation firm or other person to investigate any of the other party’s directors, officers, employees
or Representatives, or use any report or findings from such firm or person.
5. No Litigation.
Prior to the Termination Date, each party hereby covenants and agrees that it shall not, and shall not permit any of its Representatives
to, directly or indirectly, alone or in concert with others, encourage, pursue or assist any other person to threaten or initiate,
any lawsuit, claim or proceeding before any court (each, a “Legal Proceeding”) against the other party or any
of its Representatives, except for (a) any Legal Proceeding initiated primarily to remedy a breach of or to enforce this Agreement
and (b) counterclaims with respect to any proceeding initiated by, or on behalf of one party or its Affiliates against the other
party or its Affiliates; provided, however, that the foregoing shall not prevent any party or any of its Representatives
from responding to oral questions, interrogatories, requests for information or documents, subpoenas, civil investigative demands
or similar processes (each, a “Legal Requirement”) in connection with any Legal Proceeding if such Legal Proceeding
has not been initiated by, on behalf of or at the direct or indirect suggestion of such party or any of its Representatives; provided,
further, that in the event any party or any of its Representatives receives such Legal Requirement, such party shall give
prompt written notice of such Legal Requirement to the other party (except where such notice would be legally prohibited or not
practicable). Each party represents and warrants that neither it nor any assignee has filed any lawsuit against the other party.
6. Public Statements;
SEC Filings.
(a) No later than two
Business Days following the date of this Agreement, the Company shall issue a press release (the “Press Release”)
announcing this Agreement, substantially in the form attached hereto as Exhibit C. Prior to the issuance of the Press Release,
neither the Company nor the members of the Investor Group shall issue any press release or public announcement regarding this Agreement
or take any action that would require public disclosure thereof without the prior written consent of the other party.
(b) No later than two
Business Days following the date of this Agreement, the Company shall file with the SEC a Current Report on Form 8-K reporting
its entry into this Agreement, disclosing applicable items to conform to its obligations hereunder and appending this Agreement
as an exhibit thereto (the “Form 8-K”). The Form 8-K shall be consistent with the terms of this Agreement and
the Press Release. The Company shall provide the members of the Investor Group and their Representatives with a reasonable opportunity
to review and comment on the Form 8-K prior to the filing with the SEC and consider in good faith any comments of the members of
the Investor Group and their Representatives.
(c) No later than two
Business Days following the date of this Agreement, the Investor Group shall file with the SEC an amendment to its Schedule 13D;
in compliance with Section 13 of the Exchange Act reporting its entry into this Agreement, disclosing applicable items to conform
to its obligations hereunder and including the terms of this Agreement and including this Agreement as an exhibit thereto (the
“Schedule 13D Amendment”). The Schedule 13D Amendment shall be consistent with the terms of this Agreement
and the Press Release. The Investor Group shall provide the Company and its Representatives with a reasonable opportunity to review
the Schedule 13D Amendment prior to it being filed with the SEC and consider in good faith any comments of the Company and its
Representatives.
7.
Confidentiality.
(a) For so long as the
Investor Group Designees are serving as directors on the Board, the Investor Group and its Representatives may receive confidential
information of the Company from the Investor Group Designees which they learn in their capacity as a director of the Company, including
discussions or matters considered in meetings of the Board or Board committees (collectively and individually, “Confidential
Information”); provided, however, that the Investor Group and each Investor Group Designee shall have executed
a confidentiality agreement with the Company in the form attached hereto as Exhibit D (a “Confidentiality Agreement”)
prior to the receipt of Confidential Information by the members of the Investor Group or their Representatives from the Investor
Group Designees; provided, further, that in the event that a Replacement Designee is appointed to the Board pursuant to
Section 1(j), the Investor Group and its Representatives may not receive Confidential Information from such Replacement
Designee unless and until the Company, the Investor Group and such Replacement Designee shall have executed an amendment or joinder
to the applicable Confidentiality Agreement to join such Replacement Designee to the Confidentiality Agreement as the Investor
Group Designee thereunder.
(b) For the avoidance
of doubt, the parties acknowledge and agree that the obligations of the Investor Group and the Investor Group Designees under this
Section 7 shall be in addition to, and not in lieu of, the Investor Group Designees’ confidentiality obligations under
Delaware law and the Charter, By-Laws and applicable corporate governance policies of the Company; provided, that in the
event of a conflict between an Investor Group Designee’s confidentiality obligations under the applicable corporate governance
policies of the Company and those in the Confidentiality Agreement, the terms of the Confidentiality Agreement shall control.
