FORM 8-K
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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) April 2, 2009 (April 2, 2009)
EMAGEON INC.
(Exact name of registrant as specified in charter)
|
|
|
|
|
Delaware
|
|
0-51149
|
|
63-1240138 |
|
|
|
|
|
(State or other jurisdiction
|
|
(Commission
|
|
(IRS Employer |
of incorporation)
|
|
File Number)
|
|
Identification No.) |
|
|
|
1200 Corporate Drive, Suite 200, Birmingham, Alabama
|
|
35242 |
|
|
|
(Address of principal executive offices)
|
|
(Zip Code) |
Registrants telephone number, including area code: (205) 980-9222
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 2.01 COMPLETION OF ACQUISITION OR DISPOSITION OF ASSETS
As previously announced, on February 23, 2009, Emageon Inc., a Delaware corporation
(Emageon or 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 a direct wholly owned subsidiary of AMICAS
(Merger Sub). Pursuant to the Merger Agreement, upon the terms and subject to the
conditions thereof, Merger Sub commenced a tender offer (the Offer) on March 5, 2009 to
acquire all of the outstanding shares of common stock of the Company (the Shares) at a
purchase price of $1.82 per share, net to the holder in cash (the Offer Price), subject
to any applicable withholding of taxes, upon the terms and subject to the conditions set forth in
the Offer to Purchase, dated March 5, 2009 (the Offer to Purchase), and the related
Letter of Transmittal, each as amended or supplemented from time to time. Capitalized terms used
and not otherwise defined herein have the meanings assigned to such terms in the Offer to Purchase.
On April 2, 2009, AMICAS and Emageon announced the completion of the Offer. The Offer expired
at 11:59 p.m., New York City time, at the end of Wednesday, April 1, 2009. According to StockTrans
Inc., the depositary for the Offer, as of 11:59 p.m., New York City time, on April 1, 2009, a total
of 18,882,734 shares of Emageon common stock (excluding Shares
tendered through guaranteed delivery procedures) were validly tendered and not withdrawn in the Offer,
which represented approximately 88.0% of all outstanding Shares. An
additional 1,101,921 Shares were tendered through guaranteed
delivery procedures. Merger Sub has accepted for
payment all Shares that were validly tendered and not withdrawn
during the Offer, and has delivered payment for
such Shares to StockTrans, Inc., the depositary for the Offer, in accordance with the terms of the Offer.
On April 2, 2009, in order to acquire more than 90% of the outstanding Shares (excluding
Shares tendered through guaranteed delivery procedures and not yet delivered), Merger Sub, pursuant
to the terms of the Merger Agreement, exercised its Top-Up Option, pursuant to which Merger Sub
acquired 4,220,222 newly-issued Shares at a purchase price per share equal to the Offer Price. As
a result of Merger Subs acquisition of the Shares validly
tendered during the Offer and the Shares
issued pursuant to the Top-Up Option, Merger Sub owned more than 90% of the Companys outstanding
Shares (excluding Shares tendered through guaranteed delivery procedures and not yet delivered).
Following the exercise of the Top-Up Option, and pursuant to the Merger Agreement, AMICAS
caused Merger Sub to merge with and into Emageon (the Merger) on April 2, 2009, without a
meeting of the stockholders of the Company, in accordance with the short-form merger statute of
the Delaware General Corporation Law, with Emageon continuing as the surviving corporation and a
wholly-owned subsidiary of AMICAS. At the effective time of the Merger, each issued and
outstanding Share that was not tendered in the Offer (other than Shares held by Emageon, Merger Sub,
AMICAS or any direct or indirect wholly-owned subsidiary of AMICAS or of Emageon, or by
stockholders who validly exercise their appraisal rights under
Delaware law) was cancelled and converted into the right to
receive an amount in cash equal to the Offer Price.
Based on the Offer Price,
the number of Shares validly tendered and accepted for payment
(excluding Shares tendered through guaranteed delivery procedures) at the expiration of the Offer, and
the number of Shares acquired by Merger Sub in connection with its exercise of the Top-Up Option,
the value of the Shares purchased by Merger Sub in connection with the Offer was approximately
$34,366,576, and the value of the Shares purchased by Merger Sub in connection with the exercise of
the Top-Up Option was approximately $7,680,804. Merger Sub paid to Emageon the aggregate par value
of the Shares acquired in connection with the exercise of the Top-Up Option, and paid for the
remaining amount of such Shares by delivery of a promissory note. The funds used by Merger Sub
to purchase the Shares tendered in the Offer, and to pay the par value of the Shares purchased in
connection with the exercise of the Top-Up Option, were from cash and/or readily-available funds.
