AGREEMENT
Exhibit 10.1
EXECUTION VERSION
THIS AGREEMENT, dated as of June 22, 2008 (the “Agreement”), is made by and among Emageon
Inc., a Delaware corporation (the “Company”), Xxxxxxx X. Xxxx, Xx. and the other parties signatory
hereto (collectively, the “OPP Investors).
W I T N E S S E T H:
WHEREAS, the OPP Investors beneficially own (as defined below) 3,569,360 shares of common
stock, $0.001 par value per share (the “Common Stock”), of the Company; and
WHEREAS, prior to the date hereof the OPP Investors (i) delivered a letter (the “Nomination
Letter”) to the Company, dated February 14, 2008, stating the intention to nominate (the “OPP
Nomination”) three individuals for election to the Board of Directors of the Company (the “Board”)
by the shareholders of the Company (the “Shareholders”) and (ii) filed a definitive proxy statement
on Schedule 14A with the Securities and Exchange Commission (the “SEC”) related to the matters set
forth in the Nomination Letter; and
WHEREAS, the Company and the OPP Investors have agreed that it is in their mutual interests to
enter into this Agreement, which, among other things, terminates the pending proxy contest for the
election of directors at the 2008 Annual Meeting (as defined below);
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
Section 1.1 Defined Terms. For purposes of this Agreement:
(a) The term “Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated by the SEC
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
(b) The terms “beneficial owner” and “beneficially own” have the same meanings as set forth in
Rule 13d-3 promulgated by the SEC under the Exchange Act except that a Person will also be deemed
to beneficially own and to be the beneficial owner of all shares of capital stock of the Company
which such Person has the right to acquire pursuant to the exercise of any rights in connection
with any securities or any agreement, regardless of when such rights may be exercised and whether
they are conditional.
(c) The term “Person” means any individual, partnership, corporation, group, syndicate, trust,
government or agency, or any other organization, entity or enterprise.
Section 1.2 Interpretation. When reference is made in this Agreement to a Section,
such reference shall be to a Section of this Agreement unless otherwise indicated. 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 words “hereof,” “herein,” “hereby” 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. This Agreement shall be construed without
regard to any presumption or rule requiring construction or interpretation against the party
drafting or causing any instrument to be drafted.
ARTICLE II
COVENANTS
COVENANTS
Section 2.1 Board of Directors, Annual Meeting and Related Matters.
(a) Board Expansion. Effective upon the execution and delivery of this Agreement by
all parties, the Board has increased the size of the Board from eight (8) to ten (10) directors and
has caused the election of:
(i) Xxxxxxxx X. Xxxxxx as a director with a term expiring at the 2010 Annual Meeting; provided
that if Xx. Xxxxxx were unable or unwilling to serve his entire term, a replacement independent
director shall be selected by Xxxxxx Press Partners, LLC (“Xxxxxx Press”) to complete Xx. Xxxxxx’x
then remaining term, which individual shall not be Affiliated with Xxxxxx Press, and shall be
subject to the Board’s approval not to be unreasonably withheld or delayed. The Board shall have a
thirty (30) day period after receiving notice of the identity of a replacement nominee (whether
such notice is provided prior to or after Xx. Xxxxxx departs from the Board) (a “Replacement Review
Period”) to consider such replacement nominee, whether such replacement nominee has relevant,
applicable experience and to conduct a background check, and not later than the end of the
Replacement Review Period shall elect such replacement nominee (subject to the resignation or other
departure of Xx. Xxxxxx) or give written notice to Xxxxxx Press of its decision not to elect such
replacement nominee in which event Xxxxxx Press shall have the right to select another replacement
nominee as provided in this Section 2.1(a)(i); and
(ii) Xxxxxx X. Xxxxxx as a director with a term expiring at the 2010 Annual Meeting; provided
that if Xx. Xxxxxx were unable or unwilling to serve his entire term, a replacement independent
director shall be selected by Xxxxxx Press to complete Xx. Xxxxxx’x then remaining term, which
individual shall not be Affiliated with Xxxxxx Press, and shall be subject to the Board’s approval
not to be unreasonably withheld or delayed. The Board shall have a Replacement Review Period after
receiving notice of the identity of a replacement nominee (whether such notice is provided prior to
or after Xx. Xxxxxx departs from the Board) to consider such replacement nominee, whether such
replacement nominee has relevant, applicable experience and to conduct a background check, and not
later than the end of the Replacement Review Period shall elect such replacement nominee (subject
to the resignation or other departure of Xx. Xxxxxx) or give written notice to Xxxxxx Press of its
decision not to elect such replacement nominee in which event Xxxxxx Press shall have the right to
select another replacement nominee as provided in this Section 2.1(a)(ii).
Xxxxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx (or their replacements as provided herein) are each an “OPP
Director” and collectively, the “OPP Directors”.
-2-
(b) 2008 Annual Meeting. The Company shall adjourn its 2008 Annual Meeting of
Stockholders (the “Annual Meeting”), currently scheduled for June 23, 2008, until July 8, 2008 for
purposes of the election of directors and the ratification of Ernst & Young LLP as the Company’s
independent registered public accounting firm for the year ending December 31, 2008. The Company
shall not conduct any other business at the Annual Meeting except as set forth in this Section
2.1(b), nor shall the Company adjourn the Annual Meeting further without the written consent of
Xxxxxx Press.
(c) Resignation of Chairman. Effective immediately following the Annual Meeting,
Xxxxxxx X. Xxxx, Xx., the Company’s Chairman of the Board, shall resign from the Board, but at the
discretion of the Board shall remain the Company’s Chief Executive Officer. Concurrent with the
execution of this Agreement, Xx. Xxxx has delivered to the Board and Xxxxxx Press an irrevocable
resignation from the Board effective immediately after the Annual Meeting in the form of
Exhibit A hereto.
(d) Resignation of Director. Xxxxxxx X. Xxxxxx (the “Departing Director”) shall resign
from the Board effective immediately following the Annual Meeting. As soon as reasonably
practicable following the date hereof, but not later than June 27, 2008, the Departing Director
shall deliver to the Board and Xxxxxx Press an irrevocable resignation from the Board effective
immediately after the Annual Meeting in the form of Exhibit A hereto. As soon as
reasonably practicable following the date hereof, but not later than June 27, 2008, a director
(other than an OPP Director) who has a term expiring at the 2010 Annual Meeting shall tender to the
Company and Xxxxxx Press their irrevocable resignation from the Board in the form of Exhibit
A hereto effective immediately following the resignation of the Departing Director and such
director shall be re-elected as a director by the Board immediately following the effectiveness of
such resignation with a term expiring at the 2009 Annual Meeting.
(e) Board Size. Immediately following the resignation of Xx. Xxxx and the Departing
Director, the Board shall reduce its size to
nine (9) directors and shall not thereafter take any action to change the size of the Board during the period that at least one of the OPP Directors continues to serve on the Board without the prior written consent of Xxxxxx Press, to be provided in its absolute and sole discretion.
nine (9) directors and shall not thereafter take any action to change the size of the Board during the period that at least one of the OPP Directors continues to serve on the Board without the prior written consent of Xxxxxx Press, to be provided in its absolute and sole discretion.
