TENDER AND SUPPORT AGREEMENT BY AND AMONG AMICAS, INC., AMICAS ACQUISITION CORP. AND [STOCKHOLDER] DATED AS OF FEBRUARY 23, 2009
Exhibit 99.1
BY AND AMONG
AMICAS, INC.,
AMICAS ACQUISITION CORP.
AND
[STOCKHOLDER]
DATED AS OF FEBRUARY 23, 2009
INDEX OF DEFINED TERMS
| Page | ||||
Agreement |
1 | |||
Beneficial Ownership |
1 | |||
Beneficially Own |
2 | |||
Beneficially Owned |
2 | |||
Common Stock |
2 | |||
Company |
1 | |||
Covered Shares |
2 | |||
Encumbrance |
2 | |||
Existing Shares |
1 | |||
Grantees |
4 | |||
Merger |
1 | |||
Merger Agreement |
1 | |||
Merger Sub |
1 | |||
Parent |
1 | |||
Representative |
1 | |||
Section 2.1 Matters |
3 | |||
Stockholder |
1 | |||
Transfer |
2 | |||
i
TENDER AND SUPPORT AGREEMENT, dated as of February 23, 2009 (this “Agreement”), by and
among AMICAS, Inc., a Delaware corporation (“Parent”), AMICAS Acquisition Corp., a Delaware
corporation and wholly-owned subsidiary of Parent (“Merger Sub”), and [___] (the
“Stockholder”).
W I T N E S S E T H:
WHEREAS, concurrently with the execution of this Agreement, Parent, Merger Sub and Emageon,
Inc., a Delaware corporation (the “Company”) are entering into an Agreement and Plan of
Merger, dated as of the date hereof (as amended, supplemented, restated or otherwise modified from
time to time, the “Merger Agreement”) pursuant to which, among other things, (i) Merger Sub
will commence a tender offer (the “Offer”) to purchase all of the outstanding shares of
Common Stock at a price per share equal to the Offer Price and (ii) following acceptance for
payment of shares pursuant to the Offer, Merger Sub will merge with and into the Company (the
“Merger”) and each outstanding share of Common Stock will be converted into the right to
receive the Offer Price.
WHEREAS, as of the date hereof, the Stockholder owns beneficially and of record the number of
shares of Common Stock set forth opposite Stockholder’s name on Schedule I hereto (the
“Existing Shares”).
WHEREAS, as a material inducement to Parent entering into the Merger Agreement, Parent has
required that the Stockholder agree, and the Stockholder has agreed, to enter into this Agreement
and abide by the covenants and obligations with respect to the Covered Shares (as hereinafter
defined) set forth herein and in executing and delivering the Merger Agreement, Parent and Merger
Sub are relying on the agreements contained herein.
NOW THEREFORE, in consideration of the foregoing and the mutual representations, warranties,
covenants and agreements herein contained and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I
GENERAL
1.1. Defined Terms. The following capitalized terms, as used in this Agreement, shall
have the meanings set forth below. Capitalized terms used but not otherwise defined herein shall
have the meanings ascribed thereto in the Merger Agreement.
“Beneficial Ownership” by a Person of any securities includes ownership by any Person
who, directly or indirectly, through any contract, arrangement, understanding, relationship or
otherwise, has or shares (i) voting power which includes the power to vote, or to direct the voting
of, such security; and/or (ii) investment power which includes the power to dispose, or to direct
the disposition, of such security; and shall otherwise be interpreted in accordance with the term
“beneficial ownership” as defined in Rule 13d-3 adopted by the Securities and Exchange Commission
under the Securities Exchange Act of 1934, as amended; provided that for purposes of determining
Beneficial Ownership, a Person shall be deemed to be the Beneficial Owner of any securities which
such Person has, at any time during the term of this
Agreement, the right to acquire pursuant to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise
(irrespective of whether the right to acquire such securities is exercisable immediately or only
after the passage of time, including the passage of time in excess of 60 days, the satisfaction of
any conditions, the occurrence of any event or any combination of the foregoing). The terms
“Beneficially Own” and “Beneficially Owned” shall have a correlative meaning.
