Attached files
| file | filename |
|---|---|
| 8-K - MERGE HEALTHCARE INC | m08984_8k.htm |
| EX-99.2 - MERGE HEALTHCARE INC | m82984_x2.htm |
| EX-99.3 - MERGE HEALTHCARE INC | m82984_x993.htm |
February
28,
2010
Board of
Directors
AMICAS,
Inc.
20 Guest
Street
Boston,
MA 02135-2040
Gentlemen:
We
are pleased to submit to you our formal binding offer (the “Offer”) for the
acquisition of all of the outstanding shares of AMICAS, Inc. (“AMICAS”) by means of
a tender offer followed by a merger in which stockholders of AMICAS would
receive $6.05 cash per share of AMICAS common stock, all pursuant to a
negotiated agreement. We believe this Offer, which delivers greater
per-share consideration than the transaction with Thoma Bravo, is a “Superior
Proposal” as contemplated by the existing Agreement and Plan of Merger, dated as
of December 24, 2009, by and among AMICAS, Inc., Project Alta Merger Corp., and
Project Alta Holdings Corp. (the “Prior Merger
Agreement”).
Our
Offer is not subject to any due diligence or financing condition, and we are not
aware of any type of regulatory impediment to a transaction. Our
Offer is, however, made with the understanding and acknowledgment that you are
bound by the Prior Merger Agreement, including, without limitation, the
provisions of Section 5.6 and Article VII thereof, and, in no event shall this
letter, or our Offer described herein, constitute or be construed as
inconsistent with, or in violation of, such obligations. This Offer
is an “Acquisition Proposal” (as defined in the Prior Merger Agreement), and we
understand your obligation to negotiate in good faith with the Parent and Parent
Representatives (as such terms are defined in the Prior Merger Agreement) during
the Notice Period (as defined in the Prior Merger Agreement).
Attached
herewith are complete copies of the Agreement and Plan of Merger by and among
AMICAS, Inc., Merge Healthcare, Incorporated and Project Ready Corp. including
all of the schedules and attachments thereto and of Company Disclosure Letter
attached hereto (the “Merger Agreement”),
and the Escrow Agreement, by and among Bank of New York Mellon, Merge
Healthcare, Incorporated and AMICAS, Inc. (the “Escrow
Agreement”). All such documents will be, upon acceptance by
AMICAS of our Offer, deemed effective as of even date herewith. Each
of these has been duly executed and dated of even date herewith by Merge
Healthcare, Incorporated and its affiliates, subject to the conditions set forth
herein. This letter constitutes an irrevocable binding offer to
AMICAS to enter into the Merger Agreement and the Escrow Agreement, subject to
the conditions set forth herein. This Offer will expire on the
earlier of (i) 10:00 a.m. Eastern Standard Time on March 1, 2010 if
AMICAS has not delivered to Project Alta Holdings Corp. the notice contemplated
by Section 5.6(e)(B) of the Prior Merger Agreement in the form provided to us on
or prior to the date hereof (the “Match Notice”), (and
promptly notified us of such delivery) (ii) immediately if AMICAS shall publicly
announce or deliver written or electronic notice to us that this Offer does not
constitute, or ceases to constitute, a Superior Proposal under the Prior Merger
Agreement, or (iii) 10:00 a.m. Eastern Standard Time on March 9, 2010 (the
“Expiration Time”), if it has not been accepted by AMICAS by execution and
delivery to us or our counsel, McDermott Will & Emery LLP of each of the
following documents: (a) duly authorized, executed and currently dated (but
effective as of the date hereof) electronic copies of the Merger Agreement and
the Escrow Agreement (with originals to follow by overnight delivery) in exactly
the form attached hereto, including all attachments and exhibits, including,
without limitation, the Company Disclosure Letter, and (b) a duly authorized,
executed and currently dated certificate of an authorized officer of the Company
to the effect that no event described in clause (A) below (which may be to such
officer’s knowledge) or clause (B) below has occurred as of the time of such
delivery of the Merger Agreement. We will deliver the Escrow Amount
(as defined in the Merger Agreement) to The Bank of New York Mellon pursuant to
the terms of the Escrow Agreement not later than the first Business Day
following your notice to us that you have delivered the Match Notice in
accordance with the Prior Merger Agreement.
