Adopted by the Board of Directors on May 2, 2000
Amended and Restated August 12, 2003
Amended and Restated November 7, 2006
Amended and Restated February 6, 2007
Amended and Restated August 5, 2008
Amended and Restated November 25, 2008
Amended and Restated April 14, 2014
A. PURPOSE AND SCOPE
The primary function of the Audit Committee (the “Committee”) of the Board of Directors (the “Board”) of AMAG Pharmaceuticals, Inc. (the “Corporation”) is to exercise the responsibilities and duties set forth below, including but not limited to: (a) appointing, compensating and retaining the Corporation’s independent accounting firm, (b) overseeing the work performed by any independent accounting firm, (c) overseeing the accounting and financial reporting processes of the Corporation and the audits of the Corporation’s financial statements; (d) assisting the Board in fulfilling its responsibilities by reviewing: (i) the financial reports provided by the Corporation to the Securities and Exchange Commission (“SEC”), the Corporation’s stockholders or to the general public, and (ii) the Corporation’s internal financial and accounting controls; (e) recommending, establishing and monitoring procedures designed to improve the quality and reliability of the disclosure of the Corporation’s financial condition and results of operations; and (f) serving as the Corporation’s Qualified Legal Compliance Committee within the meaning of the rules promulgated by the SEC regarding the standards of professional conduct of attorneys practicing before the SEC in accordance with such procedures and guidelines as are adopted from time to time by the Board.B. COMPOSITION
The Committee shall be comprised of at least three (3) directors as appointed by the Board, each of whom satisfies all applicable independence standards and audit committee composition requirements promulgated by the SEC, the NASDAQ Stock Market or any successor entity or other exchange or national quotation system upon which securities of the Corporation may in the future be listed (the “Exchange”), or any other applicable regulations or standards, as in effect from time to time, and each shall be free from any relationship that, in the opinion of the Board, would interfere with the exercise of their independent judgment as a member of the Committee.
If a member of the Committee ceases to meet the independence requirements as mandated by the SEC (and the corresponding provisions of the Exchange) for reasons outside the member’s reasonable control, that person may, with notice to the Exchange by the Corporation, remain a Committee member until the earlier of the next annual stockholder meeting or one year from the occurrence of the event that caused the member to be no longer independent. The Corporation shall disclose its reliance on this exemption and its assessment of whether, and if so, how, such reliance would materially adversely affect the ability of the Committee to act independently and to satisfy any other listing standards applicable to the Committee. The Corporation intends to make any such disclosures in the then upcoming annual proxy statement (or, if the Corporation does not file a proxy statement, in its Annual Report on Form 10-K or equivalent).
All members of the Committee shall be able to read and understand fundamental financial statements, including a balance sheet, cash flow statement and income statement. At least one (1) member of the Committee shall have past employment experience in finance or accounting, requisite professional certification in accounting, or other comparable experience or background which results in the individual’s financial sophistication, including but not limited to being or having been a chief executive officer, chief financial officer, other senior officer with financial oversight responsibilities, or an active participant on one or more public company audit committees. Further, no member of the Committee shall have participated in the preparation of the financial statements of the Corporation or any current subsidiary of the Corporation at any time during the past three years.
To the extent permitted by the SEC and the Exchange, the Board may appoint one member to the Committee who does not meet the independence requirements of the Exchange, but who satisfies the requirements of the SEC, and who is not a current officer or employee of the Corporation or an immediate family member of such person, if the Board, under exceptional and limited circumstances, determines that membership on the Committee by the individual is required by the best interests of the Corporation and its stockholders. The Board shall disclose in the next annual meeting proxy statement, or in its next Annual Report on Form 10-K or equivalent if the Corporation does not file an annual proxy statement, subsequent to such determination, the nature of the relationship and the reasons for the determination. A director appointed to the Committee pursuant to this exception may not serve on the Committee in excess of two consecutive years and may not chair the Committee.
A member of the Committee may not, other than in his or her capacity as a member of the Committee, the Board, or any other committee established by the Board , receive , directly or indirectly, any consulting, advisory or other compensatory fee from the Corporation.
The members of the Committee shall be elected annually by the Board and shall serve until their successors shall be duly elected and qualified or until their earlier resignation or removal, unless earlier replaced or removed by the Board, with or without cause. Unless a Chair is elected by the full Board, the members of the Committee may designate a Chair by majority vote of the full Committee membership.