8. Compliance with
Securities Laws. The Investor Group acknowledges that it understands its obligations under the U.S. securities laws. Subject
to compliance with such laws, the members of the Investor Group and their Representatives shall in any event be free to trade or
engage in such transactions during periods when the members of the Board are permitted to do so, and the Company shall notify the
members of the Investor Group at the email address set forth in Section 13 reasonably in advance when such “open window”
director trading periods begin and end. The Company acknowledges that none of the provisions herein shall in any way limit the
activities of the members of the Investor Group or their Representatives in their respective ordinary course of businesses if such
activities will not violate applicable securities laws or the obligations specifically agreed to under this Agreement. In addition,
nothing contained in this Agreement shall restrict the ability of the members of the Investor Group or their Representatives from
purchasing, selling or otherwise trading securities of the Company pursuant to any Rule 10b5-1 trading plan adopted prior to the
execution of this Agreement.
9. Affiliates and Associates.
Each party shall instruct its controlled Affiliates and Associates to comply with the terms of this Agreement and shall be responsible
for any breach of this Agreement by any such controlled Affiliate or Associate. A breach of this Agreement by a controlled Affiliate
or Associate of a party, if such controlled Affiliate or Associate is not a party to this Agreement, shall be deemed to occur if
such controlled Affiliate or Associate engages in conduct that would constitute a breach of this Agreement if such controlled Affiliate
or Associate was a party to the same extent as a party to this Agreement.
10.
Representations and Warranties.
(a) The Investor Group represents
and warrants that it has full power and authority to execute, deliver and carry out the terms and provisions of this Agreement
and to consummate the transactions contemplated hereby, and that this Agreement has been duly and validly executed and delivered
by it, constitutes a valid and binding obligation and agreement of it and is enforceable against it in accordance with its terms.
The Investor Group represents that the execution of this Agreement, the consummation of any of the transactions contemplated hereby,
and the fulfillment of the terms hereof, in each case in accordance with the terms hereof, will not conflict with, or result in
a breach or violation of the organizational documents of it as currently in effect, the execution, delivery and performance of
this Agreement by it does not and will not violate or conflict with (i) any law, rule, regulation, order, judgment or decree applicable
to it or (ii) result in any breach or violation of or constitute a default (or an event which with notice or lapse of time or both
could constitute such a breach, violation or default) under or pursuant to, or result in the loss of a material benefit under,
or give any right of termination, amendment, acceleration or cancellation of, any organizational document, agreement, contract,
commitment, understanding or arrangement to which it is a party or by which it is bound. The Investor Group represents and warrants
that, as of the date of this Agreement, it beneficially owns an aggregate of 3,499,428 shares of Common Stock. The Investor Group
represents and warrants that it has voting authority over such shares and owns no Synthetic Equity Interests or any Short Interests
in the Company. The Investor Group makes the representations, warranties and covenants on Schedule A hereto.
(b) The Company hereby
represents and warrants that it has the power and authority to execute, deliver and carry out the terms and provisions of this
Agreement and to consummate the transactions contemplated hereby, and that this Agreement has been duly and validly authorized,
executed and delivered by the Company, constitutes a valid and binding obligation and agreement of the Company and is enforceable
against the Company in accordance with its terms. The Company represents that the execution of this Agreement, the consummation
of any of the transactions contemplated hereby, and the fulfillment of the terms hereof, in each case in accordance with the terms
hereof, will not conflict with, or result in a breach or violation of the organizational documents of the Company as currently
in effect, the execution, delivery and performance of this Agreement by the Company does not and will not violate or conflict with
(i) any law, rule, regulation, order, judgment or decree applicable to the Company or (ii) result in any breach or violation of
or constitute a default (or an event which with notice or lapse of time or both could constitute such a breach, violation or default)
under or pursuant to, or result in the loss of a material benefit under, or give any right of termination, amendment, acceleration
or cancellation of, any organizational document, agreement, contract, commitment, understanding or arrangement to which the Company
is a party or by which it is bound.
