SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): December 12, 2011
American Medical Alert Corp.
(Exact name of registrant as specified in its charter)
Registrant's telephone number, including area code: (212) 879-5700
(Former Name or Former Address, if Changed Since Last Report)
On September 22, 2011, American Medical Alert Corp. (“AMAC”) entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Tunstall Healthcare Group Limited (“Tunstall”) and Monitor Acquisition Corp., an indirect wholly owned subsidiary of Tunstall (“Merger Sub”), pursuant to which, subject to the satisfaction or waiver of certain conditions, Merger Sub will merge with and into AMAC and AMAC will become a wholly-owned subsidiary of Tunstall (the “Merger”). In September 2011, purported class action lawsuits were filed in the Supreme Court of the State of New York, County of Nassau and in the Supreme Court of the State of New York, County of Queens. In October 2011, a second purported class action lawsuit was filed in the Supreme Court of the State of New York, County of Queens.
On October 27, 2011, the plaintiffs in the actions commenced in Queens, Diane Kent and Joyce Fauci (together, the “Queens Plaintiffs”), filed a motion seeking to consolidate their actions as well as any subsequently filed related actions, into the action commenced by Diane Kent, designating the resulting consolidated action as In re American Medical Alert Corp. Shareholder Litigation and appointing the law firms of Robbins Umeda LLP and Levi & Korsinsky LLP as Co-Lead Counsel in the requested consolidated action. The Queens Plaintiffs advised the Court in their motion that Joseph Weiss (the “Nassau Plaintiff”), who commenced the action pending in Nassau County, supports the motion and has agreed to coordinate efforts and jointly prosecute a consolidated action in Queens County. The Queens Plaintiffs’ motion was granted on November 29, 2011.
Each of these lawsuits challenges the transactions contemplated by the Merger Agreement. The plaintiffs in these lawsuits are purported holders of AMAC common stock (“AMAC Shareholders”) and are purportedly acting on behalf of a putative class of AMAC Shareholders. These suits name as defendants AMAC, the members of AMAC’s Board of Directors (“our board of directors”) and, in the action started by Diane Kent, Tunstall and Merger Sub.
While AMAC and the other defendants believe that each of the aforementioned lawsuits is without merit, in an effort to minimize the cost and expense of any litigation relating to such lawsuits, on December 12, 2011, AMAC and other defendants entered into a memorandum of understanding (“MOU”) with the plaintiffs in In re American Medical Alert Corp. Shareholder Litigation, and the Nassau Plaintiff pursuant to which AMAC and such parties agreed in principle, and subject to certain conditions, to settle the shareholder lawsuits. Subject to approval of the Supreme Court of the State of New York, County of Queens and further definitive documentation, the MOU establishes a framework to resolve the allegations against AMAC and other defendants in connection with the Merger Agreement and contemplates a release and settlement by the AMAC Shareholders of all claims against AMAC and other defendants and their affiliates and agents in connection with the Merger Agreement. In exchange for such release and settlement, pursuant to the terms of the MOU, the parties agreed, after arm’s-length discussions, that AMAC would file this Current Report on Form 8-K amending and supplementing the applicable disclosure in its proxy statement and related press release. The settlement is also contingent upon, among other things, consummation of the Merger. In addition, in connection with the settlement and as provided in the MOU, the parties contemplate that plaintiff’s counsel will seek an award of attorneys’ fees and expenses as part of the settlement. There can be no assurance that the parties will ultimately enter into a stipulation of settlement or that the court will approve the settlement even if the parties were to enter into such stipulation. In such event, the proposed settlement as contemplated by the MOU may be terminated. The settlement will not affect the amount of the merger consideration that AMAC Shareholders are entitled to receive in the Merger. In the event that the MOU is not approved and such conditions are not satisfied, AMAC will continue to vigorously defend these actions.
On December 13, 2011, AMAC issued a press release announcing the MOU. A copy of the press release is attached hereto as Exhibit 99.1.