Your
acceptance of this Offer shall be subject to, and this Offer shall terminate and
be void immediately upon the failure of, any of the following
conditions:
(1)AMICAS shall publicly announce, no
later than 9:00 a.m. Eastern Standard Time on March 1, 2010, that (a) this Offer
constitutes a Superior Proposal under the Prior Merger Agreement, and (b) the
special meeting of stockholders of AMICAS originally scheduled for February 19,
2010 to vote on the Prior Merger Agreement, will be adjourned until March 16,
2010; and
(2)AMICAS shall provide, no later than
10:00 a.m. Eastern Standard Time on March 1, 2010, the Match Notice under the
Prior Merger Agreement.
This
offer shall be revocable upon written notice by us to you at any time prior to
your execution and delivery to us of the Merger Agreement and Escrow Agreement
as provided herein if either of the following shall occur:
(A)
a Governmental Entity of
competent jurisdiction shall have (a) enacted a law that is in effect and
renders the Merger Agreement or the transactions contemplated thereby illegal in
the United States or any State thereof, or (b) formally issued an injunction
that is in effect and prohibits the transactions contemplated by the Merger
Agreement in the United States or any State thereof; and
(B)(a) any event, condition or
circumstance shall have occurred, (b) AMICAS shall have taken any action or
failed to take any action, or (c) any representation or warranty of AMICAS in
the Merger Agreement applicable to AMICAS shall fail to be true and correct,
which, in each case, if the Merger Agreement had been effective the date hereof
and been then binding upon AMICAS, would have given Merge the right to terminate
the Merger Agreement, and, in each case, excluding actions taken by you, or at
your direction, to fulfill your obligation under Section 5.6(e)(C) of the Prior
Merger Agreement to negotiate in good faith with the Parent and Parent
Representatives (as such terms are defined in the Prior Merger Agreement) during
the Notice Period (as defined in the Prior Merger Agreement) (provided, however,
that if any such event, condition, circumstance, action, failure to act or
failure of representation and warranty shall be subject to cure, this clause
shall not apply; and, provided, further, that notwithstanding the prior proviso,
Merge shall retain any and all rights under the Merger Agreement to terminate
its obligations under such Agreement as a result of the failure of such
condition).
Merge
will file a Current Report on Form 8-K with the Securities and Exchange
Commission describing this document as a material agreement of Merge no later
than the fourth business day after the date hereof and reserves the right to
file this document in its entirety with such Form 8-K. AMICAS will be
deemed to have consented to Merge taking the actions specified in this
paragraph. If AMICAS challenges the deemed giving of such consent,
this letter and the Offer contained herein shall immediately terminate and be of
no further force or effect.
Prior to such time that this Offer
shall terminate or be accepted by AMICAS in accordance with its terms, neither
Merge nor AMICAS shall file any pleading in the Superior Court of Suffolk
County, Massachusetts in Civil Action No. 10-0174 without the prior consent of
the other party (which consent shall not be unreasonably withheld) and shall
reasonably cooperate to minimize additional litigation activities by all parties
to such case.
If AMICAS makes a public announcement,
and sends the contemplated notice to Thoma Bravo, that this Offer constitutes a
Superior Proposal under the Prior Merger Agreement prior to 10:00 a.m. Eastern
Standard Time on March 1, 2010, Merge will use its commercially reasonable
efforts to finalize the terms of the Escrow Agreement and deposit $30 million in
cash into escrow pursuant to such Agreement by the close of business on March 1,
2010.
THIS
OFFER MAY NOT BE ASSIGNED BY AMICAS AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE
CONFLICTS OF LAWS PRINCIPLES THEREOF.
All
capitalized terms used but not defined herein shall have the meaning ascribed to
them in the Prior Merger Agreement. This document (i) is not intended
to and does not confer up any Person other than AMICAS any rights or remedies
and (ii) constitutes the entire agreement and supersedes all prior agreements
and understandings, both written and oral, with respect to the Offer by Merge to
AMICAS with respect to the transaction contemplated by the Merger Agreement but
shall be superseded in all respects by the Merger Agreement and Escrow Agreement
when accepted in accordance with the terms hereof.
Very
truly yours,
MERGE
HEALTHCARE INCORPORATED
/s/
Justin C. Dearborn
Justin C.
Dearborn
Chief
Executive Officer