FORM 8-K
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 23, 2009 (February 23, 2009)
EMAGEON INC.
(Exact name of registrant as specified in its charter)
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Delaware
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0-51149
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63-1240138 |
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(State or Other Jurisdiction of Incorporation)
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(Commission File Number)
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(I.R.S. Employer
Identification No.) |
1200 Corporate Drive, Suite 200, Birmingham, Alabama 35242
(Address of principal executive offices) (Zip Code)
(205) 980-9222
(Registrants telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy
the filing obligation of the registrant under any of the following provisions (see General
Instruction A.2. below):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
Item 1.01 Entry Into a Material Definitive Agreement.
On February 23, 2009, Emageon Inc., a Delaware corporation (the Company), entered into an
Agreement and Plan of Merger (the Merger Agreement) with AMICAS, Inc., a Delaware corporation
(AMICAS), and AMICAS Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of
AMICAS (Purchaser). Pursuant to the terms of the Merger Agreement, (i) Purchaser will commence a
cash tender offer (the Offer) to purchase all of the issued and outstanding shares of common
stock, par value $.001 per share, of the Company (the Shares), at a price per Share equal to
$1.82, net in cash without interest, less any required withholding taxes (the Offer Price), and
(ii) following the consummation of the Offer, Purchaser will merge with and into the Company (the
Merger), and each Share, other than Shares held by the Company, AMICAS, Purchaser or stockholders
who have validly exercised their appraisal rights under Delaware law, will be cancelled and
converted into the right to receive the Offer Price.
The Merger Agreement provides for the commencement of the Offer as promptly as practicable
after the date of the Merger Agreement (but in no event later than March 5, 2009), and the Offer
will remain open for at least 20 business days. The obligation to accept for payment and pay for
the Shares tendered in the Offer is subject to certain conditions, including, among other things,
the tender of a majority of the total number of outstanding Shares, on a fully diluted basis.
Under the Merger Agreement, if, following the consummation of the Offer, a majority but fewer
than 90% of the issued and outstanding Shares are accepted for payment in the Offer, AMICAS and
Purchaser have an option (the Top-Up Option) to purchase, at a per Share price equal to the Offer
Price, such number of newly issued Shares equal to the lowest number of Shares that, when added to
the number of Shares owned by AMICAS, Purchaser or their affiliates at the time of exercise of the
Top-Up Option, will constitute one Share more than 90% of the total Shares outstanding on a fully
diluted basis.
The Merger Agreement contains customary representations and covenants, and the Merger is
subject to customary closing conditions. In addition, the Company has agreed to use commercially
reasonable efforts to operate its business in the ordinary course until the Offer is consummated.
The Company has agreed not to solicit or initiate discussions with third parties regarding other
proposals to acquire the Company and to certain restrictions on its ability to respond to any such
proposal. The Merger Agreement also includes customary termination provisions, and provides that,
upon the termination of the Merger Agreement, under specified circumstances, the Company will be
required to pay AMICAS, as a sole remedy in such circumstances, a termination fee of $1.6 million.
The parties have agreed that if, following completion of the Offer, AMICAS, Purchaser and any
other subsidiary of AMICAS own at least 90% of the outstanding Shares, the Merger will be completed
without a meeting of the Companys stockholders, pursuant to Delawares short-form merger
statute.
A copy of the Merger Agreement is attached hereto as Exhibit 2.1 and incorporated
herein by reference. The foregoing description of the Merger Agreement is qualified in its entirety
by reference to the full text of the Merger Agreement.
The Company engaged Jefferies & Company, Inc. to serve as its financial advisor and SunTrust
Robinson Humphrey, Inc. (SunTrust) to render an opinion to the Companys Board of Directors as to
the fairness to the holders of the Shares, from a financial point of view, of the Offer Price. On
February 22, 2009, SunTrust delivered an oral opinion to the Board of Directors that as of the date
of the opinion and based on and subject to the assumptions made, matters considered, qualifications
and limitations set forth in the opinion, the Offer Price to be received by holders of the Shares
is fair to such holders from a financial point of view. The full text of the written opinion of
SunTrust, dated February 22, 2009, which sets forth assumptions made, procedures followed, matters
considered and limitations on the review undertaken in connection with the opinion, will be
included in the Companys Schedule 14D-9 in connection with the Offer described herein. SunTrust
provided its opinion for the information and assistance of the Board of Directors in connection
with its consideration of the Offer and the opinion was one of many factors taken into
consideration by the Companys Board of Directors in making its determination to approve the Merger
Agreement. The SunTrust opinion is not a recommendation to any stockholder
as to whether such stockholder should tender Shares in the Offer or how to vote with respect to the
Merger or any other matter.
