<PAGE> 1
As filed with the Securities and Exchange Commission on December 19, 1997
Registration No. 333-39111
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WASHINGTON, D.C. 20549
---------------
PRE EFFECTIVE
AMENDMENT
NO. 1 TO
FORM SB-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
MERGE TECHNOLOGIES INCORPORATED
(Name of small business issuer as specified in its charter)
WISCONSIN 3669 39-1600938
------------------ ------------------------------ ----------------------
(State of Incorporation) (Primary Standard Industrial (I.R.S. Employer
Classification Code Number) Identification Number)
1126 SOUTH 70TH STREET
SUITE S107B
MILWAUKEE, WISCONSIN 53214-3151
(414) 475-4300
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
--------------------
WILLIAM C. MORTIMORE
PRESIDENT
1126 SOUTH 70TH STREET
SUITE S107B
MILWAUKEE, WISCONSIN 53214-3151
(414) 475-4300
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
--------------------
COPIES TO:
MITCHELL D. GOLDSMITH, ESQ. ELIZABETH R. HUGHES, ESQ.
Shefsky & Froelich Ltd. Venable, Baetjer and Howard, LLP
444 N. Michigan Avenue, Suite 2500 1800 Mercantile Bank & Trust Building
Chicago, IL 60611 Two Hopkins Plaza
(312)527-4000 Baltimore, Maryland 21201-2978
(410) 244-7400
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, as amended, check the following box: [ ]
---------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED DECEMBER 19, 1997
PROSPECTUS
1,900,000 SHARES
[MERGE LOGO]
MERGE TECHNOLOGIES INCORPORATED
COMMON STOCK
The 1,900,000 shares of common stock, par value $0.01 per share (the
"Common Stock"), offered hereby are being issued and sold by Merge Technologies
Incorporated (the "Company"). Prior to the offering contemplated hereby (the
"Offering"), there has been no public market for the Common Stock. It is
anticipated that the initial public offering price will be between $7.00 and
$8.00 per Share. See "Underwriting" for a discussion of the factors considered
in determining the initial public offering price. The Company has applied to
have the Common Stock included for quotation on the Nasdaq SmallCap Market under
the symbol "MRGE."
THE COMMON STOCK OFFERED HEREBY INVOLVES A HIGH DEGREE OF RISK AND
SUBSTANTIAL IMMEDIATE DILUTION. SEE "RISK FACTORS" BEGINNING ON PAGE 6.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
<TABLE>
<S> <C> <C> <C>
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PRICE TO UNDERWRITING PROCEEDS TO
PUBLIC DISCOUNT(1) COMPANY(2)
- -------------------------------------------------------------------------------------------------------------
Per Share...................... $ $ $
- -------------------------------------------------------------------------------------------------------------
Total(3)....................... $ $ $
=============================================================================================================
</TABLE>
(1) Excludes a non-accountable expense allowance equal to three percent (3.0%)
of the total proceeds from the sale of the Common Stock payable to H.C.
Wainwright & Co., Inc., the representative of the Underwriters (the
"Representative"), and the value of warrants to be issued to the
Representative to purchase the number of shares of Common Stock equal to ten
percent (10%) of the number of shares being offered hereby at an exercise
price of 120% of the Price to Public (the "Representative's Warrants"). The
Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933, as
amended (the "Securities Act"). See "Underwriting."
(2) Before deducting expenses of the Offering payable by the Company estimated
to be $ , ($ , if the Underwriters' over-allotment option
is exercised in full) including the Representative's non-accountable expense
allowance. See "Underwriting."
(3) The Company has granted the Underwriters a 30-day option to purchase up to
285,000 additional shares of Common Stock, on the same terms as set forth
above, solely to cover over-allotments, if any. If the Underwriters exercise
such option in full, the total Price to Public, Underwriting Discount and
Proceeds to Company will be $ , $ , and $ ,
respectively. See "Underwriting."
---------------------
The shares of Common Stock are being offered severally by the Underwriters
named herein, subject to prior sale, when, as and if issued to and accepted by
them, subject to the approval of certain legal matters by counsel for the
Underwriters and to certain other conditions. The Underwriters reserve the right
to withdraw, cancel or modify such offer and to reject orders in whole or in
part. It is expected that delivery of the shares of Common Stock will be made in
Boston, Massachusetts on or about , 1998.
H.C. WAINWRIGHT & CO., INC.
The date of this Prospectus is , 1998.
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INSIDE FRONT COVER PAGE
The inside front cover diagram contains a large oval with a Merge logo in
the center. "Medical Image Management Network" is written above the oval.
Pictures of various medical image-producing and image-using devices are
displayed around the circumference of the oval. Radial lines connect each
medical device to the Company's logo in the center. A downward arrow points from
the center of the oval to a caption just below that reads "Shared information
with outside networks." Graphics labeled "Hospitals" and "Clinics" flank this
caption.
Below the oval are four pictures of the Company's product groups. The
products displayed include MergeWorks Connectivity Products, OEM Interface
Products, Network Integration Products and Services and Networked Image
Management Products. A caption above the pictures reads "Merge Product Profile."
[Inside Cover Printed Here]
MergeMVP(TM), MergeXPI(TM), MergeAPS(TM), MergeARK(TM), MergeCOM-3(TM),
MergeLINK(TM), MergeWorks(TM), CaseWorks(TM), MergeVPI(TM), MergeDPI(TM),
MergeXPI(TM), MergeReader(TM), MergeBOX(TM) and ReportManager(TM), among other
marks, are trademarks or service marks of the Company.
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS THAT
STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE COMMON STOCK OFFERED
HEREBY, INCLUDING THE ENTRY OF STABILIZING BIDS, SYNDICATE COVERING TRANSACTIONS
OR THE IMPOSITION OF PENALTY BIDS. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE
"UNDERWRITING."
<PAGE> 4
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information and financial data appearing elsewhere in this Prospectus. Potential
purchasers of the Common Stock should read carefully this Prospectus in its
entirety and should consider carefully the factors identified under "Risk
Factors." Except as otherwise indicated, the information contained herein: (i)
reflects a 6.77217-for-one stock split of Common Stock effected as a stock
dividend as of the closing of the Offering, (the "Stock Dividend"); (ii) assumes
the redemption and retirement of 424,757 shares of Common Stock held by Alpha
Capital Venture Partners, Limited ("Alpha"); (iii) assumes repayment of a
Secured Promissory Note dated June 30, 1997, in favor of Sirrom Capital
Corporation ("Sirrom") in the principal amount of $2,000,000 (the "Sirrom
Note"); (iv) assumes the issuance of 108,942 shares of Common Stock issuable
pursuant to a warrant originally issued to Sirrom to acquire for nominal
consideration 145,256 shares of Common Stock and subsequently modified as of
October 6, 1997 (the "Sirrom Warrant") See "Certain Transactions"; (v) assumes
payment of a fee of approximately $245,000 to Sirrom in connection with the
Sirrom Warrant (the "Sirrom Termination Fee"); and (vi) assumes the
Underwriters' over-allotment option is not exercised. Unless the context
otherwise requires, the terms "Merge" and the "Company" include Merge
Technologies Incorporated, a Wisconsin corporation, and its subsidiary, Signal
Stream Incorporated, a Wisconsin corporation ("SSI").
THE COMPANY
The Company provides software, hardware and systems integration products
and services that enable health care organizations to network otherwise
incompatible medical image-producing and image-using devices. Medical
image-producing devices primarily include digital x-ray, computed tomography
("CT"), magnetic resonance imaging ("MRI"), computed radiography ("CR"),
ultrasound and nuclear medicine machines. Medical image-using devices primarily
include video display terminals, specialty workstations, medical film laser
printers that facilitate the use of diagnostic medical images and digital image
archiving systems. The Company's products can support over 200 different
combinations of image-producing and image-using devices and have been installed
at over 1,000 health care facilities throughout the world. The Company's
products provide a communications bridge between incompatible medical
image-producing and image-using devices, permit radiologists to use either video
images on electronic workstations or film as a diagnostic medium and create a
diagnostic-quality electronic archive of imaging results. In addition, the
Company's products permit the information generated and used by medical imaging
devices to be included in a health care organization's information network or an
electronic patient record ("EPR").
The improvement of the exchange and storage of information by the various
participants in the health care delivery system is essential to the efficient
delivery of health care services. Such exchange and storage generally is
conducted through the manual transfer and storage of patient information in hard
copy format. If accomplished electronically, information exchange generally is
limited to text that can be transferred only among the internal departments of a
single institution. In recent years, however, the health care industry has
recognized that technology now permits the development of the EPR as a
repository of individual electronic patient information that can be exchanged
internally among the departments of a single organization, or externally among
all of the health care providers that serve an individual patient. The practice
of medical diagnostics and recommendation of treatment from remote locations by
use of telecommunications is commonly referred to as "telemedicine."
Until recently, despite advances in electronic information storage and
exchange technology in other sectors of health care organizations and
institutions, the exchange of imaging information produced by radiology
departments and diagnostic imaging centers has been limited to hard copy format,
i.e., images printed directly on film that are stored and transferred in
individual patient jackets, as opposed to images that are stored and transferred
electronically and available for display on a computer screen. Because the
medical image-producing and image-using devices manufactured by different
original equipment manufacturers ("OEMs") have historically utilized
incompatible proprietary communications protocols and data formats, the output
of an image-producing device manufactured by one OEM frequently cannot be used
by an image-using device produced by another OEM. As a result, such "legacy"
devices have not been compatible with the
2
<PAGE> 5
network technologies that permit the electronic exchange and storage of
information. This medical image-producing and image-using device connectivity
problem has usually required the direct connection of image-producing devices to
dedicated image-using devices. Such direct connections have required radiology
departments and diagnostic imaging centers to purchase multiple pieces of
similar equipment thereby increasing their capital expenditures. Further,
electronic storage of medical imaging information in multiple communications
protocols and data formats is not practical.
The Company's products address the incompatibility of the proprietary
communications protocols and data formats used by medical image-producing and
image-using devices by converting the output from a customer's existing base of
image-producing devices into a standard communications protocol and data format
- -- Digital Imaging Communications in Medicine ("DICOM" or the "DICOM standard").
Once in the DICOM standard, such data can be stored electronically, made
generally available on a network or converted into the particular proprietary
language required by any image-using device on the network. The Company's
products enable radiology departments, diagnostic imaging centers and the users
of their images and diagnostic reports to benefit in a variety of ways
including: (i) multiple image-producing devices can be connected to a single
workstation, film printer or other image-using device resulting in reduced
equipment expenditures; (ii) permanent electronic archives of diagnostic-quality
imaging results can be created, enabling the retrieval of these images at any
time in the future; (iii) the modular architecture of the Company's products
allows radiology departments and diagnostic imaging centers to build their
electronic image management infrastructures in an incremental, flexible and
cost-effective manner; and (iv) with the continued development of health care
information technology, diagnostic images collected and managed with the
Company's technology can be readily incorporated into a patient's EPR.
The Company began to address these issues of format incompatibility when it
commenced selling its products and services in 1989. Today, the Company's
products and services available include: (i) MergeWorks Connectivity Products --
for retrofitting legacy stand-alone medical image-producing and image-using
devices thereby rendering such devices capable of communicating over a DICOM
network; (ii) OEM Interface Products -- connectivity software tool kits and
interface board products that enable OEMs to manufacture new radiology
image-producing and image-using devices capable of directly communicating with
the DICOM standard; and (iii) Network Integration Products and Services -- for
the design and installation of DICOM networks, including training, design
assistance and testing services. In addition, the Company has under development
a line of Networked Image Management Products that enables radiologists to
select and manage specific diagnostic images which may be incorporated into a
diagnostic report or an EPR.
The Company's primary objective is to become a leading provider of
connectivity and data management solutions that facilitate the networking of
incompatible, proprietary devices in medical imaging and other diagnostic
systems. The key elements of the Company's strategy include: (i) sell MergeWorks
Connectivity Products for retrofitting legacy radiology image-producing and
image-using devices; (ii) sell OEM Interface Products for new radiology
image-producing and image-using devices; (iii) sell Network Integration Products
and Services; (iv) sell Networked Image Management Products to users of DICOM
networks; and (v) expand the Company's product and service offerings to other
image-intensive specialties and departments in the health care field.
The Company markets its products to OEMs, value-added resellers ("VARs"),
dealers and directly to end-users. The Company's customers include Siemens A.G.
("Siemens"), Philips Medical Systems Nederland B.V. ("Philips"), Toshiba Corp.
("Toshiba") and the GE Medical Systems Division of the General Electric Company
("GE"). The Company also markets its products to end-users through its direct
sales staff and through Picker International, Inc. ("Picker"), Konica Medical
Corporation ("Konica") and other nonexclusive third party dealers.
The Company is a Wisconsin corporation and was incorporated on November 25,
1987. The Company's executive offices are located at 1126 South 70th Street,
Suite S107B Milwaukee, Wisconsin 53214-3151, its telephone number is (414)
475-4300 and its Internet address is www.merge.com.
3
<PAGE> 6
THE OFFERING
Common Stock being offered by the
Company................................... 1,900,000 shares
Common Stock outstanding prior to the
Offering.................................. 3,592,248 shares
Common Stock to be outstanding after the
Offering(1)............................... 5,492,248 shares
Use of Proceeds........................... For: (i) repayment of the Sirrom
Note; (ii) redemption and
retirement of 424,757 shares of
Common Stock held by Alpha;
(iii) the hiring of new
personnel; (iv) payment of the
Sirrom Termination Fee; and (v)
working capital and other
general corporate purposes. See
"Use of Proceeds."
Proposed Nasdaq SmallCap Market Symbol.... MRGE
- ---------------
(1) Does not include: (i) 1,015,826 shares of Common Stock reserved for issuance
upon the exercise of options which may be granted pursuant to the Company's
1996 Stock Option Plan, of which options to purchase 959,115 shares have
been granted and are outstanding; (ii) 100,000 shares of Common Stock to be
reserved for issuance under the Company's 1997 Stock Option Plan for
Directors, of which options to purchase 60,000 shares are expected to be
granted and outstanding prior to the Offering date; and (iii) exercise of
the Representative's Warrants to purchase up to a number of shares equal to
10% of the shares offered hereby at a price per share equal to 120% of the
initial offering price of the Common Stock. See "Use of Proceeds," and
"Underwriting."
SUMMARY CONSOLIDATED FINANCIAL DATA
<TABLE>
<CAPTION>
FISCAL YEARS ENDED NINE MONTHS ENDED
DECEMBER 31, SEPTEMBER 30,
-------------------------------------------------------------- -----------------------
1992 1993 1994 1995 1996 1996 1997
---------- ---------- ---------- ---------- ---------- ---------- ----------
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA) (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
Statement of Operations
Data:
Net sales.................. $ 1,416 $ 1,743 $ 2,420 $ 3,718 $ 6,385 $ 4,252 $ 6,800
Cost of goods sold......... 501 560 653 1,112 2,076 1,330 2,016
Operating costs and
expenses(1)(2)........... 628 760 1,213 3,042 4,495 2,820 3,828
Operating income (loss).... 287 423 554 (436) (187) 102 955
Income (loss) before
extraordinary item....... 144 120 466 (574) (283) 14 357
Net income (loss)(3)....... 144 120 466 (574) (114) 183 357
Net income (loss) before
extraordinary item per
common and common
equivalent share(4)...... $ 0.06 $ 0.05 $ 0.12 $ (0.21) $ (0.07) $ 0.00 $ 0.08
Net income (loss) per
common and common
equivalent share(4)...... $ 0.06 $ 0.05 $ 0.12 $ (0.21) $ (0.03) $ 0.05 $ 0.08
Weighted average number of
common and common
equivalent shares
outstanding(4)........... 2,247,590 2,407,103 3,995,665 2,777,834 3,969,391 3,907,745 4,712,994
</TABLE>
<TABLE>
<CAPTION>
SEPTEMBER 30, 1997
-----------------------------
ACTUAL AS ADJUSTED(6)
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(UNAUDITED)
<S> <C> <C>
Balance Sheet Data:
Cash and cash equivalents................................. $ 655 $10,020
Working capital........................................... 1,957 11,344
Total assets.............................................. 6,710 16,043
Long-term debt, less current portion...................... 1,368 31
Put options related to redeemable common stock and stock
warrants(5)............................................. 1,469 --
Total shareholders' equity................................ 2,751 14,912
</TABLE>
(footnotes on following page)
4
<PAGE> 7
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(1) Effective May 1, 1995, the Company acquired all the outstanding shares of
Signal Stream Technologies, Inc. The acquisition was accounted for as a
purchase. The fair value of certain acquired in-process technology in the
amount of $375,000 that had not reached technological feasibility was
charged to operations in May 1995.
(2) The Company recognized $364,000 in fees in December 1996 in preparation for
an initial public offering that was canceled.
(3) In May 1996, the Company discharged $463,000 of subordinated notes payable
to Alpha and related accrued interest with the issuance of 33,861 shares of
the Common Stock and a cash payment of $375,000. The Company realized an
extraordinary gain of $169,000.
(4) Net income (loss) per share data has been computed using the weighted
average number of shares of common and common equivalent shares from stock
options (when dilutive using the treasury stock method). Pursuant to the
Securities and Exchange Commission Staff Accounting Bulletin No. 83, common
stock, warrants and options issued during the twelve month period
immediately preceding the Company's proposed initial public offering have
been included in the calculation as if they were outstanding for all periods
presented (even if antidilutive, using the treasury stock method and the
anticipated offering price).
(5) In connection with the Sirrom Note, the Company issued the Sirrom Warrant,
granting Sirrom the right to purchase 145,256 shares of the Common Stock at
$0.01 per share. The Sirrom Warrant is subject to a put option equal to the
fair market value of the Common Stock issuable under the Sirrom Warrant. The
value of this put option at September 30, 1997 totals $1,089,422. In
addition, 424,757 shares of Common Stock are subject to a put option
exercisable by Alpha. The value of the Alpha put option at September 30,
1997 totals $379,462. The Alpha and Sirrom put options will be terminated
simultaneously with the closing of the Offering.
(6) Gives effect to: (i) the sale by the Company of 1,900,000 shares of Common
Stock in this Offering at an assumed public offering price of $7.50 per
share and the application of the net proceeds therefrom; (ii) redemption and
retirement of 424,757 shares of Common Stock held by Alpha which the Company
will redeem simultaneously with the closing of this Offering; (iii)
repayment of the Sirrom Note and related accrued interest simultaneously
with the closing of this Offering; (iv) charge to operations of the Sirrom
Note discount of approximately $663,000 and deferred finance charges of
approximately $32,000; (v) issuance of 108,942 shares of Common Stock upon
exercise of the Sirrom Warrant; and (vi) payment of the Sirrom Termination
Fee.
5
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RISK FACTORS
PROSPECTIVE INVESTORS SHOULD CONSIDER CAREFULLY, IN ADDITION TO THE OTHER
INFORMATION CONTAINED IN THIS PROSPECTUS, THE FOLLOWING RISK FACTORS.
LACK OF CONSISTENT PROFITABILITY; HISTORY OF OPERATING LOSSES
Although the Company experienced significant revenue growth from fiscal
1994 through fiscal 1996, it incurred net losses of approximately $114,000 in
fiscal 1996 and approximately $574,000 in fiscal 1995, respectively, and earned
net income of approximately $466,000 in fiscal 1994. The Company earned net
income of approximately $357,000 for the nine months ended September 30, 1997
and approximately $183,000 for the nine months ended September 30, 1996.
However, there can be no assurance that revenue growth will continue or that the
Company will consistently achieve profitability in the future. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations."
OPERATING RESULTS MAY FLUCTUATE
The Company's operating results are subject to quarterly and other
fluctuations due to a variety of factors. A significant portion of the Company's
business is derived from orders placed by OEMs, and the timing of such orders
could cause material fluctuations in the Company's business and operating
results. Other factors that may cause the Company's operating results to
fluctuate include changes in sales volumes through the Company's distribution
channels, changes in the mix of products sold, the timing of new product
announcements and introductions by the Company and its competitors, market
acceptance of new or enhanced versions of the Company's products, availability
and cost of products from the Company's suppliers, competitive pricing
pressures, the gain or loss of significant customers, increased research and
development expense associated with new product introductions and economic
conditions generally or in various geographic areas. All of the above factors
are difficult for the Company to forecast, and these or other factors can
materially affect the Company's operating results for one quarter or series of
quarters. In addition, the Company's gross margins may decrease in the future as
a result of increasing sales of lower margin products and volume discounts. The
Company expects to continue to increase its operating expenses for personnel and
new product development. If the Company does not achieve increased levels of
sales commensurate with these increased levels of operating expenses, the
Company's business and operating results will be materially adversely affected.
There can be no assurance that the Company will be profitable on a quarterly or
annual basis. Fluctuations in operating results may also result in fluctuations
in the price of the Common Stock. See "Management's Discussion and Analysis of
Financial Condition and Results of Operations."
INCREASED CREDIT AND PAYMENT RISKS ASSOCIATED WITH END-USER SALES
The Company currently markets and sells a significant portion of its
products to OEMs. The Company has not, in the past, experienced significant
nonpayment or delays in payment on receivables from these customers. Increased
direct sales to end-users, such as hospitals, may create delays in payment of
receivables to the Company and may also increase the risk of nonpayment of
receivables. The Company may bear increased interest expense if it experiences
delays in receipt of payment on receivables as a result of increased sales
directly to end-users as a percentage of total sales. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations."
COMPANY MUST RESPOND TO TECHNOLOGICAL CHANGE; RISKS OF COMPANY'S INVOLVEMENT
WITH RAPIDLY DEVELOPING TECHNOLOGY
The markets for the Company's products are characterized by rapid
technological advances, product obsolescence, changes in customer requirements
and evolving regulatory requirements and industry standards. The Company's
future prospects will depend in part on its ability to enhance its medical image
networking and management products in a timely manner and to identify, develop
and achieve market acceptance of new products that address new technologies and
standards and meet customer needs in the medical imaging network market. There
can be no assurance that the Company will be able to respond to technological
advances, changes in customer requirements or changes in regulatory requirements
or industry standards or
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<PAGE> 9
that the Company will be able to develop and market new products successfully.
Any failure by the Company to anticipate or to respond adequately to
technological developments in its industry, changes in customer requirements, or
changes in regulatory requirements or industry standards, or any significant
delays in the development, introduction or shipment of products, could have a
material adverse effect on the Company's business and operating results. In
anticipation of new product introductions by the Company or its competitors,
customers could refrain from purchasing the Company's existing products. New
products could render certain of the Company's existing products obsolete. Any
of these events could materially adversely affect the Company's business and
operating results. In addition, third-party payors, such as governmental
programs and private insurance plans, can indirectly affect the pricing or
relative attractiveness of the Company's products by regulating the maximum
amount of reimbursement that they will provide for the taking, storing and
interpretation of medical images. A decrease in the reimbursement amounts for
radiological procedures may decrease the amount which physicians, clinics and
hospitals are able to charge patients for such services. As a result, adoption
of new technologies may slow as capital investment budgets are reduced, thereby
significantly reducing the demand for the Company's products.
BROAD CONTROL BY MANAGEMENT AND DIRECTORS
After the sale of the Common Stock offered hereby, the executive officers
of the Company and members of the Company's Board of Directors, will own
1,525,106 shares (exclusive of vested options to acquire an additional 260,566
shares) of the Company's issued and outstanding Common Stock. Consequently, the
executive officers and Directors will control 28% (26% if the Underwriters'
over-allotment option is exercised in full) of the total voting power of the
Company's Common Stock. By virtue of such ownership, the executive officers and
Directors voting as a group may be able to influence significantly certain
matters with respect to the Company, including without limitation: (i) the
election of all of the Directors; (ii) increases in authorized capital stock;
(iii) the dissolution or merger of the Company or the sale of the Company's
assets; and (iv) discretion over the day-to-day affairs of the Company. See
"Management" and "Principal Shareholders."
COMPANY DEPENDS ON MAJOR CUSTOMERS
The Company sells a majority of its products to a relatively limited number
of OEMs, VARs and dealers. Aggregate sales to the Company's ten largest
customers represented approximately 75% and 68% of the Company's net sales in
1995 and 1996, respectively, and approximately 87% of the Company's net sales
for the nine months ended September 30, 1997. During 1996, Picker, Philips and
Siemens accounted for approximately 26%, 15% and 10%, respectively, of the
Company's net sales. For the nine months ended September 30, 1997, Picker,
Philips and Siemens accounted for approximately 28%, 15% and 7%, respectively,
of the Company's net sales. There can be no assurance that the Company's current
customers will continue to place orders with the Company or that the Company
will be able to obtain orders from new customers. The loss of any one or more of
the Company's major customers could materially adversely affect the Company's
business and operating results. None of the Company's customers is subject to
any minimum purchase requirements, and many of the Company's VAR and OEM
customers offer competitive systems manufactured by third parties. Each of the
Company's VAR and OEM customers and dealers, including Picker, can cease
marketing the Company's products at its respective option, and the loss of one
or more significant customers could materially adversely affect the Company's
business and operating results. See "Business -- Sales, Marketing and
Distribution."
