UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
(Rule 14d-101)
(Amendment No. 1)
SOLICITATION/RECOMMENDATION
STATEMENT
UNDER SECTION 14(d)(4) OF THE
SECURITIES EXCHANGE ACT OF 1934
AMAG Pharmaceuticals, Inc.
(Name of Subject Company)
AMAG Pharmaceuticals, Inc.
(Name of Person(s) Filing
Statement)
COMMON STOCK,
PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
00163U106
(CUSIP Number
of Class of Securities)
Joseph D. Vittiglio
AMAG Pharmaceuticals, Inc.
Executive Vice
President, General Counsel,
Chief Business
Officer & Corporate Secretary
1100 Winter Street
Waltham, Massachusetts
02451
(Name, Address and Telephone Number of
Person Authorized to Receive Notices and Communications
on Behalf of the Person(s) Filing Statement)
With copies to:
Stuart M. Cable, Esq.
Jacqueline Mercier, Esq.
Lillian Kim, Esq.
Goodwin Procter
LLP
100 Northern Avenue
Boston, Massachusetts
02210
(617) 570-1000
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Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
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This Amendment No. 1 (this “Amendment No. 1”)
amends and supplements the Solicitation/Recommendation Statement on Schedule 14D-9 (as amended or supplemented from time to time,
the “Schedule 14D-9”) filed by AMAG Pharmaceuticals, Inc., a Delaware corporation (the “Company,”
“AMAG,” “we” or “us”), with the Securities and Exchange Commission (the
“SEC”) on October 15, 2020.
This Schedule 14D-9 relates to the cash tender offer (the “Offer”)
by Covis Mergerco Inc., a Delaware corporation (“Merger Sub”) and an indirect wholly owned subsidiary of Covis
Group S.à r.l., a Luxembourg company (“Parent”), to acquire all of the issued and outstanding shares
of common stock, par value $0.01 per share (the “Shares” and each a “Share”) at a price per
Share equal to $13.75 per Share, without interest (the “Offer Price”). The Offer is disclosed in the Tender
Offer Statement on Schedule TO (together with any amendments or supplements thereto, the “Schedule TO”), filed
by Parent and Merger Sub with the SEC on October 15, 2020, and is made upon the terms and subject to the conditions set forth
in the Offer to Purchase, dated October 15, 2020, as it may be amended or supplemented from time to time (the “Offer
to Purchase”), and the related Letter of Transmittal, as it may be amended or supplemented from time to time (together
with the Offer to Purchase, the “Offer”).
The information in the Schedule 14D-9, including all exhibits
and annexes that were previously filed with the Schedule 14D-9, is incorporated in this Amendment No. 1 by reference, except
that such information is hereby amended or supplemented to the extent specifically provided herein. Capitalized terms used herein
and not defined shall have the meanings ascribed to them in the Schedule 14D-9 and page number references herein refer to
the Schedule 14D-9.
Item 8.
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Additional Information
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1.
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Item
8 “Additional Information” of the Schedule 14D-9 and the disclosure under “Regulatory Approval”
are hereby amended and supplemented by inserting the following paragraph after the last paragraph of this sub-section:
“On October 8, 2020, each of Parent and the Company
filed a Premerger Notification and Report Form with the FTC and the Antitrust Division in connection with the purchase of
Shares in the Offer. On October 23, 2020 at 11:59 p.m. Eastern Time, the waiting period under the HSR Act applicable
to the Offer expired. Accordingly, the condition of the Offer relating to the expiration or termination of the waiting period applicable
to the Offer and the Merger under the HSR Act has been satisfied. The Offer and the Merger remain subject to other closing conditions.”
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Item 9 of the Schedule 14D-9 is hereby amended and supplemented
by adding the following Exhibit to the list of Exhibits:
Annex B. Section 262 of the General Corporation Law
of the State of Delaware.
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1.