ITEM 3.01 NOTICE OF DELISTING OR FAILURE TO SATISFY A CONTINUED LISTING RULE OR STANDARD; TRANSFER OF LISTING
As a result of the Merger, Emageon no longer fulfills the numerical listing requirements of
The NASDAQ Global Market (NASDAQ). Accordingly, at Emageons request, NASDAQ will file
with the U.S. Securities and Exchange Commission (the SEC) a Notification of Removal from
Listing and/or Registration under Section 12(b)
1
of the Securities Exchange Act of 1934, as amended (the Exchange Act), on Form 25
thereby effecting the delisting of the Shares from NASDAQ and the deregistration of the Shares
under the Exchange Act. Additionally, Emageon will file with the SEC a Certification on Form 15
under the Exchange Act to suspend the Companys reporting obligations under Sections 13 and 15(d)
of the Exchange Act.
ITEM 3.02 UNREGISTERED SALES OF EQUITY SECURITIES
In order to complete the Merger, on April 2, 2009, Merger Sub exercised its Top-Up Option to
purchase newly-issued Shares, and in connection therewith, Emageon issued 4,220,222 Shares to
Merger Sub at a price per share of $1.82, which resulted in an aggregate purchase price of
approximately $7,680,804. Merger Sub paid to Emageon the aggregate par value of the Shares
acquired in connection with the exercise of the Top-Up Option, and paid for the remaining amount of
such Shares by delivery of a promissory note.
The issuance of these Shares by Emageon was made in a transaction not involving any public
offering pursuant to an exemption from registration under Section 4(2) of the Securities Act of
1933, as amended (the Securities Act). The offering was not a public offering as defined in
Section 4(2) of the Securities Act due to the fact that Merger Sub was the only person involved in
the transaction, the size of the offering, and the manner of the offering. In addition, Merger Sub
had the necessary investment intent as required by Section 4(2) of the Securities Act since such
Shares were issued to facilitate the Merger pursuant to which Emageon became a wholly-owned
subsidiary of AMICAS. Based on the above factors, Emageon believes that this issuance of Shares
meets the requirements to qualify for exemption under Section 4(2) of the Securities Act.
ITEM 3.03 MATERIAL MODIFICATION TO RIGHTS OF SECURITY HOLDERS
In connection with the consummation of the Merger, on April 2, 2009, each Share issued and
outstanding immediately prior to the effective time of the Merger (other than Shares held by Merger
Sub or AMICAS, treasury Shares, which were cancelled, and Shares held by stockholders, if any, who
properly exercise appraisal rights in accordance with the Delaware General Corporation Law) was
converted into the right to receive $1.82 per Share, in cash, without interest.
ITEM 5.01 CHANGES IN CONTROL OF REGISTRANT
The information contained in Item 2.01 is incorporated herein by reference.
|
|
|
ITEM 5.02 |
|
DEPARTURE OF CERTAIN OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF CERTAIN OFFICERS; COMPENSATORY ARRANGEMENTS OF CERTAIN OFFICERS |
In connection with the consummation of the Merger and pursuant to the terms of the Merger
Agreement, each of the directors of Emageon resigned from the board of directors of Emageon,
effective as of the effective time of the Merger on April 2, 2009. Pursuant to the Merger
Agreement, Kevin C. Burns, Stephen N. Kahane and Craig Newfield became
the directors of Emageon as of the effective time of the Merger.
ITEM 5.03 AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN FISCAL YEAR
Pursuant to the Merger Agreement, at the effective time of the Merger on April 2, 2009,
Emageons certificate of incorporation was amended and restated in its entirety in a form attached
to the Merger Agreement, and such amended and restated certificate of incorporation became the
certificate of incorporation of the surviving corporation.
2
Pursuant to the Merger Agreement, at the effective time of the Merger on April 2, 2009,
Emageons bylaws were amended and restated in their entirety to be identical to the bylaws of
Merger Sub, as in effect immediately prior to the effective time of the Merger (except that the
name of the surviving corporation set forth therein is Emageon Inc.), and such amended and
restated bylaws became the bylaws of the surviving corporation.
Copies of the amended and restated certificate of incorporation and the amended and restated
bylaws of Emageon as in effect immediately following the effective time of the Merger are filed as
Exhibits 3.1 and 3.2 to this report and are incorporated by reference in this Item 5.03.
ITEM 8.01 OTHER EVENTS
On April 2, 2009,
AMICAS issued a press release announcing the results of
the Offer, a copy of which is filed as Exhibit 99.1 to this report
and is incorporated herein by reference
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits.
|
|
|
Exhibit No. |
|
Description |
|
|
|
3.1
|
|
Amended and Restated Certificate of Incorporation |
|
|
|
3.2
|
|
Amended and Restated Bylaws |
|
|
|
99.1
|
|
Press Release, dated April 2, 2009, announcing the results of the Offer |
3
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.
|
|
|
|
|
|
EMAGEON INC.
(Registrant)
|
|
|
By: |
/s/ John W. Wilhoite
|
|
|
|
John W. Wilhoite |
|
|
|
Chief Financial Officer |
|
|
Date:
April 2, 2009
4
EXHIBIT INDEX
|
|
|
Exhibit No. |
|
Description |
|
|
|
3.1
|
|
Amended and Restated Certificate of Incorporation |
|
|
|
3.2
|
|
Amended and Restated Bylaws |
|
|
|
99.1
|
|
Press Release, dated April 2, 2009, announcing the results of the Offer |
5