EXPANSION OF INTERNATIONAL SALES EFFORTS; CURRENCY RISK
An important component of the Company's business plan includes increasing
its sales to customers outside the United States, which represented 35% of the
Company's net sales for the nine months ended September 30, 1997. Sales in
foreign currency represented approximately 7.8% of the Company's net sales for
the nine months ended September 30, 1997; however, the Company anticipates that
this percentage may increase in the future. In order to increase overseas sales,
it may be necessary or desirable for the Company to expand its sales force, or
establish additional offices outside the United States. The increased costs of
hiring
7
<PAGE> 10
new personnel or establishing offices could have a material adverse effect on
the Company's results of operations and financial condition.
The Company does not hedge against risks associated with receipt of foreign
currency. The Company does, however, anticipate that if sales outside the United
States increase in the future, the Company may deem it advisable to hedge
against risks associated with receipt of foreign currency. No assurance can be
given that such hedging, if undertaken, will prevent the Company from incurring
losses due to currency fluctuation.
DEPENDENCE UPON KEY PERSONNEL
The Company's continued success will depend to a significant degree upon
the efforts and abilities of its senior management, in particular, William C.
Mortimore, its President and Chief Executive Officer, William L. Stafford, Vice
President -- Sales, David M. Noshay, Vice President -- Marketing, Dwight A.
Simon, Vice President -- Engineering, Colleen M. Doan, Chief Financial Officer
and Michael J. Franco, Chief Technical Officer. Of these key personnel, only Mr.
Mortimore has an employment agreement with the Company. See "Management --
Employment Agreements." The loss of the services of any of these officers could
have a material adverse effect on the Company. The Company will maintain term
life insurance policies covering the life of Mr. Mortimore in the amount of
$2,000,000 and covering the lives of each of Mr. Stafford, Mr. Noshay, Mr.
Simon, Ms. Doan and Mr. Franco in the amount of $500,000, the proceeds of which
would be payable to the Company.
POTENTIAL DIFFICULTY IN HIRING ADDITIONAL SALES AND ENGINEERING PERSONNEL
The Company's ability to carry out its business plan depends in part upon
its ability to hire and retain skilled sales professionals and engineering and
marketing support staff. Although the Company believes it will be able to hire
qualified personnel for such purposes, an inability to do so could materially
adversely affect the Company's ability to market, sell and enhance its product
lines. The market for qualified experienced sales and marketing professionals
and engineering specialists has historically been, and the Company expects that
it will continue to be, intensely competitive. The inability to recruit and
retain qualified employees could materially adversely affect the Company's
results of operations and financial condition.
PROTECTION OF INTELLECTUAL PROPERTY RIGHTS
Although the Company has submitted domestic and foreign patent applications
on CaseWorks, a product currently in development, the Company generally does not
rely on patent protection with respect to its products. Instead, the Company
relies on a combination of copyright and trade secret laws, employee and
third-party confidentiality agreements and other measures to protect
intellectual property rights pertaining to its systems and technology. There can
be no assurance, however, that applicable copyright or trade secret laws or
these agreements will provide meaningful protection of the Company's copyrights,
trade secrets, know-how or other proprietary information in the event of any
unauthorized use, misappropriation or disclosure of such copyrights, trade
secrets, know-how or other proprietary information. In addition, the laws of
certain foreign countries do not protect the Company's intellectual property
rights to the same extent as do the laws of the United States. There can be no
assurance that third parties will not assert patent, copyright or other
intellectual property infringement claims against the Company with respect to
its products or technology or other matters. Any such claims against the
Company, with or without merit, as well as claims initiated by the Company
against third parties, can be time-consuming and expensive to defend or
prosecute and resolve. To date, the Company has not initiated any intellectual
property infringement claims, and no such claims have been asserted against it.
See "Business -- Intellectual Property."
GOVERNMENT REGULATION
The manufacturing and marketing of the Company's products are subject to
government regulation as medical devices in the United States by the United
States Food and Drug Administration (the "FDA") and in other countries by
corresponding foreign regulatory authorities. The process of obtaining and
maintaining required regulatory clearances and approvals is lengthy, expensive
and uncertain. The Company believes that
8
<PAGE> 11
its success depends upon commercial sales of improved versions of its products,
certain of which cannot be marketed in the United States and other regulated
markets unless and until the Company obtains clearance or approval from the FDA
and its foreign counterparts. Failure to comply with applicable regulatory
requirements could result, among other things, in warning letters, seizures of
the Company's products, total or partial suspension of the Company's production
operations, refusal of the government to grant market clearance or pre-market
approval, withdrawal of approvals or criminal prosecution.
The Company is also subject to other federal, state and local laws and
regulations relating to safe working conditions and manufacturing practices. In
addition, sales of the Company's products outside the United States are subject
to various foreign regulatory requirements. The extent of government regulation
that might result from any future legislation or administrative action cannot be
predicted. Failure to comply with domestic regulatory requirements or to obtain
any necessary foreign certifications or regulatory approvals, or any other
failure to comply with regulatory requirements outside the United States could
have a material adverse effect on the Company's business, financial condition
and results of operations. See "Business -- Government Regulation."
PRODUCT LIABILITY; RISK OF PRODUCT DEFECTS
The Company has licensing agreements with certain of its customers, which
typically contain provisions designed to limit the Company's exposure to
potential product liability claims. However, it is possible that the limitation
of liability provisions contained in the Company's license agreements may not be
effective under the laws of certain jurisdictions. Furthermore, although the
Company tries to include provisions limiting its exposure to product liability
in its sales agreements, the Company is not always successful in doing so.
Moreover, some of the Company's products are sold without agreements addressing
product liability claims at all. Although the Company has not experienced any
product liability claims to date, the sale and support of products by the
Company may entail the risk of such claims, and there can be no assurance that
the Company will not be subject to such claims in the future. Although the
Company expects to procure product liability insurance, there can be no
assurance that it will procure such insurance on favorable terms or that such
insurance will be sufficient to fully protect the Company against a successful
product liability claim. A successful product liability claim brought against
the Company could have a material adverse effect on the Company's business,
results of operations and financial condition. Software products such as those
offered by the Company occasionally contain errors or failures, especially when
first introduced or when new versions are released. Although the Company
conducts extensive product testing, the Company could in the future lose or
delay recognition of revenues as a result of software errors or defects, the
failure of its products to meet customer specifications or otherwise. Although
to date, the Company's business has not been materially adversely affected by
any such errors, defects or failure to meet specifications, there can be no
assurance that defects will not be found in new products or releases after
commencement of commercial shipments or that such products will meet customer
specifications, resulting in loss or deferral of revenues, diversion of
resources, damage to the Company's reputation, or increased service and warranty
and other costs, any of which could have a material adverse effect upon the
Company's business, operating results and financial condition. See
"Business -- Products Under Development."
SIGNIFICANT UNALLOCATED NET PROCEEDS; BROAD DISCRETION OF MANAGEMENT
The Company intends to use the net proceeds of this Offering to repay the
Sirrom Note, redeem 424,757 shares of Common Stock held by Alpha, hire
additional personnel and pay the Sirrom Termination Fee. See "Use of Proceeds."
The Company intends to use the balance of the net proceeds of this Offering,
approximately 47% of the total Offering proceeds, for working capital and other
general corporate purposes. In addition, the Company may use a portion of the
net proceeds of this Offering to acquire businesses, products or technologies
complementary to its business. Although the Company has from time to time
engaged in discussions with respect to possible acquisitions, it has no present
plans, intentions, understandings, commitments or agreements, nor is it
currently engaged in any negotiations, with respect to any such transaction.
Pending such uses, the Company intends to invest the net proceeds from this
Offering in short-term, investment-grade, interest-bearing securities. The
Company has no other specific uses for the proceeds of this
9
<PAGE> 12
Offering, and the exact use of the proceeds will be subject to the discretion of
management. See "Use of Proceeds."
MARKETS FOR THE COMPANY'S PRODUCTS ARE HIGHLY COMPETITIVE
The markets for the Company's products are highly competitive. Many of the
Company's customers purchase products from both the Company and its competitors.
The Company has one primary competitor in the imaging acquisition network
business, which includes the Company's MergeMVP product. In the DICOM software
package business, the Company primarily competes directly and indirectly with a
number of other entities, including the Radiological Society of North America,
which offers a version of DICOM (originally developed by Mallinckrodt Institute
of Radiology) as "freeware" available to be downloaded without charge from the
Internet, but which offers more limited features and no user support. The
Company also faces competition from picture archiving and communication systems
("PACS") manufacturers. See "Business -- Competition."
In the application of MergeWorks Connectivity Products specifically for
hardcopy film networks, which include the MergeAPS print server and the MergeXPI
printer interface, the Company competes with multiple film vendors. However,
since the MergeAPS print server works with any of the laser film printers
available from these vendors, these companies also have purchased products from
the Company when they have needed to interface with other competing
manufacturers' products. The Company expects competition to increase in the
future from existing competitors and from other companies that may enter the
Company's existing or future markets. The Company could also face competition
from networking equipment and telecommunications manufacturers if such companies
were either to develop DICOM capability for their products, or purchase from one
of the Company's competitors products that provide DICOM capability. Many of the
Company's current and potential competitors have greater resources than those of
the Company in areas including finance, research and development, intellectual
property and marketing. Many of these competitors also have broader product
lines and longer standing relationships with customers in the medical imaging
field than those of the Company.
The Company believes that its ability to compete successfully depends on a
number of factors both within and outside of its control, including:
applications innovation; product quality and performance; price; experienced
sales, marketing and service organizations; rapid development of new products
and features; continued active involvement in the development of DICOM and other
medical communication standards; and product and policy decisions announced by
its competitors. There can be no assurance that the Company will be able to
compete successfully with existing or new competitors.
POSSIBILITY OF NASDAQ QUOTATION TERMINATION OR SUSPENSION AND DECREASE IN STOCK
PRICE
The trading of the Common Stock on the Nasdaq SmallCap Market is
conditioned upon meeting certain asset, capital and surplus, earnings and stock
price tests. To maintain eligibility on the Nasdaq SmallCap Market, the Company
must, among other things, maintain compliance with one of the following three
tests: (i) net tangible assets in excess of $2,000,000; (ii) have market
capitalization of $35,000,000; or (iii) net income of $500,000 in the latest
fiscal year or in two of the last three fiscal years. If the Company fails all
of these tests or if the Company fails to maintain an average bid price of at
least $1.00 per Share, the Common Stock may be suspended or terminated from
inclusion on the Nasdaq SmallCap Market. The effects of suspension or
termination include the limited release of the market prices of the Common Stock
and limited news coverage of the Company. Suspension or termination may restrict
investors' interest in the Common Stock and materially adversely affect the
trading market and prices for such securities and the Company's ability to issue
additional securities or to secure additional financing. In addition to the risk
of volatility of stock prices and possible suspension or termination, low price
stocks are subject to additional risks of additional federal and state
regulatory requirements and the potential loss of effective trading markets. In
particular, if trading of the Common Stock on the Nasdaq SmallCap Market was to
be suspended or terminated and the trading price of the Common Stock was less
than $5.00 per share, such Common Stock could be subject to Rule 15g-9 under the
Exchange Act, which, among other things, requires that broker/ dealers satisfy
special sales practice requirements, including making individualized written
suitability determi-
10
<PAGE> 13
nations and receiving any purchaser's written consent prior to any transaction.
In such case, the Common Stock could also be deemed "penny stock" under the
Securities Enforcement and Penny Stock Reform Act of 1990, which would require
additional disclosure in connection with trades in the Common Stock, including
the delivery of a disclosure schedule explaining the nature and risks of the
penny stock market. Such requirements could severely limit the liquidity of the
Common Stock and the ability of purchasers in this Offering to sell their Common
Stock in the secondary market. See "Absence of Public Market; Negotiated
Offering Price" and "Potential Adverse Impact on Market Price of Shares Eligible
for Future Sale and Registration Rights."
SUBSTANTIAL AND IMMEDIATE DILUTION; SIGNIFICANT BENEFIT TO CURRENT SHAREHOLDERS
Purchasers of the Common Stock offered hereby will incur immediate dilution
of net tangible book value of approximately $5.29 per share, or 71% of the
anticipated offering price of the Common Stock. Shareholders of the Company who
purchased their shares prior to the public offering acquired their shares at a
cost substantially below the price offered hereby and, accordingly purchasers of
shares of the Company pursuant to this Offering will bear a disproportionate
risk of investment in the Common Stock. See "Dilution."
ABSENCE OF PUBLIC MARKET; NEGOTIATED OFFERING PRICE
Prior to this Offering there has been no market for the Common Stock.
Although the Company has applied to include the Common Stock for quotation on
the Nasdaq SmallCap Market, there can be no assurance that an active trading
market will develop for the Common Stock, or, if developed, that it will be
maintained. The price of the Common Stock offered hereby was determined through
negotiation between the Company and the Representative and may not be indicative
of the market price for the Common Stock after the Offering. The factors
considered in determining the offering price were the preliminary demand for the
Common Stock, prevailing market and economic conditions, the Company's revenue
and earnings, estimates of its business potential and prospects, the present
state of its business operations, an assessment of its management, the
consideration of these factors in relation to the market valuation of comparable
companies in related businesses and the current condition of the markets in
which it operates. Certain factors, such as subsequent sales of Common Stock
into the market by existing shareholders and market conditions generally, could
cause the market price of the Common Stock to vary substantially. Certain
existing shareholders and the Representative have registration rights for the
Common Stock they own or may acquire and/or have held their shares for over one
year and accordingly, will have the ability to exercise such rights and sell
such shares substantially free of securities law restrictions. See "Lack of
Consistent Profitability; History of Operating Losses," "Substantial and
Immediate Dilution," "Certain Transactions," "Shares Eligible for Future Sale"
and "Underwriting."
ADDITIONAL FUNDING MAY BE NECESSARY
The Company believes that the estimated net proceeds from this Offering,
together with current cash and cash equivalent balances and internally generated
funds, will satisfy the Company's projected requirements for sales and
distribution, research and development, working capital and commitments under
its employment agreement with Mr. Mortimore for at least twelve months after the
Offering. Thereafter, if cash generated from operations is insufficient to
satisfy the Company's projected requirements, or if the Company subsequently
elects to use funds for acquisitions or other matters, the Company may be
required to sell additional equity or debt securities or obtain additional bank
or other credit facilities. There can be no assurance that the Company will be
able to sell such securities or obtain such credit facilities on acceptable
terms in the future, if at all. This potential sale of additional equity or debt
securities could result in further dilution to the Company's shareholders. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations."
NO INTENTION TO DECLARE OR PAY DIVIDENDS
The Company does not currently intend to declare or pay any cash dividends
on the Common Stock in the foreseeable future and anticipates that earnings, if
any, will be used to finance the development and expansion of its business. The
Company also anticipates that it may in the future seek to obtain a loan,
11
<PAGE> 14
revolving credit agreement or other financing arrangement, the terms of which,
although not known to the Company at this time, may prohibit the declaration and
payment of dividends without prior lender approval. Any payment of future
dividends and the amounts thereof will be dependent upon the Company's earnings,
financial requirements and other factors deemed relevant by the Company's Board
of Directors, including the Company's contractual obligations. See "Dividend
Policy."
POTENTIAL ADVERSE IMPACT OF PREFERRED STOCK ON RIGHTS OF COMMON STOCK
The Company's Articles of Incorporation authorize the issuance of "blank
check" preferred stock with such designations, rights and preferences as may be
determined from time to time by the Board of Directors. Accordingly, the
Company's Board of Directors will have the authority to issue up to 5,000,000
shares of Preferred Stock and to determine the price, rights, preferences and
privileges of those shares without any further vote or action by the
shareholders. The rights of the holders of Common Stock will be subject to, and
may be materially adversely affected by, the rights of the holders of any
Preferred Stock that may be issued in the future. The issuance of Preferred
Stock, while providing desirable flexibility in connection with possible
acquisitions and other corporate purposes, could have the effect of making it
more difficult for a third party to acquire a majority of the outstanding voting
stock of the Company. Although the Company has no present plans to issue shares
of Preferred Stock, there can be no assurance that the Company will not do so in
the future. See "Description of Securities."
ANTITAKEOVER MEASURES
The Company's Articles of Incorporation and By-Laws, along with Wisconsin
statutory law, contain provisions that could discourage potential acquisition
proposals and might delay or prevent a change in control of the Company. Such
provisions could result in the Company being less attractive to a potential
acquiror and could result in the shareholders receiving less for their Common
Stock than otherwise might be available in the event of a takeover attempt. See
"Description of Securities -- Certain Statutory and Other Provisions."
POTENTIAL ADVERSE IMPACT ON MARKET PRICE OF SHARES ELIGIBLE FOR FUTURE SALE AND
REGISTRATION RIGHTS
Upon completion of this Offering, the Company will have outstanding
5,492,248 shares of Common Stock. After this Offering, the 1,900,000 shares of
Common Stock sold in this Offering and any shares issued in the event that the
Underwriters' over-allotment option to purchase up to 285,000 shares is
exercised, will be freely tradeable without restriction or further limitation
under the Securities Act, except for any shares purchased by an "affiliate" of
the Company, which will be subject to the limitations imposed on "affiliates" of
the Company under Rule 144 promulgated under the Securities Act ("Rule 144").
The remaining 3,592,248 outstanding shares of Common Stock, are "restricted
securities" within the meaning of Rule 144 and may not be resold except pursuant
to a registration statement effective under the Securities Act or pursuant to an
exemption therefrom, including the exemption provided by Rule 144. Pursuant to
the Company's 1996 Stock Option Plan and the Company's 1997 Stock Option Plan
for Directors, options to acquire up to 959,115 shares and 60,000 shares of
Common Stock are held by employees and directors, respectively, and, if
exercised, the shares so issued shall be freely tradeable subject to certain
limitations imposed by Rule 701 promulgated under the Securities Act. In
addition, on the closing of the Offering, the Company will sell to the
Representative, individually and not as representative of the Underwriters, for
nominal consideration, the Representative's Warrants entitling the
Representative to purchase an aggregate of 190,000 shares of Common Stock
(218,500 shares of Common Stock if the over-allotment option is exercised in
full) at an initial exercise price per share equal to 120% of the initial public
offering price hereunder. The Representative's Warrants will be exercisable for
a period of four years commencing one year after the effective date of this
Offering and will contain certain demand and incidental registration rights
relating to the underlying Common Stock. The holders of the Representative's
Warrants may sell shares of Common Stock acquired by exercise of the
Representative's Warrants after one year from the date of exercise thereof
without registration subject to the limitations of Rule 144.
In general, under Rule 144, a person (or persons whose shares are
aggregated) who has satisfied a one-year holding period may, subject to certain
restrictions, sell within any three-month period a number of shares
12
<PAGE> 15
which does not exceed the greater of: (i) 1% of the then outstanding shares of
Common Stock; or (ii) the average weekly trading volume during the four calendar
weeks preceding the date on which notice of the sale is filed with the
Commission as required by Rule 144. Rule 144 also permits the sale of shares
without any volume limitation by a person who is not an affiliate of the Company
and who has satisfied a two-year holding period. The one-year holding period
with respect to 3,581,047 outstanding shares of Common Stock has expired. The
one-year holding period with respect to 6,122 shares of Common Stock will expire
on May 28, 1998, and with respect to 5,079 shares, will expire on August 28,
1998.
Shareholders holding approximately 99% of the Company's outstanding Common
Stock and outstanding options have agreed not to offer, pledge, sell, contract
to sell, grant any option for the sale of, or otherwise dispose of, directly or
indirectly, any securities of the Company they currently hold without the prior
written consent of the Underwriter for the following periods: (i) shareholders
holding approximately 94% of the Company's outstanding Common Stock have agreed
to such restrictions with respect to all of their current stockholdings, and
shares they may obtain by exercising options currently held by them, for a
period of 275 days following the date of this Prospectus and, with respect to
50% of their current stockholdings, and shares they may obtain by exercising
options currently held by them, for a period of 455 days following the date of
this Prospectus; and (ii) Sirrom and Alpha, who hold in the aggregate
approximately 5% of the Company's outstanding Common Stock, have agreed to such
restrictions with respect to all of their current stockholdings for a period of
180 days following the date of this Prospectus. See "Underwriting."
Prior to this Offering, there has been no market for the Common Stock.
Further sales of Common Stock under Rule 144 in the public market could
adversely affect the market price of the Common Stock or the ability of the
Company to raise money through a public offering of its equity securities.
FORWARD-LOOKING STATEMENTS AND ASSOCIATED RISKS
This Prospectus contains certain forward-looking statements including: (i)
anticipated trends in the Company's financial condition and results of
operations (including expected changes in the Company's gross profit, sales and
marketing expenses, product research and development expenses, general and
administrative expenses and professional expenses; (ii) the Company's business
strategy for future growth in the market, including the Company's plans
regarding anticipated hiring; and (iii) the Company's ability to distinguish
itself from its current and future competitors. When used in the Prospectus, the
words "believes," "intends," "anticipates," "expects," and similar expressions
are intended to identify forward-looking statements. These forward-looking
statements are based largely on the Company's current expectations and are
subject to a number of risks and uncertainties. In addition to the other risks
described elsewhere in this "Risk Factors" Section, important factors to
consider in evaluating such forward-looking statements include: (i) changes in
external competitive market factors which might impact trends in the Company's
results of operations; (ii) unanticipated working capital and other cash
requirements; (iii) general changes in the industries in which the Company
competes; and (iv) various other competitive factors that may prevent the
Company from competing successfully in the marketplace. In light of these risks
and uncertainties, many of which are described in greater detail elsewhere in
this "Risk Factors" Section, actual results could differ materially from the
forward-looking statements contained in this Prospectus.
13
<PAGE> 16
THE COMPANY
The Company is a Wisconsin corporation and was incorporated on November 25,
1987. The Company's principal executive offices are located at 1126 South 70th
Street, Suite S107B, Milwaukee, Wisconsin 53214-3151, its telephone number is
(414) 475-4300 and its Internet address is www.merge.com.
USE OF PROCEEDS
The net proceeds to the Company from the sale of 1,900,000 shares of Common
Stock offered hereby at an assumed initial public offering price per share of
$7.50, after deducting underwriting discounts, commissions and other expenses of
this Offering, are estimated to be approximately $12,425,000. Such proceeds are
anticipated to be used as follows:
<TABLE>
<CAPTION>
APPROXIMATE PERCENTAGE OF
AMOUNTS NET PROCEEDS
----------- -------------
<S> <C> <C>
Sales and Marketing....................................... $ 2,500,000 20%
Research and Development.................................. 1,000,000 8%
Redemption of 424,757 shares of Common Stock held by
Alpha(1)................................................ 793,000 7%
Payment of the Sirrom Termination Fee(1).................. 245,000 2%
Repayment of the Sirrom Note(1)........................... 2,000,000 16%
Working Capital and General Corporate Purposes............ 5,887,000 47%
----------- ---
Net Proceeds.............................................. $12,425,000 100%
=========== ===
</TABLE>
- -------------------------
(1) See "Certain Transactions."
The Sirrom Note was issued on June 30, 1997. The Sirrom Note requires
payments of interest only, computed at 13.5% per annum, payable monthly in
arrears through maturity (June 30, 2002). Approximately $1,007,000 of the
proceeds of the Sirrom Note were applied toward the repayment of the bank
indebtedness and the balance toward working capital. The amount of the Sirrom
Termination Fee was determined through arm's length negotiations between the
Company and Sirrom based on factors, including the Company's interest in
eliminating uncertainty with respect to its future equity-related liabilities
and Sirrom's interest in receiving cash for relinquishment of its put option.
The net proceeds, if any, received in connection with the exercise of the
Underwriters' over-allotment option will be applied to working capital.
Net proceeds reserved for working capital and general corporate purposes
may be used by the Company for financing receivables and inventory, personnel
expense, additional sales and marketing expense and additional research and
development expense. A portion of the net proceeds received by the Company may
be used for the acquisition of complementary businesses, products or
technologies. Although the Company has from time to time engaged in discussions
with respect to possible acquisitions, it has no present understandings,
commitments or agreements, nor is it currently engaged in any negotiations, with
respect to any acquisition. None of the net proceeds of the Offering are
specifically designated for payments to officers or Directors.
Pending use of the net proceeds from this Offering, the Company intends to
invest the net proceeds received by it in bank certificates of deposit,
interest-bearing savings accounts, prime commercial paper, United States
Government obligations, money market funds or similar short-term investments.
Any income derived from these short-term investments is expected to be used for
working capital.
The amounts set forth above are estimates developed by management for the
allocation of the net proceeds to be received by the Company from this Offering
based upon the current state of the Company's existing and proposed business and
prevailing economic conditions. These estimates are subject to reallocation by
the Board of Directors among the applications listed above or to new
applications and are further subject to future events, including changes in
general economic conditions, the Company's business plan, and the financial
markets in general. Since a significant portion of the net proceeds will be
applied to general corporate purposes, as working capital, the Company will have
broad discretion as to the application of such net proceeds. See "Risk
Factors -- Significant Unallocated Net Proceeds; Broad Discretion of
Management."