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Annex B “Section 262 of the General Corporation Law of the State of Delaware” of the Schedule 14D-9 is hereby amended and replaced in its entirety with the following:
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“(a) Any stockholder of a corporation of
this State who holds shares of stock on the date of the making of a demand pursuant to subsection (d) of this section with
respect to such shares, who continuously holds such shares through the effective date of the merger or consolidation, who has otherwise
complied with subsection (d) of this section and who has neither voted in favor of the merger or consolidation nor consented
thereto in writing pursuant to § 228 of this title shall be entitled to an appraisal by the Court of Chancery of the
fair value of the stockholder’s shares of stock under the circumstances described in subsections (b) and (c) of
this section. As used in this section, the word “stockholder” means a holder of record of stock in a corporation; the
words “stock” and “share” mean and include what is ordinarily meant by those words; and the words “depository
receipt” mean a receipt or other instrument issued by a depository representing an interest in 1 or more shares, or fractions
thereof, solely of stock of a corporation, which stock is deposited with the depository.
(b) Appraisal rights shall be available for the
shares of any class or series of stock of a constituent corporation in a merger or consolidation to be effected pursuant to §
251 (other than a merger effected pursuant to § 251(g) of this title), § 252, § 254, § 255, § 256,
§ 257, § 258, § 263 or § 264 of this title:
(1) Provided, however, that no appraisal rights
under this section shall be available for the shares of any class or series of stock, which stock, or depository receipts in respect
thereof, at the record date fixed to determine the stockholders entitled to receive notice of the meeting of stockholders to act
upon the agreement of merger or consolidation (or, in the case of a merger pursuant to § 251(h), as of immediately prior to
the execution of the agreement of merger), were either: (i) listed on a national securities exchange or (ii) held of
record by more than 2,000 holders; and further provided that no appraisal rights shall be available for any shares of stock of
the constituent corporation surviving a merger if the merger did not require for its approval the vote of the stockholders of the
surviving corporation as provided in § 251(f) of this title.
(2) Notwithstanding paragraph (b)(1) of this
section, appraisal rights under this section shall be available for the shares of any class or series of stock of a constituent
corporation if the holders thereof are required by the terms of an agreement of merger or consolidation pursuant to §§ 251,
252, 254, 255, 256, 257, 258, 263 and 264 of this title to accept for such stock anything except:
a. Shares of stock of the corporation surviving or
resulting from such merger or consolidation, or depository receipts in respect thereof;
b. Shares of stock of any other corporation, or depository
receipts in respect thereof, which shares of stock (or depository receipts in respect thereof) or depository receipts at the effective
date of the merger or consolidation will be either listed on a national securities exchange or held of record by more than 2,000
holders;
c. Cash in lieu of fractional shares or fractional
depository receipts described in the foregoing paragraphs (b)(2)a. and b. of this section; or
d. Any combination of the shares of stock, depository
receipts and cash in lieu of fractional shares or fractional depository receipts described in the foregoing paragraphs (b)(2)a.,
b. and c. of this section.
(3) In the event all of the stock of a subsidiary
Delaware corporation party to a merger effected under § 253 or § 267 of this title is not owned by the parent immediately
prior to the merger, appraisal rights shall be available for the shares of the subsidiary Delaware corporation.
(4) [Repealed.]
(c) Any corporation may provide in its certificate
of incorporation that appraisal rights under this section shall be available for the shares of any class or series of its stock
as a result of an amendment to its certificate of incorporation, any merger or consolidation in which the corporation is a constituent
corporation or the sale of all or substantially all of the assets of the corporation. If the certificate of incorporation contains
such a provision, the provisions of this section, including those set forth in subsections (d),(e), and (g) of this section,
shall apply as nearly as is practicable.
