UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date of
Report (Date of earliest event
reported): March
5, 2010
Merge
Healthcare Incorporated
(Exact
name of registrant as specified in its charter)
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Delaware
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39-1600938
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(State
or Other Jurisdiction of
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(I.R.S.
Employer
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Incorporation
or Organization)
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Identification
No.)
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6737
West Washington Street, Suite 2250
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Milwaukee,
Wisconsin
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53214
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(Address
of Principal Executive Offices)
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(ZIP
Code)
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(414)
977-4000
(Registrant's
telephone number, including area code)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
o
Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR 240.14d-2(b))
o
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR 240.13e-4(c))
Item
1.01 Entry into a Material Definitive Agreement.
On March
5, 2010, AMICAS, Inc., a Delaware company (“AMICAS”), accepted and executed the
Agreement and Plan of Merger (the “Merger Agreement”) dated as of February 28,
2010 by and among Merge Healthcare Incorporated, a Delaware corporation
(“Merge”), Project Ready Corp., a Delaware corporation and wholly-owned direct
subsidiary of Merge, and AMICAS, pursuant to which Merge will acquire all of the
outstanding shares of AMICAS for $6.05 per share in cash, or an aggregate of
approximately $248 million (the “Acquisition”). The Merger Agreement
was executed by AMICAS pursuant to the offer made by Merge on February 28, 2010
to acquire AMICAS pursuant to a tender offer subject to the terms and conditions
of the Merger Agreement.
Under the
terms of the Merger Agreement, Merge will commence a cash tender offer for all
of AMICAS’s outstanding common stock. If the tender
offer is consummated, Merge will then consummate a merger pursuant to which any
untendered shares of AMICAS common stock (other than those shares held by
AMICAS’ stockholders who have properly exercised their dissenters’ rights under
Section 262 of the Delaware General Corporation Law) will be converted into the
right to receive the same $6.05 per share cash price. The tender offer and
merger are subject to certain closing conditions, including, but not limited to,
a successful tender of approximately 54% of the outstanding shares of common
stock of AMICAS, antitrust clearance and other regulatory approvals. There is no
financing condition to the consummation of the Acquisition.
Both the
AMICAS and Merge have the right, under certain circumstances, to terminate the
Merger Agreement. The Merger Agreement provides that, upon termination under
specified circumstances, AMICAS would be required to pay Merge a termination fee
of 4% of the aggregate consideration to be paid in the tender offer and the
merger, depending on the timing and circumstances of the termination and, under
certain circumstances, to reimburse Merge for an amount not to exceed $3.0
million for transaction expenses incurred by Merge and its affiliates. AMICAS’s
reimbursement of Merge’s expenses would reduce the amount of any required
termination fee that becomes payable by AMICAS. The Merger Agreement
also provides that, upon termination under specified circumstances, Merge would
be required to pay AMICAS a termination fee of $25.7
million. The payment of the $25.7 million termination fee, and
up to an additional $24.3 million of liability, if damages incurred exceed $25.7
million, shall be the sole and exclusive remedy of AMICAS, its subsidiaries,
stockholders, affiliates, officers, directors, employees and representatives
against Merge for any loss suffered as a result of the failure of the Merger to
be consummated or any other liabilities or obligations arising under the Merger
Agreement.
The
foregoing summary of the Merger Agreement and the transactions contemplated
thereby does not purport to be complete and is qualified in its entirety by the
full text of the Merger Agreement, which was filed as Exhibits 99.2 to the
Current Report on Form 8-K of Merge filed on March 4, 2010 and is incorporated
herein by reference.
The
Merger Agreement has been included to provide investors and security holders
with information regarding its terms. It is not intended to provide any other
factual information about AMICAS and Merge. The representations, warranties and
covenants contained in the Merger Agreement have been made only for purposes of
the Merger Agreement and as of specified dates, are for the benefit of the
parties to the Merger Agreement, and are subject to limitations agreed upon by
the contracting parties, including being qualified by confidential disclosures
exchanged between the parties in connection with the execution of the Merger
Agreement. The representations and warranties have been made for the purposes of
allocating contractual risk between the parties to the Merger Agreement instead
of establishing these matters as facts, and may be subject to standards of
materiality applicable to the contracting parties that differ from those
applicable to investors. Investors are not third-party beneficiaries under the
Merger Agreement and should not rely on the representations, warranties and
covenants or any descriptions thereof as characterizations of the actual state
of facts or condition of AMICAS or Merge or any of their respective subsidiaries
or affiliates. Moreover, information concerning the subject matter of the
representations and warranties may change after the date of the Merger
Agreement, which subsequent information may or may not be fully reflected in the
Merge’s or AMICAS’s public disclosures.
SIGNATURES
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.
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MERGE
HEALTHCARE INCORPORATED
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March
10, 2010
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/s/
Ann Mayberry-French
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By: Ann
Mayberry-French
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Title: General
Counsel
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