“Common Stock” means the common stock, par value $0.001 per share, of the Company.
“Covered Shares” means, with respect to the Stockholder, the Stockholder’s Existing
Shares, together with any shares of Common Stock or other voting capital stock of the Company and
any securities convertible into or exercisable or exchangeable for shares of Common Stock or other
voting capital stock of the Company, in each case, that the Stockholder acquires Beneficial
Ownership of on or after the date hereof.
“Encumbrance” means any security interest, pledge, mortgage, lien (statutory or
other), charge, option to purchase, lease or other right to acquire any interest or any claim,
restriction, covenant, title defect, hypothecation, assignment, deposit arrangement or other
encumbrance of any kind or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or other title
retention agreement.
“Representative” means, when used with respect to any Person, the directors, officers,
members, managers, employees, consultants, accountants, legal counsel, investment bankers, lenders
or other financing sources, agents and other representatives of such Person, as applicable.
“Transfer” means, directly or indirectly, to sell, transfer, assign, pledge, encumber,
hypothecate or similarly dispose of (by merger (including by conversion into securities or other
consideration), by tendering into any tender or exchange offer, by operation of law or otherwise),
either voluntarily or involuntarily, or to enter into any contract, option or other arrangement or
understanding with respect to the voting of or sale, transfer, assignment, pledge, encumbrance,
hypothecation or similar disposition of (by merger, by tendering into any tender or exchange offer,
by operation of law or otherwise).
ARTICLE II
TENDER AND SUPPORT
2.1. Tender and Support Agreements.
(a) Agreement to Tender. The Stockholder shall validly tender or cause to be validly
tendered in the Offer all of such Stockholder’s Covered Shares pursuant to and in accordance with
the terms of the Offer. As promptly as practicable, but in any event no later than seven Business
Days after the commencement of the Offer, each Stockholder shall (i) deliver to the Depositary
designated in the Offer (A) a letter of transmittal with respect to its Covered Shares complying
with the instructions set forth therein and the terms of the Offer, (B) a certificate or
certificates representing such Covered Shares or an “agent’s message” (or such
-2-
other evidence, if any, of transfer as the Depositary may reasonably request) in the case of a
book-entry transfer of any uncertificated Covered Shares, and (C) all other documents or
instruments required to be delivered by other stockholders of the Company pursuant to the terms of
the Offer, and (ii) instruct its broker or such other Person that is the holder of record of any
Covered Shares beneficially owned by the Stockholder to tender such Covered Shares pursuant to and
in accordance with the terms of the Offer. The Stockholder agrees that, once its Covered Shares
are tendered, such Stockholder will not withdraw any of such Covered Shares from the Offer, unless
and until (A) the Offer shall have expired or been terminated by Merger Sub in accordance with the
terms of the Merger Agreement or (B) this Agreement shall have been terminated in accordance with
its terms.