(f) New Director. The OPP Investors and the Company have discussed the election of
Xxxxxxx X. Xxxxx (the “New Director”) to the Board, subject to the Board’s approval not to be
unreasonably withheld. The Board has requested a period, not to exceed thirty (30) days from the
date hereof (the “Review Period”), to consider the election of the New Director to the Board with a
term expiring at the 2011 Annual Meeting and to conduct a background check. Not later than the end
of the Review Period, the New Director shall either be elected to the Board in place of Xx. Xxxx or
the Board shall give Xxxxxx Press written notice of its decision not to elect the New Director to
the Board. In the event that the Board chooses not to elect the New Director to the Board or in
the event that the New Director were unable or unwilling to serve prior to his appointment to the
Board or unable or unwilling to serve his entire term, a replacement independent director shall be
selected by Xxxxxx Press who shall not be Affiliated with Xxxxxx Press. The election of any such
replacement nominee shall be subject to the Board’s approval not to be unreasonably withheld or
delayed. The Board shall have a Replacement Review Period after receiving notice of the identity
of a replacement nominee (whether such notice is provided prior to or after the departure of the
New Director from the Board, if applicable) to consider such
-3-
replacement nominee, whether such replacement nominee has relevant, applicable experience and
to conduct a background check, and not later than the end of the Replacement Review Period shall
elect such replacement nominee (subject to the resignation or other departure of the New Director,
if applicable) or give written notice to Xxxxxx Press of its decision not to elect such replacement
nominee in which event Xxxxxx Press shall have the right to select another replacement nominee as
provided in this Section 2.1(f). Upon his election, the New Director shall also be elected to the
Strategic Alternatives Committee in place of an existing member of such committee other than Xxxxxx
X. Xxxxxx. Irrespective of the identity of the director elected pursuant to this Section 2.1(f),
such individual shall be referred to as the “New Director” hereunder.
(g) Committees. The Board has an existing Board committee (the “Strategic
Alternatives Committee”) comprised of three (3) directors. Immediately upon the election of Xxxxxx
X. Xxxxxx as a director, the Board shall (i) remove one member from the Strategic Alternatives
Committee and replace him with Xx. Xxxxxx (or his successor, if any, pursuant to Section
2.1(a)(ii)) to serve during his term as a director, and (ii) elect Xxxxxx X. Xxxxxx (or his
successor, if any, pursuant to Section 2.1(a)(ii)) to the Compensation Committee of the Board
during Xx. Xxxxxx’x term as a director.
(h) Role of the OPP Directors and the New Director. The OPP Directors and the New
Director will be governed by the same protections and obligations regarding confidentiality,
conflicts of interests, fiduciary duties, trading and disclosure policies and other governance
guidelines, and shall have the same rights and benefits, including with respect to insurance,
indemnification, compensation and fees, as are applicable to all independent directors of the
Company.
Section 2.2 Strategic Alternatives Committee. The Strategic Alternatives Committee
shall have the authority to: (a) consider all strategic alternatives for the Company including,
without limitation, acquisitions, divestitures, reorganizations, recapitalizations, joint ventures,
a sale of the Company and offerings of debt or equity securities and (b) engage such advisors
including, an investment banking firm, to assist it as the committee shall determine to be
appropriate, provided that any such investment banking firm is approved by the OPP Director on such
committee. On June 23, 2008, the Strategic Alternatives Committee shall hold a meeting by
telephone and at such meeting the committee shall endeavor to select the investment banking firm
that it intends to retain and shall develop a schedule of its activities. The Strategic
Alternatives Committee shall use its best efforts to complete its consideration and make a
recommendation to the Board at the earliest practicable time.
Section 2.3 Additional Undertakings by the OPP Investors.
(a) By executing this Agreement, the OPP Investors hereby irrevocably withdraw their
Nomination Letter and any nominations to the Board made prior to the date hereof and agree to
terminate the pending proxy contest with respect to the election of directors at the 2008 Annual
Meeting. The OPP Investors agree to take promptly all such actions as are required, or may
reasonably be requested by the Company, in furtherance of, and to effectuate, the foregoing.
Within two (2) business days of the date of this Agreement, Xxxxxx Press shall file, or cause to be
filed on its behalf, with the SEC, an amendment to its Schedule 13D with respect to the Company
disclosing the material contents of this Agreement.