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<PAGE> 17
DILUTION
At September 30, 1997, the Company's net tangible book value was
approximately $(54,000) or $(0.01) per share of Common Stock. "Net tangible book
value per share of Common Stock" represents the amount of total tangible assets
less total liabilities divided by the number of shares of Common Stock
outstanding. After giving effect to the sale of the Common Stock offered hereby
by the Company at an assumed public offering price of $7.50 per share and the
application of the net proceeds received by the Company therefrom, the repayment
of the Sirrom Note and related accrued interest, the charge to operations of the
Sirrom Note discount of approximately $663,000 and deferred finance charges of
approximately $32,000, the issuance of 108,942 shares of Common Stock upon
exercise of the Sirrom Warrant, the redemption and retirement of 424,757 shares
of Common Stock held by Alpha and payment of the Sirrom Termination Fee, the pro
forma net tangible book value of the Common Stock at September 30, 1997, would
have been approximately $12,138,000, or $2.21 per share, representing an
immediate increase in pro forma net tangible book value of $2.22 per share to
existing shareholders and an immediate dilution of $5.29, or 71% per share to
new investors. The difference between the public offering price per share and
the pro forma net tangible book value per share of Common Stock after the
Offering constitutes dilution to investors in this Offering. The following table
illustrates the immediate per share dilution to new investors:
<TABLE>
<S> <C> <C>
Assumed public offering price per share of Common Stock(1)......... $7.50
Net tangible book value per share of Common Stock before
the Offering........................................... (0.01)
Increase per share attributable to new investors(2)....... 2.22
Pro forma net tangible book value per share of Common Stock after
the Offering..................................................... 2.21
-----
Dilution per share to new investors(3)............................. $5.29
=====
Percentage dilution per share to new investors..................... 71%
</TABLE>
- ---------------
(1) Before deduction of underwriting discounts and commissions and offering
expenses payable by the Company.
(2) After deduction of underwriting discounts and commissions and offering
expenses payable by the Company.
(3) In addition, if the Underwriters' over-allotment option is exercised in
full, the pro forma net tangible book value per share of Common Stock after
the Offering would be approximately $2.47, representing an immediate
increase in pro forma net tangible book value of $2.48 per share to existing
shareholders and an immediate dilution of $5.03 per share to new investors.
The following table summarizes, on a pro forma basis as of September 30,
1997, the differences between the number of shares purchased from the Company,
the total consideration paid to the Company and the average price per share paid
by the existing shareholders and by new investors (based upon an assumed initial
public offering price of $7.50 per share):
<TABLE>
<CAPTION>
SHARES PURCHASED TOTAL CONSIDERATION AVERAGE
-------------------- ---------------------- PRICE
NUMBER PERCENT AMOUNT PERCENT PER SHARE
--------- ------- ----------- ------- -------------
<S> <C> <C> <C> <C> <C>
Existing shareholders........ 3,592,248 65% $ 1,623,430 10% $0.45
New investors................ 1,900,000 35% 14,250,000 90% 7.50
--------- --- ----------- --- -----
Total.............. 5,492,248 100% $15,873,430 100% $2.89
========= === =========== === =====
</TABLE>
The foregoing table does not give effect to the possible issuance of: (i)
1,015,826 shares of Common Stock reserved for issuance upon the exercise of
options which may be granted pursuant to the Company's 1996 Stock Option Plan,
options to purchase 959,115 of which have been granted and are outstanding; (ii)
285,000 shares issuable upon exercise of the Underwriters' over-allotment
option; (iii) 100,000 shares of Common Stock to be reserved for issuance under
the Company's 1997 Stock Option Plan for Directors, of which options to purchase
60,000 shares are expected to be granted and outstanding prior to the Offering
date; and (iv) 190,000 (218,500 if the Underwriters' over-allotment option is
exercised in full) shares issuable upon exercise of the Representative's
Warrants and exercise the Underwriters' option to purchase 285,000 shares to
cover over-allotments. The foregoing table gives effect to (i) redemption of
424,757 shares of Common Stock held by Alpha, which the Company will redeem
simultaneously with the close of this Offering; and (ii) issuance of 108,942
shares of Common Stock upon exercise of the Sirrom Warrant. See "Use of
Proceeds" and "Underwriting."
15
<PAGE> 18
CAPITALIZATION
The following table sets forth the unaudited consolidated capitalization of
the Company at September 30, 1997: (i) on an actual basis; and (ii) on an
adjusted basis to reflect: (a) the consummation of the sale by the Company of
1,900,000 shares of Common Stock offered hereby at an assumed public offering
price of $7.50 per share; (b) the application of the net proceeds therefrom,
including the redemption of 424,757 shares of Common Stock held by Alpha and
repayment of the Sirrom Note and related accrued interest; (c) the charge to
operations of the Sirrom Note discount of approximately $663,000 and deferred
finance charges of approximately $32,000; (d) the issuance of 108,942 shares of
Common Stock upon exercise of the Sirrom Warrant; and (e) the payment of the
Sirrom Termination Fee. This information should be read in conjunction with the
Company's Consolidated Financial Statements and the notes thereto, appearing
elsewhere in this Prospectus. See "Use of Proceeds," and "Management's
Discussion and Analysis of Financial Condition and Results of Operations."
<TABLE>
<CAPTION>
SEPTEMBER 30, 1997
----------------------------
(IN THOUSANDS, EXCEPT SHARE
DATA)
ACTUAL AS ADJUSTED
----------- -----------
(UNAUDITED)
<S> <C> <C>
Long-term debt:
Capitalized leases....................................... $ 31 $ 31
Sirrom Note payable, net of discount..................... 1,337 --
Put options related to redeemable common stock and stock
warrants.............................................. 1,469 --
------ -------
2,837 31
------ -------
Shareholders' equity:
Preferred Stock, $.01 par value, 5,000,000 shares
authorized, no shares issued and outstanding............. -- --
Common Stock, $.01 par value, 10,000,000 shares authorized,
3,908,063 issued and outstanding, actual; 5,492,248
issued and outstanding, as adjusted(1)................... 39 55
Additional paid-in capital................................. 2,772 15,584
Accumulated deficit........................................ (103) (770)
Cumulative translation adjustment.......................... 43 43
------ -------
Total shareholders' equity................................. 2,751 14,912
------ -------
Total capitalization....................................... $5,588 $14,943
====== =======
</TABLE>
- ---------------
(1) Does not include: (i) 1,015,826 shares of Common Stock reserved for issuance
upon the exercise of options which may be granted pursuant to the Company's
1996 Stock Option Plan, of which options to purchase 959,115 have been
granted and are outstanding; (ii) 285,000 shares issuable on conversion of
the Underwriters' overallotment option; (iii) 100,000 shares of Common Stock
to be reserved for issuance under the Company's 1997 Stock Option Plan for
Directors, of which options to purchase 60,000 shares are expected to be
granted and outstanding prior to the Offering date; and (iv) 190,000 shares
reserved for issuance upon the exercise of the Representative's Warrants.
See "Underwriting."
DIVIDEND POLICY
The Company has not paid any cash dividends on its Common Stock since its
formation. The Company does not currently intend to declare or pay any cash
dividends on the Common Stock in the foreseeable future and anticipates that
earnings, if any, will be used to finance the development and expansion of its
business. The Company also anticipates that it may in the future seek to obtain
a loan, revolving credit agreement or other financing arrangement, the terms of
which may prohibit the declaration and payment of dividends without prior lender
approval. Any payment of future dividends and the amounts thereof will be
dependent upon the Company's earnings, financial requirements and other factors
deemed relevant by the Company's Board of Directors, including the Company's
contractual obligations. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations -- Liquidity and Capital Resources."
16
<PAGE> 19
SELECTED CONSOLIDATED FINANCIAL DATA
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
The selected financial data set forth below with respect to the Company's
consolidated statements of operation for the three fiscal years ended December
31, 1994, 1995 and 1996 and consolidated balance sheets as of December 31, 1995
and 1996 are derived from audited financial statements of the Company included
elsewhere in this Prospectus. The Company's consolidated statements of
operations data for the years ended December 31, 1992 and 1993 and the
consolidated balance sheet data as of December 31, 1992, 1993 and 1994 are
derived from audited financial statements of the Company not included in this
Prospectus. The consolidated statements of operations data for the nine months
ended September 30, 1996 and September 30, 1997 and the consolidated balance
sheet data as of September 30, 1997 are derived from unaudited financial
statements included elsewhere in this Prospectus. The unaudited financial
statements include all adjustments, consisting only of normal recurring
adjustments, that the Company considers necessary for a fair presentation of the
financial position and results of operations for these periods. Operating
results for the nine months ended September 30, 1997 are not necessarily
indicative of the results that may be expected for the entire fiscal year ended
December 31, 1997. The data set forth below should be read in conjunction with
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and the financial statements and notes thereto included elsewhere in
this Prospectus.
<TABLE>
<CAPTION>
NINE MONTHS ENDED
FISCAL YEARS ENDED DECEMBER 31, SEPTEMBER 30,
------------------------------------------------------------------ ------------------------
1992 1993 1994 1995 1996 1996 1997
---------- ---------- ---------- ---------- ---------- ---------- ----------
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
Statement of Operations Data:
Net sales....................... $ 1,416 $ 1,743 $ 2,420 $ 3,718 $ 6,385 $ 4,252 $ 6,800
---------- ---------- ---------- ---------- ---------- ---------- ----------
Cost of goods sold:
Purchased components.......... 305 314 388 752 1,627 1,013 1,574
Amortization of purchased and
developed software.......... 196 246 265 360 449 317 442
---------- ---------- ---------- ---------- ---------- ---------- ----------
Total cost of goods sold........ 501 560 653 1,112 2,076 1,330 2,016
---------- ---------- ---------- ---------- ---------- ---------- ----------
Gross profit.................... 915 1,183 1,767 2,606 4,309 2,922 4,784
---------- ---------- ---------- ---------- ---------- ---------- ----------
Operating costs and expenses:
Sales and marketing........... 199 194 378 881 1,519 991 1,605
Product research and
development................. 91 138 365 823 1,391 946 1,133
General and administrative.... 338 428 470 960 1,215 879 1,086
Acquired in-process
technology(1)............... -- -- -- 375 -- -- --
Professional fees related to
proposed financing(2)....... -- -- -- -- 364 -- --
Amortization of other
intangibles................. -- -- -- 3 6 4 4
---------- ---------- ---------- ---------- ---------- ---------- ----------
Total operating costs and
expenses...................... 628 760 1,213 3,042 4,495 2,820 3,828
---------- ---------- ---------- ---------- ---------- ---------- ----------
Operating income (loss)......... 287 423 554 (436) (187) 102 955
Other income (expense)
Interest expense.............. (156) (311) (88) (141) (134) (98) (566)
Interest income............... 62 17 5 4 11 7 11
Other (expense), net.......... (49) (9) (5) (1) 27 3 (43)
---------- ---------- ---------- ---------- ---------- ---------- ----------
Total other expense, net........ (143) (303) (88) (138) (96) (88) (598)
---------- ---------- ---------- ---------- ---------- ---------- ----------
Income (loss) before income
taxes......................... 144 120 466 (574) (283) 14 357
Income tax expense.............. -- -- -- -- -- -- --
---------- ---------- ---------- ---------- ---------- ---------- ----------
Income (loss) before
extraordinary item............ 144 120 466 (574) (283) 14 357
Extraordinary gain on
extinguishment of debt(3)..... -- -- -- -- 169 169 --
---------- ---------- ---------- ---------- ---------- ---------- ----------
Net income (loss)............... $ 144 $ 120 $ 466 $ (574) $ (114) $ 183 $ 357
---------- ---------- ---------- ---------- ---------- ---------- ----------
Net income (loss) before
extraordinary item per common
and common equivalent
share(4)...................... $ 0.06 $ 0.05 $ 0.12 $ (0.21) $ (0.07) $ (0.00) $ 0.08
Net income (loss) per common and
common equivalent share(4).... $ 0.06 $ 0.05 $ 0.12 $ (0.21) $ (0.03) $ 0.05 $ 0.08
Weighted average number of
common and common equivalent
shares outstanding(4)......... 2,247,590 2,407,103 3,995,665 2,777,834 3,969,391 3,907,745 4,712,994
</TABLE>
17
<PAGE> 20
<TABLE>
<CAPTION>
DECEMBER 31
----------------------------------------------- SEPTEMBER 30,
1992 1993 1994 1995 1996 1997
------ ------ ------ ------- ------ -------------
<S> <C> <C> <C> <C> <C> <C>
Balance Sheet Data:
Cash and cash equivalents............................. $ 102 $ 118 $ 129 $ 148 $ 287 $ 655
Working capital....................................... 60 82 388 (1,243) (438) 1,957
Total assets.......................................... 1,375 1,706 1,749 3,604 5,394 6,710
Long-term debt, less current portion.................. 745 686 686 50 16 1,368
Put options related to redeemable common stock and
stock warrants(5)................................... 131 69 219 233 289 1,469
Total shareholders' equity............................ (99) 164 579 875 2,435 2,751
</TABLE>
- ---------------
(1) Effective May 1, 1995, the Company acquired all the outstanding shares of
Signal Stream Technologies, Inc. The acquisition was accounted for as a
purchase. The fair value of certain acquired in-process technology in the
amount of $375,000 that had not reached technological feasibility was
charged to operations in May 1995.
(2) The Company recognized $364,000 in fees in December 1996 in preparation for
an initial public offering that was canceled.
(3) In May 1996, the Company discharged $463,000 of subordinated notes payable
to Alpha and related accrued interest with the issuance of 33,861 shares of
the Common Stock and a cash payment of $375,000. The Company realized an
extraordinary gain of $169,000.
(4) Net income (loss) per share data has been computed using the weighted
average number of shares of common and common equivalent shares from stock
options (when dilutive using the treasury stock method). Pursuant to the
Securities and Exchange Commission Staff Accounting Bulletin No. 83, common
stock, warrants and options issued during the twelve month period
immediately preceding the Company's proposed initial public offering have
been included in the calculation as if they were outstanding for all periods
presented (even if antidilutive, using the treasury stock method and the
anticipated offering price).
(5) In connection with the Sirrom Note, the Company issued the Sirrom Warrant,
granting Sirrom the right to purchase 145,256 shares of the Common Stock at
$0.01 per share. The Sirrom Warrant is subject to a put option equal to the
fair market value of the Common Stock issuable under the Sirrom Warrant. The
value of this put option at September 30, 1997 totals $1,089,000. In
addition, 424,757 shares of Common Stock are subject to a put option
exercisable by Alpha. The value of the Alpha put option at September 30,
1997 totals $380,000. It is contemplated that the Alpha and Sirrom put
options will be terminated simultaneously with the closing of the Offering.
18
<PAGE> 21
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
OVERVIEW
The Company provides software, hardware and systems integration products
and services that enable health care organizations to network otherwise
incompatible image-producing and image-using devices. The Company's products
provide a communications bridge between incompatible devices, permit
radiologists to use either video images on electronic workstations or film as a
diagnostic medium and create a diagnostic-quality electronic archive of imaging
results. In addition, the Company's products and services permit the information
generated and used by medical imaging devices to be included in a health care
organization's information network or an electronic patient record ("EPR").
The Company's products and services available today include: (i) MergeWorks
Connectivity Products -- for retrofitting legacy stand-alone medical
image-producing and image-using devices thereby rendering such devices capable
of communicating over a DICOM network; (ii) OEM Interface
Products -- connectivity software tool kits and interface board products that
enable original equipment manufacturers ("OEMs") to manufacture new radiology
image-producing and image-using devices capable of directly communicating with
the DICOM standard; and (iii) Network Integration Products and
Services -- systems integration products and services for the design and
installation of DICOM networks, including training, design assistance and
testing services. In addition, the Company has under development a line of
Networked Image Management Products that enables radiologists to select and
manage specific diagnostic images which may be incorporated into a diagnostic
report or an EPR.
The Company introduced the first of its MergeWorks Connectivity Products in
1989 and has continually developed and upgraded such products to provide
connectivity to additional image-producing and image-using devices. In 1992, the
Company introduced its OEM Interface Products with the release of the MergeCOM-3
software toolkit. With the acquisition of Signal Stream Technologies, Inc.
("SST") in 1995, the Company expanded into board-level interface products for
OEMs of medical imaging equipment. The Company introduced its Network
Integration Products and Services in 1996. The Company expects to continue to
add new products and additional functionality to existing products.
The components of the Company's net sales by product line are as follows.
<TABLE>
<CAPTION>
NINE MONTHS
FISCAL YEARS ENDED
ENDED DECEMBER 31, SEPTEMBER 30,
------------------------ ---------------
PRODUCT LINE 1994 1995 1996 1996 1997
------------ ------ ------ ------ ------ ------
(UNAUDITED)
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
MergeWorks Connectivity Products.......... $2,099 $2,725 $4,454 $2,845 $5,019
OEM Interface Products.................... 321 993 1,457 1,110 1,567
Network Integration Products and
Services................................ -- -- 474 297 214
------ ------ ------ ------ ------
$2,420 $3,718 $6,385 $4,252 $6,800
====== ====== ====== ====== ======
</TABLE>
The Company recognizes revenue on both hardware and software products at
the time of shipment to the customer. Revenue from software maintenance, which
is part of the OEM Interface Products line, is deferred and recognized on a
straight-line basis over the contract support period, which is generally one
year.
Net sales include standard discounts to the Company's OEM and VAR
customers. In 1995, the Company began to offer increased sales discounts to
certain distribution channels.
Cost of goods sold consists of purchased components and the amortization of
software development. For the assembly of its products, the Company generally
purchases industry standard components from multiple vendors. The Company
acquired SST in 1995 to gain in-house computer hardware design and manufacturing
expertise and to give the Company more control over certain aspects of its cost
of goods sold. The Company capitalizes software development expense once
technological feasibility has been established in accordance
19
<PAGE> 22
with Statement of Financial Accounting Standards No. 86, Accounting for the
Costs of Computer Software to be Sold, Leased or Otherwise Marketed. Capitalized
software is amortized over the expected life of the related product, which
typically is five years.
Historically, the Company's products have primarily been distributed as
software and hardware components through OEMs and value added resellers ("VARs")
that integrate these products into their own product offerings. As the Company's
range of product offerings has grown, so have its channels of distribution. The
Company expanded its sales and marketing staff to eleven persons at September
30, 1997 from one person in the beginning of 1994. The Company has increasingly
concentrated on: (i) sales to end-users both directly and through dealers on a
non-exclusive basis; (ii) sales, administrative reporting and functionality to
support the growing international demand for its products, including the opening
of a branch office in The Netherlands in 1996; and (iii) sales of new product
and service offerings such as Network Integration Products and Services. Sales
and marketing expense includes salaries and incentive compensation of sales,
sales management and service personnel, as well as the cost of exhibiting at
industry trade shows, print advertisements and product brochures.
Product research and development expense consists primarily of the
compensation and related overhead expense of software and hardware engineers and
engineering management personnel. In fiscal years 1996, 1995 and 1994, the
Company's research and development expense was $1,391,000, $823,000 and
$365,000, respectively. Product innovation is considered important to the
Company's success and the Company expects to continue to increase research and
development expense in absolute dollars. However, such expenditures are not
expected to increase proportionally in relation to the increase in net sales.
General and administrative expense includes the salaries and related costs
of administrative, finance, information services and general management
personnel, plus corporate overhead, such as facility rental, insurance,
depreciation and legal expenses. The Company believes that general and
administrative expense will decline as a percentage of net sales in the future.
20
<PAGE> 23
RESULTS OF OPERATIONS
The following table sets forth, for the periods indicated, selected
statements of operations data as a percentage of net sales:
<TABLE>
<CAPTION>
NINE MONTHS
FISCAL YEARS ENDED
ENDED DECEMBER 31, SEPTEMBER 30,
----------------------- --------------
1994 1995 1996 1996 1997
----- ----- ----- ----- -----
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Net sales.......................................... 100.0% 100.0% 100.0% 100.0% 100.0%
Cost of goods sold:
Purchased components............................. 16.0 20.3 25.5 23.8 23.1
Amortization of purchased and developed
software...................................... 11.0 9.7 7.0 7.5 6.5
----- ----- ----- ----- -----
Gross profit....................................... 73.0 70.0 67.5 68.7 70.4
Operating costs and expenses:
Sales and marketing.............................. 15.6 23.7 23.8 23.3 23.6
Product research and development................. 15.0 22.1 21.8 22.2 16.7
General and administrative....................... 19.4 25.8 19.0 20.7 16.0
Acquired in-process technology................... -- 10.1 -- -- --
Professional fees related to proposed
financing..................................... -- -- 5.7 -- --
Amortization of other intangibles................ -- 0.1 0.1 0.1 0.1
----- ----- ----- ----- -----
Total operating expenses......................... 50.0 81.8 70.4 66.3 56.4
Operating income (loss)............................ 23.0 (11.8) (2.9) 2.4 14.0
Other expense, net................................. (3.5) (3.7) (1.5) (2.1) (8.8)
----- ----- ----- ----- -----
Income (loss) before income taxes and extraordinary
item............................................. 19.3 (15.5) (4.4) 0.3 5.2
Income tax expense................................. -- -- -- -- --
----- ----- ----- ----- -----
Income (loss) before extraordinary item............ 19.3 (15.5) (4.4) 0.3 5.2
Extraordinary gain on extinguishment of debt....... -- -- 2.6 4.0 --
----- ----- ----- ----- -----
Net income (loss).................................. 19.3% (15.5)% (1.8)% 4.3% 5.2%
===== ===== ===== ===== =====
</TABLE>
- ---------------
(1) See "Summary Consolidated Financial Data" and "Selected Consolidated
Financial Data."
Nine Months Ended September 30, 1997 Compared to Nine Months Ended September
30, 1996
Net sales. Net sales increased by 60% to $6,800,000 for the nine months
ended September 30, 1997 from $4,252,000 for the nine months ended September 30,
1996. Net sales of MergeWorks Connectivity Products accounted for the largest
increase, rising by 76% to $5,019,000 for the nine months ended September 30,
1997 from $2,845,000 for the nine months ended September 30, 1996, primarily due
to increased distribution of products to end-users through dealers. Sales of OEM
Interface Products grew by 41% to $1,567,000 for the nine months ended September
30, 1997 from $1,110,000 for the nine months ended September 30, 1996. Network
Integration Products and Services sales decreased by 28% to $214,000 for the
nine months ended September 30, 1997 from $297,000 for the nine months ended
September 30, 1996 as the Company redirected its resources to meet an increased
demand for MergeWorks Connectivity Products and OEM Interface Products during
the nine months ended September 30, 1997.
Cost of goods sold. Cost of goods sold consists of purchased components and
the amortization of purchased and developed software. The cost of purchased
components as a percentage of net sales for the nine months ended September 30,
1997 remained level at approximately 23%, reflecting lower material costs which
were offset by higher sales discounts in certain distribution channels.
Gross profit. Gross profit increased by 64% to $4,784,000 for the nine
months ended September 30, 1997 from $2,922,000 for the nine months ended
September 30, 1996. As a percentage of net sales, gross profit
21
<PAGE> 24
increased to 70% for the nine months ended September 30, 1997 from 69% for the
nine months ended September 30, 1996.
Sales and marketing. Sales and marketing expense increased by 62% to
$1,605,000 for the nine months ended September 30, 1997 from $991,000 for the
nine months ended September 30, 1996. In the nine months ended September 30,
1997, the Company retained additional field sales staff to market and support
increasing customer demand for image-acquisition and image-printing applications
resulting in growth of the sales and marketing department staff to eleven
persons as of September 30, 1997 from four persons as of September 30, 1996.
Such personnel are engaged in sales and marketing activities through the OEM/VAR
channel and in support of end-user distribution via dealers. The Company expects
to continue to make additions to its sales force in order to increase net sales.
Product research and development. Research and development expense
increased by 20% to $1,133,000 for the nine months ended September 30, 1997 from
$946,000 for the nine months ended September 30, 1996. The increase in research
and development expense consists primarily of compensation to additional product
engineers engaged in software design and the development of specialized computer
hardware. The Company believes that advanced technology is a key element in the
success of its business, and it expects to continue to increase its research and
development expenditures in absolute dollars. However, research and development
expense is expected to be a declining percentage of net sales as net sales
increase.
General and administrative. General and administrative expense increased by
24% to $1,086,000 for the nine months ended September 30, 1997 from $879,000 for
the nine months ended September 30, 1996. The increase was due primarily to
additional overhead expense required to support higher sales. General and
administrative expense declined as a percentage of net sales to 16% in the nine
months ended September 30, 1997 from 21% in the nine months ended September 30,
1996.
Total other expense, net. Total other expense, net increased by 580% to
$598,000 for the nine months ended September 30, 1997 from $88,000 for the nine
months ended September 30, 1996. A non-cash charge of $426,000 was recognized in
the nine months ended September 30, 1997 for the amortization of the debt
discount related to the outstanding Sirrom Note. An additional non-cash charge
for amortization of the debt discount will be recorded in the amount of $663,000
during the fourth quarter of 1997. See "Business -- Certain Transactions."
Extraordinary gain. In May 1996, the Company discharged $463,000 of
subordinated notes, and related accrued interest, with the issuance of 33,861
shares of Common Stock and a cash payment of $375,000. An extraordinary gain of
$169,000 was realized in connection with such discharge.
Fiscal Year Ended December 31, 1996 Compared to Fiscal Year Ended December 31,
1995
Net sales. Net sales increased by 72% to $6,385,000 in fiscal 1996 from
$3,718,000 in fiscal 1995, primarily due to increased sales of MergeWorks
Connectivity Products. Net sales for this product line increased by 63%, or
$1,729,000, to $4,454,000 in fiscal 1996 from $2,725,000 in fiscal 1995. The
increase was due to the introduction of a new distribution channel of products
to end-users via dealers specifically for hardcopy film networks. Sales of OEM
Interface Products increased by 47% to $1,457,000 in fiscal 1996 from $993,000
in fiscal 1995 as the result of new customers for such products. Network
Integration Products and Services, introduced in fiscal 1996, generated $474,000
in revenue.