11. Termination.
(a) This Agreement shall
terminate on the date that is 30 calendar days prior to the Notice Deadline for the Company’s 2021 Annual Meeting of Stockholders
(the “2021 Annual Meeting”) (the date of termination, the “Termination Date”); provided,
however, that in the event that both (i) the Company delivers written notice to the Investor Group of its intent to nominate
the Investor Group Designees for election to the Board and to comply with its obligations under Section 1(e) with respect
to the 2021 Annual Meeting at least 45 calendar days prior to the Notice Deadline for the 2021 Annual Meeting, and (ii) the Investor
Group and each Investor Group Designees consent, in writing, to such renominations (which consent by such Investor Group Designee
shall be deemed a consent to be named by the Company as a nominee for election to the Board in any proxy statement, proxy card
or other solicitation materials of the Company with respect to the 2021 Annual Meeting, and to continue to act in the capacity
of a director of the Company if elected and serve the full term as a director if elected) by the date that is 31 calendar days
prior to the Notice Deadline for the 2021 Annual Meeting, then the Termination Date shall be extended to the date that is 30 calendar
days prior to the Notice Deadline for the Company’s 2022 Annual Meeting of Stockholders. For the avoidance of doubt, nothing
in this Section 11(a) shall require the Company to nominate the Investor Group Designees for election to the Board at any
Stockholder Meeting occurring after the Termination Date. Notwithstanding anything to the contrary in this Agreement:
(i) the obligations
of the Investor Group pursuant to Sections 1, 2, 3, 4 and 5 shall terminate in the event
that the Company materially breaches its obligations to the Investor Group pursuant to Sections 1, 4 or 5,
or the representations and warranties in Section 10(b) of this Agreement and such breach (if capable of being cured)
has not been cured within 30 calendar days following written notice of such breach from the Investor Group, or, if impossible to
cure within 30 calendar days, the Company has not taken substantive action to correct within 30 calendar days following written
notice of such breach from the Investor Group; provided, however, that the obligations of the Investor Group pursuant
to Section 5 shall terminate immediately in the event that the Company materially breaches its obligations to the Investor
Group under Section 5; and
(ii) the
obligations of the Company to the Investor Group pursuant to Sections 1, 4 and 5 shall terminate in the
event that (A) the Investor Group materially breaches its obligations in Sections 1, 2, 3, 4,
5, 7 or 8, the representations and warranties in Section 10(a) or under a Confidentiality Agreement
or (B) an Investor Group Designee materially breaches its obligations under Sections 1 or 7 or under the Confidentiality
Agreement, and such breach (if capable of being cured) has not been cured within 30 calendar days following written notice of such
breach, or, if impossible to cure within 30 calendar days, the Investor Group or such Investor Group Designee, as applicable, has
not taken substantive action to correct within 30 calendar days following written notice of such breach from the Company; provided,
however, that the obligations of the Company to the Investor Group pursuant to Section 5 shall terminate immediately
in the event that the Investor Group materially breaches its obligations under Section 5.
(b) If this Agreement
is terminated in accordance with this Section 11, this Agreement shall forthwith become null and void, but no termination
shall relieve either party from liability for any breach of this Agreement prior to such termination.
12. Expenses.
The Company shall reimburse the Investor Group for its reasonable, documented out-of-pocket fees and expenses (including legal
expenses) incurred in connection with the subject matter of this Agreement, provided that such reimbursement shall not exceed $750,000
in the aggregate.
13. Notices.
All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to have been given (a) when delivered by hand, with written confirmation of receipt; (b)
upon sending if sent by electronic mail to the electronic mail addresses below, with confirmation of receipt from the receiving
party by electronic mail; (c) one Business Day after being sent by a nationally recognized overnight carrier to the addresses set
forth below; or (d) when actually delivered if sent by any other method that results in delivery, with written confirmation of
receipt:
If to the Company:
AMAG Pharmaceuticals, Inc.