As contemplated by the proposed settlement, AMAC is providing certain additional disclosures that are supplemental to those contained in the definitive proxy statement relating to the Merger, filed with the SEC on November 17, 2011, and previously mailed to you, relating to the solicitation of proxies in connection with the special meeting of AMAC’s shareholders scheduled to be held on December 21, 2011 at 10:30 a.m. This supplemental information should be read in conjunction with the proxy statement, which we urge you to read in its entirety. As noted above, none of the defendants has admitted any wrongdoing of any kind, including but not limited to inadequacies in any disclosure, the materiality of any disclosure that the plaintiffs contend should have been made, any breach of any fiduciary duty, or aiding or abetting any of the foregoing. The additional disclosures are as follows:
Background of the Merger (beginning on page 19 of the Proxy Statement)
The last paragraph on page 20 of the proxy statement is revised to read in its entirety as follows:
On December 10, 2009, our board of directors met, together with representatives of AMAC’s management and legal and financial advisors, to discuss the status of the third-party solicitation process. Houlihan Lokey discussed with our board of directors the 63 potential parties that had been or would be contacted, which potential parties were comprised of 32 strategic parties and 31 financial parties. It was noted that 27 parties, including six strategic and 21 financial parties, had expressed preliminary interest in exploring a transaction with AMAC, as such parties had executed confidentiality agreements at that point in time.
The first paragraph on page 21 of the proxy statement is revised to read in its entirety as follows:
On January 7, 2010, our board of directors met, together with representatives of AMAC’s management and legal and financial advisors, to discuss the status of the third-party solicitation process. Our board of directors was informed that four indications of interest had been submitted by potential financial buyers, referred to as Company B, C, D and E, expressing interest in acquiring AMAC in an overall range of $5.75 to $8.21 per share. The indications of interest of each such party were structured as acquisitions of AMAC in its entirety (as opposed to a particular division of AMAC) for consideration consisting entirely of cash, as follows:
Each of these companies executed a non-disclosure and standstill agreement with AMAC. Our board of directors reviewed these indications of interest with management and Houlihan Lokey, and determined that each proposal undervalued AMAC and should not be pursued further. Our board of directors directed Houlihan Lokey to contact the three potential strategic parties that had not yet responded and indicated that, if indications of interest were received in a similar price range, the third-party solicitation process should be discontinued. Our board of directors also was informed that Company A had increased its indication of interest for AMAC’s HSMS division to approximately $60-65 million and confirmed that it was not interested in purchasing AMAC’s TBCS division, which would need to be divested as a condition precedent to consummating its purchase. Our board of directors instructed Houlihan Lokey to inform Company A that its valuation was too low, that the transaction structure was problematic and that AMAC would not pursue further discussions with Company A unless Company A was willing to increase its proposed purchase price and acquire the entire company. The other strategic parties that had not yet responded as of the January 7, 2010 board of directors meeting did not subsequently furnish an indication of interest.