Cost of goods sold. Cost of goods sold consists of purchased components and
the amortization of purchased and developed software. The cost of purchased
components as a percentage of net sales increased to 26% in fiscal 1996 from 20%
in fiscal 1995 primarily due to higher discounts in connection with sales in the
end-user market compared to sales in the OEM/VAR market.
Gross profit. Gross profit increased by 65% to $4,309,000 in fiscal 1996
from $2,606,000 in fiscal 1995. As a percentage of net sales, gross profit
decreased to 68% in fiscal 1996 from 70% in fiscal 1995.
Sales and marketing. Sales and marketing expense increased by 72% to
$1,519,000 in fiscal 1996 from $881,000 in fiscal 1995. This increase resulted
from the Company's decision to expand its sales and marketing
22
<PAGE> 25
resources. The sales and marketing department grew to six persons at the end of
fiscal 1996 from three persons at the end of fiscal 1995, primarily as a result
of implementing end-user distribution channels in fiscal 1996.
Product research and development. Research and development expense
increased by 69% to $1,391,000 in fiscal 1996 from $823,000 in fiscal 1995. The
Company believes that advanced technology is a key element in the success of its
business and expects to continue to invest in research and development.
General and administrative. General and administrative expense increased by
27% to $1,215,000 in fiscal 1996 from $960,000 in fiscal 1995, but declined as a
percentage of net sales to 19% in fiscal 1996 from 26% in fiscal 1995. General
and administrative expense in fiscal 1996 included the addition of four
administrative personnel and related overhead as the Company expanded to support
higher sales. The Company anticipates that general and administrative expense
will continue to decline as a percentage of net sales in future periods.
Acquired in-process technology. In May 1995, Signal Stream, Incorporated, a
wholly-owned subsidiary of the Company formed to effect the acquisition of SST,
acquired all the outstanding shares of SST. The Company recorded a one-time
charge of $375,000 at the time of this transaction to account for in-process
technology which had not reached technological feasibility.
Professional fees related to proposed financing. The Company incurred
$364,000 in fees in fiscal 1996 in preparation for an initial public offering
that was canceled.
Total other expense, net. Total other expense, net, which consists
primarily of interest expense, decreased by 30% to $96,000 in fiscal 1996 from
$138,000 in fiscal 1995. This decrease was attributable to additional borrowings
from the Company's bank, offset in part by lower interest expense on its
subordinated debt, which was repaid in May 1996.
Income taxes. The Company did not pay federal income taxes or recognize an
income tax benefit in fiscal 1996 or fiscal 1995. In each of fiscal 1996 and
fiscal 1995, the Company incurred losses for financial reporting purposes but
did not recognize an income tax benefit due to continued losses and uncertainty
as to future realization of a tax benefit. In addition, in fiscal 1995, the
Company's inability to recognize an income tax benefit was partially due to the
nondeductibility of the charge for acquired in-process technology.
Fiscal Year Ended December 31, 1995 Compared to Fiscal Year Ended December 31,
1994
Net sales. Net sales increased by 54% to $3,718,000 in fiscal 1995 from
$2,420,000 in fiscal 1994. Net sales of MergeWorks Connectivity Products
increased by 30%, or $626,000, to $2,725,000 in fiscal 1995 from $2,099,000 in
fiscal 1994 due to the introduction of products specifically for hardcopy film
networks. Net sales of OEM Interface Products increased by 210% to $993,000 in
fiscal 1995 from $321,000 in fiscal 1994 primarily due to license agreements
entered into with OEMs.
Cost of goods sold. Cost of goods sold consists of purchased components and
the amortization of purchased and developed software. The cost of purchased
components as a percentage of net sales increased to 20% in fiscal 1995 from 16%
in fiscal 1994 primarily due to the redesign of certain components to meet
heightened government regulatory requirements.
Gross profit. Gross profit increased by 47% to $2,606,000 for fiscal 1995
from $1,767,000 in fiscal 1994. As a percentage of net sales, gross profit
decreased to 70% in fiscal 1995 from 73% in fiscal 1994.
Sales and marketing. Sales and marketing expense increased by 133% to
$881,000 in fiscal 1995 from $378,000 in fiscal 1994. This increase was
primarily attributable to the Company's retention of additional sales and
marketing personnel. The Company's field sales staff grew to three persons
selling to the Company's OEM/VAR customers at the end of fiscal 1995 from one
full time sales representative at the beginning of fiscal 1994.
Product research and development. Research and development expense
increased by 126%, or $458,000, to $823,000 in fiscal 1995 from $365,000 in
fiscal 1994. In fiscal 1995, the Company implemented a strategy to engage in
research and development of emerging product lines in addition to its practice
of developing products only after receiving customer orders.
23
<PAGE> 26
General and administrative. General and administrative expense increased by
104% to $960,000 in fiscal 1995 from $470,000 in fiscal 1994. This increase was
due to the addition of four administrative personnel and related overhead as the
Company expanded to support higher sales. The Company anticipates that general
and administrative expense will decline as a percentage of net sales in future
periods.
Acquired in-process technology. In May 1995, Signal Stream, Incorporated, a
wholly-owned subsidiary of the Company formed to effect the acquisition of SST,
acquired all the outstanding shares of SST. The Company recorded a one-time
charge of $375,000 at the time of this transaction to account for in-process
technology which had not reached technological feasibility.
Total other expense, net. Total other expense, net, which consists
primarily of interest expense, increased by 57% to $138,000 in fiscal 1995 from
$88,000 in fiscal 1994. This increase was attributable to additional bank
borrowings.
Income taxes. The Company did not pay federal income taxes or recognize an
income tax benefit in fiscal 1995, despite incurring a loss for financial
reporting purposes, due to continued losses and uncertainty as to future
realization of a tax benefit and due to the nondeductibility of the charge for
acquired in-process technology.
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<PAGE> 27
Quarterly results of operations
The following tables set forth unaudited financial data for each of the
eight consecutive fiscal quarters ended September 30, 1997, including such data
expressed as a percentage of the Company's revenue. The unaudited financial
statements include all adjustments, consisting only of normal recurring
adjustments that the Company considers necessary for a fair presentation of the
financial position and results of operations for these periods. The data set
forth below should be read in conjunction with "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and by Consolidated
Financial Statements and Notes therein included elsewhere in this Prospectus.
The operating results of any quarter are not necessarily indicative of the
results of any future period.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
-------------------------------------------------------------------------------
DEC. 31 MAR. 31 JUNE 30 SEPT. 30 DEC. 31 MAR. 31 JUNE 30 SEPT. 30
1995 1996 1996 1996 1996 1997 1997 1997
------- ------- ------- -------- ------- ------- ------- --------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Net sales.................... $1,112 $1,269 $1,270 $1,714 $2,132 $1,703 $2,102 $2,995
Cost of goods sold:
Purchased components....... 214 300 292 421 614 473 408 693
Amortization of purchased
and developed
software................ 140 98 104 115 132 148 147 147
------ ------ ------ ------ ------ ------ ------ ------
Total cost of goods sold..... 354 398 396 536 746 621 555 840
------ ------ ------ ------ ------ ------ ------ ------
Gross profit................. 758 871 874 1,178 1,386 1,082 1,547 2,155
------ ------ ------ ------ ------ ------ ------ ------
Operating costs and expenses:
Sales and marketing........ 331 275 362 353 529 420 569 616
Product research and
development............. 278 290 328 329 444 345 374 414
General and
administrative.......... 251 292 276 311 336 313 305 468
Professional fees related
to proposed financing... -- -- -- -- 364 -- -- --
Amortization of other
intangibles............. 1 2 1 1 2 2 1 1
------ ------ ------ ------ ------ ------ ------ ------
Total operating costs and
expenses................... 861 859 967 994 1,675 1,080 1,249 1,499
------ ------ ------ ------ ------ ------ ------ ------
Operating income (loss)...... (103) 12 (93) 184 (289) 2 298 656
------ ------ ------ ------ ------ ------ ------ ------
Other income (expense)
Interest expense........... (50) (41) (40) (17) (36) (32) (31) (503)
Interest income............ 1 1 4 2 4 3 2 6
Other, net................. 12 14 (1) (9) 23 (18) (22) (3)
------ ------ ------ ------ ------ ------ ------ ------
Total other expense.......... (37) (26) (37) (24) (9) (47) (51) (500)
------ ------ ------ ------ ------ ------ ------ ------
Income (loss) before income
taxes and extraordinary
item....................... (140) (14) (130) 160 (298) (45) 247 156
------ ------ ------ ------ ------ ------ ------ ------
Income tax expense........... -- -- -- -- -- -- -- --
------ ------ ------ ------ ------ ------ ------ ------
Income (loss) before
extraordinary item......... (140) (14) (130) 160 (298) (45) 247 156
Extraordinary gain on
extinguishment of debt..... -- -- 169 -- -- -- -- --
------ ------ ------ ------ ------ ------ ------ ------
Net income (loss)............ $ (140) $ (14) $ 39 $ 160 $ (298) $ (45) $ 247 $ 156
====== ====== ====== ====== ====== ====== ====== ======
</TABLE>
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<PAGE> 28
<TABLE>
<CAPTION>
AS A PERCENTAGE OF TOTAL REVENUE
THREE MONTHS ENDED
-------------------------------------------------------------------------------
DEC. 31 MAR. 31 JUNE 30 SEPT. 30 DEC. 31 MAR. 31 JUNE 30 SEPT. 30
1995 1996 1996 1996 1996 1997 1997 1997
------- ------- ------- -------- ------- ------- ------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Net sales.................... 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% 100.0%
Cost of goods sold:
Purchased components....... 19.2 23.7 23.0 24.6 28.8 27.8 19.4 23.1
Amortization of purchased
and developed
software................ 12.6 7.7 8.2 6.7 6.2 8.7 7.0 4.9
----- ----- ----- ----- ----- ----- ----- -----
Total cost of goods sold..... 31.8 31.4 31.2 31.3 35.0 36.5 26.4 28.0
----- ----- ----- ----- ----- ----- ----- -----
Gross profit................. 68.2 68.6 68.8 68.7 65.0 63.5 73.6 72.0
----- ----- ----- ----- ----- ----- ----- -----
Operating costs and expenses:
Sales and marketing........ 29.7 21.8 28.5 20.6 24.8 24.6 27.0 20.6
Product research and
development............. 25.0 22.8 25.8 19.2 20.9 20.3 17.8 13.8
General and
administrative.......... 22.6 23.0 21.8 18.1 15.7 18.4 14.5 15.6
Professional fees related
to proposed financing... -- -- -- -- 17.0 -- -- --
Amortization of other
intangibles............. 0.1 0.1 0.1 0.1 0.1 0.1 0.1 0.1
----- ----- ----- ----- ----- ----- ----- -----
Total operating cost and
expenses................... 77.4 67.7 76.2 58.0 78.5 63.4 59.4 50.1
----- ----- ----- ----- ----- ----- ----- -----
Operating income............. (9.2) 0.9 (7.4) 10.7 (13.5) 0.1 14.2 21.9
----- ----- ----- ----- ----- ----- ----- -----
Other income (expense):
Interest expense........... (4.5) (3.2) (3.1) (1.0) (1.7) (1.8) (1.5) (16.8)
Interest income............ 0.1 1.3 0.3 0.1 0.2 0.2 0.1 0.2
Other, net................. 1.1 (0.1) (.1) (0.5) 1.1 (1.1) (1.0) (0.1)
----- ----- ----- ----- ----- ----- ----- -----
Total other expense.......... (3.3) (2.0) (2.9) (1.4) (0.4) (2.7) (2.4) (16.7)
----- ----- ----- ----- ----- ----- ----- -----
Income (loss) before income
taxes and extraordinary
item....................... (12.5) (1.1) (10.3) 9.3 (13.9) (2.6) 11.8 5.2
----- ----- ----- ----- ----- ----- ----- -----
Income tax expense........... -- -- -- -- -- -- -- --
----- ----- ----- ----- ----- ----- ----- -----
Income (loss) before
extraordinary item......... (12.5) (1.1) (10.3) 9.3 (13.9) (2.6) 11.8 5.2
----- ----- ----- ----- ----- ----- ----- -----
Extraordinary gain on
extinguishment of debt..... -- -- 13.4 -- -- -- -- --
----- ----- ----- ----- ----- ----- ----- -----
Net income (loss)............ (12.5)% (1.1)% 3.1% 9.3% (13.9)% (2.6)% 11.8% 5.2%
===== ===== ===== ===== ===== ===== ===== =====
</TABLE>
The Company's results of operations have been subject to quarterly
fluctuations due to a variety of factors, including nonrecurring and
extraordinary gains and losses and the Company's limited capital resources. The
uncertainties generated by the Company's limited capital resources and
nonrecurring extraordinary gains and losses have made the estimation of revenue
and the results of operations on a quarterly basis difficult. As a result, the
Company believes that period-to-period comparison of its results of operations
is not necessarily meaningful and should not be relied upon as an indication of
future performance.
LIQUIDITY AND CAPITAL RESOURCES
The Company's operating activities generated cash for fiscal 1996, fiscal
1995 and fiscal 1994 of $172,000, $413,000 and $693,000, respectively. The
decrease was due to cash outflows associated with expanding sales and marketing
activities, development of new products, expanded general and administrative
personnel, the canceled initial public offering and funding higher levels of
accounts receivable, inventory and accounts payable.
Investing activities include net additions to capital equipment of
$320,000, $208,000 and $193,000, and additions to capitalized software of
$766,000, $724,000 and $386,000 in fiscal 1996, fiscal 1995 and fiscal 1994,
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<PAGE> 29
respectively. In fiscal 1996, the Company also used $288,000 of cash to invest
in the purchase of a software license for technology used in the CaseWorks
networked image management tool.
Cash provided by financing activities for fiscal 1996 and fiscal 1995 was
$1,341,000 and $593,000, respectively, and in fiscal 1994, cash used in
financing activities was $102,000.
In 1995, the Company issued 111,741 shares of Common Stock in a private
placement at $1.34 per share, for an aggregate consideration of $150,000. All
Common Stock was paid for with cash. See "Certain Transactions."
In 1995 and 1996, the Company issued an aggregate of 1,229,148 shares of
Common Stock in a private placement completed in fiscal 1996 at $1.48 per share;
the Company received consideration in connection with this private placement of
$205,000 in fiscal 1996 and $1,610,000 in fiscal 1995. Effective May 1996, the
Company converted $222,712 of $686,064 subordinated notes payable to
shareholders (the "Shareholder Notes") and related accrued interest into 191,766
shares of Common Stock. Also, in fiscal 1996, the Company discharged the
remaining $463,352 of the Shareholder Notes and related accrued interest with
the issuance of 33,861 shares of the Common Stock and a cash payment of
$375,000. See "Certain Transactions." The Company increased its borrowings in
fiscal 1996 under its lending facilities by $503,000. In fiscal 1995, the
Company drew $250,000 from its bank line of credit and borrowed an additional
$150,000 from two shareholders. In fiscal 1994, the Company made cash principal
payments of $102,000 on the senior notes.
The Company had cash and cash equivalents of $287,000, $148,000 and
$129,000, and working capital (deficits) of ($438,000), ($1,243,000) and
$388,000 at the end of fiscal 1996, fiscal 1995 and fiscal 1994, respectively.
In June 1997, the Company replaced its working capital bank line with the
Sirrom Note. The Sirrom Note bears interest at 13.5%, payable monthly from
August 1997 through May 2002. The principal and any remaining interest is due in
June 2002. The Company will repay the Sirrom Note using a portion of the net
proceeds of the Offering.
As of September 30, 1997, the Company had cash and cash equivalents of
approximately $655,000, and working capital of approximately $1,957,000.
The Company believes that the estimated net proceeds from this Offering,
together with current cash and cash equivalent balances and internally generated
funds will satisfy the Company's projected requirements for sales and
distribution, research and development, working capital and commitments under
its employment agreement with Mr. Mortimore for at least twelve months after the
Offering. Thereafter, if cash generated from operations is insufficient to
satisfy the Company's projected requirements, or if the Company subsequently
elects to use funds for acquisitions or other matters, the Company may be
required to sell additional equity or debt securities or obtain additional bank
or other credit facilities. There can be no assurance that the Company will be
able to sell such securities or obtain such credit facilities on acceptable
terms in the future, if at all. The sale of additional equity or debt securities
could result in additional dilution to the Company's shareholders.
RECENT ACCOUNTING PRONOUNCEMENTS
The Financial Accounting Standards Board has recently issued Statement No.
128, Earnings Per Share. This statement will affect the disclosure requirements
related to the Company's December 31, 1997 financial statements. Currently, the
Company is evaluating the effect of this new statement on the Company's
financial reporting requirements.
On October 27, 1997, the American Institute of Certified Public Accountants
issued Statement of Position ("SOP") No. 97-2, Software Revenue Recognition.
This SOP provides guidance on applying generally accepted accounting principles
in recognizing revenue on software transactions. This SOP supersedes SOP 91-1,
Software Revenue Recognition. This SOP is effective for transactions entered
into in fiscal years beginning after December 15, 1997. The Company is currently
evaluating the effect of this SOP on its fiscal 1998 financial statements.
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<PAGE> 30
BUSINESS
OVERVIEW
The Company provides software, hardware and systems integration products
and services that enable health care organizations to network otherwise
incompatible medical image-producing and image-using devices. Medical
image-producing devices primarily include digital x-ray, computed tomography
("CT"), magnetic resonance imaging ("MRI"), computed radiography ("CR"),
ultrasound and nuclear medicine machines. Medical image-using devices primarily
include, video display terminals, specialty workstations, medical film laser
printers that facilitate the use of diagnostic medical images and digital image
archiving systems. The Company's products can support over 200 different
combinations of image-producing and image-using devices and have been installed
at over 1,000 health care facilities throughout the world. The Company's
products provide a communications bridge between incompatible medical
image-producing and image-using devices, permit radiologists to use either video
images on electronic workstations or film as a diagnostic medium and create a
diagnostic-quality electronic archive of imaging results. In addition, the
Company's products permit the information generated and used by medical imaging
devices to be included in a health care organization's information network or an
electronic patient record ("EPR").
The incompatibility of the various imaging devices in a typical radiology
department or diagnostic imaging center has historically created the need for
separate workstations, film printers and other image-using devices to support
each image-producing device. The Company's products convert the output of
medical image-producing devices into an industry standard network communications
protocol, Digital Imaging Communications for Medicine ("DICOM" or the "DICOM
standard"), in order to connect these devices to various printers and
workstations, and store the images generated by such devices in a permanent
DICOM-based compact disk ("CD") archive. Radiology departments and other
diagnostic imaging centers and the users of their images and diagnostic reports
benefit in a variety of ways including: (i) multiple image-producing devices can
be connected to a single workstation, film printer or other image-using device
resulting in reduced equipment expenditures; (ii) permanent electronic archives
of diagnostic-quality imaging results can be created, enabling the retrieval of
these images at any time in the future; (iii) the modular architecture of the
Company's products allows radiology departments and other diagnostic imaging
centers to build their electronic image management infrastructures in an
incremental, flexible and cost-effective manner; and (iv) with the continued
development of health care information technology, diagnostic images collected
and managed with the Company's technology can readily be incorporated into a
patient's EPR.
INDUSTRY BACKGROUND
In recent years, managed care has sought to control health care costs by
attempting to introduce increased efficiency to the health care delivery system.
Any attempt to increase efficiency in this area requires a dramatic improvement
in the exchange of information between the various participants in the health
care delivery system. The EPR is a patient-specific repository of medical and
financial information that can be accessed by various participants in the health
care delivery system, including, but not limited to, attending and consulting
physicians, insurance providers, medical laboratories, pharmacies, and the
various departments of a hospital, clinic, nursing home or other care providing
organization. In recent years, there has been considerable effort within the
health care industry to promote the development of the EPR to improve the
exchange of medical information.
The health care industry is working to automate the collection and storage
of clinical and financial data within the various departments of health care
institutions, and, ultimately, to create an EPR by connecting such departments
into a networked system. In a national survey of health care information
professionals conducted in February of 1997 by the Health Information Management
Systems Society ("HIMSS") and the Hewlett-Packard Company ("Hewlett-Packard"),
the 1997 HIMSS/Hewlett-Packard Leadership Survey, twenty percent of those
professionals indicated that their information technology budgets would grow by
more than fifty percent in the next two years and sixty-nine percent indicated
that their budgets would grow by more than ten percent in the next two years.
Fifty percent of respondents indicated that upgrading their information
28
<PAGE> 31
technology infrastructure and integrating existing systems from multiple vendors
were their current top priorities.
Recently developed health care information technology has greatly improved
the electronic management of textual data but, with the exception of picture
archiving and communication systems ("PACS"), such systems still lack the
ability to acquire, store and manage electronically the complete set of
diagnostic images produced by each radiological examination. While large-scale
PACS permit electronic image acquisition, transmission, storage, retrieval and
display, such systems have not been widely accepted by the diagnostic imaging
community for several reasons, including: (i) PACS are usually very expensive; a
complete PACS for a hospital radiology department or other diagnostic imaging
center performing 150,000 procedures per year may cost over $6 million; (ii) a
radiology department's or other diagnostic imaging center's existing inventory
of image-producing and image-using devices cannot typically be cost-effectively
integrated into a PACS thereby negating the department's previous capital
expenditures; (iii) there is a risk that the unedited data output of a PACS may
overload an institution's communications network; and (iv) since PACS display
medical images on video display terminals, rather than film, the acceptance of
PACS has been limited by the preference of most radiologists to use film for
diagnostic purposes. Accordingly, the distribution of medical images has
continued to be a manual, labor-intensive and inefficient process based on the
sharing of a single patient film jacket filled with individual film sets.
Electronic image management outside the PACS arena is made difficult
primarily due to the incompatibility of the communications protocols and data
formats between medical imaging devices produced by different OEMs. The OEMs
that dominate the U.S. and international markets for medical image-producing
equipment are the GE Medical Systems Division of the General Electric Company
("GE"), Philips Medical Systems Nederland B.V. ("Philips"), Picker
International, Inc. ("Picker"), Siemens A.G. ("Siemens") and Toshiba Corp.
("Toshiba"). The OEMs that dominate the U.S. and international markets for
medical image-using equipment are Sterling Diagnostic Imaging, Inc.
("Sterling"), the Eastman Kodak Company ("Kodak"), Agfa-Gevaert N.V. (a division
of Bayer Corporation) ("Agfa"), Imation Corporation ("Imation"), Fuji Photo Film
Co., Ltd. ("Fuji") and Konica Medical Corporation ("Konica"). Such OEMs have
historically designed their medical imaging devices to include proprietary
communications protocols and internal data formatting technology unique to each
company's products.
In non-medical communications network environments, equipment owners,
systems integrators and competing OEM vendors have been relatively free to
modify proprietary equipment in order to make such equipment connect with
devices manufactured by third party OEMs. However, modification of medical
imaging devices generally is not possible because such devices are subject to
government regulation. Further, OEMs have the ability to void the warranty on
their equipment if such equipment is attached to third party components that
have not been approved by the OEM.
To date, no OEM has been able to maintain a commanding technological
position in all facets of diagnostic imaging. Generally, medical institutions
have focused on diagnostic quality, cost, reliability or other attributes of
specific devices in making their capital expenditure decisions rather than on
acquiring a full suite of equipment from a single OEM. As a result, the existing
equipment base includes numerous OEM-specific communications protocols and data
formats that have historically precluded devices manufactured by different OEMs,
and sometimes by the same OEM, from communicating with each other or with
various image-using devices. This incompatibility has typically required the
purchase of redundant hardware systems, thereby increasing costs. For example, a
separate medical film printer or workstation usually must be connected directly
to each digital x-ray, MRI or CT device in a hospital radiology or other
diagnostic imaging center department instead of being shared by several such
devices.
OEM SUPPORT AGREEMENTS
In recent years, OEMs have increasingly recognized that their OEM-specific
communications protocols and data formats have interfered with the connectivity
needs of their customers and the Company has successfully negotiated agreements
under which such OEMs have supplied the Company with the technical
specifications and software algorithms necessary for communicating with their
products. Such OEMs have
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<PAGE> 32
additionally agreed to notify the Company of any updates to their technical
specifications and software. Currently, the Company has signed agreements with
over 20 OEMs including GE, Philips, Picker, Siemens and Toshiba, representing
more than 90% of the radiological electronic imaging device market. These
agreements have permitted the Company to develop products that directly address
the connectivity problem associated with image-producing and image-using
devices. The Company considers its access to the proprietary communications
protocols and the data formatting technologies of these OEMs to be a substantial
competitive advantage for its business.