-4-
(b) As of the date of this Agreement, none of the OPP Investors, or any of their Affiliates,
are a party (other than with another OPP Investor or an Affiliate of any OPP Investor and other
than the proxies received as a result of the solicitation in connection with the Annual Meeting
(none of which shall be used by the OPP Investors at such meeting)) to any contract, arrangement,
understanding or relationship (legal or otherwise) with any person with respect to any securities
of the Company, including with respect to transfer or voting of any such securities, finder’s fees,
joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of
profits or loss, or the giving or withholding of proxies, or have otherwise pledged or subjected
any securities owned by them to a contingency the occurrence of which would give another person
voting power or investment power over such securities.
Section 2.4 Voting Provisions. The OPP Investors, together with their Affiliates,
will cause all shares of Common Stock for which they have the right to vote as of the record date
for the 2008 Annual Meeting to be present for quorum purposes and to be voted at such meeting or at
any adjournments or postponements thereof as permitted hereby, in favor of each director nominated
and recommended by the Board for election.
Section 2.5 Publicity. Promptly after the execution of this Agreement, but not later
than 8:00 A.M., EDT, June 23, 2008, the Company and the OPP Investors shall issue a press release
in the form attached hereto as Exhibit B.
Section 2.6 Expenses. Within ten (10) business days following receipt of reasonably
satisfactory documentation thereof, the Company shall reimburse the OPP Investors for their
reasonable out-of-pocket fees and expenses incurred prior to the date of this Agreement in
connection with the OPP Nomination, up to a maximum reimbursement of $75,000, and the OPP Investors
hereby agree that such payment shall be in full satisfaction of any claims or rights they may have
as of the date hereof for reimbursement of fees, expenses or costs in connection with the OPP
Nomination.
ARTICLE III
OTHER PROVISIONS
OTHER PROVISIONS
Section 3.1 Representations and Warranties.
(a) Representations and Warranties of the Company. The Company hereby represents and
warrants that this Agreement and the performance by the Company of its obligations hereunder (i)
has been duly authorized, executed and delivered by it, and is a valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms, (ii) does not require
the approval of the shareholders of the Company and (iii) does not and will not violate any law,
any order of any court or other agency of government, the Certificate of Incorporation of the
Company, as amended, or the Bylaws of the Company, as amended, or any provision of any indenture,
agreement or other instrument to which the Company or any of its properties or assets is bound, or
conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a
default under any such indenture, agreement or other instrument, or result in the creation or
imposition of, or give rise to, any lien, charge, restriction, claim, encumbrance or adverse
penalty of any nature whatsoever pursuant to any such indenture, agreement or other instrument.
-5-
(b) Representations and Warranties of Director. Xxxxxxx X. Xxxx, Xx. represents and
warrants that this Agreement and the performance by him of his obligations hereunder have been
executed and delivered by him, and is a valid and binding obligation of his, enforceable against
him in accordance with its terms.
(c) Representations and Warranties of the OPP Investors. Each of the OPP Investors
represents and warrants that this Agreement and the performance by each such OPP Investor of its
obligations hereunder (i) has been duly authorized, executed and delivered by such OPP Investor,
and is a valid and binding obligation of such OPP Investor, enforceable against such OPP Investor
in accordance with its terms, (ii) does not require approval by any owners or holders of any equity
interest in such OPP Investor (except as has already been obtained) and (iii) does not and will not
violate any law, any order of any court or other agency of government, the charter or other
organizational documents of such OPP Investor, as amended, or any provision of any agreement or
other instrument to which such OPP Investor or any of its properties or assets are bound, or
conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a
default under any such agreement or other instrument, or result in the creation or imposition of,
or give rise to, any lien, charge, restriction, claim, encumbrance or adverse penalty of any nature
whatsoever pursuant to any such agreement or instrument.
Section 3.2 Confidentiality.
(a) In connection with discussions between the OPP Investors and their representatives and the
Company and its representatives, the Company or its representatives may disclose orally or in
writing to the OPP Investors or their representatives information that is confidential to the
Company. To protect the confidentiality of such information, and as a condition to the furnishing
of such information, the OPP Investors agree, as set forth below, to treat as confidential all such
information furnished to or otherwise received by the OPP Investors or their representatives from
the Company or on its behalf (herein collectively referred to as the “Confidential Information”).