(d) Appraisal rights shall be perfected
as follows:
(1) If a proposed merger or consolidation for which
appraisal rights are provided under this section is to be submitted for approval at a meeting of stockholders, the corporation,
not less than 20 days prior to the meeting, shall notify each of its stockholders who was such on the record date for notice of
such meeting (or such members who received notice in accordance with § 255(c) of this title) with respect to shares
for which appraisal rights are available pursuant to subsection (b) or (c) of this section that appraisal rights are
available for any or all of the shares of the constituent corporations, and shall include in such notice a copy of this section
and, if 1 of the constituent corporations is a nonstock corporation, a copy of § 114 of this title. Each stockholder
electing to demand the appraisal of such stockholder’s shares shall deliver to the corporation, before the taking of the
vote on the merger or consolidation, a written demand for appraisal of such stockholder’s shares; provided that a demand
may be delivered to the corporation by electronic transmission if directed to an information processing system (if any) expressly
designated for that purpose in such notice. Such demand will be sufficient if it reasonably informs the corporation of the identity
of the stockholder and that the stockholder intends thereby to demand the appraisal of such stockholder’s shares. A proxy
or vote against the merger or consolidation shall not constitute such a demand. A stockholder electing to take such action must
do so by a separate written demand as herein provided. Within 10 days after the effective date of such merger or consolidation,
the surviving or resulting corporation shall notify each stockholder of each constituent corporation who has complied with this
subsection and has not voted in favor of or consented to the merger or consolidation of the date that the merger or consolidation
has become effective; or
(2) If the merger or consolidation was approved
pursuant to § 228, § 251(h), § 253, or § 267 of this title, then either a constituent corporation before the
effective date of the merger or consolidation or the surviving or resulting corporation within 10 days thereafter shall notify
each of the holders of any class or series of stock of such constituent corporation who are entitled to appraisal rights of the
approval of the merger or consolidation and that appraisal rights are available for any or all shares of such class or series of
stock of such constituent corporation, and shall include in such notice a copy of this section and, if 1 of the constituent corporations
is a nonstock corporation, a copy of § 114 of this title. Such notice may, and, if given on or after the effective date of
the merger or consolidation, shall, also notify such stockholders of the effective date of the merger or consolidation. Any stockholder
entitled to appraisal rights may, within 20 days after the date of giving such notice or, in the case of a merger approved pursuant
to § 251(h) of this title, within the later of the consummation of the offer contemplated by § 251(h) of this
title and 20 days after the date of giving such notice, demand in writing from the surviving or resulting corporation the appraisal
of such holder’s shares; provided that a demand may be delivered to the corporation by electronic transmission if directed
to an information processing system (if any) expressly designated for that purpose in such notice. Such demand will be sufficient
if it reasonably informs the corporation of the identity of the stockholder and that the stockholder intends thereby to demand
the appraisal of such holder’s shares. If such notice did not notify stockholders of the effective date of the merger or
consolidation, either (i) each such constituent corporation shall send a second notice before the effective date of the merger
or consolidation notifying each of the holders of any class or series of stock of such constituent corporation that are entitled
to appraisal rights of the effective date of the merger or consolidation or (ii) the surviving or resulting corporation shall
send such a second notice to all such holders on or within 10 days after such effective date; provided, however, that if such second
notice is sent more than 20 days following the sending of the first notice or, in the case of a merger approved pursuant to §
251(h) of this title, later than the later of the consummation of the offer contemplated by § 251(h) of this title
and 20 days following the sending of the first notice, such second notice need only be sent to each stockholder who is entitled
to appraisal rights and who has demanded appraisal of such holder’s shares in accordance with this subsection. An affidavit
of the secretary or assistant secretary or of the transfer agent of the corporation that is required to give either notice that
such notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein. For purposes of
determining the stockholders entitled to receive either notice, each constituent corporation may fix, in advance, a record date
that shall be not more than 10 days prior to the date the notice is given, provided, that if the notice is given on or after the
effective date of the merger or consolidation, the record date shall be such effective date. If no record date is fixed and the
notice is given prior to the effective date, the record date shall be the close of business on the day next preceding the day on
which the notice is given.
