Page 8 of 13 – SEC Filing
The following constitutes Amendment No. 6 to the Schedule 13D filed by the undersigned (“Amendment No. 6”). This Amendment No. 6 amends the Schedule 13D as specifically set forth herein.
| Item 3. | Source and Amount of Funds or Other Consideration. |
| | Item 3 is hereby amended and restated to read as follows: |
The Shares purchased by each of Krensavage Partners and Krensavage Partners Too were purchased with working capital (which may, at any given time, include margin loans made by brokerage firms in the ordinary course of business) in open market purchases. The aggregate purchase price of the 3,561,351 Shares directly owned by Krensavage Partners is approximately $13,995,397, including brokerage commissions. The aggregate purchase price of the 877,599 Shares directly owned by Krensavage Partners Too is approximately $3,796,230, including brokerage commissions.
| Item 4. | Purpose of the Transaction. |
| | Item 4 is hereby amended to add the following: |
On March 14, 2017, Krensavage Asset Management and its affiliates (collectively, “Krensavage”), entered into a settlement agreement with the Issuer (the “Agreement”). The following description of the Agreement is qualified in its entirety by reference to the Agreement, which is attached as Exhibit 99.1 hereto and is incorporated herein by reference.
Pursuant to the terms of the Agreement, the Issuer agreed, among other things, to: (i) increase the size of the Board of Directors of the Issuer (the “Board”) from nine (9) to ten (10) members and appoint Mark D. Stolper as a director of the Issuer, (ii) nominate, recommend, support and solicit proxies for the election of Mr. Stolper at the Issuer’s upcoming annual meeting of stockholders, currently scheduled for May 16, 2017, and the Issuer’s 2018 annual meeting of stockholders (collectively, the “Annual Meetings”), and (iii) consider Mr. Stolper for inclusion on the committees of the Board in good faith and in a manner consistent with the other members of the Board. In addition, the Agreement provides that if Mr. Stolper is unable to serve as a director, or is removed or disqualified from serving on the Board for any reason, then the Board shall work in good faith with Krensavage to replace Mr. Stolper with another individual consented to by Krensavage, who meets certain criteria in accordance with the Agreement.
Pursuant to the terms of the Agreement, Krensavage agreed, among other things: (i) not to nominate any person for election at the Annual Meetings; (ii) not to submit any proposal for consideration at, or bring any other business before, the Annual Meetings; (iii) not to initiate, encourage or participate in any “withhold” or similar campaign with respect to the Annual Meetings; and (iv) to appear in person or by proxy at the Annual Meetings and vote all Shares beneficially owned by it in favor of the Issuer’s nominees and against any stockholder nominations for director not recommended by the Board.
Krensavage also agreed to certain customary standstill provisions, effective as of the date of the Agreement through 11:59 p.m., Eastern time, on July 1, 2018. The standstill provisions generally prohibit Krensavage from taking specified actions with respect to the Issuer and its securities, including, among others: (i) soliciting or participating in the solicitation of proxies; (ii) joining any “group” or becoming party to any voting arrangement or agreement; (iii) seeking or encouraging others to submit nominations for election or removal of directors; (iv) making stockholder proposals or offers with respect to mergers, acquisitions and other business combinations; or (v) seeking board representation other than as provided in the Agreement.
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