For purposes of this Agreement, the phrase “Confidential Information” will not include information
which (i) becomes lawfully available to the public other than as a result of a disclosure by the
OPP Investors or its representatives in violation of this Agreement, (ii) was lawfully available to
the OPP Investors on a non-confidential basis prior to the disclosure to the OPP Investors or its
representatives by the Company or on its behalf or (iii) lawfully becomes available to the OPP
Investors on a non-confidential basis from a source other than the Company or the Company’s
representatives or agents, provided that such source is not bound by a confidentiality agreement
with the Company of which the OPP Investors have been made aware.
(b) The Company has no obligation to furnish Confidential Information to the OPP Investors or
its representatives by virtue of this Agreement except for Confidential Information provided to the
OPP Directors in their capacity as directors of the Company. The Company shall use its reasonable
efforts not to provide Confidential Information to the OPP Investors unless requested or consented
to by the OPP Investors; provided that the parties acknowledge that the provision of Confidential
Information to the OPP Directors shall not violate this provision. Each of the OPP Investors
hereby acknowledges that it is aware that the United States securities laws prohibit any Person who
has material, non-public information with respect to the Company from transacting in the securities
of the Company or from
-6-
communicating such information to any other Person under circumstances in which it is
reasonably foreseeable that such Person is likely to transact in such securities.
(c) The Confidential Information will not be disclosed by the OPP Investors or their
representatives, except to the extent the Company has given its prior written consent.
Notwithstanding anything to the contrary contained in this Section 3.2, the OPP Investors and its
representatives shall be permitted to disclose any Confidential Information to the extent the
disclosure of such information is required in any court proceeding, by any governmental authority
or by applicable law; provided, however, that the OPP Investors and its representatives shall use
their reasonable best efforts to give the Company reasonable advance notice of such required
disclosure to enable the Company, at its sole expense, to prevent or limit such disclosure. This
Section 3.2 will survive the termination of this Agreement.
(d) Notwithstanding the foregoing including the other provisions of this Section 3.2 and the
provisions of Section 2.1(h), the Company understands that the OPP Directors may from time to time
provide Confidential Information to the other OPP Investors, but not to any Person who is only an
investor in an OPP Investor, and that such OPP Investors shall be subject to the restrictions
contained in this Section 3.2 as if such information had been disclosed to such OPP Investors
directly. Each such OPP Investor further agrees that it will be subject to the same trading
policies of the Company to which the OPP Directors are subject, provided such policies are
customary.
Section 3.3 Remedies.
(a) Each party hereto hereby acknowledges and agrees, on behalf of itself and its Affiliates,
that irreparable harm would occur in the event any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It is accordingly
agreed that the parties will be entitled to specific relief hereunder, including an injunction or
injunctions to prevent and enjoin breaches of the provisions of this Agreement and to enforce
specifically the terms and provisions hereof in any state or federal court in the State of New
York, in addition to any other remedy to which they may be entitled at law or in equity. Any
requirements for the securing or posting of any bond with such remedy are hereby waived.
(b) Each party hereto agrees, on behalf of itself and its Affiliates, that any actions, suits
or proceedings arising out of or relating to this Agreement or the transactions contemplated hereby
will be brought solely and exclusively in any state or federal court in the State of New York (and
the parties agree not to commence any action, suit or proceeding relating thereto except in such
courts), and further agrees that service of any process, summons, notice or document by U.S.
registered or certified mail to the respective addresses set forth in Section 3.5 will be effective
service of process for any such action, suit or proceeding brought against any party in any such
court. Each party, on behalf of itself and its Affiliates, irrevocably and unconditionally waives
any objection to the laying of venue of any action, suit or proceeding arising out of this
Agreement or the transactions contemplated hereby, in the state or federal courts in the State of
New York, and hereby further irrevocably and unconditionally waives and agrees not to plead or
claim in any such court that any such action, suit or proceeding brought in any such court has been
brought in an improper or inconvenient forum.