The last paragraph on page 23 of the proxy statement is revised to read in its entirety as follows:
On June 21, 2011, our board of directors held a meeting, together with representatives of AMAC’s management and legal and financial advisors, to discuss the revised LOI received from Tunstall earlier that day which provided as follows: the proposed transaction would be structured as a one-step Merger; the cash portion of the consideration would be $8.75 per share on a fully diluted basis plus additional consideration in the form of a CPR (the structure of the CPR would call for payments upon certain liquidity events with respect to Lifecomm and a $0.50 per share payment based upon a Tunstall change of control prior to the sale or IPO of Lifecomm), a 30-day exclusivity period for Tunstall to complete its due diligence and negotiate transaction documents with AMAC; a break-up fee of $3.5 million; and $500,000 expense reimbursement if AMAC shareholders rejected the transaction and there was no alternative transaction then pending. Our board of directors further discussed the confidentiality and exclusivity features of the LOI as well as the provision for a window-shop period after a merger agreement was signed. Our board of directors also noted that Tunstall’s request for expense reimbursement if the merger agreement was not executed had been successfully negotiated out of the proposal. The transactions contemplated in the LOI were subject to the mutual agreement of Tunstall and AMAC to definitive documentation and the completion by Tunstall of its due diligence of AMAC. At the meeting, our board of directors determined to approve the terms and conditions of the LOI and to authorize AMAC to execute the LOI substantially in the form presented to our board of directors. In approving the terms of the LOI as they related to the CPR, our board of directors considered that there was not sufficient transparency with respect to the value of AMAC’s interest in Lifecomm, and accordingly it was difficult to assign a reasonably ascertainable cash value to such interest at that time. In addition, Tunstall resisted paying additional amounts due to the speculative value of the Lifecomm interest in the absence of a monetization of the Lifecomm interest or other event that would create liquidity for Tunstall. Therefore, our board of directors felt it was appropriate to allocate additional per share consideration to a CPR, which would afford AMAC shareholders the opportunity to realize value from the CPR at such time that the value of the Lifecomm interest would be both more reasonably ascertainable and monetized (thereby creating liquidity for Tunstall and enabling payments under the CPR to be made).
The fourth paragraph from the bottom of page 24 of the proxy statement is revised to read in its entirety as follows:
On August 4, 2011, having determined that the material terms of the transaction had been finalized, the independent board members advised management that they were free to communicate with Tunstall regarding management post-closing arrangements. Later that day, Mr. Rhian communicated to Mr. Baldwin that those discussions could commence. Mr. Baldwin communicated to Mr. Rhian that there was still one outstanding issue on the CPR agreement (Mr. Rhian thought Tunstall had accepted AMAC’s last proposal on this issue, which dealt with a feature of the Tunstall sale event payment) and that discussions should wait until that issue was resolved. The issue dealing with a feature of the Tunstall sale event payment was resolved over the weekend of August 6th and 7th, and no discussions regarding management post-closing arrangements took place from August 4th through August 7th.
The sixth paragraph on page 25 of the proxy statement is revised to read in its entirety as follows:
At the meeting, our board of directors determined to permit Mr. Rhian to offer a concession of up to $0.20 per share and to negotiate a lesser amount if possible. Our board of directors also directed Yacov Shamash, one of the independent board members, to accompany Mr. Rhian on future phone conversations on which deal terms would be negotiated, in light of the fact that Tunstall had, during the meetings held on August 11 and 12, 2011 with Mr. Rhian and Mr. Rallo in London, initiated discussions regarding management post-closing arrangements.
The penultimate paragraph on page 25 of the proxy statement is revised to read in its entirety as follows:
On August 30, 2011, our board of directors convened to discuss revised and updated projections for the years 2012, 2013, and 2014 for AMAC. During this meeting, our board of directors once again reviewed the prospects for AMAC to remain independent in light of the revised and updated projections presented by management. Our board of directors debated the merits of proceeding with the sale to Tunstall versus remaining independent and discussed the pros and cons of each course of action. The Board considered, among the other factors described under the caption “The Merger — Reasons for the Merger; Recommendation of AMAC’s Board of Directors”, the current lack of liquidity in AMAC common stock, that it was difficult to predict future prospects for AMAC on a stand-alone basis in part because of execution risk inherent in AMAC’s business plan against the fact that AMAC’s shareholders would forego the opportunity to realize the potential long-term value of the successful execution of AMAC’s current strategy as a stand-alone company if a sale to Tunstall were completed. Among the risks considered were the risks associated with locating acquisition targets and successfully consummating such acquisitions, difficulties in accelerating AMAC’s rate of organic growth, competitive risks, risks relating to keeping up with changing technology, and the risks associated with customer attrition. Our board of directors concluded that the opportunity presented by the transaction for AMAC shareholders to monetize their AMAC investment for cash consideration of $8.55 per share in the proposed transaction, combined with the potential of realizing additional value in the future in the form of payments under the CPR, would maximize the value of shareholders' shares and eliminate the risk of uncertainty affecting our future prospects. Accordingly, our board of directors unanimously determined that proceeding with Tunstall was the most favorable course for the shareholders in light of all relevant circumstances.