NETWORK COMMUNICATIONS PROTOCOLS FOR MEDICAL IMAGING APPLICATIONS
In order to solve the connectivity problem and eventually to replace the
proprietary communications protocols and data formats discussed above, a joint
committee of the American College of Radiology ("ACR") and the National
Electrical Manufacturers' Association ("NEMA") was formed in 1984 to create an
open standard method of describing and communicating medical images over a
network. The joint committee includes representatives of many of the major
companies in the medical imaging industry including Siemens, Philips, GE,
Picker, Kodak, Agfa, Imation, Polaroid Corporation and the Company. Version 3.0
of the DICOM standard was released in 1992 and has become the first medical data
communications standard to be adopted worldwide. Recently ACR and NEMA agreed to
create the DICOM Standards Committee to continue the ongoing work of developing
the DICOM standard. The contents of the DICOM standard are determined by the
consensus of the membership of the DICOM Standards Committee, which includes
representatives of bio-medical professional organizations, manufacturers, trade
associations, other standards development organizations, and governmental
agencies worldwide. The activities of the Committee are administered by NEMA,
and the Committee owns the DICOM standard. The development and use of DICOM has
made possible the efficient collection and management of clinical data that is
produced and used by medical imaging devices.
William C. Mortimore, the Company's President, has been a member of the
ACR/NEMA joint committee since its establishment in 1984. In addition, several
other Company employees, as well as employees of certain of the Company's
competitors, occupy leadership positions on this committee. The Company has
found that its leadership in the setting of standards for medical communications
protocols has provided important technological and strategic insights that have
facilitated the successful development and deployment of its products and
services.
30
<PAGE> 33
PRODUCTS AND SERVICES
The Company's electronic imaging products and services available today
include: (i) MergeWorks Connectivity Products for retrofitting legacy radiology
image-producing and image-using devices; (ii) OEM Interface Products, including
connectivity software tool kits and interface boards for new OEM image-producing
and image-using devices; (iii) Network Integration Products and Services -- for
design and installation of DICOM networks, including training, design assistance
and testing services. An additional line of Networked Image Management Products
for facilitation of radiologists' selection and use of electronic images is
under development.
GRAPHIC MATERIAL
DIAGRAM IN BUSINESS SECTION
The top part of this diagram cosists of a row of six medical
image-producing devices labeled CT, MR, X-Ray, Ultrasound, Nuclear, and CT.
Small Company logos and straight lines are used to connect the individual
devices to a horizontal two headed arrow labeled "MergeCOM-3 (DICOM) Network."
Below the arrow are several labeled boxes that represent network hardware
components. Representation of CaseWorks, MergeARK, ReportManager, MergeAPS and
Printer, and a Physician workstation are included. Everything is enclosed in a
shaded rectangle. "Radiology Department" is written in the lower left hand
corner of the rectangle. Below the rectangle are labeled graphics that depict
a computer, EPR, and hospitals and clinics. A diagram legend is located next
to the diagram on the right side.
MergeWorks Connectivity Products
The Company sells MergeWorks Connectivity Products for retrofitting legacy
stand-alone medical image-producing and image-using devices thereby rendering
such devices capable of communicating over a DICOM network. These products,
comprising the Company's MergeWorks Connectivity Products line, address the
incompatibility of proprietary communications protocols used by medical
image-producing and image-using devices by converting the output from a
customer's existing equipment base of image-producing devices into the DICOM
standard format. Once in DICOM, such data can be made generally available on a
network and can be converted into the particular proprietary language required
by any image-using device on the network. Further, such products enable a
radiology department or other diagnostic imaging centers to store diagnostic
quality medical images in an electronic format for local or remote retrieval and
display on film or a video terminal. The MergeWorks Connectivity Products line
permits a radiology department or other diagnostic imaging centers to upgrade
its existing medical image management system through a relatively low cost and
incremental conversion of its existing base of stand alone medical
image-producing and image-using
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<PAGE> 34
devices. The Company's MergeWorks Connectivity Products also permit an
institution to continue to benefit from its often substantial installed base of
equipment and devices and realize the efficiencies of a network without
incurring a large up-front capital cost as would be the case with a large scale
PACS solution. The Company's MergeWorks Connectivity Products for medical image
acquisition, display, printing and storage over a DICOM network include:
Image Acquisition -- MergeMVP -- The Company developed and introduced
its first component product, the MergeMVP converter, in 1989. The MergeMVP
converter comprises software and hardware that transforms data generated by
image-producing devices into the DICOM standard or other applicable format.
Data transformed by the MergeMVP converter into DICOM can be interpreted,
processed, manipulated and managed at video display stations, three
dimensional image processing devices, teleradiology devices and other
specialty workstations.
Image Acquisition -- MergeXPI -- The MergeXPI printer interface
converts data that is generated by image-producing devices in a variety of
proprietary languages and data formats into the DICOM standard format
specifically for the purpose of printing such data. The MergeXPI printer
interface, while similar to the MergeMVP converter in function, converts
film data or hard copy data, which is traditionally used for diagnostic
purposes, and limited patient identification data, to the DICOM format.
Hard copy data generated by the MergeXPI print interface can be stored,
managed and retrieved by other Company products. The MergeXPI product
includes two alternative interfaces: (i) the MergeDPI digital print
interface, which is used with image-producing devices that produce a
digital image; and (ii) the MergeVPI video print interface, which is used
with devices that produce an analog image.
Image Printing -- MergeAPS -- The MergeAPS print server permits DICOM
formatted data to be converted into the proprietary language of a wide
variety of medical laser film printers. The MergeAPS print server plays a
key role in transforming stand-alone medical laser film printers to print
networks thereby eliminating the need for individual printers for each
image-producing device. As component parts, MergeAPS print servers can be
used to network a group of existing printers to achieve systems
compatibility without requiring the purchase of new printers. In addition,
the MergeAPS print server contains a limited storage capacity permitting
images to be retained for a short period of time for later printing.
Image Storage -- MergeARK -- The MergeARK digital image archive is a
stand-alone device that is connected to a DICOM compatible network. The
MergeARK archive can acquire images and related clinical information from
any number of image sources including imaging devices, displays and
workstations, laser print servers and other limited storage file servers.
The MergeARK archive can store images permanently, in diagnostic quality on
CDs, for later retrieval over the network, for such applications as film
reprints, supporting the EPR and telemedicine, the practice of medical
diagnostics and recommendation of treatment from remote locations by the
use of telecommunications. Without the DICOM standardization provided by
the Company's products, each incompatible device would require its own
dedicated archive. The MergeARK digital image archive is fully scalable and
a user can upgrade the size of its archive incrementally through the
installation of additional modular CD arrays.
OEM Interface Products
The Company sells software tool kits and interface board products that
enable OEMs to manufacture new radiology image-producing and image-using devices
capable of directly communicating with the DICOM standard. The Company's OEM
Interface Products include:
OEM Connectivity -- MergeCOM-3 Software -- The MergeCOM-3 software
tool kit permits OEMs to design image-producing and image-using devices
capable of communicating in the DICOM format thereby rendering such
equipment network ready and avoiding the need for the MergeMVP converter,
the MergeXPI printer interface or the MergeAPS print server. The Company
licenses the MergeCOM-3 software tool kit to over 70 OEMs of
image-producing devices. The MergeCOM-3 software tool kit is available for
over 30 different computer platforms, representing nearly all of the
technologies currently employed in medical image production and use.
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<PAGE> 35
OEM Connectivity -- Interface Boards -- The Company's board level
interface products are sold to OEMs that want to build into their products
at the design stage the ability to connect to other OEMs' proprietary
systems, with or without DICOM conversion. The Company's interface boards
are also an integral part of several of the Company's products such as the
MergeMVP converter, the MergeXPI printer interface and the MergeAPS print
server. Direct sales of interface boards to OEMs for inclusion in their own
equipment permits the Company to achieve economies of scale in interface
board production.
Network Integration Products and Services
The Company has offered systems integration services for the design and
installation of DICOM networks since 1996. Such services include training,
design assistance and testing, directly to radiology departments and other
diagnostic imaging centers, as well as to VARs. The Company's purpose in
offering these services is to solve the customer's connectivity problems. The
Company finds that the solution to many customers' connectivity problems is
found within the array of products offered by the Company. The Company
anticipates that offering such services will enable the Company to enhance
product sales in the future. The Company has certain products under development
in this category. See "Products Under Development."
PRODUCTS UNDER DEVELOPMENT
Networked Image Management Products
The Company is developing DICOM Networked Image Management Products that
enable radiologists to select specific diagnostic images. Once selected, such
images may be incorporated into a patient report or the EPR.
Image Management -- CaseWorks -- The CaseWorks radiology work-flow
management tool builds on the Company's MergeWorks product line to manage
the large volume of image data generated in radiology departments and other
diagnostic imaging centers and to facilitate the integration of such data
into the EPR. Because of their clinical expertise and diagnostic
experience, radiologists are best positioned to determine specific images
that are pertinent for inclusion in the patient file from among the large
number of images generated for a patient. Historically, radiologists have
favored the use of film rather than computer workstations for diagnosis.
The CaseWorks management tool directly addresses this preference by
allowing radiologists to continue to use film as a primary diagnostic
medium while facilitating the electronic selection of images for inclusion
in the EPR. During the process of collecting and preparing images for
printing on film for diagnosis, each image is assigned a unique, machine-
readable identifier which is printed next to each image. A radiologist can
prepare a case by selecting the images to be included in the EPR using the
MergeReader hand-held unit. Thereafter, the selected images can be
retrieved, along with the text report, from the MergeARK archive for
consideration by various participants in the health care system. An
anticipated future option for the CaseWorks management tool is the support
of dictation within the MergeReader hand-held unit. The Company expects the
CaseWorks management tool to be available for sale in the second quarter of
1998. In 1996, in anticipation of the introduction of the CaseWorks
management tool, the Company entered into an agreement with a technology
supplier under which the Company was granted a worldwide exclusive license
to duplicate and distribute decoding software embedded in hand-held
readers. The Company was also granted a worldwide non-exclusive license to
duplicate and distribute encoding software used by the Company in recording
identifying marks on x-ray film. Exclusivity under this agreement will
lapse on November 1, 2000. In the event that the Company ceases to
distribute both licensed products for a period of twenty-four months, any
license in effect will automatically terminate.
Image Management -- ReportManager -- The ReportManager integration
tool builds upon the image collection and management capability of the
CaseWorks management tool and facilitates the automated assembly and
distribution of radiology reports containing text and pertinent diagnostic
image data. Such reports can be published in a variety of media including
facsimile, telemedicine and hypertext markup language (HTML), a format for
intranet and internet applications. The Company expects the ReportManager
integration tool to be available for sale by the end of 1998.
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Other Products
The Company is continuing to develop new products and improve existing
products. For example, the Company is currently developing products that provide
a direct connection between DICOM imaging networks and hospital information
systems, facilitating a more complete EPR. These interface products will also
permit transmittal of patient demographic information to the MergeMVP converter
and the MergeXPI print interface where images are initially acquired, thus
reducing data entry errors and labor costs.
STRATEGY
The Company's goal is to become a leading provider of connectivity and data
management solutions that facilitate the networking of incompatible, proprietary
devices in medical imaging systems. The Company intends to achieve this
objective through the implementation of the following strategy:
Sell MergeWorks Connectivity Products for retrofitting legacy radiology
image-producing and image-using
devices.
The majority of the Company's current revenue is generated through the sale
of devices that enable existing radiology image-producing and image-using
equipment to connect to a DICOM network. The Company expects sales of such
devices to grow as (i) radiology departments and other diagnostic imaging
centers that have no DICOM capability or that are partially DICOM-compliant
retrofit additional existing machines with the Company's products, and (ii)
radiology departments and other diagnostic imaging centers install new DICOM
networks that require the retrofitting of all or some of their existing
equipment base with the Company's products. According to a study commissioned by
the Company and conducted by Technology Marketing Group, a diagnostic imaging
market consulting organization located in Des Plaines, Illinois, the number of
radiology departments at hospitals that can use the Company's products totals
approximately 5,500 in the United States and 17,000 internationally. Within
these facilities, there is an estimated total installed base of approximately
250,000 image-producing and image-using devices.
Sell OEM Interface Products for new radiology image-producing and image-using
devices.
The Company currently sells software tool kits that enable manufacturers of
new radiology image-producing and image-using devices to connect their machines
directly to a DICOM network. The Company expects sales of such software tool
kits and interface boards to grow as manufacturers of radiology image-producing
and image-using devices upgrade and expand their current product lines.
According to the Technology Marketing Group study, the estimated annual sales of
new radiology image-producing and image-using machines totals approximately
11,000 units in the United States and 33,000 units internationally.
Sell Network Integration Products and Services.
The Company offers its customers Network Integration Products and Services
that range from the installation of DICOM connectivity devices for
image-producing and image-using equipment to the design and installation of
entire DICOM networks and the conversion of all existing radiology machines to
the DICOM communications protocol.
Sell Networked Image Management Products to users of DICOM networks.
The Company is developing Networked Image Management Products that enable
radiologists to select and mark for retrieval specific selections of medical
imaging data. These products are anticipated to reduce the amount of data
required to be shared over a network and facilitate the development of the EPR.
The Company expects to market these products to radiology departments and other
diagnostic imaging centers that are already connected to a DICOM network.
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Expand the Company's product and service offerings to other image-intensive
departments in medical institutions.
Many devices in medical institutions produce or use images that need to be
viewed, transmitted and stored. Departments that use devices of this type
include endoscopy, pathology, radiotherapy, urology, mammography and dialysis.
The Company believes that machines used by radiology and such other departments
will ultimately be connected to the hospital's information network and that
images produced by these machines will eventually be stored in an EPR. The
Company intends to develop connectivity products for such devices by applying
its expertise in standardized communications protocols to bridge the gap between
DICOM and HL-7, the developing standard for hospital information technology
networks, and by leveraging its strong relationships with the manufacturers of
medical image-producing and image-using devices. Certain employees of the
Company have been: (i) members of the ACR/NEMA DICOM standard setting joint
committee since its formation in 1984; (ii) active members of the HL-7 standard
setting committee for hospital administrative information networks since 1994;
and (iii) core members of the Andover Working Group since 1997. Employees of
certain competitors maintain membership in the HL-7 committee, but no employees
of the Company's competitors are core members of the Andover Working Group. The
Andover Working Group, sponsored by Hewlett-Packard, was formed in 1995 to
develop medical data communication standards. The primary work of the Andover
Working Group has been conducted by approximately twenty-five core members. The
core members that represent diagnostic imaging are Philips and the Company. The
initial accomplishment of the Andover Working Group has been agreement on an
implementation of a subset of HL-7, the developing standard for hospital
information technology networks.
SALES, MARKETING AND DISTRIBUTION
The Company markets its products and services to three types of customers:
(i) OEMs that typically design and manufacture standard model devices such as
MRIs, CTs, CRs, digital x-ray machines and other products that are not
customized by the OEM for the individual customer; (ii) VARs that design and
implement customized solutions, typically utilizing products manufactured by
third parties, for their customers' particular needs; and (iii) dealers that act
as retail distributors to end-users of products manufactured by third parties.
The medical imaging device market is dominated by a limited number of high
volume vendors with multiple divisions. As a result, depending on the specific
product being sold and how it will be utilized, different divisions of a single
customer, each with separate relationships with the Company, may fall into more
than one of the types of customers listed above.
The Company markets its MergeWorks Connectivity Products, and intends to
market its Networked Image Management Products, to VARs, dealers and end-users.
The MergeWorks Connectivity Products enable VARs to connect the image-producing
and image-using devices manufactured by different OEMs into the customized
solutions that they market to their customers. Dealers market the MergeWorks
Connectivity Products directly to end-users typically as part of a catalog of
medical imaging related products.
The Company markets its MergeCOM-3 software tool kit directly to OEMs
pursuant to over 70 licensing agreements with such OEMs. Utilizing the
MergeCOM-3 software tool kit and the Company's interface boards, OEMs are able
to build DICOM capability directly into their products at the design stage. To a
more limited extent, the Company licenses the MergeCOM-3 software tool kit to
end-users that have in-house systems integration capability.
The Company's marketing relationships with OEMs are based in large part on
its long-standing relationships with the engineering and research and
development personnel of such OEMs. Such relationships have grown from the
Company's past success in negotiating OEM Support Agreements (see "OEM Support
Agreements") with such OEMs and the Company's participation in the ACR/NEMA
DICOM joint committee. Because of the limited number of medical imaging device
OEMs, the Company relies heavily on repeat sales to such OEMs. The Company's
marketing efforts with respect to VARs are focused on direct sales efforts and
advertising to the sales engineering personnel of such VARs that design and sell
customized end-user solutions. The Company has worked to leverage its
relationships with the technical personnel of such VARs to support its VAR sales
efforts. The Company employs three sales professionals to market to OEMs and
VARs. Sales to OEMs and VARs accounted for 95% of the Company's net sales in
fiscal 1995, 70% in fiscal 1996 and 61% for the nine months ended September 30,
1997.
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The Company's end-user sales initiative is predominantly focused on sales
through dealers. The Company has cultivated relationships with dealers that
permit Company personnel to participate in presentations to potential customers.
Pursuant to such relationships, once an end-user sale is made, the Company sells
its products to the dealer for resale to the end-user. The Company markets to
dealers and end-users through direct sales efforts, advertising and repeat
business generated by its customer support efforts. The Company employs six
sales professionals that market to dealers and end-users. Sales to end-users
accounted for 5% of the Company's net sales in fiscal 1995, 30% in fiscal 1996
and 39% for the nine months ended September 30, 1997. The Company believes that
sales to end-users as a percentage of total net sales will increase in the
future.
The Company supports its general marketing efforts by exhibiting its
products directly to customers in major trade shows; through its Internet
address; through direct customer support; and through its product warranty. With
respect to trade shows, the Company exhibits its products at the Radiological
Society of North America annual meeting, the European Congress of Radiology and
the Association of American Hospital Radiology Administrators annual meeting.
Because the medical imaging industry is dominated by a few large participants,
such trade shows, which employees of most such participants attend, are viewed
by the Company as an integral part of its marketing strategy. The Company's
Internet address (www.merge.com) was established in 1995, currently averages
approximately 40,000 hits per month and provides access to the Company's
marketing materials, technical product information and its technical support
staff. The Company's technical support staff conducts a service training course
for OEM and VAR personnel on a regular basis, providing the Company's customers
with the expertise needed to install and support the Company's products. The
Company seeks to respond quickly to customer requests for technical support and
service through a telephone hotline, on-line remote service support, which is a
capability built into the MergeWorks Connectivity Products line, and overnight
exchange of defective parts or products. The Company provides a limited one-year
parts or factory repair warranty on its products. Although the Company's
warranty policy permits customers to return the Company's products in the event
of malfunction, product returns to date have not been significant.
An important component of the Company's business plan includes increasing
sales to customers located outside the United States. The Company operates a
sales office in the Netherlands and, as of September 30, 1997 employs seven
full-time staff in Europe who perform sales and technical customer support
roles.
The Company sells a majority of its products to a relatively limited number
of OEMs, VARs and dealers. Aggregate sales to the Company's ten largest
customers represented approximately 75% of the Company's net sales in fiscal
1995, 68% in fiscal 1996 and approximately 87% in the nine months ended
September 30, 1997. During fiscal 1996, Picker, Philips and Siemens accounted
for approximately 26%, 15% and 10%, respectively, of the Company's net sales.
For the nine months ended September 30, 1997, Picker, Philips and Siemens
accounted for approximately 28%, 15% and 7%, respectively, of the Company's net
sales. There can be no assurance that the Company's current customers will
continue to place orders with the Company or that the Company will be able to
obtain orders from new customers. The loss of any one or more of the Company's
major customers could materially adversely affect the Company's business and
operating results.
MANUFACTURING
The Company's manufacturing activities consist primarily of assembling and
testing hardware components and subassemblies acquired from vendors, and loading
and testing the Company's software products. The Company operates under the Good
Manufacturing Practices promulgated by the FDA and is a registered medical
device manufacturer. Primarily in response to the requirements of European
customers, the Company has recently commenced an initiative to comply with the
ISO 9000 class of standards promulgated by the International Standards
Organization, which involves an audit of the Company's manufacturing processes.
The Company purchases industry standard parts and components for the
assembly of its products, generally from multiple vendors. The Company has
elected to rely on a limited number of subcontractors for certain subassembly
functions in order to achieve more advantageous pricing through increased
volume. However, the Company believes that additional subcontractors are
available to perform these subassembly
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functions. The Company maintains good relationships with its vendors and, to
date, has not experienced any material supply problems. Any substantial problems
with suppliers, however, could have a material adverse effect on the Company's
business, financial condition and results of operations.
COMPETITION
The markets for the Company's products are highly competitive. Many of the
Company's customers purchase products from both the Company and its competitors.
The Company currently competes primarily with DeJarnette Research Systems, Inc.
("DeJarnette") in the retrofitting of legacy medical systems to enable DICOM
standard connectivity. The MergeCOM-3 software tool kit primarily competes
directly with DeJarnette and Mitra Imaging Inc. ("Mitra"), and indirectly with
the Radiological Society of North America, which offers a version of DICOM, that
was originally developed by Mallinckrodt Institute of Radiology, as "freeware"
available to be downloaded without charge from the Internet, but which offers
more limited features and no user support.
In the application of MergeWorks products specifically for hardcopy film
networks, which includes MergeAPS and MergeXPI products, the Company competes
with film vendors, including Kodak, Agfa, Sterling and Imation. However, since
the MergeAPS works with any of the laser film printers available from these
vendors, these companies have also purchased the Company's products when they
have needed networked filming solutions involving their competitors' products.
The Company expects competition to increase in the future from existing
competitors and from other companies that may enter the Company's existing or
future markets. In addition, although many PACS manufacturers are currently
customers of the Company, the Company faces competition from PACS manufacturers.
The Company could face competition from networking equipment and
telecommunications manufacturers if these companies were either to develop DICOM
capability for their products or purchase products which provide DICOM
capability from one of the Company's competitors. The Company could also face
competition from a number of companies in the health care information technology
sector, including, without limitation, Dynamic Healthcare Technologies, Inc.,
Imnet Systems, Inc. and Lanvision Systems, Inc. Many of the Company's current
and potential competitors have greater resources than those of the Company in
areas including finance, research and development, intellectual property and
marketing. Many of these competitors also have broader product lines and longer
standing relationships with medical imaging customers than those of the Company.
The Company believes that its ability to compete successfully depends on a
number of factors both within and outside of its control, including applications
innovation; product quality and performance; price; experienced sales, marketing
and service organizations; rapid development of new products and features;
continued active involvement in the development of DICOM and other medical
communication standards; and product and policy decisions announced by its
competitors. There can be no assurance that the Company will be able to compete
successfully with its existing or any new competitors.
INTELLECTUAL PROPERTY
Although the Company has filed foreign and domestic patent applications on
CaseWorks, the Company generally does not rely on patent protection with respect
to its products. Instead, the Company relies on a combination of copyright and
trade secret law, employee and third party nondisclosure agreements and other
protective measures to protect intellectual property rights pertaining to its
systems and technology. There can be no assurance, however, that applicable
copyright or trade secret law or these agreements will provide meaningful
protection in the event of any unauthorized use, misappropriation or disclosure
of the Company's copyrights, trade secrets, know-how or other proprietary
information. In addition, the laws of certain foreign countries do not protect
the Company's intellectual property rights to the same extent as do the laws of
the United States. There can be no assurance that third parties will not assert
patent, copyright or other intellectual property infringement claims against the
Company with respect to its products or technology or other matters. There may
be third party patents, copyrights and other intellectual property relevant to
the Company's systems and technology which are not known to the Company.
Although no third party has asserted that the Company is infringing such third
party's patents, copyrights or other intellectual property, there can be no
assurance that litigation asserting such claims will not be initiated, that the
Company would
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prevail in any such litigation, or that the Company would be able to obtain any
necessary licenses on reasonable terms if at all. Any such claims against the
Company, with or without merit, as well as claims initiated by the Company
against third parties, can be time-consuming and expensive to defend or
prosecute and to resolve. To date, the Company has not initiated any
intellectual property infringement claims and, to the Company's knowledge, no
such claims have been asserted against it.
In the year 2000, many existing computer programs that use only two digits
(rather than four) to identify a year in the date field could fail or create
erroneous results if not corrected. This computer program flaw is expected to
affect virtually all companies and organizations. The Company cannot quantify
the potential costs and uncertainties associated with this computer program flaw
at this time, but does not anticipate that the effect of this computer program
flaw on the operations of the Company will be significant. However, the Company
may be required to spend time and monetary resources addressing any necessary
computer program changes.
GOVERNMENT REGULATION
The manufacturing and marketing of the Company's products are subject to
government regulation as medical devices in the United States by the Food and
Drug Administration ("FDA") and in other countries by corresponding foreign
regulatory authorities. The process of obtaining and maintaining required
regulatory clearances and approvals is lengthy, expensive and uncertain. The
Company believes that its success depends upon commercial sales of improved
versions of its products, certain of which cannot be marketed in the United
States and other regulated markets unless and until the Company obtains
clearance or approval from the FDA and its foreign counterparts.
The Company has registered as a medical device manufacturer with the FDA.
The Company is inspected on a routine basis by the FDA to determine compliance
with the FDA's Good Manufacturing Practices and other applicable regulations.