1100 Winter Street
Waltham, MA 02451
Attn: Joseph D. Vittiglio, General
Counsel,
EVP and Corporate Secretary
Email: jvittiglio@amagpharma.com
|
|
with mandatory copies (which shall not
constitute notice) to:
Sidley Austin LLP
787 Seventh Avenue
New York, NY 10019
Attn: Kai H. Liekefett
Derek Zaba
Email: kliekefett@sidley.com
dzaba@sidley.com
Goodwin Procter LLP
100 Northern Avenue
Boston, MA 02210
Attn: Stuart M. Cable
Email: scable@goodwinlaw.com
|
|
|
|
If to the Investor Group:
Caligan Partners LP
520 Madison Avenue
New York, NY 10022
Attn: David E. Johnson
Email: dj@caliganpartners.com
|
|
with mandatory copies (which shall not
constitute notice) to:
Schulte Roth & Zabel LLP
919 Third Avenue
New York, NY 10022
Attn: Eleazer Klein
Email: eleazer.klein@srz.com
|
14. Governing Law;
Jurisdiction; Jury Waiver. This Agreement, and any disputes arising out of or related to this Agreement (whether for breach
of contract, tortious conduct or otherwise), shall be governed by, and construed in accordance with, the laws of the State of Delaware,
without giving effect to its conflict of laws principles. The parties agree that exclusive jurisdiction and venue for any Legal
Proceeding arising out of or related to this Agreement shall exclusively lie in the Court of Chancery of the State of Delaware
or, if such Court does not have subject matter jurisdiction, the Superior Court of the State of Delaware or, if jurisdiction is
vested exclusively in the Federal courts of the United States, the Federal courts of the United States sitting in the State of
Delaware, and any appellate court from any such state or Federal court. Each party waives any objection it may now or hereafter
have to the laying of venue of any such Legal Proceeding, and irrevocably submits to personal jurisdiction in any such court in
any such Legal Proceeding and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any court
that any such Legal Proceeding brought in any such court has been brought in any inconvenient forum. Each party consents to accept
service of process in any such Legal Proceeding by service of a copy thereof upon either its registered agent in the State of Delaware
or the Secretary of State of the State of Delaware, with a copy delivered to it by certified or registered mail, postage prepaid,
return receipt requested, addressed to it at the address set forth in Section 13. Nothing contained herein shall be
deemed to affect the right of any party to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.
15. Specific Performance.
Each party to this Agreement acknowledge and agree that the other party would be irreparably injured by an actual breach of this
Agreement by the first-mentioned party or its Representatives and that monetary remedies may be inadequate to protect either party
against any actual or threatened breach or continuation of any breach of this Agreement. Without prejudice to any other rights
and remedies otherwise available to the parties under this Agreement, each party shall be entitled to equitable relief by way of
injunction or otherwise and specific performance of the provisions hereof upon satisfying the requirements to obtain such relief
without the necessity of posting a bond or other security, if the other party or any of its Representatives breach or threaten
to breach any provision of this Agreement. Such remedy shall not be deemed to be the exclusive remedy for a breach of this Agreement,
but shall be in addition to all other remedies available at law or equity to the non-breaching party.
16. Certain Definitions and Interpretations.
As used in this Agreement: (a) the terms “Affiliate” and “Associate” (and any plurals thereof)
have the meanings ascribed to such terms under Rule 12b-2 promulgated by the SEC under the Exchange Act and shall include all persons
or entities that at any time prior to the Termination Date become Affiliates or Associates of any applicable person or entity referred
to in this Agreement; provided, however, that the term “Associate” shall refer only to Associates controlled
by the Company or the members of the Investor Group, as applicable; provided, further, that, for purposes of this Agreement,
the members of the Investor Group shall not be Affiliates or Associates of the Company and the Company shall not be an Affiliate
or Associate of the members of the Investor Group; (b) the term “Annual Meeting” means each annual meeting of
stockholders of the Company and any adjournment, postponement, rescheduling or continuation thereof; (c) the terms “beneficial
ownership,” “group,” “participant,” “person,” “proxy”
and “solicitation” (and any plurals thereof) have the meanings ascribed to such terms under the Exchange Act
and the rules and regulations promulgated thereunder, provided, that the meaning of “solicitation” shall be
without regard to the exclusions set forth in Rules 14a-1(l)(2)(iv) and 14a-2 under the Exchange Act; (d) the term “Business
Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in the State of New York are
authorized or obligated to be closed by applicable law; (e) the term “Exchange Act” means the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder; (f) the term “Extraordinary Transaction”
means any tender offer, exchange offer, merger, consolidation, acquisition, business combination, sale, recapitalization, restructuring,
or other transaction with a third party that, in each case, that results in a change in control of the Company or the sale of substantially
all of its assets; (g) the term “Independent Director” means an individual that (i) qualifies as an “independent
director” under applicable rules of the SEC, the rules of any stock exchange on which the Company is traded and applicable
governance policies of the Company and (ii) is not an employee, principal, Affiliate or Associate of the members of the Investor
Group or any of their Affiliates or Associates; (h) the term “Net Long Position” means such shares of Common
Stock beneficially owned, directly or indirectly, that constitute such person’s net long position as defined in Rule 14e-4