Reasons for the Merger; Recommendation of AMAC’s Board of Directors (beginning on page 26 of the Proxy Statement)
The first subsection, captioned “Financial Condition and Prospects of AMAC; Strategic Alternatives on page 26 of the proxy statement is revised in its entirety as follows:
Financial Condition and Prospects of AMAC; Strategic Alternatives
Opinion of AMAC’s Financial Advisor (beginning on page 29 of the Proxy Statement)
The last line of the second full paragraph on page 32 of the proxy statement is replaced in its entirety with the following:
For purposes of the summary below of Houlihan Lokey’s financial analyses, the term “merger consideration” refers to the $8.55 per share cash portion of the consideration payable in the merger and, conservatively, no value was attributed to the contingent payment right, which may increase the merger consideration.
The chart on page 33 of the proxy statement listing the 17 selected transactions reviewed by Houlihan Lokey in its Selected Transactions Analysis is hereby replaced in its entirety with the following:
The first three sentences of the last paragraph on page 33 of the proxy statement under the caption “Discounted Cash Flow Analysis” are revised in their entirety as follows:
Houlihan Lokey performed a discounted cash flow analysis of AMAC by calculating the estimated net present value of the unlevered, after-tax free cash flows (i.e., adjusted EBITDA, less depreciation and amortization, less taxes, plus depreciation and amortization, less capital expenditures, and less changes in working capital, “UFCF”) that AMAC was forecasted to generate through the fiscal year ending December 31, 2015, based on management’s projected financial information. Houlihan Lokey calculated terminal values for AMAC by applying to the fiscal year 2015 estimated UFCF a selected range of perpetuity growth rates of 4.0% to 5.0%. The present values (as of September 1, 2011) of the UFCF and terminal values were then calculated using discount rates ranging from 13.5% to 15.5%, which range was selected taking into consideration, among other things, a weighted average cost of capital calculation.
The first paragraph on page 34 of the proxy statement under the caption “Miscellaneous” is revised in its entirety as follows:
AMAC has agreed to pay Houlihan Lokey for its financial advisory services to AMAC in connection with the merger an aggregate fee of $1.5 million, portions of which were payable during the course of Houlihan Lokey’s engagement and $350,000 of which was payable for rendering its opinion, which portions were not contingent upon the successful completion of the merger or the conclusion contained in its opinion, and $1.125 million of which is contingent upon the completion of the merger. AMAC has agreed to reimburse certain of Houlihan Lokey’s expenses, including the fees and expenses of Houlihan Lokey’s legal counsel, and to indemnify Houlihan Lokey and certain related parties for certain potential liabilities and expenses, including liabilities under the federal securities laws, relating to, or arising out of, its engagement.
On page 34 of the proxy statement, a new sentence is added to the end of the third paragraph under the caption “Miscellaneous” as follows:
Based on a general review by Houlihan Lokey of information available from Houlihan Lokey's internal database, Houlihan Lokey had not been engaged by Tunstall or Charterhouse to provide financial advisory services to Tunstall or Charterhouse for which they paid fees to Houlihan Lokey during the two years preceding the date of Houlihan Lokey’s opinion.
Projected Financial Information (beginning on page 34 of the Proxy Statement)
The chart on page 36 of the proxy statement titled "Selected Projected Financial Information" is hereby amended by adding next to the line item "Selling, General & Administrative Expense" the following new footnote (1):
(1) Includes stock-based compensation as a cash expense.
Item 9.01 Financial Statements and Exhibits.
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.