FORM OF STOCKHOLDER SUPPORT AGREEMENT
Exhibit (d)(6)
FORM
OF STOCKHOLDER SUPPORT AGREEMENT
This Stockholder Support Agreement (the “Agreement”) is made and entered into as
of February 28, 2010, between Merge Healthcare Incorporated, a Delaware corporation
(“Parent”), and the undersigned stockholder of the Company (“Holder”).
RECITALS
WHEREAS, Parent, Project Ready Corp., a Delaware corporation and wholly-owned direct
subsidiary of Parent (“Merger Sub”), and AMICAS, Inc., a Delaware corporation (the
“Company”), are, concurrently with the execution and delivery of this Agreement, entering
into an Agreement and Plan of Merger, dated as of the date hereof (the “Merger Agreement”);
and
WHEREAS, as of the date hereof, Holder is the beneficial owner (as defined under Rule 13d-3 of
the Exchange Act) of the outstanding shares of the Company’s Common Stock, par value $0.001 per
share (the “Common Stock”), set forth under such Holder’s name on the signature page to
this Agreement (the “Existing Shares” and, together with any other shares of Common Stock,
or other capital stock of the Company acquired (either of record or beneficially owned) by the
Holder after the date hereof, collectively, the “Shares”); and
WHEREAS, as a condition to its willingness to enter into the Merger Agreement, Parent has
requested that the Holder enter into this Agreement. Capitalized terms used herein but not defined
shall have the meanings ascribed to them in the Merger Agreement.
AGREEMENT
The parties agree as follows:
Section 1. Agreement to Retain Shares.
(a) Transfer. (1) Except as contemplated by the Merger Agreement, and except as
provided in Section 1(b) below, during the period beginning on the date hereof and ending on the
earlier to occur of (i) the Effective Time (as defined in the Merger Agreement) and (ii) the
Expiration Date (as defined below), Holder agrees not to, directly or indirectly, sell, transfer,
exchange or otherwise dispose of (including by merger, consolidation or otherwise by operation of
law) the Shares, (2) Holder agrees not to, directly or indirectly, grant any proxies or powers of
attorney, deposit any of such Holder’s Shares into a voting trust or enter into a voting agreement
with respect to any of such Holder’s Shares, or enter into any agreement or arrangement providing
for any of the actions described in this clause (2), and (3) Holder agrees not to, directly or
indirectly, take any action that could reasonably be expected to have the effect of preventing or
disabling Holder from performing Holder’s obligations under this Agreement, in each case at any
time prior to the earlier to occur of (i) the Effective Time and (ii) the Expiration Date. As used
herein, the term “Expiration Date” shall mean the date of termination of the Merger
Agreement in accordance with the terms and provisions thereof.
(b) Permitted Transfers. Section 1(a) shall not prohibit a transfer of Shares by
Holder (i) to any family member, trust for the benefit of any family member or charitable
organization to which contributions are deductible for federal income tax, estate or gift purposes
so long as the assignee or transferee agrees to be bound by the terms of this Agreement and
executes and delivers to the parties hereto a written consent memorializing such agreement and (ii)
upon the vesting of restricted stock awards of Company Common Stock but only to the extent of such
Holder’s income or other tax liability with respect to such vested restricted stock awards
(iii) in connection with the exercise of stock options
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for Company Common Stock but only to the extent of such Holder’s exercise price and income or
other tax liability with respect to such exercise and only to the extent permitted under the Merger
Agreement, (iv) that were acquired upon the exercise of stock options expiring after the date
hereof and prior to the consummation of the Offer, or (v) in connection with the termination of the
Company Option Plans and the settlement of outstanding awards thereunder to the extent permitted
under the Merger Agreement.
Section 2. Agreement to Tender. Unless this Agreement shall have previously been
terminated in accordance with its terms, Holder agrees to accept the Offer with respect to all the
Shares (excluding for purposes of this Section 2 Shares that are subject to unexercised Company
Stock Options until such time as such Company Stock Options are exercised) and to tender all the
Shares pursuant to the Offer. Such tender shall be made within ten Business Days of the
commencement of the Offer, and with respect to any Shares obtained after such date (by way of
exercise of Stock Options or otherwise, promptly after such Shares are obtained). Holder shall not
withdraw any Shares tendered pursuant to the Offer unless either (i) this Agreement terminates
pursuant to Section 6 or (ii) the Offer shall have been terminated pursuant to the terms of the
Merger Agreement. Parent or Merger Sub shall pay the Stockholder for any Shares tendered in
accordance with the Merger Agreement and not withdrawn on the date of acceptance of shares for
payment pursuant to the Offer. If the Offer is terminated by Parent or Merger Sub or the Company,
or this Agreement is terminated in accordance with its terms, Parent and Merger Sub shall cause the
depository acting on behalf of Parent and Merger Sub to return all tendered Shares to Holder
promptly. Holder agrees to permit Parent and Merger Sub to publish and disclose in the Offer
Documents and, if approval of the Company’s or Parent’s stockholders is required under the DGCL,
any proxy statement (including all related documents and schedules filed with the SEC), his or its
identity and ownership of Shares, the nature of his or its commitments, arrangements and
understandings under this Agreement and any other information required by applicable Law.