A majority of the members of the Committee shall constitute a quorum for purposes of holding a meeting and the Committee may act by a vote of a majority of members present at such meeting. In lieu of a meeting, the Committee may act by unanimous written consent.C. RESPONSIBILITIES AND DUTIES
The Committee is vested with all responsibilities and authority required by Rule 10A-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the other duties and responsibilities required by the SEC, the Exchange or enumerated herein. To fulfill its responsibilities and duties, the Committee shall:
- Review and assess the adequacy of this Charter periodically as conditions dictate, but at least annually (and recommend to the Board any updates to this Charter if and when appropriate).
- Review with representatives of management and representatives of the Corporation’s independent accounting firm the Corporation’s audited annual financial statements prior to their filing as part of the Annual Report on Form 10-K. After such review and discussion, the Committee shall recommend to the Board whether such audited financial statements should be included in the Corporation’s Annual Report on Form 10-K.
- Review with financial management and representatives of the Corporation’s independent accounting firm the Corporation’s quarterly financial statements and the Corporation’s Quarterly Reports on Form 10-Q prior to filing.
- Take steps designed to insure that the independent accounting firm reviews the Corporation’s interim financial statements prior to their inclusion in the Corporation’s Quarterly Reports on Form 10-Q.
- Review and discuss with management (i) all evaluations or reports, if any, regarding internal control over financial reporting (or summaries thereof); and (ii) other material reports on financial information (excluding tax returns and reports) submitted by the Corporation to any government body, or the public, including management certifications as required by SEC rule or statute, press releases regarding financial information and relevant reports rendered by the independent accounting firm (or summaries thereof).
Independent Accounting Firm
- Be directly responsible for the appointment, compensation, retention and oversight of the work of any independent accounting firm engaged (including resolution of disagreements between management and the independent accounting firm regarding financial reporting) for the purpose of preparing or issuing an audit report or performing other audit, review or attest services for the Corporation, and each such independent accounting firm must report directly to the Committee. The authority of the Committee shall include ultimate authority to hire and terminate the independent accounting firm and to set and pay all audit engagement fees and terms.
- Approve in advance any and all audit and non-audit services (other than non-audit services prohibited under Section 10A(g) of the Exchange Act or the applicable rules of the SEC or the PCAOB (as defined below)) to be performed by the independent accounting firm or approve such services pursuant to detailed pre-approval policies and procedures established by the Committee (provided the Committee is informed on a timely basis of each service so approved). The Committee may delegate its pre-approval authority to one or more independent Committee members. However, decisions by such member(s) must be presented to the full Committee.
- Determine funding appropriate for compensation of any independent accounting firm engaged for the purpose of preparing or issuing an audit report or performing other audit, review or attest services for the Corporation and notify the Corporation of anticipated funding needs of the Committee. The Corporation shall provide such appropriate funding, as determined by the Committee.
- On an annual basis, receive from the independent accounting firm the written disclosures and the letter required by Rule 3526 promulgated by the Public Company Accounting Oversight Board (“PCAOB”) and a formal written statement delineating all relationships between the independent accounting firm and the Corporation, including written affirmation that the independent accounting firm is, as of the date of the affirmation, independent in compliance with PCAOB Rule 3520. The Committee shall actively engage in a dialogue with the independent accounting firm as to any disclosed relationships or services that may impact the objectivity and independence of the independent accounting firm. The Committee shall take appropriate action to oversee the independence of the independent accounting firm. References to rules or standards of the PCAOB shall be deemed to refer to such rules and to any substantially equivalent rules adopted to replace such rules, in each case as subsequently amended, modified or supplemented.
- On an annual basis, discuss with representatives of the independent accounting firm the matters required to be discussed by the PCAOB.
- Meet with the independent accounting firm prior to the audit to review the planning and staffing of the audit.
- Review and discuss with the independent accounting firm (outside of the presence of management) any problems or difficulties that the independent accounting firm may have encountered with management or others.
- Evaluate the performance of the independent accounting firm and consider the discharge or determination not to retain the independent accounting firm when circumstances warrant.
Financial Reporting Processes
- In consultation with the independent accounting firm and management, review annually the adequacy and integrity of the Corporation’s internal financial and accounting processes and internal control over financial reporting. In addition, in consultation with the independent accounting firm and management, the Committee shall monitor the review and evaluation by management of the Corporation’s disclosure controls and procedures.
- Review disclosures made to the Committee by the Corporation’s principal executive officer and principal financial officer in connection with their certifications of the Corporation’s Annual Reports on Form 10-K or Quarterly Reports on Form 10-Q, prior to the filing thereof, such disclosures to include, based on each such officer’s evaluation of the Corporation’s internal control over financial reporting, (i) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Corporation’s ability to record, process, summarize and report financial information; and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Corporation’s internal control over financial reporting. The Committee shall direct the actions to be taken to the extent such disclosure indicates the finding of any significant deficiencies in internal control over financial reporting or fraud.