under the Exchange Act mutatis mutandis, provided that “Net Long Position” shall not include any shares as to
which such person does not have the right to vote or direct the vote other than as a result of being in a margin account, or as
to which such person has entered into a derivative or other agreement, arrangement or understanding that hedges or transfers, in
whole or in part, directly or indirectly, any of the economic consequences of ownership of such shares; and the terms “person”
or “persons,” for purposes of the meaning of the term “Net Long Position,” means any individual,
corporation (including not-for-profit), general or limited partnership, limited liability or unlimited liability company, joint
venture, estate, trust, associate, organization or other entity of any kind or nature; (i) “Notice Deadline”
means the notice deadline under the By-Laws for the nomination of director candidates for election to the Board; (j) the term “Representatives”
means (i) a person’s Affiliates and Associates and (ii) its and their respective directors, officers, employees, partners,
members, managers, consultants, legal or other advisors, agents and other representatives acting in a capacity on behalf of, in
concert with or at the direction of such person or its Affiliates or Associates; (k) the term “SEC” means the
U.S. Securities and Exchange Commission; (l) the term “Short Interests” means any agreement, arrangement, understanding
or relationship, including any repurchase or similar so-called “stock borrowing” agreement or arrangement, engaged
in, directly or indirectly, by such person, the purpose or effect of which is to mitigate loss to, reduce the economic risk (of
ownership or otherwise) of shares of any class or series of the Company’s equity securities by, manage the risk of share
price changes for, or increase or decrease the voting power of, such person with respect to the shares of any class or series of
the Company’s equity securities, or that provides, directly or indirectly, the opportunity to profit from any decrease in
the price or value of the shares of any class or series of the Company’s equity securities; (m) the term “Stockholder
Meeting” means each annual or special meeting of stockholders of the Company, or any action by written consent of the
Company’s stockholders in lieu thereof, and any adjournment, postponement, rescheduling or continuation thereof; (n) the
term “Synthetic Equity Interests” means any derivative, swap or other transaction or series of transactions
engaged in, directly or indirectly, by such person, the purpose or effect of which is to give such person economic risk similar
to ownership of equity securities of any class or series of the Company, including due to the fact that the value of such derivative,
swap or other transactions are determined by reference to the price, value or volatility of any shares of any class or series of
the Company’s equity securities, or which derivative, swap or other transactions provide the opportunity to profit from any
increase in the price or value of shares of any class or series of the Company’s equity securities, without regard to whether
(i) the derivative, swap or other transactions convey any voting rights in such equity securities to such person; (ii) the
derivative, swap or other transactions are required to be, or are capable of being, settled through delivery of such equity securities;
or (iii) such person may have entered into other transactions that hedge or mitigate the economic effect of such derivative, swap
or other transactions; and (o) the term “Third Party” refers to any person that is not a party, a member of
the Board, a director or officer of the Company, or legal counsel to either party. In this Agreement, unless a clear contrary intention
appears, (i) the word “including” (in its various forms) means “including, without limitation;” (ii) the
words “hereunder,” “hereof,” “hereto” and words of similar import are references in this Agreement
as a whole and not to any particular provision of this Agreement; (iii) the word “or” is not exclusive; (iv) references
to “Sections” in this Agreement are references to Sections of this Agreement unless otherwise indicated; and (v) whenever
the context requires, the masculine gender shall include the feminine and neuter genders.
17.
Miscellaneous.
(a) This Agreement, including
all exhibits hereto, with the exception of the Confidentiality Agreement, contains the entire agreement between the parties and
supersedes all other prior agreements and understandings, both written and oral, between the parties with respect to the subject
matter hereof.
(b) This Agreement is
solely for the benefit of the parties and is not enforceable by any other persons.
(c) This Agreement shall
not be assignable by operation of law or otherwise by a party without the consent of the other party. Any purported assignment
without such consent is void ab initio. Subject to the foregoing sentence, this Agreement shall be binding upon, inure to
the benefit of, and be enforceable by and against the permitted successors and assigns of each party.
(d) Neither the failure
nor any delay by a party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power
or privilege hereunder.
(e) If any term, provision,
covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. It is hereby stipulated and declared to be the intention of the parties that the
parties would have executed the remaining terms, provisions, covenants and restrictions without including any of such which may
be hereafter declared invalid, void or unenforceable. In addition, the parties agree to use their reasonable best efforts to agree
upon and substitute a valid and enforceable term, provision, covenant or restriction for any of such that is held invalid, void
or unenforceable by a court of competent jurisdiction.
(f) Any amendment or
modification of the terms and conditions set forth herein or any waiver of such terms and conditions must be agreed to in a writing
signed by each party.