-7-
Section 3.4 Entire Agreement. This Agreement contains the entire understanding of the
parties with respect to the subject matter hereof and may be amended only by an agreement in
writing executed by the parties hereto.
Section 3.5 Notices. All notices, consents, requests, instructions, approvals and
other communications provided for herein and all legal process in regard hereto shall be in writing
and shall be deemed validly given, made or served, if (a) given by telecopy, when such telecopy is
transmitted to the telecopy number set forth below and the appropriate confirmation is received or
(b) if given by any other means, when actually received during normal business hours at the address
specified in this subsection:
if to the Company:
Emageon Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
with a copy to:
Xxxxx X. Xxxxxxxx, Esq.
Xxxxxxxxxx Xxxxxxxx LLP
Suite 2800
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Facsimile: (000) 000-0000
Xxxxxxxxxx Xxxxxxxx LLP
Suite 2800
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Facsimile: (000) 000-0000
if to the OPP Investors:
Xxxxxx Press Partners, LLP
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxx and Xxxxxxxx Press
Facsimile: (000) 000-0000
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxx and Xxxxxxxx Press
Facsimile: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxxxx, Esq. and Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxxxxxx Xxxxxxx PC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Facsimile: (000) 000-0000 and (000) 000-0000
Xxxxxxxxxx Xxxxxxx PC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Facsimile: (000) 000-0000 and (000) 000-0000
Section 3.6 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York.
-8-
Section 3.7 Further Assurances. Each party agrees to take or cause to be taken such
further actions, and to execute, deliver and file or cause to be executed, delivered and filed such
further documents and instruments, and to obtain such consents, as may be reasonably required or
requested by another party in order to effectuate fully the purposes, terms and conditions of this
Agreement.
Section 3.8 No Third-Party Beneficiaries. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective successors and assigns, and nothing
in this Agreement is intended to confer on any Person other than the parties hereto or their
respective successors and assigns, any rights, remedies, obligations or liabilities under or by
reason of this Agreement.
Section 3.9 Severability. In the event that any term or provision of this Agreement
shall become, or is declared by a court of competent jurisdiction to be, illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said term or provision as
close as possible to the intent of the parties hereto.
Section 3.10 Facsimile; Counterparts. This Agreement may be executed by facsimile and
in two or more counterparts, each of which may be executed by fewer than all of the parties hereto,
and all of which together shall constitute one and the same instrument, enforceable against all of
the parties hereto.
Section 3.11 Headings. The article and section headings set forth in this Agreement
are included for convenience of reference only and shall not affect the meaning or interpretation
of this Agreement or any provision hereof.
[Remainder of Page Left Blank Intentionally]
-9-
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement, or caused the same
to be executed by its duly authorized representative as of the date first above written.
| By: | /s/ Xxxxxxx X. Xxxx, Xx. | |||
| Xxxxxxx X. Xxxx, Xx. Chief Executive Officer |
/s/
Xxxxxxx X. Xxxx,
Xx.
Xxxxxxx X. Xxxx, Xx.
XXXXXX PRESS PARTNERS, LLC
| By: | /s/ Xxxxxxxx Press | |||
| Xxxxxxxx Press Managing Member |
XXXXXX PRESS INVESTORS, LLC
| By: | /s/ Xxxxxxxx Press | |||
| Xxxxxxxx Press Managing Member |
XXXXXXXXX PARTNERS, L.P.
By: Xxxxxx Press Investors, LLC
General Partner
By: Xxxxxx Press Investors, LLC
General Partner
| By: | /s/ Xxxxxxxx Press | |||
| Xxxxxxxx Press Managing Member |
-10-
JE PARTNERS, L.P.
By: Xxxxxx Press Investors, LLC
General Partner
By: Xxxxxx Press Investors, LLC
General Partner
| By: | /s/ Xxxxxxxx Press | |||
| Xxxxxxxx Press Managing Member |
XXXXXX PRESS MASTER FUND, L.P.