The FDA requires that a manufacturer seeking to market a new medical device
or an existing medical device for a new indication obtain either a premarket
notification clearance under Section 510(k) of the Federal Food, Drug and
Cosmetic Act (the "FDC Act") if the product is substantially equivalent to a
product existing at May 28, 1976, or a premarket approval under the FDC Act
("PMA") prior to the introduction of such product into the market. Material
changes to existing medical devices are also subject to FDA review and clearance
or approval prior to commercialization in the United States. The Company is
currently relying on the Section 510(k) premarket notification method to obtain
governmental clearance ("510(k) clearance") to market its medical devices in the
United States. Although it is believed to be a shorter, less costly means of
satisfying the requirements of the FDC Act than the process to obtain a PMA, the
process of obtaining a 510(k) clearance generally requires supporting data,
which can be extensive and extend the regulatory review process for a
considerable length of time. All models of the Company's systems that are
commercially available, other than the software toolkits, have received 510(k)
clearance. Since the software toolkits are incorporated into customers' products
and are not freestanding products, they are not considered to be medical
devices. The FDA publishes classifications of products that it requires to
receive premarket notification clearance; the Company believes that CaseWorks
management tool and the ReportManager integration tool do not fall within any of
these published classifications and therefore would not require 510(k)
clearance. However, there can be no assurance that 510(k) clearance, if
necessary, for any future product or modifications of existing products will be
granted by the FDA within a reasonable time frame, if at all. Furthermore, the
FDA may require that a request for 510(k) clearance be supported by data from
clinical trials demonstrating "substantial equivalence" and the safety and
effectiveness of the device, which may prolong the Section 510(k) notification
review period for a particular device or may result in a finding that the
product does not meet the substantially equivalent test, so that a full PMA
could be required.
Failure to comply with applicable regulatory requirements could result,
among other things, in warning letters, seizures of products, total or partial
suspension of production, refusal of the government to grant market clearance or
pre-market approval, withdrawal of approvals or criminal prosecution.
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The Company is also subject to other federal, state and local laws and
regulations relating to safe working conditions and manufacturing practices. The
extent of government regulation that might result from any future legislation or
administrative action cannot be predicted. Failure to comply with regulatory
requirements could have a material adverse effect on the Company's business,
financial condition and results of operations.
Sales of the Company's products outside the United States are subject to
foreign regulatory requirements that vary from country to country. Additional
approvals from foreign regulatory authorities may be required, and there can be
no assurance that the Company will be able to obtain foreign marketing approvals
on a timely basis or at all, or that it will not be required to incur
significant costs in obtaining or maintaining its foreign regulatory approvals.
In Europe, the Company has obtained the certificates necessary to enable the CE
Mark, a non-expiring, international symbol of adherence to quality assurance
standards promulgated by the European Union and compliance with applicable
European Union Medical Device Directives, to be affixed to the Company's
products for sales in member countries. Failure to obtain or maintain any
necessary certifications or foreign regulatory approvals or any other failure to
comply with regulatory requirements outside the United States could have a
material adverse effect on the Company's business, financial condition and
results of operations.
PROPERTIES
The Company's principal facilities are located in Milwaukee, Wisconsin, in
an approximately 12,000 square-foot facility leased through September 2004 at a
rate of approximately $156,000 per year. The Company also leases a sales,
administrative and service support office in Nuenen, The Netherlands. The
Company anticipates that additional space will be required as its business
expands and believes that it will be able to obtain suitable space as needed.
The Company anticipates that it will need to acquire additional office space in
fiscal 1998.
EMPLOYEES
As of September 30, 1997, the Company had 64 employees, including 28
employees in research and development, six in manufacturing, six in quality
control, service and support, 11 in sales, three in sales and marketing support
activities and 10 in general administration and finance. Seven of the Company's
full-time employees reside in Europe performing sales and technical customer
support roles. The Company also relies on several part-time employees and
consultants. None of the Company's employees is represented by a collective
bargaining agreement nor has the Company experienced a work stoppage. Management
believes that the Company's relationship with its employees is good.
LEGAL PROCEEDINGS
The Company is not involved in any material legal proceedings.
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MANAGEMENT
DIRECTORS AND EXECUTIVE OFFICERS
The names of the Directors, executive officers and Nominees to the Board of
Directors of the Company, and their respective ages and positions with the
Company, are listed below. The Company anticipates that the Nominees will be
elected to the Board of Directors prior to completion of the Offering. Mr. Pivan
has advised the Company that he intends to resign as a Director after the
Offering is completed.
<TABLE>
<CAPTION>
NAME AGE POSITION
---- --- --------
<S> <C> <C>
William C. Mortimore.............. 52 President and Chief Executive Officer, Director
William L. Stafford............... 50 Vice President -- Sales, Assistant Secretary
David M. Noshay................... 37 Vice President -- Marketing
Dwight A. Simon................... 52 Vice President -- Engineering
Colleen M. Doan................... 35 Chief Financial Officer, Treasurer and Secretary
Michael J. Franco................. 50 Chief Technical Officer
Robert T. Geras................... 60 Director and Chairman of the Board of Directors
David B. Pivan.................... 76 Director
Robert A. Barish, M.D. ........... 44 Nominee for Director
Dennis Brown...................... 50 Nominee for Director
Michael D. Dunham................. 52 Nominee for Director
Douglas S. Harrington, M.D. ...... 44 Nominee for Director
Kevin E. Moley.................... 51 Nominee for Director
</TABLE>
William C. Mortimore is a founder of the Company and has served as
President and Chief Executive Officer and a member of the Board of Directors of
the Company since its inception in 1987. Mr. Mortimore has served as co-founder
and a senior manager of several businesses in the fields of information
communications technology, healthcare services and real estate, and has been
responsible for securing public and private financing for these organizations.
Mr. Mortimore is an original member of the American College of
Radiology/National Association of Electrical Manufacturers ("ACR/NEMA")
committee responsible for establishing and maintaining the DICOM medical imaging
standard. Mr. Mortimore is also Chair of the Medical Imaging Information Section
and a member of the Board of Directors of the Diagnostic Imaging Division of
NEMA. Mr. Mortimore received a B.S. in Electrical Engineering from Michigan
State University, an M.E.E. from the University of Minnesota, and pursued
doctoral studies in Electrical Engineering at the University of Minnesota.
William L. Stafford has served as Vice President, Sales of the Company
since June 1994. From February 1993 until May 1994, Mr. Stafford served as the
Company's Director of Sales. From June 1983 until February 1993, Mr. Stafford
was employed by Marquette Medical Systems, Inc., a manufacturer of patient
monitoring systems. Previously, he was employed by GE Medical Systems, a
manufacturer of medical diagnostic imaging equipment, and Baxter Laboratories, a
drug manufacturer. Mr. Stafford holds a B.A. in Economics from Yale College and
an M.B.A. from Harvard University.
David M. Noshay has served as Vice President, Marketing of the Company
since August 1997. From September 1995 until July 1997, Mr. Noshay served as the
Company's Eastern Regional Sales Manager. From July 1994 until August 1995, Mr.
Noshay was Sales Manager of Scitex Medical Systems, a manufacturer of medical
image printing equipment. From February 1989 until June 1994, he was Marketing
Manager for Konica Medical Corporation, a manufacturer of medical film and image
printing equipment. Previously, he was employed by Matrix Instruments, a
manufacturer of medical imaging printing equipment, and Siemens Medical Systems,
a manufacturer of medical diagnostic imaging equipment. Mr. Noshay holds a B.S.
in Electrical Engineering and an M.S. in Biomedical Engineering from Rutgers
University.
Dwight A. Simon has served as Vice President, Engineering of the Company
since October 1992. From August 1990 until September 1992, Mr. Simon served as
Manager of Engineering Services of the Company. Mr. Simon has over 30 years of
experience in the information technology industry, with over 22 years of senior
management experience with companies in manufacturing automation, communications
and medical software
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applications. Mr. Simon has served as chair of several working groups and
subcommittees of the DICOM committee responsible for the creation of the DICOM
standard.
Colleen M. Doan has served as Chief Financial Officer of the Company since
September 1996, Treasurer since June 1994 and as Secretary since September 1997.
Ms. Doan also served as Business Manager from September 1989 through July 1995,
and Controller from August 1995 through August 1996. Ms. Doan holds a B.A. in
Business and Management from Alverno College.
Michael J. Franco has served as Chief Technical Officer of the Company
since September 1996. From May 1995 until September 1996, Mr. Franco served as
the Company's Director of Technical Services. Mr. Franco was the founder, and
from 1993 to April 1995 was the President and Chief Technical Officer of Signal
Stream Technologies, Inc., a manufacturer of electronic equipment for
interfacing devices, which was merged into a subsidiary of the Company in May
1995. Previously, he was a co-founder and served as President and Chief
Executive Officer of Adaptive Video, Inc., a manufacturer of medical imaging
interfacing equipment for teleradiology and medical image printing. Prior to
Adaptive Video, Mr. Franco was employed by Diasonics, Inc., a manufacturer of
medical diagnostic imaging devices and by Compression Laboratories Incorporated,
a manufacturer of video teleconferencing equipment.
Robert T. Geras has served as Chair of the Board of Directors of the
Company since July 1997, as a Director since 1992 and has been a shareholder of
the Company since May 1989. Mr. Geras has been a private venture investor for
more than 25 years, and has participated as a director of, investor in, and
advisor to numerous small businesses in fields ranging from medical equipment,
computer software, banking, telecommunications, industrial distribution and
packaging. He has also assisted in corporate planning, capital formation and
management for his various investments. Mr. Geras holds a B.S.B.A. from
Northwestern University.
David B. Pivan has served as a Director of the Company since 1992. He has
been a private investor for more than 25 years. He has participated as an early
investor and director of several small companies which subsequently become
public corporations. Previously, Mr. Pivan was the owner of Pivan Engineering,
an electronic manufacturers' representative firm. Mr. Pivan holds a B.S. in
Electrical Engineering from Illinois Institute of Technology.
Robert A. Barish, M.D., a Nominee for Director, is the Chief Executive
Officer of University CARE, the Clinical and Research Enterprise at the
University of Maryland. Dr. Barish is a Professor of the Department of Surgery
and Medicine at the University of Maryland School of Medicine. He is a Trustee
of the Endowment Fund of the University of Maryland. He is also a Director of
Doctors Health System, Inc. Dr. Barish holds an M.D. from the New York Medical
College, an M.B.A. from Loyola College and a B.A. from the University of New
Hampshire.
Dennis Brown, a Nominee for Director, has been the Chief Financial Officer
and Treasurer of Sybron International Corporation since 1993. From 1990 through
1993, Mr. Brown was the President of the European Region of Allen-Bradley
International, Ltd. Prior to that, he served as the Treasurer of The Marmon
Group. Mr. Brown is a Fellow of the Chartered Institute of Management
Accountants.
Michael D. Dunham, a Nominee for Director, is President of Effective
Management Systems, Inc., a Milwaukee-based corporation that markets and
supports manufacturing software systems from 35 locations worldwide. Mr. Dunham
co-founded Effective Management Systems, Inc. in 1978. Mr. Dunham is a director
of United Wisconsin Services, a health insurance concern, two private software
companies and a privately-held bank. Mr. Dunham is also a director of the
Milwaukee Metropolitan Association of Commerce and the Milwaukee Education
Trust, a non-profit organization for the enhancement of local primary and
secondary education. Mr. Dunham holds a B.S. in Electrical Engineering from the
University of Denver and a M.M.S. from the Stevens Institute of Technology.
Douglas S. Harrington, M.D., a Nominee for Director, has been Chief
Executive Officer of Chromavision, Inc. since December 1996. From 1995 through
1996, Dr. Harrington served as Chairman and President of Strategic Business
Solutions, Inc., a privately-held company specializing in the commercialization
of biotechnology, and as a Principal in Douglas S. Harrington and Associates, a
strategic consulting firm. From
41
<PAGE> 44
1992 to 1995, Dr. Harrington served as President of the Nichols Institute, a
healthcare laboratory services provider. Prior to 1992, Dr. Harrington held
various management positions within Nichols Institute including Vice President
of Operations and Medical Director. Dr. Harrington currently serves on the
boards, advisory boards, or scientific advisory boards of ten healthcare and
medical device companies. He is a director of Pacific Biometric, Inc., a
healthcare technology company. He is also an Associate Professor of Clinical and
Anatomic Pathology at the University of Nebraska Medical Center. Dr. Harrington
has over 18 years experience in the commercialization of healthcare technology
and has published over 80 peer-reviewed publications.
Kevin E. Moley, a Nominee for Director, has been the President and Chief
Executive Officer of Integrated Medical Systems, Inc. since 1995, where he has
also served as a director since 1994. From 1984 to 1989, Mr. Moley held
positions of increasing responsibility with the United States Department of
Health and Human Services. From 1989 through 1991, Mr. Moley served as Assistant
Secretary of the United States Department of Health and Human Services. From
1991 through 1993, Mr. Moley served as the Deputy Secretary of the United States
Department of Health and Human Services where he was responsible for day-to-day
operations of all of the agencies of the Department, including the FDA, Public
Health Service and the Center for Disease Control. Mr. Moley attended the School
of Foreign Service at Georgetown University.
BOARD COMMITTEES AND INSIDER PARTICIPATION IN COMPENSATION DECISIONS
In the past, the Board of Directors has operated without committees, other
than the Stock Option Committee. Immediately after the Offering, the Company
plans to establish the following committees: (i) a Compensation Committee,
consisting of at least two Directors, a majority of which shall be independent
Directors, to make recommendations concerning salaries, incentive compensation
and stock option grants for officers, employees and Directors of the Company;
(ii) an Audit Committee, consisting of at least two Directors, a majority of
which shall be independent, to review the results and scope of the Company's
audits and other services provided by the Company's independent auditors and to
approve the selection of the auditors; and (iii) a Nominating Committee,
consisting of at least two Directors, to nominate additional Directors.
EXECUTIVE COMPENSATION
Set forth below is information concerning the compensation for 1996 for the
Company's President and Chief Executive Officer, and each other executive
officer of the Company whose salary and bonus exceeded $100,000:
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
1996
ANNUAL COMPENSATION
-------------------
OPTIONS ALL OTHER
NAME AND PRINCIPAL POSITION SALARY GRANTED COMPENSATION
--------------------------- -------- ------- ------------
<S> <C> <C> <C>
William C. Mortimore, President and CEO.................. $130,101 67,721 $2,602(2)
Michael J. Franco, Chief Technical Officer............... 102,391 150,518(1) 2,048(2)
</TABLE>
- ---------------
(1) Includes 67,721 options granted as compensation and 82,797 options granted
pursuant to an employment agreement entered into in 1995 in connection with
the Company's purchase of SST.
(2) Represents the Company's contributions to its 401(k) plan for the benefit of
its employees.
42
<PAGE> 45
OPTION GRANTS IN 1996 FISCAL YEAR
<TABLE>
<CAPTION>
POTENTIAL REALIZED
VALUE AT ASSUMED
NUMBER OF % OF TOTAL ANNUAL RATES OF STOCK
SECURITIES OPTIONS PRICE APPRECIATION FOR
UNDERLYING GRANTED TO OPTION TERM(1)
OPTIONS EMPLOYEES IN EXERCISE EXPIRATION -----------------------
NAME GRANTED FISCAL YEAR PRICE DATE 5% 10%
---- ----------- ------------ -------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
William C. Mortimore............ 38,649 5% $1.48 09/28/2002 $ 76,525 $101,260
29,072 4% $1.48 11/29/2002 $ 57,563 $ 76,169
Michael J. Franco(2)............ 67,721 9% $1.48 06/01/2002 $134,088 $177,429
82,797 11% $1.48 11/29/2002 $163,938 $216,928
</TABLE>
- ---------------
(1) The dollar amounts under these columns are the result of calculations at the
5% and 10% rates of appreciation set by the SEC and therefore do not
necessarily predict the future appreciation, if any, of the Common Stock.
(2) Includes options to purchase 67,721 shares of Common Stock granted as
compensation and options to purchase 82,797 shares of Common Stock granted
pursuant to an employment agreement entered into in 1995 in connection with
the Company's purchase of SST.
EMPLOYMENT AGREEMENTS
The Company entered into an employment agreement dated as of September 1,
1997 with William C. Mortimore, which is in effect for an initial term of three
years, followed by one-year extensions unless terminated by either party, and
provides for the Company to pay Mr. Mortimore a minimum annual salary of
$160,000. The employment agreement requires Mr. Mortimore to devote his full
time and attention to the Company. The employment agreement also includes
confidentiality provisions, restricts Mr. Mortimore's ability to compete with
the Company for a period of two years after termination of his employment and
awards Mr. Mortimore three months' severance pay following termination of his
employment under certain conditions. Mr. Mortimore's employment agreement is
governed by the laws of the state of Wisconsin. Under Wisconsin law, a
non-compete clause in an employment agreement may be voided if the court
determines that the non-compete clause is unfairly restrictive.
DIRECTORS' COMPENSATION
Directors who are not employees of the Company receive $1,000 for each
Board meeting, and $500 for each committee meeting, which they attend in person,
and one-half of these amounts for meetings in which they participate by
telephone. Directors also are reimbursed for certain expenses incurred in
connection with attendance at Board meetings. The Board of Directors may, in its
discretion, alter this policy in the future. Each Director, other than any
Director who is also an employee of the Company, is entitled to receive options
to acquire 10,000 shares of the Common Stock at an exercise price of $7.50 per
share, the mid-point of the anticipated Offering price range. The Company has
agreed to grant each of the Nominees to the Board of Directors and Mr. Geras the
options described above, which will be issued pursuant to the Company's 1997
Stock Option Plan for Directors. The Company intends to adopt the 1997 Stock
Option Plan for Directors before the Offering is completed.
43
<PAGE> 46
CERTAIN TRANSACTIONS
On June 30, 1997, the Company borrowed $2,000,000 from Sirrom, a
third-party institutional "mezzanine" lender, pursuant to a note (the "Sirrom
Note") and related security agreement. The Sirrom Note requires payments of
interest only, computed at 13.5% per annum, payable monthly in arrears through
maturity (June 30, 2002). Approximately $1,007,000 of the proceeds of the Sirrom
Note were applied toward the repayment of the bank indebtedness and the balance
toward working capital. No principal payments are required prior to maturity.
Prepayment in whole or part is permitted without penalty. The Sirrom Note is
secured by a first lien on all of the Company's assets, subject to Sirrom's
agreement to subordinate its lien to a senior revolving credit facility in an
amount not to exceed $2,500,000 provided that initially permitted borrowings
under such facility may not exceed $1,500,000, subject to increase in such
permitted borrowings to (i) $2,000,000 in the event the Company achieves
earnings before deductions for interest, taxes, depreciation and amortization
("EBITDA") of $2,000,000 for fiscal 1997; and (ii) $2,500,000 in the event the
Company achieves EBITDA of $2,000,000 for fiscal 1997 and EBITDA of $1,250,000
for any six month period thereafter.
As a condition to issuance of the Sirrom Note, the Company issued the
Sirrom Warrant, which granted Sirrom the right to acquire for nominal
consideration a base amount of 145,256 shares of Common Stock. The base amount
of Common Stock purchasable under the Sirrom Warrant was determined through
arms-length negotiations between Sirrom and the Company. Under the terms of the
Sirrom Warrant, in the event the loan is outstanding in whole or in part on the
following dates, the base amount would be increased to the following: June 30,
2000 -- 203,754; June 30, 2001 -- 205,312; June 30, 2002 -- 206,923. The Sirrom
Warrant prohibits the sale of shares by the Company to third parties at below
fair market value without concomitant antidilution protection to Sirrom, but
expressly permits the issuance of up to 1,354,434 shares pursuant to the 1996
Employees' Stock Option Plan ("1996 Plan") at fair market value on the date of
the option grant provided that the Company does not grant options to purchase
more than 338,609 shares of Common Stock in any year.
The Sirrom Warrant grants Sirrom the right to attend (but not vote at)
Directors' meetings until such time as the Sirrom Note is paid in full. The
Sirrom Warrant grants Sirrom a put right for a period of 30 days immediately
prior to its expiration at "Fair Market Value," which is to be determined by
agreement of the parties or, in the absence of agreement, by two independent
appraisers. In valuing the Common Stock if the Company is publicly-traded, the
appraisers are to take into value the anticipated impact on the market if such
shares were all offered for sale. Sirrom has been granted piggyback registration
rights in connection with certain registered offerings of the Common Stock and
rights of co-sale to participate in sales of the Common Stock by Robert T. Geras
or William C. Mortimore.
By agreement dated October 30, 1997, the Company and Sirrom agreed that
upon the successful closing of an initial public offering of the Common Stock:
(i) the Sirrom Note would be paid in full; (ii) the Sirrom Warrant would be
exercised as to 75% (108,942) of the original number of shares issuable under
it; (iii) Sirrom will not offer, pledge, sell, contract to sell, grant any
option for the sale of, or otherwise dispose of, directly or indirectly, any
securities of the Company for a period of 180 days following the date of this
Prospectus without the prior written consent of the Representative; (iv)
Sirrom's right to purchase 25% (36,314) of the original number of shares
issuable under the Sirrom Warrant would be terminated; (v) the put option in
favor of Sirrom would be canceled; (vi) the Sirrom Termination Fee would be paid
to Sirrom; and (vii) the Company agreed to file a registration statement to
register shares issued to Sirrom pursuant to the Sirrom Warrant within 120 days
of the Closing of this Offering, provided in no event would such registration
statement be declared effective until at least 180 days following the initial
closing of an initial public offering of the Common Stock. The amount of the
Sirrom Termination Fee was determined through arm's length negotiations between
the Company and Sirrom based on factors including the Company's interest in
eliminating uncertainty with respect to its future equity-related liabilities
and Sirrom's interest in receiving cash in return for relinquishing its put
option.
On June 1, 1996 the Company entered into a three-year consulting agreement
with Robert T. Geras calling for the payment to Mr. Geras of: (i) $160,000 on
January 1, 1997 (the "$160,000 Obligation") in consideration of financial
consulting services provided by Mr. Geras to the Company through June 30, 1996;
44
<PAGE> 47
and (ii) the sum of $3,500 per month plus reimbursement for approved
out-of-pocket expenses. The terms of the three year consulting agreement are as
favorable to the Company as those generally available from unaffiliated third
parties. The consulting agreement was ratified by the two disinterested
independent directors then serving on the Company's Board of Directors. The
Company does not anticipate that, after the Offering is completed, it will
require the same type of financial consulting services that Mr. Geras previously
provided. Mr. Geras and the Company therefore have agreed to terminate this
consulting agreement effective upon the completion of the Offering.
In 1995, the Company issued 111,741 shares of Common Stock in a private
placement at $1.34 per share, for an aggregate consideration of $150,000. In
connection with this private placement, Mr. Geras, a Director of the Company,
and Warren B. Cozzens, a former Director, purchased 22,348 and 89,393 shares of
Common Stock, respectively. All Common Stock was paid for with cash.
In 1995 and 1996, the Company issued an aggregate of 1,229,148 shares of
Common Stock in a private placement at $1.48 per share. The Company received
consideration in connection with this private placement of $205,000 in fiscal
1995 and $1,610,000 in fiscal 1996. In connection with this private placement,
Mr. Geras, a Director of the Company, purchased 182,848 shares of Common Stock
at the same price offered to other investors. Warren B. Cozzens, a former
Director, also purchased 257,342 shares in this private offering. All Common
Stock was paid for with cash, except for (i) 47,405 shares purchased by Mr.
Geras with a $70,000 note bearing interest at 10% per annum, which note was paid
in full within two months; and (ii) 135,443 shares purchased by Mr. Geras with a
fully-secured, three-year, non-interest bearing $200,000 note. The Company
subsequently approached Mr. Geras with a proposal to off set the $200,000 note
against the $160,000 Obligation, based on its belief that the $200,000 note had
an approximately equal net present value to the $160,000 Obligation. Mr. Geras
agreed to such set-off in full satisfaction of the purchase price obligation for
the 135,443 shares.
Pursuant to a Stock Redemption Agreement between the Company and Alpha, a
third-party institutional investor, dated May 5, 1995, and amended March 1,
1997, the Company has the right to redeem up to 424,757 shares of Common Stock
held by Alpha through October, 1998. The call price ranges from $1.56 to $2.37
per share. The Company will use $780,249 of the net proceeds of this Offering to
redeem all such shares. These shares are also subject to put options through
October 1998 at prices ranging from $0.71 to $1.52 per share.
Effective May 1996, the Company discharged $463,352 owing to Alpha under
two subordinated notes by issuing 33,861 shares of Common Stock, and making a
cash payment of $375,000, to Alpha.
The notes were in the original principal amounts of $88,136 and $375,218,
required monthly payments, had no specified maturity date and bore interest at
an annual rate equal to the Prime rate plus 3% and the Prime rate plus 4%,
respectively. The interest rate, repayment schedule and other terms of these
notes were substantially identical to those in other subordinated notes issued
to unaffiliated third parties.
The Company also invested in a merger with Signal Stream Technologies
("SST"), a supplier of interface products to the diagnostic imaging industry, in
May 1995, in which Signal Stream, Incorporated ("SSI"), a wholly-owned
subsidiary of the Company formed to effect the acquisition of SST, acquired all
the outstanding shares of SST. The purchase price consisted of 357,875 shares of
Common Stock. In addition, $77,328 in acquisition expenses were incurred. The
acquisition was accounted for as a purchase. The purchase price, net of cash
acquired, was $55,000. All of the outstanding shares of SST were acquired by
SSI.