(g) This Agreement may
be executed in one or more textually identical counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same agreement. Signatures to this Agreement transmitted by facsimile transmission, by electronic
mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve
the original graphic and pictorial appearance of a document, shall have the same effect as physical delivery of the paper document
bearing the original signature.
(h) Each of the parties
acknowledges that it has been represented by counsel of its choice throughout all negotiations that have preceded the execution
of this Agreement, and that it has executed this Agreement with the advice of such counsel. Each party and its counsel cooperated
and participated in the drafting and preparation of this Agreement, and any and all drafts relating thereto exchanged among the
parties will be deemed the work product of all of the parties and may not be construed against any party by reason of its drafting
or preparation. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this
Agreement against any party that drafted or prepared it is of no application and is hereby expressly waived by each of the parties,
and any controversy over interpretations of this Agreement will be decided without regard to events of drafting or preparation.
(i) The headings set
forth in this Agreement are for convenience of reference purposes only and will not affect or be deemed to affect in any way the
meaning or interpretation of this Agreement or any term or provision of this Agreement
[Signature Pages Follow]
IN WITNESS WHEREOF,
each of the parties has executed this Agreement, or caused the same to be executed by its duly authorized representative, as of
the date first above written.
|
THE COMPANY:
|
|
|
|
AMAG PHARMACEUTICALS, INC.
|
|
|
|
By:
|
/s/
William K. Heiden
|
|
Name:
|
William K. Heiden
|
|
Title:
|
President and Chief Executive Officer
|
Signature
Page to Settlement Agreement
|
INVESTOR GROUP:
|
|
|
|
CALIGAN PARTNERS LP
|
|
|
|
By:
|
/s/
David E. Johnson
|
|
Name:
|
David E. Johnson
|
|
Title:
|
Partner
|
|
|
|
CALIGAN PARTNERS CV I LP
|
|
|
|
By:
|
/s/
David E. Johnson
|
|
Name:
|
David E. Johnson
|
|
Title:
|
Partner
|
|
|
|
DAVID E. JOHNSON
|
|
|
|
/s/
DAVID E. JOHNSON
|
|
|
|
PAUL FONTEYNE
|
|
|
|
/s/
PAUL FONTEYNE
|
Signature
Page to Settlement Agreement
Schedule A
Exhibit A
Form of Consent Solicitation Withdrawal
CALIGAN PARTNERS LP
c/o Caligan Partners LP
520 Madison Avenue
New York, New York 10022
October [●], 2019
AMAG Pharmaceuticals, Inc.
1100 Winter Street
Waltham, MA 02451
Attn: Joseph D. Vittiglio,
General Counsel, Executive Vice President
and Corporate Secretary
Re: Withdrawal
of Consent Solicitation
Dear Mr. Vittiglio:
Caligan Partners LP, a Delaware limited partnership
(“Caligan”), along with Caligan Partners CV II LP, David E. Johnson, Samuel J. Merksamer, Paul Fonteyne, Lisa
Gersh and Kenneth Shea (the foregoing, together with Caligan, the “Consent Solicitation Group”) filed a definitive
consent statement (the “Consent Statement”) on September 16, 2019 in connection with the solicitation of written
consents (the “Consent Solicitation”) from stockholders of AMAG Pharmaceuticals, Inc. (the “Company”).
The purpose of this letter is to provide the
Company with notice that the Consent Solicitation Group hereby terminates the Consent Solicitation and has withdrawn the Consent
Statement, effective immediately upon the execution and delivery of the settlement agreement among the Company, Caligan and other
related parties.
|
Very truly yours,
|
|
|
|
CALIGAN PARTNERS LP
|
|
|
|
|
By:
|
|
|
|
Name: David E. Johnson
|
|
|
Title: Partner
|
Signature
Page to Withdrawal of Consent Solicitation
|
Very Truly Yours,
|
|
|
|
|
|
Name:
|
|
Address:
|
Accepted and Agreed by:
|
|
|
|
AMAG PHARMACEUTICALS, INC.
|
|
|
|
|
|
By:
|
|
Title:
|
|
Signature
Page to Withdrawal of Consent Solicitation
Exhibit B
Form of Resignation
[●], 20[●]
Board of Directors
AMAG Pharmaceuticals, Inc.