(b) Agreement to Vote. The Stockholder hereby irrevocably and unconditionally agrees
that during the time this Agreement is in effect, at the Company Stockholders Meeting and at any
other meeting of the stockholders of the Company, however called, including any adjournment or
postponement thereof, or in any other circumstance in which the vote, consent or approval of
stockholders of the Company, in their capacity as stockholders, is sought with respect to the
Merger Agreement or any Takeover Proposal, the Stockholder shall, in each case, to the fullest
extent that such matters are submitted for the vote, written consent or approval of the Stockholder
and the Stockholder is entitled to vote thereon or consent thereto, to the extent any of the
Covered Shares have not been purchased in the Offer: (a) appear at each such meeting or otherwise
cause such Covered Shares to be counted as present thereat for purposes of calculating a quorum;
and (b) vote in favor of (or cause to be voted in favor of), in person or by proxy, deliver (or
cause to be delivered) a written consent or otherwise approve on behalf of all of such Covered
Shares (i) the adoption of the Merger Agreement and any related proposal in furtherance thereof, as
reasonably requested by Parent, submitted for the vote, written consent or approval of the
Company’s stockholders; (ii) against any action, proposal or agreement submitted for the vote,
written consent or approval of the Company’s stockholders that is in opposition to, or would
reasonably be expected to be competitive or materially inconsistent with, the Merger or would
result in a breach of any covenant, representation or warranty or any other obligation or agreement
of the Company contained in the Merger Agreement, or of the Stockholder contained in this
Agreement; and (iii) against any Takeover Proposal and against any other action, agreement or
transaction submitted for the vote, written consent or approval of stockholders that would
reasonably be expected to impede, interfere with, delay, postpone, discourage, frustrate the
purposes of or adversely affect the Merger or the other transactions contemplated by the Merger
Agreement or this Agreement or the performance by the Company of its obligations under the Merger
Agreement or by the Stockholder of its obligations under this Agreement.
2.2. No Inconsistent Agreements. The Stockholder hereby covenants and agrees that,
except for this Agreement, and except as may be permitted by Section 4.3(b) hereof, it (a) has not
entered into, and shall not enter into at any time while this Agreement remains in effect, any
voting agreement or voting trust with respect to the Covered Shares with respect to any of the
matters described in Section 2.1(b) (the “Section 2.1 Matters”) or, except with Parent or
Merger Sub, any contract, option or other agreement or binding understanding with respect to any
Transfer of any or all of the Covered Shares, (b) has not granted, and shall not grant at any time
while this Agreement remains in effect (except pursuant to Section 2.3), a proxy, consent or power
of attorney with respect to the Covered Shares with respect to any of the Section 2.1 Matters and
(c) has not intentionally taken and shall not intentionally take any action that would
-3-
make any representation or warranty of the Stockholder contained herein untrue or incorrect or
have the effect of preventing or disabling the Stockholder from performing any of its obligations
under this Agreement.
2.3. Proxy. Without in any way limiting the Stockholder’s right to vote the Covered
Shares in its sole discretion on any matters other than the Section 2.1 Matters that may be
submitted to a stockholder vote, consent or other approval, the Stockholder hereby irrevocably
appoints as its proxy and attorney-in-fact, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇, pursuant to a
proxy to be delivered to Parent substantially in the form attached hereto as Annex A, in
their respective capacities as officers of Parent, and any individual who shall hereafter succeed
to any such officer of Parent, and any other Person designated in writing by Parent (collectively,
the “Grantees”), each of them individually, with full power of substitution, to vote or
execute written consents with respect to the Covered Shares and, in the discretion of the Grantees,
with respect to any proposed postponements or adjournments of any annual or special meeting of the
stockholders of the Company at which any of the Section 2.1 Matters is or was to be considered.
This proxy is coupled with an interest and shall be irrevocable until the termination of this
Agreement in accordance with its terms, in which event this proxy shall automatically be revoked
without any further action by any party. The Stockholder will take such further action or execute
such other instruments as may be necessary to effectuate the intent of this proxy and hereby
revokes any proxy previously granted by it with respect to the Covered Shares with respect to any
of the Section 2.1 Matters. So long as the proxy granted under this Section 2.3 is a valid
uncontested proxy that is effective to deliver the votes of the Covered Shares, the Stockholder
shall be deemed to be fulfilling its obligations under Section 2.1(b). If Parent believes that
such proxy is not a valid proxy or if Parent otherwise does not wish to utilize the proxy, Parent
will immediately so notify the Stockholder in writing so that the Stockholder will be able to
perform its obligations under Section 2.1(b).