All material affiliated transactions and loans will be made or entered into
on terms that are no less favorable to the Company than those that can be
obtained from unaffiliated third parties. All material transactions and loans,
and any forgiveness of loans, must be approved by a majority of the Company's
independent directors who do not have an interest in the transactions and who
had access, at the Company's expense, to the Company's or independent legal
counsel.
45
<PAGE> 48
PRINCIPAL SHAREHOLDERS
The following table sets forth certain information regarding the beneficial
ownership of the Common Stock as of December 17, 1997 and as adjusted to reflect
the sale of the shares of Common Stock offered hereby, by (i) each person that
is known by the Company to beneficially own or exercise the voting or
dispositive control over 5% or more of the outstanding shares of Common Stock;
(ii) each Director and Nominee; and (iii) all Directors, Nominees and executive
officers of the Company as a group. Except as otherwise indicated in the
footnotes to the table, the persons named below have sole voting and investment
power with respect to the shares beneficially owned by such persons. In general,
a person is deemed to be a "beneficial owner" of a security if that person has
or shares the power to vote or direct the voting of such security, or the power
to dispose of or to direct the disposition of such security. A person is also
deemed to be a beneficial owner of any securities of which the person has the
right to acquire the beneficial ownership within 60 days. See "Certain
Transactions."
<TABLE>
<CAPTION>
SHARES BENEFICIALLY SHARES BENEFICIALLY
OWNED PRIOR TO OWNED AFTER
OFFERING(1) OFFERING(1)
-------------------- ----------------------
NAME NUMBER PERCENT NUMBER PERCENT
---- --------- ------- ----------- -------
<S> <C> <C> <C> <C>
Robert T. Geras........................................... 728,591(3) 17% 728,591(3) 12%
c/o Merge Technologies Incorporated
1126 South 70th Street, Suite S107B
Milwaukee, WI 53214-3151
William C. Mortimore...................................... 545,160(4) 13% 545,160(4) 9%
c/o Merge Technologies Incorporated
1126 South 70th Street, Suite S107B
Milwaukee, WI 53214-3151
Alpha Capital Venture Partners, Limited................... 546,067(2) 13% 121,309 2%
122 South Michigan Avenue, Suite 1700
Chicago, IL 60642
Michael J. Franco......................................... 225,737(5) 5% 225,737(5) 4%
c/o Merge Technologies Incorporated
1126 South 70th Street, Suite S107B
Milwaukee, WI 53214-3151
David B. Pivan............................................ 57,624 1% 57,624 (6)
1765 South Lane
Northbrook, IL 60062
Robert A. Barish, M.D. ................................... 0 (6) 0 (6)
c/o Merge Technologies Incorporated
1126 South 70th Street, Suite S107B
Milwaukee, WI 53214-3151
Dennis Brown.............................................. 0 (6) 0 (6)
c/o Merge Technologies Incorporated
1126 South 70th Street, Suite S107B
Milwaukee, WI 53214-3151
Michael D. Dunham......................................... 0 (6) 0 (6)
c/o Merge Technologies Incorporated
1126 South 70th Street, Suite S107B
Milwaukee, WI 53214-3151
Douglas S. Harrington, M.D. .............................. 0 (6) 0 (6)
c/o Merge Technologies Incorporated
1126 South 70th Street, Suite S107B
Milwaukee, WI 53214-3151
Kevin E. Moley............................................ 0 (6) 0 (6)
c/o Merge Technologies Incorporated
1126 South 70th Street, Suite S107B
Milwaukee, WI 53214-3151
All Directors, Nominees and Executive Officers as a Group
(13 persons)............................................ 1,785,672 41% 1,785,672 30%
</TABLE>
- ---------------
(1) Except pursuant to applicable marital property laws or as indicated in the
footnotes to this table, to the Company's knowledge, each shareholder
identified in the table possesses sole voting and investment power with
respect to all Common Stock shown as beneficially owned by such shareholder.
(2) A portion of the net proceeds received by the Company in this Offering will
be used to redeem 424,757 shares of Common Stock currently held by Alpha.
See "Use of Proceeds" and "Certain Transactions."
(3) Reflects 203,165 shares held by trusts for the benefit of Mr. Geras' adult
children, the beneficial ownership of which Mr. Geras disclaims.
(4) Includes vested options held by Mr. Mortimore to acquire 33,861 shares.
(5) Includes vested options held by Mr. Franco to acquire 116,657 shares.
(6) Less than 1%.
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<PAGE> 49
DESCRIPTION OF SECURITIES
The authorized capital stock of the Company consists of 10,000,000 shares
of Common Stock, par value $0.01 per share, and 5,000,000 shares of Preferred
Stock, par value $0.01 per share. As of the date of this Prospectus, there were
3,908,063 shares of Common Stock, beneficially held by 81 persons, and no shares
of Preferred Stock outstanding.
The following description of the capital stock of the Company is a summary
and is qualified in its entirety by the provisions of the Company's Articles of
Incorporation (the "Articles") and By-Laws, copies of which are filed as
exhibits to the Registration Statement of which this Prospectus forms a part.
COMMON STOCK
Holders of Common Stock are entitled to one vote per share of Common Stock
beneficially owned on each matter submitted to a vote at a meeting of
shareholders, subject to Section 180.1150 of the WBCL (described below under
"Certain Statutory and Other Provisions"). The Common Stock does not have
cumulative voting rights, which means that the holders of a majority of voting
shares voting for the election of Directors can elect all of the members of the
Board of Directors. The Common Stock has no preemptive rights and no redemption
or conversion privileges. Subject to any preferences of any outstanding
Preferred Stock, the holders of Common Stock are entitled to receive dividends
out of assets legally available at such times and in such amounts as the Board
of Directors may, from time to time, determine, and upon liquidation and
dissolution are entitled to receive all assets available for distribution to the
shareholders. The Company's Articles state that a majority vote of shares
represented at a meeting at which a quorum is present is sufficient for all
actions that require the vote of shareholders. However, under the WBCL, certain
actions require enhanced approval by either a supermajority of two-thirds of all
outstanding shares entitled to vote and certain actions require a majority of
all outstanding shares entitled to vote. See "Certain Statutory and Other
Provisions." All of the outstanding shares of the Common Stock are, and the
shares to be sold by the Company as part of the Offering when legally issued and
paid for will be, fully paid and nonassessable, except for certain statutory
liabilities which may be imposed by Section 180.0622(2)(b) of the WBCL for
unpaid employee wages.
PREFERRED STOCK
Pursuant to the Articles, the Company's Board of Directors may, without
further action by the Company's shareholders, from time to time, issue shares of
the Preferred Stock in series and may, at the time of issuance, determine the
rights, preferences, and limitations of each series. Any dividend preference of
any Preferred Stock which may be issued would reduce the amount of funds
available for the payment of dividends on Common Stock. Also, holders of the
Preferred Stock would normally be entitled to receive a preference payment in
the event of any liquidation, dissolution, or winding-up of the Company before
any payment is made to the holders of Common Stock. The issuance of preferred
stock will be approved by a majority of the Company's independent directors who
do not have an interest in the transaction and who have access, at the Company's
expense, to the Company's or independent legal counsel. Under certain
circumstances, the issuance of such Preferred Stock may discourage bids for the
Common Stock at a premium or otherwise adversely affect the market price of the
Common Stock or may render more difficult or tend to discourage a merger, tender
offer, proxy contest, the assumption of control by a holder of a large block of
the Company's securities or the removal of incumbent management. Although the
Company presently has no plans to issue any of its shares of the Preferred
Stock, the Board of Directors of the Company, without shareholder approval, may
issue the Preferred Stock with voting and conversion rights which could
adversely affect the holders of Common Stock.
LIMITATION OF DIRECTOR LIABILITY
Section 180.0828 of the WBCL provides that officers and directors of
domestic corporations may be personally liable only for intentional breaches of
fiduciary duties, criminal acts, transactions from which the director derived an
improper personal profit and wilful misconduct. These provisions may have the
effect of
47
<PAGE> 50
reducing the likelihood of derivative litigation against directors and may
discourage or deter shareholders or management from bringing a lawsuit against
directors for breach of their duty of care, even thought such an action, if
successful, might otherwise have benefitted the Company and its shareholders.
The employment agreements of certain directors and officers contain a provision
similar to the provisions of the WBCL.
INDEMNIFICATION
Under the WBCL, directors and officers of the Company are entitled to
mandatory indemnification from the Company against certain liabilities and
expenses (a) to the extent such officers or directors are successful in the
defense of a proceeding and (b) in proceedings in which the director or officer
is not successful in the defense thereof, unless (in the latter case only) it is
determined that the director or officer breached or failed to perform his or her
duties to the Company and such breach or failure constituted: (i) a wilful
failure to deal fairly with the Company or its shareholders in connection with a
matter in which the director or officer had a material conflict of interest;
(ii) a violation of the criminal law unless the director or officer had
reasonable cause to believe his or her conduct was lawful or had no reasonable
cause to believe his or her conduct was unlawful; (iii) a transaction from which
the director or officer derived an improper personal profit; or (iv) wilful
misconduct. The WBCL allows a corporation to limit its obligation to indemnify
officers and directors by providing so in its articles of incorporation. The
Company's By-Laws provide for indemnification of directors and officers to the
fullest extent permitted by Wisconsin law.
CERTAIN STATUTORY AND OTHER PROVISIONS
The provisions of the Company's By-Laws and the WBCL described in this
section may delay or make more difficult acquisitions or changes of control of
the Company not approved by the Company's Board of Directors. Such provisions
have been implemented to enable the Company, particularly (but not exclusively)
in the initial years of its existence as a publicly-traded company, to develop
its business in a manner which will foster its long-term growth without
disruption caused by the threat of a takeover not deemed by its Board of
Directors to be in the best interests of the Company and its shareholders. Such
provisions could have the effect of discouraging third parties from making
proposals involving an acquisition or change of control of the Company, although
such proposals, if made, might be considered desirable by a majority of the
Company's shareholders. Such provisions may also have the effect of making it
more difficult for third parties to cause the replacement of the current
management of the Company without the concurrence of the Board of Directors.
Number of Directors; Removal; Vacancies. The By-Laws currently provide that
the number of Directors shall be five. The authorized number of Directors may be
changed by amendment of the By-Laws. The Company expects that the By-Laws will
be amended before the Nominees are elected to the Board of Directors to provide
that the number of Directors shall be not less than three nor greater than
eleven. The By-Laws also provide that the Company's Board of Directors shall
have the exclusive right to fill vacancies on the Board of Directors, including
vacancies created by expansion of the Board or removal of a Director, and that
any Director elected to fill a vacancy shall serve until the next annual meeting
of shareholders. The By-Laws further provide that Directors may be removed by
the shareholders only by the affirmative vote of the holders of at least a
majority of the votes then entitled to be cast in an election of Directors. This
provision, in conjunction with the provisions of the By-Laws authorizing the
Board to fill vacant Directorships, could prevent shareholders from removing
incumbent Directors and filling the resulting vacancies with their own nominees.
Amendments to the Articles of Incorporation. The WBCL provides authority to
the Company to amend its Articles at any time to add or change a provision that
is required or permitted to be included in the Articles or to delete a provision
that is not required to be included in the Articles. The Company's Board of
Directors may propose one or more amendments to the Company's Articles for
submission to shareholders and may condition its submission of the proposed
amendment on any basis if the Board of Directors notifies each shareholder,
whether or not entitled to vote, of the shareholders' meeting at which the
proposed amendment will be voted upon.
48
<PAGE> 51
Constituency or Stakeholder Provision. Under Section 180.0827 of the WBCL
(the "Wisconsin Stakeholder Provision"), in discharging his or her duties to the
Company and in determining what he or she believes to be in the best interests
of the Company, a director or officer may, in addition to considering the
effects of any action on shareholders, consider the effects of the action on
employees, suppliers, customers, the communities in which the Company operates
and any other factors that the director or officer considers pertinent.
Wisconsin Antitakeover Statutes. Sections 180.1140 to 180.1144 of the WBCL
(the "Wisconsin Business Combination Statute") regulate the broad range of
"business combinations" between a "resident domestic corporation" (such as the
Company) and an "interested stockholder." The Wisconsin Business Combination
Statute define a "business combination" to include a merger or share exchange,
or a sale, lease, exchange, mortgage, pledge, transfer or other disposition of
assets equal to at least 5% of the market value of the stock or assets of the
corporation or 10% of its earning power, or the issuance of stock or rights to
purchase stock with a market value equal to at least 5% of the outstanding
stock, the adoption of a plan of liquidation or dissolution and certain other
transactions involving an "interested stockholder," defined as a person who
beneficially owns 10% of the voting power of the outstanding voting stock of the
corporation or who is an affiliate or associate of the corporation and
beneficially owned 10% of the voting power of the then outstanding voting stock
within the last three years. Section 180.1141 of the Wisconsin Business
Combination Statute prohibits a corporation from engaging in a business
combination (other than a business combination of a type specifically excluded
from the coverage of the statute) with an interested stockholder for a period of
three years following the date such person becomes an interested stockholder,
unless the board of directors approved the business combination or the
acquisition of the stock that resulted in a person becoming an interested
stockholder before such acquisition. Accordingly, the Wisconsin Business
Combination Statute's prohibition on business combinations cannot be avoided
during the three-year period by subsequent action of the board of directors or
shareholders. Business combinations after the three-year period following the
stock acquisition date are permitted only if (i) the board of directors approved
the acquisition of the stock by the interested stockholder prior to the
acquisition date, (ii) the business combination is approved by a majority of the
outstanding voting stock not beneficially owned by the interested stockholder,
or (iii) the consideration to be received by shareholders meets certain
requirements of the statute with respect to form and amount.
In addition, the WBCL provides in Sections 180.1130 to 180.1133, that
business combinations involving a "significant shareholder" (as defined below)
and a "resident domestic corporation" (such as the Company) are subject to a
two-thirds supermajority vote of shareholders (the "Wisconsin Fair Price
Statute"), in addition to any approval otherwise required. A "significant
shareholder," with respect to a resident domestic corporation, is defined as a
person who beneficially owns, directly or indirectly, 10% or more of the voting
stock of the corporation, or an affiliate of the corporation which beneficially
owned, directly or indirectly, 10% or more of the voting stock of the
corporation within the last two years. It is anticipated that after completion
of the Offering, the Company will be an "issuing public corporation." Under the
WBCL, the business combinations described above must be approved by 80% of the
voting power of the corporation's stock and at least two-thirds of the voting
power of the corporation's stock not beneficially held by the significant
shareholder who is party to the relevant transaction or any of its affiliates or
associates, in each case voting together as a single group, unless the following
fair price standards have been met: (i) the aggregate value of the per share
consideration is equal to the higher of (a) the highest price paid for any
common stock of the corporation by the significant shareholder in the
transaction in which it became a significant shareholder of within two years
before the date of the business combination, (b) the market value of the
corporation's shares on the date of commencement of any tender offer by the
significant shareholder, the date on which the person became a significant
shareholder or the date of the first public announcement of the proposed
business combination, whichever is highest, or (c) the highest liquidation or
dissolution distribution to which holders of the shares would be entitled, and
(ii) either cash, or the form of consideration used by the significant
shareholder to acquire the largest number of shares, is offered.
Section 180.1134 of the WBCL (the "Wisconsin Defensive Action
Restrictions") provides that, in addition to the vote otherwise required by law
or the articles of incorporation of an issuing public corporation, the approval
of the holders of a majority of the shares entitled to vote is required before
such corporation can
49
<PAGE> 52
take certain action while a takeover offer is being made or after a takeover
offer has been publicly announced and before it is concluded. Under the
Wisconsin Defensive Action Restrictions, shareholder approval is required for
the corporation to (i) acquire more than 5% of the outstanding voting shares at
a price above the market price from any individual who or organization which
owns more than 3% of the outstanding voting shares and has held such shares for
less than two years, unless a similar offer is made to acquire all voting
shares, or (ii) sell or option assets of the corporation which amount to at
least 10% of the market value of the corporation, unless the corporation has at
least three independent directors (directors who are not officers or employees)
and a majority of the independent directors vote not to have this provision
apply to the corporation. The restrictions described in clause (i) above may
have the effect of deterring a shareholder from acquiring shares of the Common
Stock with the goal of seeking to have the Company repurchase such shares at a
premium over the market price.
Section 180.1150 of the WBCL provides that the voting power of shares of
public Wisconsin corporations such as the Company held by any person or persons
acting as a group in excess of 20% of the voting power in the election of
directors is limited to 10% of the full voting power of those shares. This
statutory voting restriction does not apply to shares acquired directly from the
Company or in certain specified transactions or shares for which full voting
power has been restored pursuant to a vote of shareholders.
Certain Antitakeover Effects. Certain provision of the Company's Articles
and By-Laws may have significant antitakeover effects, including the inability
of the shareholders to remove directors without cause, the ability of the
remaining directors to fill vacancies, and the ability of the Board of Directors
to issue "blank check" preferred stock which, in turn, allows the directors to
adopt a so-called "rights plan" which would entitle shareholders (other than a
hostile bidder) to acquire stock of the Company at a discount.
The explicit grant in the Wisconsin Stakeholder Provision of discretion to
directors to consider nonshareholder constituencies could, in the context of an
"auction" of the Company, have antitakeover effects in situations where the
interests of stakeholders of the Company, including employees, suppliers,
customers and communities in which the Company does business, conflict with the
short-term maximization of shareholder value.
The Wisconsin Fair Price Statute may discourage any attempt by a
shareholder to squeeze out other shareholders without offering an appropriate
premium purchase price. In addition, the Wisconsin Defensive Action Restrictions
may have the effect of deterring a shareholder from acquiring the Common Stock
with the goal of seeking to have the Company repurchase the Common Stock at a
premium. The WBCL statutory provisions and the Company's Articles and By-Law
provisions referenced above are intended to encourage persons seeking to acquire
control of the Company to initiate such an acquisition through arms-length
negotiations with the Company's Board of Directors, and to ensure that
sufficient time for consideration of such a proposal, and any alternatives, is
available. Such measures are also designed to discourage investors from
attempting to accumulate a significant minority position in the Company and then
use the threat of a proxy contest as a means to pressure the Company to
repurchase shares of Common Stock at a premium over the market value. To the
extent that such measures make it more difficult for, or discourage, a proxy
contest or the assumption of control by a holder of a substantial block of the
Common Stock, they could increase the likelihood that incumbent Directors will
retain their positions, and may also have the effect of discouraging a tender
offer or other attempt to obtain control of the Company, even though such
attempt might be beneficial to the Company and its shareholders.
TRANSFER AGENT AND REGISTRAR
Firstar Trust Company will be the Transfer Agent and Registrar for the
Common Stock.
50
<PAGE> 53
SHARES ELIGIBLE FOR FUTURE SALE
Upon completion of this Offering, the Company will have outstanding
5,492,248 shares of Common Stock assuming that the Underwriters do not exercise
their over-allotment option. After this Offering, the 1,900,000 shares of Common
Stock sold in this Offering and any shares issued in the event that the
Underwriters' over-allotment option to purchase up to 285,000 shares is
exercised, will be freely tradeable without restriction or further registration
under the Securities Act, except for any shares purchased by an "affiliate" of
the Company, which will be subject to the limitations imposed on "affiliates" of
the Company under Rule 144 promulgated under the Securities Act ("Rule 144").
The remaining 3,592,248 outstanding shares of Common Stock, are "restricted
securities" within the meaning of Rule 144 and may not be resold except pursuant
to a registration statement effective under the Securities Act or pursuant to an
exemption therefrom, including the exemption provided by Rule 144.
In general, under Rule 144, a person (or persons whose shares are
aggregated) who has satisfied a one-year holding period may, subject to certain
restrictions, sell within any three-month period a number of shares which does
not exceed the greater of: (i) 1% of the then outstanding shares of Common
Stock; or (ii) the average weekly trading volume during the four calendar weeks
preceding the date on which notice of the sale is filed with the Commission as
required by Rule 144. Rule 144 also permits the sale of shares without any
volume limitation by a person who is not an affiliate of the Company and who has
satisfied a two-year holding period. The one-year holding period with respect to
outstanding shares of Common Stock has expired. The one-year holding period with
respect to 6,122 shares of Common Stock will expire on May 28, 1998 and with
respect to 5,079 shares will expire on August 28, 1998.
Shareholders holding approximately 99% of the Company's outstanding Common
Stock and outstanding options have agreed not to offer, pledge, sell, contract
to sell, grant any option for the sale of, or otherwise dispose of, directly or
indirectly, any securities of the Company they currently hold, without the prior
written consent of the Underwriter for the following periods: (i) shareholders
holding approximately 94% of the Company's outstanding Common Stock have agreed
to such restrictions with respect to all of their current stockholdings, and
shares they may obtain by exercising options currently held by them, for a
period of 275 days following the date of this Prospectus and, with respect to
50% of their current stockholdings, and shares they may obtain by exercising
options currently held by them, for a period of 455 days following the date of
this Prospectus; and (ii) Sirrom and Alpha, who hold in the aggregate
approximately 5% of the Company's outstanding Common Stock, have agreed to such
restrictions with respect to all of their current stockholdings for a period of
180 days following the date of this Prospectus. See "Underwriting."
On the closing of the Offering, the Company will sell to the
Representative, individually and not as representative of the Underwriters, for
nominal consideration, the Representative's Warrants entitling the
Representative to purchase an aggregate of 190,000 shares of Common Stock
(218,500 shares of Common Stock if the over-allotment option is exercised in
full) at an initial exercise price per share equal to 120% of the initial public
offering price hereunder. The Representative's Warrants will be exercisable for
a period of four years commencing one year after the effective date of this
Offering and will contain certain demand and incidental registration rights
relating to the underlying Common Stock. The holders of the Representative's
Warrants may sell shares of Common Stock acquired by exercise of the
Representative's Warrants one year from the date of exercise thereof without
registration subject to the limitations of Rule 144. See "Underwriting."
Prior to this Offering, there has been no market for the Common Stock. No
predictions can be made as to the effect, if any, that sales of shares of Common
Stock under Rule 144 will have on the market price of the Common Stock; sales of
Common Stock under Rule 144 in the public market could adversely affect the
market price of the Common Stock or the ability of the Company to raise money
through a public offering of its equity securities. See "Risk
Factors -- Potential Adverse Impact on Market Price of Shares Eligible for
Future Sale and Registration Rights."
51
<PAGE> 54
UNDERWRITING
Subject to the terms and conditions contained in an underwriting agreement
(the "Underwriting Agreement"), the Company has agreed to sell to each of the
Underwriters named below (the "Underwriters"), for whom H.C. Wainwright & Co.,
Inc. is acting as Representative, and each of the Underwriters has severally
agreed to purchase from the Company, the respective number of shares of Common
Stock set forth opposite its name below at the initial public offering price
less the underwriting discount set forth on the cover page of this Prospectus.
The Underwriting Agreement provides that, subject to the terms and conditions
set forth therein, the Underwriters are obligated to purchase all of the shares
of Common Stock being sold pursuant to the Underwriting Agreement if any of the
shares of Common Stock are purchased. Under certain circumstances, under the
Underwriting Agreement, the commitments of non-defaulting Underwriters may be
increased.
<TABLE>
<CAPTION>
NUMBER OF
UNDERWRITER SHARES
----------- ---------
<S> <C>
H.C. Wainwright & Co., Inc. ................................
Total............................................. 1,900,000
</TABLE>
The Representative has advised the Company that the Underwriters propose
initially to offer the Common Stock to the public at the public offering price
set forth on the cover page of this Prospectus, and to certain dealers at such
price less a concession not in excess of $ per share. The Underwriters may
allow, and such dealers may reallow, a discount not in excess of $ per share of
Common Stock on sales to certain other dealers. After the initial public
offering, but not before, the public offering price, concession and discount may
be changed.
The Company has granted the Underwriters an option to purchase up to an
additional 285,000 shares of Common Stock at the initial public offering price
set forth on the cover page of this Prospectus, less the underwriting discount.
Such option, which will expire 30 days after the date of this Prospectus, and
may be exercised solely to cover over-allotments, if any, made in connection
with the sale of Common Stock offered hereby. To the extent that this option is
exercised, each of the Underwriters will have a firm commitment, subject to
certain conditions, to purchase approximately the same percentage thereof which
the number of shares of Common Stock to be purchased initially by that
Underwriter bears to the total number of shares of Common Stock to be purchased
initially by the Underwriters. If purchased, the Underwriters will offer such
additional shares on the same terms as those on which the 1,900,000 shares of
Common Stock are being offered hereby.
The Company has agreed to pay the Representative a non-accountable expense
allowance of three percent (3%) of the gross proceeds of the Offering, which
will include proceeds from the over-allotment option, if exercised. The
Representative's expenses in excess of the non-accountable expense allowance,
including its legal expenses, will be borne by the Representative.
At the request of the Company, the Underwriters have reserved up to 5% of
the shares of Common Stock offered hereby for sale to certain Directors,
officers, employees and certain other persons having business relationships with
the Company, who have expressed an interest in purchasing shares of Common Stock
in this Offering. The price for such reserved shares will be the public offering
price. The number of shares available to the general public will be reduced to
the extent such persons purchase the reserved shares. Any reserved shares that
are not so purchased by such persons at the initial closing of this Offering
will be sold by the Underwriters to the general public on the same terms as the
other shares of Common Stock offered hereby.