By: Xxxxxx Press Investors, LLC
General Partner
By: Xxxxxx Press Investors, LLC
General Partner
| By: | /s/ Xxxxxxxx Press | |||
| Xxxxxxxx Press Managing Member |
| /s/ Xxxxxxxx X. Xxxxxx | ||||
| Xxxxxxxx X. Xxxxxx |
| /s/ Xxxxxxxx Press | ||||
| Xxxxxxxx Press |
| /s/ Xxxxxx A. Xxxxxx | ||||
| Xxxxxx X. Xxxxxx |
-11-
EXHIBIT A
June , 2008
Xxxxxx Press Partners, LLP
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Emageon Inc.
Dear Sirs:
Reference is hereby made to that certain Agreement (the “Agreement”), dated June 22, 2008, by and
among Emageon Inc. (the “Company”), [Xxxxxxx X. Xxxx, Xx.]/[the undersigned] and the OPP Investors
(as defined therein). This letter is being delivered in furtherance of Section 2.1[_] of the
Agreement.
I, [ ], hereby irrevocably submit my resignation as a director of the Company,
effective immediately after the 2008 Annual Meeting of Stockholders of the Company without any
further action being necessary, it being understood that this resignation shall be self executing.
I further agree that the OPP Investors are made third-party beneficiaries hereof.
Very truly yours,
[ ]
EXHIBIT B
NEWS RELEASE
Emageon and Xxxxxx Press Partners Settle Proxy Contest
Xxxxxxxx X. Xxxxxx, Xxxxxx Xxxxxx and Another Director Selected by Xxxxxx Press to Join Board of Directors;
Strategic Alternatives Committee to Pursue all Options Including a Sale of the Company
Strategic Alternatives Committee to Pursue all Options Including a Sale of the Company
Birmingham, AL, June 23, 2008 – Emageon Inc (NASDAQ: EMAG) and Xxxxxx Press Partners, LLC announced
today that they have reached an agreement under which three new directors will join the Emageon
Board of Directors. Xxxxxxxx Xxxxxx, a principal of Xxxxxx Press Partners and Xxxxxx Xxxxxx,
Director of Research at Xxxxxx Press Partners, will be elected to the Board today for a term
expiring at the 2010 Annual Meeting, and a third new independent director selected by Xxxxxx Press
will also be added for a term expiring at the 2011 Annual Meeting. Additionally, Xxxxxx Xxxxxx and the to-be-named new director,
upon his election, will be appointed to the company’s Strategic
Alternatives Committee, which has a broad mandate to pursue all strategic alternatives for Emageon,
including a sale of the company.
The size of the Board will temporarily be increased from 8 to 10 directors. As a condition of the
agreement, Xxxxxx Press will end its efforts to elect a slate of three nominees to the Board and
will vote its shares in support of the company’s slate of nominees.
Emageon has agreed to adjourn the company’s Annual Meeting of shareholders until July 8, 2008 in
order to give shareholders an opportunity to consider the settlement prior to voting. Promptly
after the conclusion of the Annual Meeting, Xxxxxxx X. Xxxx and Xxxxxxx X. Xxxxxx will resign from
the Board and Xx. Xxxx will continue to serve as Chief Executive Officer at the discretion of the
Board thereafter. In addition, upon the resignation of Mr. French, one of the existing directors
with a term expiring at the 2010 Annual Meeting will fill his vacancy with a term expiring at the
2009 Annual Meeting. Following the 2008 Annual Meeting, the size of the Board will be fixed at
nine directors.
Xxxx Xxxxxxxxxx, Lead Independent Director of Emageon, said “This resolution will enable the Board
to continue its efforts to identify and pursue the best interests of Emageon, its shareholders,
employees and customers.”
Xxx Xxxxxx also endorsed the agreement. “We have a high level of confidence in Emageon and its
products which are installed in over 600 facilities and are used by thousands of physicians every
day to enhance their delivery of health care to their patients. With a unified Board that
incorporates strong representation by significant shareholders, we expect that the Company will be
able to pursue a course in the best interests of its customers, employees and stockholders.”