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1. Representations and Warranties of the Stockholder. The Stockholder hereby
represents and warrants to Parent and Merger Sub as follows:
(a) Organization; Authorization; Validity of Agreement; Necessary Action. The
Stockholder has full power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has
been duly executed and delivered by the Stockholder and, assuming this Agreement constitutes a
valid and binding obligation of the other parties hereto, constitutes a legal, valid and binding
obligation of the Stockholder, enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, moratorium, reorganization or similar laws affecting
the rights of creditors generally and the availability of equitable remedies (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
(b) Ownership. As of the date hereof, the Stockholder’s Existing Shares are, and all
of the Covered Shares will be, Beneficially Owned including owned of record by the Stockholder.
The Stockholder has good and marketable title to the Stockholder’s Existing Shares, free and clear
of any Encumbrances. As of the date hereof, the Stockholder’s Existing
-4-
Shares constitute all of the shares of Common Stock Beneficially Owned or owned of record by
the Stockholder. Except for the rights granted to Parent hereby, the Stockholder has and will have
at all times through the Closing Date sole voting power (including the right to control such vote
as contemplated herein) with respect to the Section 2.1 Matters, sole power of disposition, sole
power to issue instructions with respect to the Section 2.1 Matters, and sole power to agree to all
of the matters set forth in this Agreement, in each case, with respect to all of the Stockholder’s
Existing Shares and Covered Shares.
(c) No Violation. The execution, delivery and performance of this Agreement by the
Stockholder does not and will not (whether with or without notice or lapse of time, or both) (i)
violate, conflict with or result in the breach of any of the terms or conditions of, result in any
(or the right to make any) modification of or the cancellation or loss of a benefit under, require
any notice, consent or action under, or otherwise give any Person the right to terminate,
accelerate obligations under or receive payment or additional rights under, or constitute a default
under, any Contract to which the Stockholder is a party or by which it is bound or (ii) violate any
Law applicable to the Stockholder or by which any of the Stockholder’s assets or properties is
bound, except for any of the foregoing as would not, either individually or in the aggregate,
impair the ability of the Stockholder to perform its obligations hereunder or to consummate the
transactions contemplated hereby on a timely basis.
ARTICLE IV
OTHER COVENANTS
4.1. Prohibition on Transfers, Other Actions. Except as permitted by Section 4.3(b),
the Stockholder hereby agrees not to (i) Transfer any of the Covered Shares, Beneficial Ownership
thereof or any other interest therein, except to participate in the Offer or the Merger; (ii) enter
into any agreement, arrangement or understanding with any Person (other than Parent or Merger Sub),
or take any other action, that violates or conflicts with the Stockholder’s representations,
warranties, covenants and obligations under this Agreement; or (iii) take any action that could
restrict or otherwise affect the Stockholder’s legal power, authority and right to comply with and
perform its covenants and obligations under this Agreement. Any Transfer in violation of this
provision shall be void.
4.2. Stock Dividends, etc. In the event of a stock split, stock dividend or
distribution, or any change in the Common Stock by reason of any split-up, reverse stock split,
recapitalization, combination, reclassification, exchange of shares or the like, the terms
“Existing Shares” and “Covered Shares” shall be deemed to refer to and include such
shares as well as all such stock dividends and distributions and any securities into which or for
which any or all of such shares may be changed or exchanged or which are received in such
transaction.
4.3. No Solicitation.
(a) The Stockholder hereby agrees that during the term of this Agreement, except as permitted
by Section 4.3(b), it shall not, and shall use its reasonable best efforts to ensure that any of
its Affiliates or Representatives do not, directly or indirectly, (i) initiate, solicit, publicly
propose or encourage the submission of a Takeover Proposal, (ii) participate or engage in
negotiations with respect to any Takeover Proposal or (iii) furnish any non-public
-5-
information regarding the Company or the Merger to any other Person; provided,
however, that nothing in this Section 4.3(a) shall prevent the Stockholder, in the
Stockholder’s capacity as a director or executive officer of the Company, from engaging in any
activity permitted pursuant to Section 5.3 of the Merger Agreement, and no action by the Company or
any of its Affiliates in compliance with Section 5.3 of the Merger Agreement shall be a violation
by Stockholder of this Section 4.3.