The Merger Agreement has been included to provide investors and security holders with
information regarding its terms. It is not intended to provide any other factual information about
the Company. The representations, warranties and covenants contained in the Merger Agreement were
made only for purposes of such agreement and as of specific dates, were solely for the benefit of
the parties to such agreement, and may be subject to limitations agreed upon by the contracting
parties, including being qualified by confidential disclosures exchanged between the parties in
connection with the execution of the Merger Agreement. The representations and warranties may have
been made for the purposes of allocating contractual risk between the parties to the agreement
instead of establishing these matters as facts, and may be subject to standards of materiality
applicable to the contracting parties that differ from those applicable to investors. Investors
are not third-party beneficiaries under the Merger Agreement and should not rely on the
representations, warranties and covenants or any descriptions thereof as characterizations of the
actual state of facts or condition of the Company or AMICAS or any of their respective subsidiaries
or affiliates. Moreover, information concerning the subject matter of the representations and
warranties may change after the date of the Merger Agreement, which subsequent information may or
may not be fully reflected in the Companys public disclosures.
Tender and Support Agreements
In connection with the execution of the Merger Agreement, AMICAS and Purchaser entered into
Tender and Support Agreements (the Tender Agreements) with the following persons or stockholders
(the Stockholders):
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Charles A. Jett, Jr., President and Chief Executive Officer |
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Keith Stahlhut, Principal Operating Officer |
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John W. Wilhoite, Chief Financial Officer and Treasurer |
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Arthur P. Beattie, director |
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Roddy J. H. Clark, director |
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Fred C. Goad, director |
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Bradley S. Karro, director |
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Mylle H. Mangum, director |
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Augustus K. Oliver, director |
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John W. Thompson, director |
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Benner Ulrich, director |
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Hugh H. Williamson, III, Chairman of the Board of Directors |
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Oliver Press Partners, LLC, an affiliate of Messrs. Oliver and Ulrich |
Pursuant to the Tender Agreements, the Stockholders have agreed, among other things, to tender
all of their shares pursuant to the Offer.
The directors, officers and related entities that have entered into the Tender Agreements
hold, in the aggregate, 3,778,711 shares, or approximately 18%, of the Shares outstanding as of
February 23, 2009. In addition, the Tender Agreements apply to Shares acquired by these
Stockholders after February 23, 2009, including the 1,182,160 shares of Common Stock issuable to
such persons upon the conversion or exercise of derivative securities such as stock options and
equity awards.
A form of the Tender Agreements is attached as Exhibit 99.1 and is incorporated herein
by reference. The foregoing description of the Tender Agreements is qualified in its entirety by
reference to the full text of the form of Tender Agreement.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain Officers.
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On February 23, 2009, the Company entered into a Severance Agreement and General Release (the
Severance Agreement) with Charles A. Jett, Jr., its President and Chief Executive Officer,
pursuant to which Mr. Jetts employment with the Company will be terminated effective upon
completion of the Offer. Under the Severance Agreement, in addition to earned but unpaid base
salary and other benefits accrued through the date of termination (less all applicable statutory
withholdings and deductions), Mr. Jett will be entitled to receive the following severance
benefits, which are consistent with a termination of his employment by the Company other than for
cause following a change in control of the Company under his existing employment agreement with
the Company:
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a lump sum payment of $1,235,000, which is equal to Mr. Jetts current monthly base
salary plus the product of one-twelfth of his target annual bonus for the year of
termination multiplied by 24 months; |
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a lump sum payment of $23,203, which is equal to the cost for Mr. Jett to maintain
continuing family health and dental insurance for 24 months, less Mr. Jetts share of
insurance benefits under our current benefit plans; |
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a lump sum payment of $8,000 for maintenance of life insurance coverage; and |
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full vesting in all stock options, stock appreciation rights, restricted stock and
restricted stock units that he holds as of the date of termination. |
In addition, Mr. Jett is eligible to receive a gross up payment to reimburse him for any
excise tax imposed on these benefits under Internal Revenue Code Section 4999, as well as any
additional income and employment taxes resulting from such reimbursement.
