UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
Amendment No. 1
Tender Offer Statement Under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
Emageon Inc.
(Name of Subject Company (Issuer))
AMICAS Acquisition Corp.
and
AMICAS, Inc.
(Name of Filing Person (Offeror))
Common Stock, $0.001 Par Value Per Share
(Title of Class of Securities)
29076V 10 9
(CUSIP Number of Common Stock Underlying Class of Securities)
Stephen N. Kahane, M.D., M.S.
Chief Executive Officer
AMICAS, Inc.
20 Guest Street
Boston, Massachusetts 02135
(617) 779-7878
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications On Behalf of Filing Person)
John R. Pomerance, Esq.
Megan N. Gates, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, Massachusetts 02111
(617) 542-6000
CALCULATION OF REGISTRATION FEE
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Transaction Valuation* |
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Amount of Filing Fee** |
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$39,047,266.74 |
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$1,534.56 |
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For purposes of calculating the filing fee pursuant to Rule 0-11(d)
only, the transaction valuation was calculated by adding the sum of
(a) the offer price of $1.82 per share of common stock, $0.001 par
value per share, of Emageon Inc. (the “Shares”) multiplied by
21,449,718 shares of common stock issued and outstanding, and (b) the
offer price of $1.82 minus $1.73, which is the weighted average
exercise price of outstanding in-the-money options to acquire Shares
multiplied by 79,818, the number of outstanding in-the-money options. |
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The filing fee, calculated in accordance with Rule 0-11 of the
Securities Exchange Act of 1934, is calculated by multiplying the
Transaction Valuation by .00003930. |
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Check the box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee
was previously paid. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its
filing. |
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Amount Previously Paid: $1,534.56 |
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Filing Party: AMICAS Acquisition Corp. and AMICAS, Inc. |
Form or Registration No.: Schedule TO |
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Date Filed: March 5, 2009 |
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Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
Check the appropriate boxes below to designate any transactions to which the statement relates:
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third party tender offer subject to Rule 14d-1. |
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issuer tender offer subject to Rule 13e-4. |
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going-private transaction subject to Rule 13e-3. |
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amendment to Schedule 13D under Rule 13d-2. |
Check the following box if the filing is a final amendment reporting the results of the tender
offer: o
TABLE OF CONTENTS
This Amendment No. 1 to the Tender Offer Statement on Schedule TO (this “Amendment”), filed
with the Securities and Exchange Commission on March 13, 2009, amends and supplements the Tender
Offer Statement on Schedule TO filed on March 5, 2009 (the “Schedule TO”) and relates to the offer
by AMICAS Acquisition Corp., a Delaware corporation (“Purchaser”) and a wholly-owned subsidiary of
AMICAS, Inc., a Delaware corporation (“AMICAS”), to purchase all outstanding shares of common
stock, $0.001 par value per share (the “Shares”), of Emageon Inc., a Delaware corporation
(“Emageon”), at a price of $1.82 per Share, net to the seller in cash, without interest thereon and
less any required withholding 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 in the related Letter of
Transmittal (which, together with any amendments or supplements thereto, collectively constitute
the “Offer”), which are annexed to and filed with the Schedule TO as Exhibits (a)(1)(A) and
(a)(1)(B), respectively. This Amendment is being filed on behalf of Purchaser and AMICAS.
Item 11. Additional Information.
Item 11 of the Schedule TO is hereby amended and supplemented by adding the following:
“Litigation Related to the Offer and Merger. On March 11, 2009, a putative shareholder class
action lawsuit was filed against Emageon, members of the Emageon Board of Directors and AMICAS in
the Superior Court Department, Suffolk County, Massachusetts. The action, styled Fishman v.
Williamson, et al., alleges, among other things, that the members of the Emageon Board of Directors
violated their fiduciary duties by failing to maximize value for Emageon’s shareholders when
negotiating and entering into the Merger Agreement. The complaint alleges that AMICAS aided and
abetted those purported breaches. Plaintiff seeks, among other things, to enjoin the acquisition of
Emageon by Purchaser or, in the alternative, to rescind the acquisition should it occur before the
lawsuit is resolved.
AMICAS
believes that the allegations of the plaintiff’s complaint are
entirely without merit, and the parties intend to vigorously defend
this action. The parties do not expect this lawsuit to have an impact on the completion of the Offer and
the Merger, however, even a meritless lawsuit may carry with it the potential to delay consummation
of the transactions contemplated by the Merger Agreement.”
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