(b) Notwithstanding anything in this Agreement to the contrary, in the event the Company Board
exercises its rights under Section 5.3 of the Merger Agreement to (i) furnish information with
respect to the Company and its Subsidiaries to any Person, and (ii) participate, engage or assist
in any manner in discussions or negotiations with any Person, in each case, in compliance with
Section 5.3 of the Merger Agreement, then (x) the Stockholder may likewise furnish any such
information to such Person and participate, engage or assist in any manner in such discussions or
negotiations with such Person, provided, that any action taken by the Stockholder shall be
taken only in coordination with the Company Board, and (y) in connection with the Company’s
termination of the Merger Agreement pursuant to Section 5.3(d) of the Merger Agreement in order to
enter into a transaction which constitutes a Superior Proposal, Stockholder shall be entitled to
enter into a voting or other support agreement with the Person making the Superior Proposal,
provided, that the effectiveness of such agreement shall be conditioned upon the
termination of the Merger Agreement in compliance with the Article VII thereof.
4.4. Waiver of Appraisal Rights. The Stockholder agrees not to exercise any rights of
appraisal or any dissenters’ rights that the Stockholder may have (whether under applicable Law or
otherwise) or could potentially have or acquire in connection with the Merger.
4.5. Further Assurances. From time to time, at Parent’s request and without further
consideration, the Stockholder shall execute and deliver such additional documents and take all
such further action as may be reasonably necessary to effect the actions and consummate the
transactions contemplated by this Agreement.
ARTICLE V
MISCELLANEOUS
5.1. Termination. This Agreement shall remain in effect until the earliest to occur
of (i) the Effective Time, (ii) the termination of the Merger Agreement in accordance with its
terms; provided, however, that the provisions of this Article V shall survive any
termination of this Agreement; (iii) six months after the date hereof; or (iv) at the Stockholder’s
option, upon written notice by the Stockholder to the Parent from and after any material amendment,
waiver or modification to the terms of the Merger Agreement or any amendment, waiver or
modification to the terms of the Merger Agreement that changes the form of or decreases the amount
of payment from what is set forth in the Merger Agreement of, the Offer Price or the Merger
Consideration. Nothing in this Section 5.1 and no termination of this Agreement shall relieve or
otherwise limit any party of liability for willful breach of this Agreement.
5.2. No Ownership Interest. Nothing contained in this Agreement shall be deemed to
vest in Parent or Merger Sub any direct or indirect ownership or incidence of ownership of or
-6-
with respect to any Covered Shares, except as otherwise provided herein. All rights,
ownership and economic benefits of and relating to the Covered Shares shall remain vested in and
belong to the Stockholder, and neither Parent nor Merger Sub shall have any authority to direct the
Stockholder in the voting or disposition of any of the Covered Shares, except as otherwise provided
herein.
5.3. Notices.
(a) All notices and other communications hereunder shall be in writing and shall be deemed
given when delivered personally, by facsimile (upon telephonic confirmation of receipt), on the
first business day following the date of dispatch if delivered by a recognized next day courier
service or on the third business day following the date of mailing if delivered by registered or
certified mail, return receipt requested, post prepaid. All notices hereunder shall be delivered
as set forth below, or pursuant to such other instructions as may be designated in writing in
accordance with this Section 5.3 by the party to receive such notice.
(i) If to Parent or Merger Sub, to:
AMICAS, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Chief Financial Officer
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Chief Financial Officer
With a copy to (which will not constitute notice to Parent or Merger
Sub):
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
(ii) if to the Stockholder, to the address set forth
on Schedule I hereto.