Section 3. Agreement to Vote Shares.
(a) Until the earlier to occur of the Effective Time and the Expiration Date, at every meeting
of the stockholders of the Company called with respect to any of the following, and at every
adjournment thereof, and on every action or approval by written consent of the stockholders of the
Company with respect to any of the following, Holder shall appear at such meeting (in person or by
proxy) and shall vote or consent the Shares (i) in favor of adoption of the Merger Agreement and
the approval of the transactions contemplated thereby and (ii) against any proposal for any
recapitalization, merger, sale of assets or other business combination (other than as contemplated
by the Merger Agreement) between the Company and any person or entity other than Parent or any
other action or agreement that would reasonably be expected to result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company under the Merger
Agreement or Holder under this Agreement or which would reasonably be expected to result in any of
the conditions to the Company’s obligations under the Merger Agreement not being fulfilled. This
Agreement is intended to bind Holder as a stockholder of the Company only with respect to the
specific matters set forth herein. Except as set forth in clauses (i) and (ii) of this Section
3(a), Holder shall not be restricted from voting in favor of, against or abstaining with respect to
any other matter presented to the stockholders of the Company. Prior to the termination of this
Agreement, Holder covenants and agrees not to enter into any agreement or understanding with any
person to vote or give instructions in any manner inconsistent with the terms of this Agreement.
(b) Holder further agrees that, until the termination of this Agreement, Holder will not, and
will not permit any entity under Holder’s control to, (A) solicit proxies or become a “participant”
in a “solicitation” (as such terms are defined in Rule 14A under the Exchange Act) with respect to
an Opposing Proposal (as defined below), (B) initiate a stockholders’ vote with respect to an
Opposing Proposal or (C) become a member of a “group” (as such term is used in Section 13(d) of the
Exchange
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Act) with respect to any voting securities of the Company with respect to an Opposing
Proposal. For the purposes of this Agreement, an “Opposing Proposal” means any action or
proposal described in clause (ii) of Section 3(a) above.
(c) Subject to the provisions set forth in Section 6 hereof and as security for Holder’s
obligations under Section 3(a), Holder hereby irrevocably constitutes and appoints Parent and its
designees as his attorney and proxy in accordance with the DGCL, with full power of substitution
and resubstitution, to cause the Shares to be counted as present at the Company Stockholders
Meeting, to vote his Shares at the Company Stockholders Meeting, however called, and to execute
consents in respect of his Shares as and to the extent provided in Section 3(a). SUBJECT TO THE
PROVISIONS SET FORTH IN SECTION 6 HEREOF, THIS PROXY AND POWER OF ATTORNEY IS IRREVOCABLE AND
COUPLED WITH AN INTEREST. Upon the execution of this Agreement, Holder hereby revokes any and all
prior proxies or powers of attorney given by Holder with respect to voting of the Shares on the
matters referred to in Section 3(a) and agrees not to grant any subsequent proxies or powers of
attorney with respect to the voting of the Shares on the matters referred to in Section 3(a) until
after the Expiration Date. Holder understands and acknowledges that Parent is entering into the
Merger Agreement in reliance upon the Holder’s execution and delivery of this Agreement and
Holder’s granting of the proxy contained in this Section 3(c). Holder hereby affirms that the
proxy granted in this Section 3(c) is given in connection with the execution of the Merger
Agreement, and that such Proxy is given to secure the performance of the duties of Holder under
this Agreement. Parent acknowledges and agrees that Holder may vote the Shares on all other
matters not referred to in Section 3(a), and the attorneys and proxies named above may not exercise
the proxy with respect to such matters.
Section 4. Representations, Warranties and Covenants of Holder. Holder hereby
represents, warrants and covenants to Parent that Holder (i) is the record and/or beneficial owner
of the Shares, which, at the date of this Agreement and at all times up until the earlier to occur
of (A) the Effective Time and (B) the Expiration Date, are and will be free and clear of any liens,
claims, options, charges or other encumbrances that would reasonably be expected to have the effect
of preventing or disabling Holder from performing Holder’s obligations under this Agreement, and
(ii) does not own of record or beneficially any shares of capital stock of the Company other than
the Shares (excluding shares as to which Holder currently disclaims beneficial ownership in
accordance with applicable law). Holder has the legal capacity, power and authority to enter into
and perform all of Holder’s obligations under this Agreement (including under the proxy granted in
Section 3(c) above). This Agreement (including the proxy granted in Section 3(c) above) has been
duly and validly executed and delivered by Holder and constitutes a valid and binding agreement of
Holder, enforceable against Holder in accordance with its terms, subject to (a) laws of general
application relating to bankruptcy, insolvency and the relief of debtors and (b) rules of law
governing specific performance, injunctive relief and other equitable remedies.
