AMAG PHARMACEUTICALS, INC. Item 1.01 Entry into a Material Definitive Agreement
Agreement and Plan of Merger
On
The Offer will initially remain open for a minimum of 20 business days, subject to possible extension on the terms set forth in the Merger Agreement (as extended, the "Expiration Date").
Merger Sub's obligation to purchase the Shares validly tendered pursuant to the Offer is subject to the satisfaction or waiver of customary conditions, including, among others, (i) there being validly tendered and not validly withdrawn prior to the Expiration Date Shares representing one more than 50% of the total number of Shares outstanding (together with any Shares held by Covis or its affiliates) and issuable to holders of options and convertible notes that have exercised their options or given notice of conversion as of the Expiration Date (the "Minimum Condition"), (ii) the expiration or termination of the waiting period (and any extension thereof) applicable to the consummation of the Offer and the Merger (defined below) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), (iii) the absence of any law that prohibits consummation of the Offer or the Merger (iv) the absence of any continuing event, development or circumstance that has had or would reasonably be expected to have a material adverse effect, as well as other customary conditions set forth in Annex I to the Merger Agreement. The Offer and Merger are not subject to a financing condition.
Upon the consummation of the Offer, Merger Sub will merge with and into AMAG (the "Merger") pursuant to Section 251(h) of the Delaware General Corporation Law (the "DGCL") with AMAG as the surviving corporation (the "Surviving Corporation"). At the effective time of the Merger (the "Effective Time"), each Share (other than Shares (i) held in the treasury of AMAG, (ii) that at the commencement of the Offer were owned by Covis or Merger Sub or (iii) irrevocably accepted for payment in the Offer) will be automatically cancelled and converted into the right to receive an amount in cash equal to the Offer Price, without interest (the "Merger Consideration").
In addition, immediately prior to the Effective Time, (i) each AMAG stock option with an exercise price that is less than the Merger Consideration, whether vested or unvested, that is outstanding and unexercised shall be cancelled and automatically converted into the right to receive, an amount of cash equal to the excess of the Merger Consideration over the per share exercise price of such option, (ii) each AMAG restricted stock unit award ("RSU") that is subject to time-based vesting, whether vested or unvested, that is outstanding shall be cancelled and automatically converted into the right to receive, an amount of cash equal to the Merger Consideration and (iii) each outstanding RSU that is subject to performance-based vesting, whether vested or unvested, shall be cancelled and automatically converted into the right to receive the higher of (A) 100% target performance level, multiplied by a fraction, the numerator of which shall be the number of calendar days from the first day of the such RSU's performance measurement period to the Expiration Date and the denominator of which shall be the number of days in such RSU's performance measurement period and (B) the actual level of achievement of performance goals, calculated from the first day of such RSU performance measurement period through the end of the calendar month immediately preceding the Expiration Date. All amounts payable upon cancellation of these equity awards shall be paid without interest and subject to deduction for any required tax withholding.
The Merger Agreement contains customary representations, warranties and covenants, including covenants obligating AMAG to continue to conduct its business in the ordinary course, to cooperate in seeking regulatory approvals and not to engage in certain specified transactions or activities without Covis's prior consent. In addition, subject to certain exceptions, AMAG has agreed not to solicit, initiate, knowingly facilitate or encourage the submission or announcement of any acquisition proposals from third parties or take certain other restricted actions in connection therewith. Notwithstanding the foregoing, if AMAG receives an acquisition proposal that did not result from a material breach of the non-solicitation provisions of the Merger Agreement, and the AMAG board of directors determines in good faith, after consultations with its outside legal counsel and financial advisor, that such proposal constitutes, or would reasonably be expected to lead to, a transaction that would be more favorable to AMAG's stockholders than the Offer and the Merger (a "Superior Proposal") then AMAG can participate in discussions and negotiations regarding such acquisition proposal if the failure to do so would be inconsistent with the fiduciary obligations of AMAG's board to the AMAG stockholders.