5.4. Interpretation. The words “hereof,” “herein” and “hereunder” and words of
similar import when used in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and Section references are to this Agreement unless
otherwise specified. Whenever the words “include,” “includes” or “including” are used in this
Agreement, they shall be deemed to be followed by the words “without limitation.” The meanings
given to terms defined herein shall be equally applicable to both the singular and plural forms of
such terms. The table of contents and headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
This Agreement is the product of negotiation by the parties having the assistance of counsel and
other advisers. It is the intention of the parties that this Agreement not be construed more
strictly with regard to one party than with regard to the others.
5.5. Counterparts. This Agreement may be executed by facsimile and in counterparts,
all of which shall be considered one and the same agreement and shall become effective when
-7-
counterparts have been signed by each of the parties and delivered to the other parties, it
being understood that all parties need not sign the same counterpart. In the event that any
signature to this Agreement or any amendment hereto is delivered by facsimile transmission or by
e-mail delivery of a “pdf” format data file, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is executed) with the same
force and effect as if such facsimile or “pdf” signature page were an original thereof.
5.6. Entire Agreement. This Agreement, together with the agreements and other
documents and instruments referred to herein or annexed hereto, embody the complete agreement and
understanding among the parties hereto with respect to the subject matter hereof and supersede and
preempt any prior understandings, agreements or representations by or among the parties, written
and oral, that may have related to the subject matter hereof in any way.
5.7. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial.
(a) This Agreement, and all claims or causes of action (whether at law, in contract or in
tort) that may be based upon, arise out of or relate to this Agreement or the negotiation,
execution or performance hereof, shall be governed by and construed in accordance with the Laws of
the State of Delaware, without giving effect to any choice or conflict of Law provision or rule
(whether of the State of Delaware or any other jurisdiction) that would cause the application of
the Laws of any jurisdiction other than the State of Delaware.
(b) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and
its property, to the exclusive jurisdiction of the Delaware Court of Chancery, and any appellate
court from any thereof, in any action or proceeding arising out of or relating to this Agreement or
the transactions contemplated by this Agreement, and each of the parties hereby irrevocably and
unconditionally (i) agrees not to commence any such action or proceeding except in such courts,
(ii) agrees that any claim in respect of any such action or proceeding may be heard and determined
in such court, (iii) waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any such action or
proceeding in any such court, and (iv) waives, to the fullest extent permitted by Law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in such court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive
and may be enforced in any other place of competent jurisdiction by suit on the judgment or in any
other manner provided by Law. Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 5.3. Nothing in this Agreement shall affect
the right of any party to this Agreement to serve process in any other manner permitted by Law.
(c) Each party hereto hereby waives, to the fullest extent permitted by applicable law, any
right it may have to a trial by jury in respect of any Action arising out of or relating to this
Agreement. Each party hereto (i) certifies that no representative, agent or attorney of any other
party has represented, expressly or otherwise, that such party would not, in the event of any
action, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other parties
hereto have been induced to enter into this Agreement, by, among other things, the mutual waiver
and certifications in this Section 5.7.
-8-
5.8. Amendment; Waiver. This Agreement may not be amended except by an instrument in
writing signed by each of the parties hereto. Each party may waive any right of such party
hereunder by an instrument in writing signed by such party and delivered to Parent and the
Stockholder.
5.9. Remedies; Specific Performance. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and
not alternative, and the exercise or beginning of the exercise of any thereof by any party shall
not preclude the simultaneous or later exercise of any other such right, power or remedy by such
party. The parties hereto agree that each of Parent and Merger Sub would be irreparably damaged if
for any reason the Stockholder fails to perform any of its obligations under this Agreement and
that each of Parent and Merger Sub would not have an adequate remedy at law for money damages in
such event. Accordingly, each of Parent and Merger Sub shall be entitled, as their sole remedy
under this Agreement for breaches by the Stockholder, to specific performance and injunctive and
other equitable relief to prevent breaches of this Agreement or to enforce specifically the
performance of the terms and provisions hereof.