Section 5. 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
with respect to any Shares, except as expressly provided herein. All rights, ownership and
economic benefits of and relating to the Shares shall remain vested in and belong to Holder, and
neither Parent nor Merger Sub shall have any authority to direct Holder in the voting or
disposition of any of the Shares, except as otherwise provided herein.
Section 6. Termination. This Agreement and the proxy delivered in connection herewith
shall terminate and shall have no further force and effect as of the earlier to occur of (i) the
Expiration Date and (ii) the date following the date of the Company Stockholders Meeting, including
any adjournment or postponement thereof.
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Section 7. Fiduciary Duties. Notwithstanding anything in this Agreement to the
contrary: (i) Holder makes no agreement or understanding herein in any capacity other than in
Holder’s capacity as a record holder and/or beneficial owner of the Shares, (ii) nothing in this
Agreement shall be construed to limit or affect any action or inaction by Holder acting in his
capacity as a director, officer or other fiduciary of the Company, and (iii) Holder shall have no
liability to Parent, Merger Sub or any of their Affiliates under this Agreement as a result of any
action or inaction by Holder acting in his capacity as a director, officer or other fiduciary of
the Company.
Section 8. Miscellaneous.
(a) Amendments and Waivers. Any term of this Agreement may be amended or waived with
the written consent of the parties or their respective successors and assigns. Any amendment or
waiver effected in accordance with this Section 8(a) shall be binding upon the parties and their
respective successors and assigns.
(b) Governing Law; Venue. This Agreement 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. Each of the parties hereto irrevocably submits to the exclusive jurisdiction
of the Court of Chancery of the State of Delaware and to the jurisdiction of the United States
District Court for the District of Delaware for the purpose of any action arising out of or
relating to this Agreement, and each of the parties hereto irrevocably agrees that all claims in
respect to such action may be heard and determined exclusively in the Court of Chancery of the
State of Delaware or any federal court sitting in the State of Delaware. Each of the parties
hereto agrees that a final judgment in any action shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law. Each of the parties
hereto irrevocably consents to the service of any summons and complaint and any other process in
any other action relating to this Agreement, on behalf of itself or its property, by the personal
delivery of copies of such process to such party. Nothing in this Section 8(b) shall affect the
right of any party hereto to serve legal process in any other manner permitted by law.
(c) Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one instrument.
(d) Titles and Subtitles. The titles and subtitles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this Agreement.
(e) Notices. Any notice required or permitted by this Agreement shall be in writing
and shall be deemed sufficient upon receipt, when delivered personally or by courier, overnight
delivery service or confirmed facsimile, or 72 hours after being deposited in the regular mail as
certified or registered mail with postage prepaid, if such notice is addressed to the party to be
notified at such party’s address or facsimile number as set forth below, or as subsequently
modified by written notice.
(f) Severability. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, the parties agree to renegotiate such provision in good faith,
in order to maintain the economic position enjoyed by each party as close as possible to that under
the provision rendered unenforceable. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded
from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision
were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its
terms.
(g) Specific Performance. Each of the parties hereto recognizes and acknowledges that
a breach of any covenants or agreements contained in this Agreement will cause Parent and Merger
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Sub to sustain damages for which they would not have an adequate remedy at law for money
damages, and therefore each of the parties hereto agrees that in the event of any such breach
Parent shall be entitled to the remedy of specific performance of such covenants and agreements and
injunctive and other equitable relief in addition to any other remedy to which they may be
entitled, at law or in equity.
[SIGNATURE PAGE FOLLOWS]
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The parties have caused this Agreement to be duly executed on the date first above written.
| MERGE HEALTHCARE INCORPORATED | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| Address: | ||||||
| 0000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000 | ||||||
| Xxxxxxxxx, Xxxxxxxxx 00000 | ||||||
| Attention: General Counsel | ||||||
| Facsimile No.: (000) 000-0000 | ||||||
“Holder”
Name:
Address:
Attention:
Facsimile No.:
Facsimile No.:
| Shares owned of record: | Beneficially owned shares: | |||||
| Class of Shares | Number | Class of shares | Number | |||
Common Stock
|
Common Stock |