About Emageon Inc.
Emageon provides information technology systems for hospitals, healthcare networks and imaging
facilities. Its enterprise family of solutions includes
RadSuiteTM, HeartSuiteTM and other
specialty suites. All Emageon solutions are built on a unified Enterprise Content Management system
offering advanced visualization and infrastructure tools for the clinical analysis and management
of digital medical images, reports and associated clinical content. Emageon’s standards-based
solutions are designed to help customers enhance patient care, automate workflow, lower costs,
improve productivity and provide better service to physicians. For more information, please visit
xxx.xxxxxxx.xxx
Forward Looking Statements
This press release contains forward-looking statements about Emageon that represent the Company’s
current views with respect to, among other things, future events and financial performance. Any
forward-looking statements contained in this press release are based on Emageon’s historical
performance and on current plans, beliefs and expectations. Actual results may differ materially
from those expressed or implied by such forward-looking statements as a result of various risks,
uncertainties and other factors beyond its control. These risks, uncertainties and other factors
include, among others, the risk that it may not compete successfully against larger competitors,
risks associated with the cyclical nature of its industry and changes in economic conditions in
general, risks
associated with its history of operating losses, risks associated with changes in its primary
market for PACS radiology systems and the recent decline in PACS radiology system sales orders,
risks associated with fluctuations in its quarterly operating results, risks associated with the
recent decline in the market price of its common stock, risks associated with the nomination of a
competing slate of directors for election at this year’s annual meeting of stockholders, the risk
of loss of its senior executive management, risk associated with expansion of its market and
selling efforts into new product segments, the risk that its target markets do not develop as
expected, the risk that its acquisitions could result in integration difficulties, dilution or
other adverse financial consequences, the risk of failure to raise additional capital on acceptable
terms, risks associated with its reliance on continuing relationships with large customers, the
risk of significant product errors or product failures, the risk of its reliance on reseller
arrangements for important components of its solution, the risk that it may not respond effectively
to changes in its industry, the risk of its customers’ reliance on third party reimbursements, and
the risk of the potential impact on its business of Food & Drug Administration (FDA) regulations
and other applicable health care regulations. Additional information concerning these and other
factors that could affect Emageon’s financial and operating results may be found under the heading
“Risk Factors” and elsewhere in the Company’s Form 10- K for the year ended December 31, 2007,
which was filed with the Securities and Exchange Commission on March 17, 2008.
Important Information
On May 19, 2008, Emageon Inc. filed with the Securities and Exchange Commission a definitive proxy
statement and accompanying WHITE proxy card in connection with its annual meeting of stockholders,
and on May 21, 2008 it began mailing these proxy materials to its stockholders. Emageon
stockholders are strongly advised to read Emageon’s proxy statement as it contains important
information. Stockholders may obtain the proxy statement, any amendments or supplements to the
proxy statement, and the annual, quarterly and current reports and other information filed by
Emageon with the Securities and Exchange Commission for free at the Internet website maintained by
the Securities and Exchange Commission at xxx.xxx.xxx. Copies of the definitive proxy statement
and any amendments and supplements to the definitive proxy statement are also available for free at
Emageon’s Internet website at xxx.xxxxxxx.xxx or by writing to Emageon Inc., 0000 Xxxxxxxxx Xxxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, Attn: Corporate Secretary. In addition, copies of Emageon’s
proxy materials may be requested by contacting our proxy solicitor, Xxxxxx & Co., LLC at (000)
000-0000. Emageon’s directors and certain of its officers may be deemed to be participants in the
solicitation of proxies from its stockholders in connection with the annual meeting. Information
identifying these participants and describing their direct and indirect interests is available in
Emageon’s definitive proxy statement filed with the Securities and Exchange Commission on May 19,
2008.
Contacts:
| Xxxx Xxxxxxxx, Emageon 000-000-0000 |
Xxxxx Xxxxxx, The SAN Group, LLC 212.966.3650 |