(e) Within 120 days after the effective date
of the merger or consolidation, the surviving or resulting corporation or any stockholder who has complied with subsections (a) and
(d) of this section hereof and who is otherwise entitled to appraisal rights, may commence an appraisal proceeding by filing
a petition in the Court of Chancery demanding a determination of the value of the stock of all such stockholders. Notwithstanding
the foregoing, at any time within 60 days after the effective date of the merger or consolidation, any stockholder who has not
commenced an appraisal proceeding or joined that proceeding as a named party shall have the right to withdraw such stockholder’s
demand for appraisal and to accept the terms offered upon the merger or consolidation. Within 120 days after the effective date
of the merger or consolidation, any stockholder who has complied with the requirements of subsections (a) and (d) of
this section hereof, upon request given in writing (or by electronic transmission directed to an information processing system
(if any) expressly designated for that purpose in the notice of appraisal), shall be entitled to receive from the corporation surviving
the merger or resulting from the consolidation a statement setting forth the aggregate number of shares not voted in favor of the
merger or consolidation (or, in the case of a merger approved pursuant to § 251(h) of this title, the aggregate number
of shares (other than any excluded stock (as defined in § 251(h)(6)d. of this title)) that were the subject of, and were not
tendered into, and accepted for purchase or exchange in, the offer referred to in § 251(h)(2)), and, in either case, with
respect to which demands for appraisal have been received and the aggregate number of holders of such shares. Such statement shall
be given to the stockholder within 10 days after such stockholder’s request for such a statement is received by the surviving
or resulting corporation or within 10 days after expiration of the period for delivery of demands for appraisal under subsection
(d) of this section hereof, whichever is later. Notwithstanding subsection (a) of this section, a person who is the beneficial
owner of shares of such stock held either in a voting trust or by a nominee on behalf of such person may, in such person’s
own name, file a petition or request from the corporation the statement described in this subsection.
(f) Upon the filing of any such petition by a
stockholder, service of a copy thereof shall be made upon the surviving or resulting corporation, which shall within 20 days after
such service file in the office of the Register in Chancery in which the petition was filed a duly verified list containing the
names and addresses of all stockholders who have demanded payment for their shares and with whom agreements as to the value of
their shares have not been reached by the surviving or resulting corporation. If the petition shall be filed by the surviving or
resulting corporation, the petition shall be accompanied by such a duly verified list. The Register in Chancery, if so ordered
by the Court, shall give notice of the time and place fixed for the hearing of such petition by registered or certified mail to
the surviving or resulting corporation and to the stockholders shown on the list at the addresses therein stated. Such notice shall
also be given by 1 or more publications at least 1 week before the day of the hearing, in a newspaper of general circulation published
in the City of Wilmington, Delaware or such publication as the Court deems advisable. The forms of the notices by mail and by publication
shall be approved by the Court, and the costs thereof shall be borne by the surviving or resulting corporation.
(g) At the hearing on such petition, the Court
shall determine the stockholders who have complied with this section and who have become entitled to appraisal rights. The Court
may require the stockholders who have demanded an appraisal for their shares and who hold stock represented by certificates to
submit their certificates of stock to the Register in Chancery for notation thereon of the pendency of the appraisal proceedings;
and if any stockholder fails to comply with such direction, the Court may dismiss the proceedings as to such stockholder. If immediately
before the merger or consolidation the shares of the class or series of stock of the constituent corporation as to which appraisal
rights are available were listed on a national securities exchange, the Court shall dismiss the proceedings as to all holders of
such shares who are otherwise entitled to appraisal rights unless (1) the total number of shares entitled to appraisal exceeds
1% of the outstanding shares of the class or series eligible for appraisal, (2) the value of the consideration provided in
the merger or consolidation for such total number of shares exceeds $1 million, or (3) the merger was approved pursuant to
§ 253 or § 267 of this title.
