Lunar Representative, LLC c/o Shareholder Representative Services LLC 1614 15thStreet, Suite 200 Denver, CO 80202
Exhibit 10.4
Lunar Representative, LLC
c/o Shareholder Representative Services LLC
1614 15th Street, Suite 200
Denver, CO 80202
March 10, 2015
VIA FACSIMILE AND EMAIL
AMAG Pharmaceuticals, Inc.
1100 Winter Street
Waltham, MA 02451
Attention: General Counsel
Facsimile: (617) 499-3361
Re: Extension of time to respond to the Closing Statement pursuant to the Merger Agreement (as defined below) and Change of Notice Provision
Ladies and Gentlemen:
Reference is made to (i) the Agreement and Plan of Merger, dated September 28, 2014, by and among Lumara Health, Inc. (the Company), Lunar Representative, LLC, in its capacity as the Stockholders Representative (the Stockholders Representative), AMAG Pharmaceuticals, Inc., (Buyer), and Snowbird, Inc. (as amended by that certain letter agreement dated November 12, 2014, among the Company, the Stockholders Representative and Buyer, the Merger Agreement) and (ii) that certain Closing Statement dated January 10, 2015, delivered by Buyer pursuant to Section 2.14(a) of the Merger Agreement. Capitalized terms used and not defined herein shall have the meanings given to them in the Merger Agreement.
Section 2.14(b) of the Merger Agreement specifies that the Stockholders Representative will have sixty (60) days after receiving the Closing Statement (the Initial Deadline) to deliver written notice (a Dispute Notice) to Buyer setting forth the items disputed by the Stockholders Representative with respect to the Closing Statement. Notwithstanding the foregoing or anything to the contrary in the Merger Agreement, including anything to the contrary in Section 2.14(b) of the Merger Agreement, the parties desire to extend the Initial Deadline for the Stockholders Representative to prepare and deliver the Dispute Notice to Buyer; and, accordingly, the parties hereby agree that the Stockholders Representative shall be required to prepare and deliver the Dispute Notice to Buyer prior to 11:59 p.m., New York City time, on Friday, April 10, 2015 instead of the Initial Deadline. This paragraph shall be deemed to amend the Merger Agreement, including Section 2.14(b) of the Merger Agreement. Except as expressly amended hereby, the Merger Agreement shall continue in full force and effect in accordance with the provisions thereof.
This letter also serves as Buyers designation in writing under Section 12.1 of the Merger Agreement that copies of notices to Buyer and/or the Surviving Corporation shall be given to Goodwin Procter LLP instead of Latham & Watkins LLP as follows:
Goodwin Procter LLP
Exchange Place
53 State Street
Boston, Massachusetts 02109
Attention: Stuart M. Cable ***@***)
Facsimile: (617) 321-4402
This letter embodies the entire agreement and understanding among the parties hereto with respect to the subject matter hereof and supersedes and preempts any and all prior and contemporaneous understandings, agreements, arrangements or representations by or among the parties hereto, written or oral, which may relate to the subject matter hereof in any way. This letter will bind and inure to the benefit of and be enforceable by the parties and their respective successors and permitted assigns. This letter may be executed in any number of counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each party and delivered (by facsimile or otherwise) to the other party, it being understood that all parties need not sign the same counterpart. Any counterpart or other signature hereupon delivered by facsimile shall be deemed for all purposes as constituting good and valid execution and delivery of this letter by such party. This letter shall be governed by and construed in accordance with the internal laws of the State of Delaware applicable to agreements made and to be performed entirely within such state, without regard to the conflicts of law principles of such State. Except as set forth herein, the terms and provisions of the Merger Agreement will remain in full force and effect and are hereby ratified and confirmed. On or after the date of this letter, each reference in the Merger Agreement to this Agreement, hereunder, hereof, herein or words of like import referring to the Merger Agreement shall mean and be a reference to the Merger Agreement as amended by this letter and this letter shall be deemed to be a part of the Merger Agreement.
[Signature page follows]
LUNAR REPRESENTATIVE, LLC |
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By: | /s/ Dave Ray |
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Name: | Dave Ray |
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Title: | Authorized Signatory |
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Acknowledged and agreed: |
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AMAG PHARMACEUTICALS, INC. |
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By: | /s/ Scott A. Holmes |
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Name: | Scott A. Holmes |
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Title: | SVP Finance and Treasurer |
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[Signature page to Letter Extending Delivery of Response to Closing Statement]
CC: Via E-Mail
Latham & Watkins LLP
200 Clarendon Street
John Hancock Tower, 27th Floor
Boston, MA 02116
Attention: Johan Brigham ***@***) and Julie Scallen ***@***)
Facsimile: (617) 948-6001