5.10. Severability. Any term or provision of this Agreement which is determined by a
court of competent jurisdiction to be invalid or unenforceable in any jurisdiction shall, as to
that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of this Agreement in any
other jurisdiction, and if any provision of this Agreement is determined to be so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is enforceable, in all
cases so long as neither the economic nor legal substance of the transactions contemplated hereby
is affected in any manner adverse to any party or its stockholders or partners, as applicable.
Upon any such determination, the parties shall negotiate in good faith in an effort to agree upon a
suitable and equitable substitute provision to effect the original intent of the parties as closely
as possible and to the end that the transactions contemplated hereby shall be fulfilled to the
maximum extent possible.
5.11. Successors and Assigns; Third Party Beneficiaries. Neither this Agreement nor
any of the rights or obligations of any party under this Agreement shall be assigned, in whole or
in part (by operation of law or otherwise), by any party without the prior written consent of the
other parties hereto. Subject to the foregoing, this Agreement shall bind and inure to the benefit
of and be enforceable by the parties hereto and their respective successors and permitted assigns.
Nothing in this Agreement, express or implied, is intended to confer on any Person other than the
parties hereto or their respective successors and permitted assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
5.12. Stockholder Capacity. The restrictions and covenants of the Stockholder
hereunder shall not be binding, and shall have no effect, in any way with respect to any director
or officer of the Company or any of its Subsidiaries in such Person’s capacity as such a director
or officer, nor shall any action taken by any such director or officer in his or her capacity as
such be deemed a breach by the Stockholder of this Agreement.
[Remainder of this page intentionally left blank]
-9-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed (where
applicable, by their respective officers or other authorized Person thereunto duly authorized) as
of the date first written above.
| PARENT: | ||||||
| AMICAS, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | Chief Executive Officer | |||||
| MERGER SUB: | ||||||
| AMICAS ACQUISITION CORP. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | Chief Executive Officer | |||||
| [STOCKHOLDER] | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
-10-
SCHEDULE I
Name and Address of Stockholder
|
Number of Shares | |
if to the Stockholder, to:
Attention:
Facsimile: (___) ___-____
With a copy to (which will not constitute notice to the Stockholder):
Attention:
Facsimile: (___) ___-____
ANNEX A
IRREVOCABLE PROXY
Dated as of _______, 2009
IRREVOCABLE PROXY
Dated as of _______, 2009
The undersigned Stockholder (the “Stockholder”) of Emageon, Inc., a Delaware
corporation (the “Company”), hereby irrevocably (to the fullest extent permitted by law)
appoints each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇, as the sole and exclusive attorneys and
proxies of the undersigned, with full power of substitution and resubstitution, for and in the
name, place and stead of the Stockholder, to vote and exercise all voting and related rights (to
the full extent that the undersigned is entitled to do so) with respect to all of the shares of
capital stock of the Company that now are or hereafter may be beneficially owned by the
undersigned, and any and all other shares or securities of the Company issued or issuable in
respect thereof on or after the date hereof (collectively, the “Covered Shares”), in
accordance with the terms of this Proxy. The Covered Shares beneficially owned by the Stockholder
as of the date of this Proxy are listed on Schedule I to this Proxy. Upon the
Stockholder’s execution of this Proxy, any and all prior proxies given by the undersigned with
respect to any Covered Shares are hereby revoked and terminated, and the Stockholder agrees not to
grant any subsequent proxies with respect to the Covered Shares, with respect to any of the matters
referred to in any of clauses (a) through (c) below until after the Expiration Time (as defined
below).