1100 Winter Street
Waltham, MA 02451
Re: Resignation
Ladies and Gentlemen:
Reference is made to that
certain Settlement Agreement (the “Agreement”), dated as of [●], 2019, by and among AMAG Pharmaceuticals,
Inc., a Delaware corporation (the “Company”), on the one hand, and Caligan Partners LP, a Delaware limited partnership,
Caligan Partners CV II LP, a Cayman Islands exempted limited partnership, David E. Johnson, an individual, and Paul Fonteyne, an
individual (the foregoing, collectively with each of their respective Affiliates, the “Investor Group”), on
the other hand. Capitalized terms used herein but not defined shall have the meaning set forth in the Agreement.
I hereby irrevocably
offer to resign from my position as a director of the Board and from any and all committees of the Board on which I serve, subject
to acceptance by the Board, effective immediately upon the Board’s notice to me that it has accepted such offer of resignation,
which the Board may give within 30 Business Days after the Board or the chairman thereof obtains actual knowledge of any of the
following: (a) the Termination Date; (b) such time as the Investor Group’s Net Long Position falls below the Ownership Minimum;
(c) a material breach of the Agreement by the Investor Group or an Investor Group Designee that would terminate the Company’s
obligations to the Investor Group pursuant to Section 11(a)(ii) of the Agreement; or (d) a material inaccuracy in any director
questionnaire that I have submitted to the Company.
I hereby agree to execute
the form of resignation agreement required of all directors of the Company, consistent with the Company’s Corporate Governance
Guidelines.
Very truly yours,
Exhibit C
Form of Press Release
Exhibit 99.1
FOR
IMMEDIATE RELEASE
AMAG
Pharmaceuticals Announces Settlement Agreement with Caligan Partners LP
Paul
Fonteyne and David Johnson Join Board of Directors
WALTHAM,
Mass., October 8, 2019 - AMAG Pharmaceuticals, Inc. (NASDAQ: AMAG) (“AMAG”) today announced that it has entered
into a settlement agreement with Caligan Partners LP (“Caligan”). As part of this agreement, the Board of Directors
has appointed Paul Fonteyne, former Chief Executive Officer of Boehringer Ingelheim USA, and David Johnson, Partner and co-Founder
of Caligan, to the AMAG Board, effective immediately. The appointment of Mr. Fonteyne and Mr. Johnson temporarily expands the
size of the AMAG Board to 11 directors, 10 of whom are independent and four of whom have been appointed within the past six
months. In addition, the Company will include Mr. Fonteyne and Mr. Johnson as candidates in the Company’s proxy statement
for the Company’s 2020 Annual Meeting. Following the 2020 Annual Meeting, the size of the Board will revert to nine directors.
“As
part of AMAG’s commitment to good corporate governance and ongoing board refreshment, we are pleased to have reached an agreement
with Caligan that is in the best interests of all shareholders,” said Gino Santini, Chairman of the AMAG Board.” We
welcome Paul and David to our Board of Directors and look forward to their contributions as we continue to focus on driving value
for AMAG shareholders and serving patients with unmet medical needs with our portfolio of innovative products.”
“We
are pleased to have reached this constructive solution with AMAG in order to work with the Company to focus on maximizing the
potential of its great portfolio,” said David Johnson. “Paul and I are excited to bring new perspectives to management
and AMAG’s board as we work towards our mutual goal of shareholder value creation.”
“The
AMAG team remains focused on strong execution across our commercial products and progressing our clinical development programs
through their next milestones,” said William Heiden, President and Chief Executive Officer of AMAG. “I look forward
to working closely with the Board of Directors as we continue the strategic transformation of AMAG to maximize the value and growth
of our diversified and innovative product portfolio.”
As
part of this settlement agreement, Caligan has withdrawn its pending consent solicitation and agreed to a customary standstill,
voting commitment, and related terms. The full agreement will be filed on Form 8-K with the U.S. Securities and Exchange Commission.
Goldman
Sachs is serving as AMAG’s financial advisor and Sidley Austin LLP and Goodwin Procter LLP are serving as AMAG’s legal
advisors. Schulte Roth & Zabel LLP is representing Caligan.
About
Paul Fonteyne
Paul
Fonteyne, 57, most recently served as the Chairman of BI USA, a biotechnology company, and President of Animal Health for Boehringer-Ingelheim
USA Corporation, one of the world’s largest pharmaceutical companies.. Prior to that role, Mr. Fonteyne served as the United States
Country Managing Director and President and Chief Executive Officer of Boehringer Ingelheim from 2011 through 2018. Previously,
Mr. Fonteyne served as Senior Corporate Vice President in Boehringer Ingelheim GmbH from 2009 to 2011. From 2003 to 2008 Mr. Fonteyne
served as Executive Vice President, Head of Marketing and Sales for Prescription Medicines at Boehringer-Ingelheim Pharmaceuticals,
Inc. Prior to his time with Boehringer-Ingelheim, Mr. Fonteyne held commercial leadership roles at Merck and Co. Inc. and Abbott
Laboratories.