- Review and discuss with management and the independent accounting firm, and approve, if appropriate, major changes in and other questions regarding the Corporation’s accounting and auditing principles and procedures.
- Review and discuss with the independent accounting firm (in connection with the audit and prior to the filing of the audit report) such firm’s report covering (i) the Corporation’s critical accounting policies and practices to be used; (ii) all material alternative treatments of financial information within generally accepted accounting principles that have been discussed with management, ramifications of the use of these alternatives, and the treatment preferred by the independent accounting firm; and (iii) material written communications between the independent accounting firm and management. In addition, the Committee shall review and discuss with management the development, selection and disclosure of critical accounting policies and accounting estimates resulting from the application of these policies.
- Inquire at least annually of the Corporation’s independent accounting firm as to whether it has any concerns relative to the quality or appropriateness of management’s accounting policies as applied in its financial reporting.
- Meet at least once in each fiscal quarter, or more frequently as circumstances dictate.
- To the extent deemed necessary by the Committee to carry out its duties, it shall have the authority to engage and compensate independent counsel and other advisers to review any matter under its responsibility.
- Establish procedures for: (i) the receipt, retention, and treatment of complaints received by the Corporation regarding accounting, internal accounting controls, or auditing matters; and (ii) the confidential, anonymous submission by employees of the Corporation of concerns regarding questionable accounting or auditing matters.
- Investigate any allegations that any officer or director of the Corporation, or any other person acting under the direction of any such person, took any action, directly or indirectly, to fraudulently influence, coerce, manipulate, or mislead any independent public or certified accountant engaged in the performance of an audit of the financial statements of the Corporation and, if such allegations prove to be correct, take or recommend to the Board appropriate disciplinary action.
- The Committee shall oversee the adoption of a policy requiring approval of transactions with related persons (as such term is defined in SEC regulations). The Committee shall monitor compliance with and periodically review such policy. The Committee shall have the power to review and approve any related person transactions.
- Determine funding appropriate for compensation of any advisers employed by the Committee and for ordinary administrative expenses of the Committee that are necessary or appropriate in carrying out its duties, and notify the Corporation of anticipated funding needs of the Committee. The Corporation shall provide such appropriate funding, as determined by the Committee.
The Corporation’s financial statements are the responsibility of the Corporation’s management. The independent accounting firm is responsible for planning and conducting audits to determine whether the financial statements present fairly in all material respects the financial position of the Corporation. It is not the duty of the Committee to ensure that the Corporation complies with laws and regulations and its policies and procedures.
From time to time, the Committee shall consider whether a self-evaluation by its members is necessary to determine whether the Committee is functioning effectively as described in the Corporation’s Corporate Governance Guidelines. The results of any self-evaluation shall be provided to the Board. The Committee shall also have the authority to undertake any actions required in the Committee’s capacity as the Corporation’s Qualified Legal Compliance Committee.
- Prepare, in accordance with the rules of the SEC as modified or supplemented from time to time, a written report of the Committee to be included in the Corporation’s annual meeting proxy statement for each annual meeting of stockholders.
- To the extent required by the SEC or the Exchange, instruct the Corporation’s management to disclose in its annual meeting proxy statement and Annual Report on Form 10-K (for which incorporation to such proxy statement is permitted) the nature of all non-audit services provided by the independent accounting firm, any pre-approval policies and procedures developed by the Committee and the percentage of fees pre-approved pursuant to such policies and procedures, and review the substance of any such disclosure.
- Instruct the Corporation’s management to disclose in its Annual Report on Form 10-K, or to incorporate by reference to the Corporation’s annual meeting proxy statement, (i) whether the Corporation has at least one “audit committee financial expert” (as defined by SEC regulations) serving on the Committee; (ii) if so, the name of such person and whether such person is “independent” (according to SEC requirements), and if such person is not independent, an explanation as to why not; and (iii) if the Corporation does not have an audit committee financial expert serving on its Committee, to disclose such fact and explain why not.
- Instruct the Corporation’s management to disclose in its Annual Report on Form 10-K or the Corporation’s annual meeting proxy statement the members of the Committee.
- The Committee shall make regular reports to the Board and shall keep written minutes which shall be recorded and filed with the books and records of the Corporation.
- Financial Expert
- Independent Director