(h) After the Court determines the stockholders
entitled to an 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 shall determine the fair
value of the shares exclusive of any element of value arising from the accomplishment or expectation of the merger or consolidation,
together with interest, if any, to be paid upon the amount determined to be the fair value. In determining such fair value, the
Court shall take into account all relevant factors. Unless the Court in its discretion determines otherwise for good cause shown,
and except as provided in this subsection, interest from the effective date 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 date of the merger and the date of payment of the judgment. At any time
before the entry of judgment in the proceedings, the surviving corporation may pay to each stockholder entitled to appraisal an
amount in cash, in which case interest shall accrue thereafter as provided herein only upon the sum of (1) the difference,
if any, between the amount so paid and the fair value of the shares as determined by the Court, and (2) interest theretofore
accrued, unless paid at that time. Upon application by the surviving or resulting corporation or by any stockholder entitled to
participate in the appraisal proceeding, the Court may, in its discretion, proceed to trial upon the appraisal prior to the final
determination of the stockholders entitled to an appraisal. Any stockholder whose name appears on the list filed by the surviving
or resulting corporation pursuant to subsection (f) of this section and who has submitted such stockholder’s certificates
of stock to the Register in Chancery, if such is required, may participate fully in all proceedings until it is finally determined
that such stockholder is not entitled to appraisal rights under this section.
(i) The Court shall direct the payment of the
fair value of the shares, together with interest, if any, by the surviving or resulting corporation to the stockholders entitled
thereto. Payment shall be so made to each such stockholder, in the case of holders of uncertificated stock forthwith, and the case
of holders of shares represented by certificates upon the surrender to the corporation of the certificates representing such stock.
The Court’s decree may be enforced as other decrees in the Court of Chancery may be enforced, whether such surviving or resulting
corporation be a corporation of this State or of any state.
(j) The costs of the proceeding may be determined
by the Court and taxed upon the parties as the Court deems equitable in the circumstances. Upon application of a stockholder, the
Court may order all or a portion of the expenses incurred by any stockholder in connection with the appraisal proceeding, including,
without limitation, reasonable attorney’s fees and the fees and expenses of experts, to be charged pro rata against the value
of all the shares entitled to an appraisal.
(k) From and after the effective date of the
merger or consolidation, no stockholder who has demanded appraisal rights as provided in subsection (d) of this section shall
be entitled to vote such stock for any purpose or to receive payment of dividends or other distributions on the stock (except dividends
or other distributions payable to stockholders of record at a date which is prior to the effective date of the merger or consolidation);
provided, however, that if no petition for an appraisal shall be filed within the time provided in subsection (e) of this
section, or if such stockholder shall deliver to the surviving or resulting corporation a written withdrawal of such stockholder’s
demand for an appraisal and an acceptance of the merger or consolidation, either within 60 days after the effective date of the
merger or consolidation as provided in subsection (e) of this section or thereafter with the written approval of the corporation,
then the right of such stockholder to an appraisal shall cease. Notwithstanding the foregoing, no appraisal proceeding in the Court
of Chancery shall be dismissed as to any stockholder without the approval of the Court, and such approval may be conditioned upon
such terms as the Court deems just; provided, however that this provision shall not affect the right of any stockholder who has
not commenced an appraisal proceeding or joined that proceeding as a named party to withdraw such stockholder’s demand for
appraisal and to accept the terms offered upon the merger or consolidation within 60 days after the effective date of the merger
or consolidation, as set forth in subsection (e) of this section.
(l) The shares of the surviving or resulting
corporation to which the shares of such objecting stockholders would have been converted had they assented to the merger or consolidation
shall have the status of authorized and unissued shares of the surviving or resulting corporation.”
SIGNATURE
After due inquiry and to the best of my
knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Dated: October 26, 2020
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AMAG Pharmaceuticals, Inc.
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By:
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/s/ Scott Myers
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Name: Scott Myers
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Title: President and Chief
Executive Officer
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