Under the Severance Agreement, Mr. Jett has also agreed to a general release of the Company
for all claims through the date of termination of his employment, and the Company has agreed to
release Mr. Jett from all claims based on Mr. Jetts employment with the Company. Mr. Jett will
remain subject to the non-compete, non-solicitation, confidentiality and related provisions of his
employment agreement following termination of his employment with the Company.
The Severance Agreement replaces and supersedes that certain Severance Agreement and General
Release, dated as of October 31, 2008, between Mr. Jett and the Company, that was terminated in
connection with the recent termination by the Company of its Agreement and Plan of Merger, dated as
of October 13, 2008 and amended as of December 29, 2008, by and among Health Systems Solutions,
Inc., HSS Acquisition Corp. and the Company.
The Severance Agreement is attached as Exhibit 10.1 and is incorporated herein by
reference. The foregoing description of the Severance Agreement is qualified in its entirety by
reference to the full text of the Severance Agreement.
Item 8.01 Other Events.
On February 23, 2009, the Company and AMICAS issued a joint press release regarding the
execution of the Merger Agreement. A copy of the press release is furnished herewith as Exhibit
99.2.
Additional Information
This Current Report on Form 8-K is neither an offer to purchase nor a solicitation of an offer
to sell shares of the Company. The Offer for the Shares described herein has not yet been
commenced. At the time the Offer is commenced, AMICAS and Purchaser intend to file with the
Securities and Exchange Commission (the SEC) and mail to the Companys stockholders a Tender
Offer Statement on Schedule TO and related exhibits, including the offer to purchase, letter of
transmittal and other related documents, and the Company intends to file with the SEC and mail to
its stockholders a Solicitation/Recommendation Statement on Schedule 14D-9 in connection with the
transaction. These documents will contain important information about AMICAS, Purchaser, the
Company, the
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transaction and other related matters. Investors and security holders are urged to read each of
these documents carefully when they are available. Investors and security holders will be able to
obtain free copies of the Tender Offer Statement, the Solicitation/Recommendation Statement and
other documents filed with the SEC by AMICAS and the Company through the web site maintained by the
SEC at www.sec.gov. In addition, investors and security holders will be able to obtain free copies
of these documents by contacting the Investor Relations departments of AMICAS or the Company.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
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Exhibit 2.1
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Agreement and Plan of Merger, dated as of February 23, 2009, by and among the Company,
AMICAS, Inc. and AMICAS Acquisition Corp.* |
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Exhibit 10.1
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Severance Agreement and General Release, dated as of February 23, 2009, by and between
the Company and Charles A. Jett, Jr. |
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Exhibit 99.1
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Form of Tender and Support Agreement |
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Exhibit 99.2
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Press release dated February 23, 2009 |
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Schedules and exhibits omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company agrees to furnish
supplementally a
copy of any omitted
schedule to the SEC
upon request. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly
caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.
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Date: February 24, 2009 |
EMAGEON INC.
(Registrant)
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By: |
/s/ John W. Wilhoite
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John W. Wilhoite |
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Chief Financial Officer and Treasurer |
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EXHIBIT INDEX
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Exhibit No. |
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Description |
2.1
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Agreement and Plan of Merger, dated as of February 23, 2009, by and among the Company, AMICAS, Inc. and AMICAS Acquisition Corp.* |
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10.1
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Severance Agreement and General
Release, dated as of February 23, 2009, by and between the
Company and Charles A. Jett, Jr. |
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99.1
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Form of Tender and Support Agreement |
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99.2
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Press release dated February 23, 2009 |
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Schedules and exhibits omitted pursuant to Item 601(b)(2) of
Regulation S-K. The Company agrees to furnish supplementally a
copy of any omitted schedule to the SEC upon request. |
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