This Proxy is irrevocable (to the fullest extent permitted by law), is coupled with an
interest and is granted pursuant to that certain Tender and Support Agreement of even date herewith
(the “Voting Agreement”) by and among AMICAS, Inc., a Delaware corporation
(“Parent”), AMICAS Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of
Parent (“Merger Sub”), and the undersigned Stockholder, and is granted in consideration of
Parent entering into that certain Agreement and Plan of Merger of even date herewith (as it may
hereafter be amended from time to time in accordance with the provisions thereof, the “Merger
Agreement”) by and among Parent, Merger Sub and the Company. The Merger Agreement provides
that Merger Sub will merge with and into the Company (the “Merger”) and the Stockholder
will be entitled to receive the merger consideration specified therein. The term “Expiration
Time”, as used in this Proxy, shall mean the earliest to occur of the events specified in
Section 5.1 of the Voting Agreement.
The attorneys and proxies named above, and each of them, are hereby authorized and empowered
by the Stockholder, at any time prior to the Expiration Time, to act as the Stockholder’s attorney
and proxy to vote all of the Covered Shares, and to exercise all voting, consent and similar rights
of the undersigned with respect to all of the Covered Shares (including, without limitation, the
power to execute and deliver written consents) at every annual or special meeting of stockholders
of the Company (and at every adjournment or postponement thereof), and in every written consent in
lieu of such meeting:
(a) in favor of the adoption of the Merger Agreement and any related proposal in furtherance
thereof, as reasonably requested by Parent, submitted for the vote, written consent or approval of
the Company’s stockholders;
(b) against any action, proposal or agreement submitted for the vote, written consent or
approval of the Company’s stockholders that is in opposition to, or would reasonably be expected to
be competitive or materially inconsistent with, the Merger or would result in a breach of any
covenant, representation or warranty or any other obligation or agreement of the Company contained
in the Merger Agreement, or of the Stockholder contained in the Voting Agreement; and
(c) against any Takeover Proposal and against any other action, agreement or transaction
submitted for the vote, written consent or approval of stockholders that would reasonably be
expected to impede, interfere with, delay, postpone, discourage, frustrate the purposes of or
adversely affect the Merger or the other transactions contemplated by the Merger Agreement or the
Voting Agreement or the performance by the Company of its obligations under the Merger Agreement or
by the Stockholder of its obligations under the Voting Agreement.
Any term or provision of this Proxy that is invalid or unenforceable in any situation in any
jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in any other situation
or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares
that any term or provision hereof is invalid or unenforceable, the Stockholder agrees that the
court making such determination shall have the power to limit the term or provision, to delete
specific words or phrases, or to replace any invalid or unenforceable term or provision with a term
or provision that is valid and enforceable and that comes closest to expressing the intention of
the invalid or unenforceable term or provision, and this Proxy shall be enforceable as so modified.
In the event such court does not exercise the power granted to it in the prior sentence, the
Stockholder agrees to replace such invalid or unenforceable term or provision with a valid and
enforceable term or provision that will achieve, to the extent possible, the economic, business and
other purposes of such invalid or unenforceable term.
The restrictions and covenants of the Stockholder hereunder shall not be binding, and shall
have no effect, in any way with respect to any director or officer of the Company or any of its
Subsidiaries in such Person’s capacity as such a director or officer, nor shall any action taken by
any such director or officer in his or her capacity as such be deemed a breach by the Stockholder
of this Proxy.
Any obligation of the Stockholder hereunder shall be binding upon the successors and assigns
of the Stockholder.
This Proxy shall terminate, and be of no further force and effect, automatically upon the
Expiration Time.
[signature page follows]
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the Stockholder has caused this Irrevocable Proxy to be duly executed as
of the day and year first above written.
| [STOCKHOLDER] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
with a copy to:
AMICAS, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Chief Financial Officer
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Chief Financial Officer
With a copy to (which will not constitute notice to Parent or Merger Sub):
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
SCHEDULE I
| Name and Address of Stockholder | Number of Shares |
if to the Stockholder, to:
Attention:
Facsimile: (___) ___-____
With a copy to (which will not constitute notice to the Stockholder):
Attention:
Facsimile: (___) ___-____