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The Merger Agreement also contains certain customary termination rights in favor
of each of AMAG and Covis, including AMAG's right, subject to certain
limitations, to terminate the Merger Agreement in certain circumstances to
accept a Superior Proposal and Covis's right to terminate the Merger Agreement
if AMAG's board changes its recommendation that stockholders tender their Shares
in the Offer. In addition, either AMAG or Covis may terminate the Merger
Agreement if the Offer has not been consummated by
The foregoing description of the Merger Agreement and the transactions
contemplated thereunder is not complete and is qualified in its entirety by
reference to the Merger Agreement, a copy of which is filed as Exhibit 2.1 to
this Current Report on Form 8-K (this "Report") and incorporated herein by
reference. The Merger Agreement and the foregoing description thereof have been
included to provide investors and stockholders with information regarding the
terms of the Merger Agreement. They are not intended to provide any other
factual information about the Company. The representations, warranties and
covenants contained in the Merger Agreement were made only as of specified dates
for the purposes of such agreement, were solely for the benefit of the parties
to such agreement and may be subject to qualifications and limitations agreed
upon by such parties. In particular, in reviewing the representations,
warranties and covenants contained in the Merger Agreement and discussed in the
foregoing description, it is important to bear in mind that such
representations, warranties and covenants were negotiated with the principal
purpose of allocating risk between the parties, rather than establishing matters
as facts. Such representations, warranties and covenants may also be subject to
a contractual standard of materiality different from those generally applicable
to stockholders and reports and documents filed with the
Support Agreement
In connection with the execution of the Merger Agreement, Covis entered into a support agreement (the "Support Agreement") with certain of AMAG's stockholders, . . .
Item 7.01 Regulation FD Disclosure.
On
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits. Exhibit No. Description 2.1* Agreement and Plan of Merger, dated as ofOctober 1, 2020 , by and amongAMAG Pharmaceuticals, Inc. , Covis Group S.à r.l. andCovis Mergerco, Inc. 99.1 Form of Support Agreement, datedOctober 1, 2020 . 99.2 Press Release, datedOctober 1, 2020 . 104 Cover Page Interactive Data File - the cover page XBRL tags are embedded within the Inline XBRL document.
* Certain exhibits and schedules have been omitted pursuant to Item 601(b)(2) of
Regulation S-K.
Additional Information and Where to Find It
The Offer referred to in this report has not yet commenced. This communication
is for informational purposes only and is neither an offer to purchase nor a
solicitation of an offer to sell shares, nor is it a substitute for the offer
materials that Covis and Merger Sub will file with the
AMAG'S STOCKHOLDERS ARE ADVISED TO READ THE SCHEDULE TO AND THE SCHEDULE 14D-9, AS EACH MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME, AND ANY OTHER RELEVANT DOCUMENTS FILED WITH THE SEC WHEN THEY BECOME AVAILABLE BEFORE THEY MAKE ANY DECISION WITH RESPECT TO THE TENDER OFFER, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION AND THE PARTIES THERETO.
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Forward-Looking Statements
This communication contains forward-looking statements. Forward-looking
statements relate to future events or AMAG's future financial performance. The
Company generally identifies forward-looking statements by terminology such as
"may," "will," "should," "expects," "plans," "anticipates," "could," "intends,"
"target," "projects," "contemplates," "believes," "estimates," "predicts,"
"potential" or "continue" or the negative of these terms or other similar words.
These statements are only predictions. AMAG has based these forward-looking
statements largely on its then-current expectations and projections about future
events and financial trends as well as the beliefs and assumptions of
management. Forward-looking statements are subject to a number of risks and
uncertainties, many of which involve factors or circumstances that are beyond
AMAG's control. AMAG's actual results could differ materially from those stated
or implied in forward-looking statements due to a number of factors, including
but not limited to: (i) risks associated with the timing of the closing of the
proposed Offer and Merger, including the risks that a condition to closing would
not be satisfied or that any of the committed financing will not be available
within the expected timeframe or at all or that the closing of the proposed
Offer or Merger will not occur; (ii) the outcome of any legal proceedings that
may be instituted against the parties and others related to the Merger
Agreement; (iii) unanticipated difficulties or expenditures relating to the
proposed Offer or the Merger, the response of business partners and competitors
to the announcement of the proposed Offer or the Merger, and/or potential
difficulties in employee retention as a result of the announcement and pendency
of the proposed Offer or the Merger; and (iv) those risks detailed in AMAG's
most recent Annual Report on Form 10-K ( as amended) and any subsequent reports
filed with the
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