Mr.
Fonteyne has served on the board of ResTORbio, Inc. (NASDAQ: TORC), a biopharmaceutical company, since 2017, and has been a member
of the board of Ypsomed AG (SWX: YPSN), a medical technology company, since 2018. He is currently a director of the private companies
Gelesis, Inc., a biotechnology company, and DalCor, Inc., a pharmaceutical company.
Mr.
Fonteyne currently serves on the advisory board of the Brigham and Women’s Hospital Lung Center and has previously served
on the board of PhRMA (the leading pharmaceutical industry association). He also serves as Chair of the American Cancer Society
Initiative for New England (CEOs against Cancer) and as a Special Advisor to Canaan Partners, a Venture Capital Fund dedicated
to Health Care and Technology early stage venture investing.
Mr.
Fonteyne holds an MS in Chemical Engineering from the University of Brussels and an MBA from Carnegie Mellon University.
About
David Johnson
David
Johnson, 37, is a Partner and co-Founder of Caligan Partners LP, an investment manager. Previously, Mr. Johnson was a Managing
Director at The Carlyle Group, where he was employed from 2010 to 2017. At Carlyle, Mr. Johnson was involved in many of the firm’s
strategic initiatives and sat on investment committees for a number of different funds that invested in both equity and credit.
Prior to joining Carlyle, Mr. Johnson worked for six years at Morgan Stanley, where he was a Vice President in the Principal Investments
area. In this role, Mr. Johnson served as a director of SeaChange Maritime Limited, and an observer of numerous company boards.
Prior to joining Morgan Stanley, Mr. Johnson worked at Weiss Asset Management in Boston, MA, during which time he served on the
board of the Kazakhstan Investment Fund.
Mr.
Johnson has served on the Executive Committee for the Harvard College Fund, is a member of the board of directors of the Children’s
Scholarship Fund, and is Chair of the Finance & Investment Committee for the Riley’s Way Foundation.
Mr.
Johnson received his A.B. in Applied Mathematics, cum laude, from Harvard College in 2004 and a S.M. in Applied Mathematics
from Harvard College in 2004.
About
AMAG
AMAG
is a pharmaceutical company focused on bringing innovative products to patients with unmet medical needs. The company does this
by leveraging its development and commercial expertise to invest in and grow its pharmaceutical products across a range of therapeutic
areas, including women’s health. For additional company information, please visit www.amagpharma.com.
AMAG
Pharmaceuticals® is a registered trademark of AMAG Pharmaceuticals, Inc.
Forward-Looking
Statements
This
communication contains forward-looking information about AMAG within the meaning of the Private Securities Litigation Reform Act
of 1995 and other federal securities laws. Any statements contained herein which do not describe historical facts, including,
among others, beliefs that the settlement agreement is in the best interest of all shareholders,
and AMAG’s belief that its strategic transformation will maximize the value of and build on its diversified and innovative
product portfolio are forward-looking statements which involve risks and uncertainties that could cause actual results to differ
materially from those discussed in such forward-looking statements.
Such
risks and uncertainties include, among others, those risks identified in AMAG’s filings with the SEC, including its Annual
Report on Form 10-K for the year ended December 31, 2018, its Quarterly Reports on Form 10-Q for the quarters ended March
31, 2019 and June 30, 2019 and subsequent filings with the SEC which are available at the SEC’s website at www.sec.gov.
Any such risks and uncertainties could materially and adversely affect AMAG’s results of operations, its profitability and
its cash flows, which would, in turn, have a significant and adverse impact on AMAG’s stock price. AMAG cautions you not
to place undue reliance on any forward-looking statements, which speak only as of the date they are made. AMAG disclaims any obligation
to publicly update or revise any such statements to reflect any change in expectations or in events, conditions or circumstances
on which any such statements may be based, or that may affect the likelihood that actual results will differ from those set forth
in the forward-looking statements.
AMAG
Pharmaceuticals Contacts:
Investors:
Linda
Lennox
(908)
627-3424
Media :
Rushmie
Nofsinger
(781)
530-6838
Exhibit D
Form of Confidentiality Agreement