On the closing of the Offering, the Company will sell to the
Representative, individually and not as representative of the Underwriters, for
nominal consideration, the Representative's Warrants entitling the
Representative to purchase an aggregate of 190,000 shares of Common Stock
(218,500 shares of Common Stock if the over-allotment option is exercised in
full) at an initial exercise price per share equal to 120% of the initial public
offering price hereunder. The Representative's Warrants will be exercisable for
a period of four years commencing with the first anniversary of the effective
date of this Offering and will contain certain
52
<PAGE> 55
demand and incidental registration rights relating to the underlying Common
Stock, requiring the Company to file, at any time after one year after the
Offering date upon written request by the Representative, a registration
statement with the Securities and Exchange Commission for the shares of Common
Stock represented by the Representative's Warrants, and granting "piggyback"
registration rights to the Representative's Warrants for a period beginning one
year from the Offering date and ending seven years from the Offering date. The
Representative's Warrants cannot be transferred, assigned or hypothecated, in
whole or in part, for a period of twelve months from the date of their issuance,
except to any officer or partner of the Representative. The Representative's
Warrants will contain anti-dilution provisions providing for appropriate
adjustment of the exercise price and the number of shares issuable upon exercise
thereof upon the occurrence of certain events.
For the life of the Representative's Warrants, their holders have, at
nominal cost, the opportunity to profit from a rise in the market price for the
Common Stock without assuming the risk of ownership, with a resulting dilution
in the interest of other security holders. As long as the Representative's
Warrants remain unexercised, the terms under which the Company could obtain
additional capital may be adversely affected. Moreover, the holders of the
Representative's Warrants might be expected to exercise them at a time when the
Company would, in all likelihood, be able to obtain any needed capital by a new
offering of its securities on terms more favorable than those provided by the
Representative's Warrants. Additionally, if the Representative should exercise
its registration rights to effect a distribution of the underlying shares of
Common Stock, the Representative, prior to and during such distribution, would
be unable to make a market in the Common Stock. If the Representative must cease
making a market, the market and market price for the Common Stock may be
adversely affected and holders of the Common Stock may be unable to sell the
Common Stock.
The Company has granted H.C. Wainwright & Co., Inc. the right to act as the
Company's financial advisor on an exclusive basis until September 3, 2000 with
respect to any sale or disposition of the Company or any of its assets or the
acquisition by the Company of any securities or assets of any other business
entity. Until September 3, 2000, the Company has also granted H.C. Wainwright &
Co., Inc. the right to act as a lead underwriter with respect to any sales of
equity securities by the Company. In addition, the Company has granted to H.C.
Wainwright & Co., Inc. the right to nominate one Director to the Company's Board
of Directors. H.C. Wainwright & Co., Inc. nominated Robert A. Barish, M.D. as an
independent Director.
The Company has, subject to certain exceptions with respect to employee and
Director stock options, agreed not to, directly or indirectly, sell, offer to
sell, grant any option to purchase, or otherwise dispose of, any Common Stock,
or any security convertible or exchangeable into, or exercisable for, such
Common Stock or file any registration statement with respect to any of the
foregoing, for a period of 455 days after the effective date of this Offering,
without the prior written consent of the Underwriters.
Shareholders holding approximately 99% of the Company's outstanding Common
Stock and outstanding options have agreed not to offer, pledge, sell, contract
to sell, grant any option for the sale of, or otherwise dispose of, directly or
indirectly, any securities of the Company they currently hold, without the prior
written consent of the Underwriter for the following periods: (i) shareholders
holding approximately 94% of the Company's outstanding Common Stock have agreed
to such restrictions with respect to all of their current stockholdings, and
shares they may obtain by exercising options currently held by them, for a
period of 275 days following the date of this Prospectus and, with respect to
50% of their current stockholdings, and shares they may obtain by exercising
options currently held by them, for a period of 455 days following the date of
this Prospectus; and (ii) Sirrom and Alpha, who hold in the aggregate
approximately 5% of the Company's outstanding Common Stock, have agreed to such
restrictions with respect to all of their current stockholdings for a period of
180 days following the date of this Prospectus. See "Underwriting."
The Representative has advised the Company that the Underwriters do not
intend to confirm sales of Common Stock offered hereby to any accounts over
which they exercise discretionary authority.
Prior to the Offering, there has been no public market for the Common
Stock. The initial public offering price of the Common Stock was determined by
negotiations among the Company and the Underwriters. Among the factors
considered in such negotiations, in addition to prevailing market conditions,
were certain financial information of the Company, an assessment of the
Company's management, estimates of the business potential and earnings prospects
of the Company, the present state of the Company's development
53
<PAGE> 56
and operations, the present state of the Company's industry in general and other
factors deemed relevant. The initial public offering price set forth on the
cover page of this Prospectus should not, however, be considered an indication
of the actual value of the Common Stock. Such price is subject to change as a
result of market conditions and other factors. There can be no assurance that an
active trading market will develop for the Common Stock or that the Common Stock
will trade in the public market subsequent to the Offering at or above the
initial public offering price.
In connection with the Offering, the Underwriters and certain selling group
members may engage in stabilizing, syndicate short covering transactions or
other transactions that stabilize, maintain or otherwise affect the market price
of the Common Stock. Stabilizing transactions may consist of initiating bids or
effecting purchases on the Nasdaq SmallCap Market for the purpose of preventing
or retarding a decline in the market price of the Common Stock. Bids or
purchases effected by the Underwriters or selling group members for such
purposes may be instituted at prices no higher than the initial public offering
price or the most recent independent bid, whichever is less. Such transactions
may stabilize the market price of the Common Stock at a level above that which
might otherwise prevail and, if commenced, may be discontinued at any time.
The Company has applied to include its Common Stock for quotation on the
Nasdaq SmallCap Market under the symbol MRGE.
The Company has agreed to indemnify the Underwriters against certain
liabilities, including certain liabilities under the Securities Act, or
contribute to payments the Underwriters may be required to make in respect
thereof.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby will be passed
upon for the Company by Foley & Lardner, Milwaukee, Wisconsin. Certain legal
matters will be passed upon for the Company by Shefsky & Froelich Ltd., Chicago,
Illinois. Certain legal matters will be passed upon for the Underwriters by
Venable, Baetjer and Howard, LLP, Baltimore, Maryland. As of the date of this
Prospectus, a member of Shefsky & Froelich Ltd. beneficially owns 40,247 shares
of Common Stock and three members of Foley & Lardner beneficially own an
aggregate of 53,365 shares of Common Stock.
EXPERTS
The consolidated balance sheets of the Company as of December 31, 1996 and
1995, and the consolidated statements of operations, shareholders' equity and
cash flows for each of the years in the three years ended December 31, 1996,
have been included herein and in the Registration Statement in reliance upon the
report of KPMG Peat Marwick LLP, independent certified public accountants,
appearing elsewhere herein, and upon the authority of said firm as experts in
accounting and auditing.
ADDITIONAL INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission"), a Registration Statement (of which this Prospectus is a part)
(File No. 333-39111) (the "Registration Statement") under the Securities Act of
1933, as amended (the "Securities Act"), with respect to the securities offered
hereby. This Prospectus does not contain all of the information set forth in the
Registration Statement, certain portions of which have been omitted as permitted
by the rules and regulations of the Commission. Statements contained in this
Prospectus as to the content of any contract or other document are not
necessarily complete, and in each instance reference is made to a copy of such
contract or other document filed as an exhibit to the Registration Statement or
otherwise filed with the Commission, each such statement being qualified in all
respects by such reference. For further information, reference is hereby made to
the Registration Statement and to the schedules and exhibits thereto, which can
be inspected and copied at the public reference facilities of the Commission at
its principal office at Judiciary Plaza, 450 Fifth Street, N.W.,
54
<PAGE> 57
Room 1024, Washington, D.C. 20549, and at the Commission's regional offices at
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661,
and at 7 World Trade Center, Suite 1300, New York, New York 10048. Copies of
each such document may be obtained at prescribed rates from the Public Reference
Section of the Commission at its principal office at Judiciary Plaza, 450 Fifth
Street, N.W., Room 1024, Washington, D.C. 20549. In addition, such material can
also be obtained from the Commission's Web site at http://www.sec.gov.
---------------------
Following this Offering, the Company will be subject to the reporting and
other requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and intends to furnish to its shareholders annual reports
containing audited financial statements and quarterly reports for the first
three quarters of each fiscal year containing unaudited financial statements.
55
<PAGE> 58
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<S> <C>
MERGE TECHNOLOGIES INCORPORATED
Independent Auditors' Report................................ F-2
Consolidated Balance Sheets as of December 31, 1995 and 1996
and September 30, 1997 (unaudited)........................ F-3
Consolidated Statements of Operations for the years ended
December 31, 1994, 1995 and 1996 and the nine months ended
September 30, 1996 and 1997 (unaudited)................... F-4
Consolidated Statements of Shareholders' Equity for the
years ended December 31, 1994, 1995 and 1996 and the nine
months ended September 30, 1996 and 1997 (unaudited)...... F-5
Consolidated Statements of Cash Flows for the years ended
December 31, 1994, 1995 and 1996 and the nine months ended
September 30, 1996 and 1997 (unaudited)................... F-6
Notes to Consolidated Financial Statements.................. F-7
</TABLE>
F-1
<PAGE> 59
INDEPENDENT AUDITORS' REPORT
Board of Directors
Merge Technologies Incorporated:
We have audited the accompanying consolidated balance sheets of Merge
Technologies Incorporated and subsidiary (Company) as of December 31, 1995 and
1996, and the related consolidated statements of operations, shareholders'
equity, and cash flows for each of the years in the three-year period ending
December 31, 1996. These consolidated financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these consolidated financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audits to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of the Company
as of December 31, 1995 and 1996, and the results of their operations and their
cash flows for each of the years in the three-year period ended December 31,
1996, in conformity with generally accepted accounting principles.
Chicago, Illinois
March 21, 1997, except as to notes 4 (a) and 4 (d), and note 1 (q),
which are as of June 30, 1997 and September 26, 1997, respectively
/s/ KPMG Peat Marwick, LLP
F-2
<PAGE> 60
MERGE TECHNOLOGIES INCORPORATED AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
ASSETS
DECEMBER 31,
------------------------ SEPTEMBER 30,
1995 1996 1997
---------- ---------- -------------
(UNAUDITED)
<S> <C> <C> <C>
Current assets:
Cash and cash equivalents................................. $ 148,336 $ 287,098 $ 655,404
Accounts receivable, net of allowance for doubtful
accounts of $40,000 and $77,000 at December 31, 1995 and
1996, respectively, and $71,000 at September 30, 1997... 787,944 1,500,233 1,518,855
Inventory................................................. 248,985 404,493 749,456
Prepaid expenses and other current assets................. 18,296 24,252 155,521
---------- ---------- ----------
Total current assets........................................ 1,203,561 2,216,076 3,079,236
---------- ---------- ----------
Property and equipment:
Computer equipment........................................ 661,299 876,328 1,138,837
Office equipment.......................................... 87,730 208,772 238,196
---------- ---------- ----------
749,029 1,085,100 1,377,033
Less accumulated depreciation............................. 234,063 401,176 564,234
---------- ---------- ----------
Net property and equipment.................................. 514,966 683,924 812,799
License agreement, net of accumulated amortization of $-- at
December 31, 1995 and 1996 and $55,167 at September 30,
1997...................................................... -- 288,100 232,933
Purchased and developed software, net of accumulated
amortization of $724,128 and $1,175,185 at December 31,
1995 and 1996, respectively, and $1,566,795 at September
30, 1997.................................................. 1,830,095 2,143,044 2,495,386
Other intangibles, net of accumulated amortization of $3,959
and $9,874 at December 31, 1995 and 1996, respectively,
and $14,329 at September 30, 1997......................... 55,428 49,513 45,058
Deferred financing fees, net of accumulated amortization of
$-- at December 31, 1995 and 1996 and $31,685 at September
30, 1997.................................................. -- -- 31,686
Other....................................................... -- 13,008 13,008
---------- ---------- ----------
$3,604,050 $5,393,665 $6,710,106
========== ========== ==========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Note payable to bank...................................... $ 250,000 $ 753,000 $ --
Subordinated notes payable to shareholders................ 686,064 -- --
Current portion of obligations under capital leases....... 29,884 55,959 34,908
Accounts payable.......................................... 925,492 1,530,130 675,196
Customer deposits......................................... 194,415 5,294 64,652
Accrued wages, vacation and related payroll taxes......... 184,916 191,221 209,474
Accrued interest.......................................... 152,045 16,509 22,500
Other accrued liabilities................................. 23,711 101,710 115,250
---------- ---------- ----------
Total current liabilities................................... 2,446,527 2,653,823 1,121,980
---------- ---------- ----------
Note payable, net of discount............................... -- -- 1,337,001
Obligations under capital leases, excluding current
portion................................................... 49,722 16,425 31,378
Put options related to redeemable common stock and stock
warrants.................................................. 233,108 288,730 1,468,884
---------- ---------- ----------
Total liabilities........................................... 2,729,357 2,958,978 3,959,243
---------- ---------- ----------
Shareholders' equity:
Preferred stock, $0.01 par value; Authorized 5,000,000, no
shares issued and outstanding........................... -- -- --
Common stock, $0.01 par value; Authorized 10,000,000,
issued and outstanding 2,580,914 and 3,896,861 shares at
December 31 1995 and 1996, respectively, and 3,908,063
shares at September 30, 1997............................ 25,810 38,969 39,081
Additional paid-in capital................................ 1,194,806 2,854,107 2,771,853
Accumulated deficit....................................... (345,923) (459,602) (102,604)
Cumulative translation adjustment......................... -- 1,213 42,533
---------- ---------- ----------
Total shareholders' equity.................................. 874,693 2,434,687 2,750,863
---------- ---------- ----------
$3,604,050 $5,393,665 $6,710,106
========== ========== ==========
</TABLE>
See accompanying notes to consolidated financial statements.
F-3
<PAGE> 61
MERGE TECHNOLOGIES INCORPORATED AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF OPERATIONS
YEARS ENDED DECEMBER 31, 1994, 1995 AND 1996, AND
NINE MONTHS ENDED SEPTEMBER 30, 1996 AND 1997 (UNAUDITED)
<TABLE>
<CAPTION>
YEARS ENDED NINE MONTHS ENDED
DECEMBER 31, SEPTEMBER 30,
------------------------------------ -----------------------
1994 1995 1996 1996 1997
---------- ---------- ---------- ---------- ----------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Net sales............................ $2,420,090 $3,718,082 $6,384,659 $4,252,212 $6,799,626
Cost of goods sold:
Purchased components............... 387,715 752,630 1,626,882 1,013,353 1,573,817
Amortization of purchased and
developed software.............. 264,724 359,859 449,015 317,153 442,162
---------- ---------- ---------- ---------- ----------
Total cost of goods sold............. 652,439 1,112,489 2,075,897 1,330,506 2,015,979
---------- ---------- ---------- ---------- ----------
Gross profit......................... 1,767,651 2,605,593 4,308,762 2,921,706 4,783,647
---------- ---------- ---------- ---------- ----------
Operating costs and expenses:
Sales and marketing................ 377,817 880,919 1,519,301 990,633 1,604,864
Product research and development... 365,155 822,690 1,391,264 946,045 1,133,223
General and administrative......... 470,227 959,669 1,214,986 879,468 1,085,769
Acquired in-process technology..... -- 375,000 -- -- --
Professional fees related to
proposed
financing....................... -- -- 363,964 -- --
Amortization of other
intangibles..................... -- 3,959 5,915 4,455 4,455
---------- ---------- ---------- ---------- ----------
Total operating costs and expenses... 1,213,199 3,042,237 4,495,430 2,820,601 3,828,311
---------- ---------- ---------- ---------- ----------
Operating income (loss).............. 554,452 (436,644) (186,668) 101,105 955,336
---------- ---------- ---------- ---------- ----------
Other income (expense):
Interest expense................... (88,314) (141,231) (134,121) (98,247) (565,646)
Interest income.................... 5,277 4,006 11,016 7,025 10,952
Other, net......................... (5,310) (504) 26,580 3,273 (43,644)
---------- ---------- ---------- ---------- ----------
Total other expense.................. (88,347) (137,729) (96,525) (87,949) (598,338)
---------- ---------- ---------- ---------- ----------
Income (loss) before income taxes and
extraordinary item................. 466,105 (574,373) (283,193) 13,156 356,998
Income tax expense................... -- -- -- -- --
---------- ---------- ---------- ---------- ----------
Income (loss) before extraordinary
item............................... 466,105 (574,373) (283,193) 13,156 356,998
Extraordinary gain on extinguishment
of debt............................ -- -- 169,514 169,514 --
---------- ---------- ---------- ---------- ----------
Net income (loss).................... $ 466,105 $ (574,373) $ (113,679) $ 182,670 $ 356,998
========== ========== ========== ========== ==========
Net income (loss) before
extraordinary item per common and
common equivalent share............ $ 0.12 $ (0.21) $ (0.07) $ 0.00 $ 0.08
========== ========== ========== ========== ==========
Net income (loss) per common and
common equivalent share............ $ 0.12 $ (0.21) $ (0.03) $ 0.05 $ 0.08
========== ========== ========== ========== ==========
Weighted average number of common and
common equivalent shares
outstanding........................ 3,995,665 2,777,834 3,969,391 3,907,745 4,712,994
========== ========== ========== ========== ==========
</TABLE>
See accompanying notes to consolidated financial statements.
F-4
<PAGE> 62
MERGE TECHNOLOGIES INCORPORATED AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
YEARS ENDED DECEMBER 31, 1994, 1995 AND 1996, AND
NINE MONTHS ENDED SEPTEMBER 30, 1997 (UNAUDITED)
<TABLE>
<CAPTION>
NOTE
COMMON STOCK RECEIVABLE IN
---------------------------------------------------------------- ADDITIONAL CONNECTION WITH
CLASS A CLASS B COMMON PAID-IN PURCHASE OF
SHARES CLASS A SHARES CLASS B SHARES COMMON CAPITAL COMMON STOCK
---------- -------- -------- ------- --------- ------- ---------- ---------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at December 31,
1993........................ 677,224 $ 6,772 616,674 $6,167 -- $ -- 388,462 --
---------- -------- -------- ------ --------- ------- --------- --------
Issuance of common stock...... 671,799 6,718 -- -- -- -- 92,482 --
Exercise of stock options..... 6,772 68 -- -- -- -- (68) --
Accretion of put value........ -- -- -- -- -- -- (149,719) --
Net income.................... -- -- -- -- -- -- -- --
---------- -------- -------- ------ --------- ------- --------- --------
Balance at December 31,
1994........................ 1,355,795 13,558 616,674 6,167 -- -- 331,157 --
---------- -------- -------- ------ --------- ------- --------- --------
Sale of common stock.......... -- -- -- -- 250,570 2,506 352,479 --
Issuance of stock to purchase
SST......................... -- -- -- -- 357,875 3,579 524,871 --
Conversion of common stock.... (1,355,795) (13,558) (616,674) (6,167) 1,972,469 19,725 -- --
Accretion of put value........ -- -- -- -- -- -- (13,701) --
Net loss...................... -- -- -- -- -- -- -- --
---------- -------- -------- ------ --------- ------- --------- --------
Balance at December 31,
1995........................ -- -- -- -- 2,580,914 25,810 1,194,806 --
---------- -------- -------- ------ --------- ------- --------- --------
Sale of common stock.......... -- -- -- -- 1,090,319 10,903 1,599,097 (150,000)
Fees incurred in connection
with the sale of common
stock....................... -- -- -- -- -- -- (223,721) --
Interest on note receivable in
connection with purchase of
common stock................ -- -- -- -- -- -- 8,972 (8,972)
Conversion of subordinated
notes payable to common
stock....................... -- -- -- -- 225,628 2,256 330,914 --
Offset of note payable to
shareholder with note
receivable in connection
with purchase of common
stock....................... -- -- -- -- -- -- -- 158,972
Accretion of put value........ -- -- -- -- -- -- (138,298) --
Forfeiture of put feature..... -- -- -- -- -- -- 82,337 --
Net loss...................... -- -- -- -- -- -- -- --
Foreign currency translation
adjustment.................. -- -- -- -- -- -- -- --
---------- -------- -------- ------ --------- ------- --------- --------
Balance at December 31,
1996........................ -- -- -- -- 3,896,861 38,969 2,854,107 --
---------- -------- -------- ------ --------- ------- --------- --------
Exercise of stock options..... -- -- -- -- 11,202 112 8,138 --
Accretion of put value........ -- -- -- -- -- -- (90,392) --
Net income.................... -- -- -- -- -- -- -- --
Foreign currency translation
adjustment.................. -- -- -- -- -- -- -- --
---------- -------- -------- ------ --------- ------- --------- --------
Balance at September 30, 1997
(Unaudited)................. -- $ -- -- $ -- 3,908,063 $39,081 2,771,853 --
========== ======== ======== ====== ========= ======= ========= ========
<CAPTION>
RETAINED
EARNINGS CUMULATIVE TOTAL
(ACCUMULATED TRANSLATION SHAREHOLDERS'
DEFICIT) ADJUSTMENT EQUITY
------------ ----------- -------------
<S> <C> <C> <C>
Balance at December 31,
1993........................ (237,655) -- 163,746
-------- ------ ---------
Issuance of common stock...... -- -- 99,200
Exercise of stock options..... -- -- --
Accretion of put value........ -- -- (149,719)
Net income.................... 466,105 -- 466,105
-------- ------ ---------
Balance at December 31,
1994........................ 228,450 -- 579,332
-------- ------ ---------
Sale of common stock.......... -- -- 354,985
Issuance of stock to purchase
SST......................... -- -- 528,450
Conversion of common stock.... -- -- --
Accretion of put value........ -- -- (13,701)
Net loss...................... (574,373) -- (574,373)
-------- ------ ---------
Balance at December 31,
1995........................ (345,923) -- 874,693
-------- ------ ---------
Sale of common stock.......... -- -- 1,460,000
Fees incurred in connection
with the sale of common
stock....................... -- -- (223,721)
Interest on note receivable in
connection with purchase of
common stock................ -- -- --
Conversion of subordinated
notes payable to common
stock....................... -- -- 333,170
Offset of note payable to
shareholder with note
receivable in connection
with purchase of common
stock....................... -- -- 158,972
Accretion of put value........ -- -- (138,298)
Forfeiture of put feature..... -- -- 82,337
Net loss...................... (113,679) -- (113,679)
Foreign currency translation
adjustment.................. -- 1,213 1,213
-------- ------ ---------
Balance at December 31,
1996........................ (459,602) 1,213 2,434,687
-------- ------ ---------
Exercise of stock options..... -- -- 8,250
Accretion of put value........ -- -- (90,392)
Net income.................... 356,998 -- 356,998
Foreign currency translation
adjustment.................. -- 41,320 41,320
-------- ------ ---------
Balance at September 30, 1997
(Unaudited)................. (102,604) 42,533 2,750,863
======== ====== =========
</TABLE>
See accompanying notes to consolidated financial statements.
F-5
<PAGE> 63
MERGE TECHNOLOGIES INCORPORATED AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEARS ENDED DECEMBER 31, 1994, 1995 AND 1996, AND
NINE MONTHS ENDED SEPTEMBER 30, 1996 AND 1997 (UNAUDITED)
<TABLE>
<CAPTION>
YEARS ENDED NINE MONTHS ENDED
DECEMBER 31, SEPTEMBER 30,
----------------------------------- -----------------------
1994 1995 1996 1996 1997
--------- --------- ----------- ---------- ----------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Cash flows from operating activities:
Net income (loss)......................................... $ 466,105 $(574,373) $ (113,679) $ 182,670 $ 356,998
Adjustments to reconcile net income (loss) to net cash
provided by operating activities:
Depreciation and amortization........................... 319,911 472,831 625,719 445,375 645,975
Amortization of discount on Sirrom Loan................. -- -- -- -- 426,423
Acquired in-process technology.......................... -- 375,000 -- -- --
Provision for doubtful accounts receivable.............. -- 40,000 44,000 37,048 (5,597)
Expenses related to services performed.................. -- -- 160,000 160,000 --
Extraordinary gain on extinguishment of debt............ -- -- (169,514) (169,514) --
Change in assets and liabilities, net of effects from
purchase of SST:
Accounts receivable................................... 225,899 (417,368) (756,289) (505,958) (13,025)
Inventory............................................. 3,455 (140,869) (155,508) (113,938) (344,963)
Accounts payable...................................... 26,043 504,090 604,638 (174,027) (854,934)
Accrued expenses...................................... (319,420) (1,761) 140,049 (109,056) 24,244
Customer deposits..................................... -- 194,415 (189,121) (53,716) 59,358
Other................................................. (28,857) (38,713) (18,779) (49,331) (76,069)
--------- --------- ----------- ---------- ----------
Net cash provided by (used in) operating activities......... 693,136 413,252 171,516 (350,447) 218,410
--------- --------- ----------- ---------- ----------
Cash flows from investing activities:
Purchases of property and equipment....................... (193,063) (208,401) (319,569) (288,374) (262,335)
Development of software................................... (386,160) (724,106) (765,640) (584,792) (743,952)
Purchase of license agreement............................. -- -- (288,100) (215,000) --
Purchase of SST, net of cash acquired..................... -- (54,981) -- -- --
--------- --------- ----------- ---------- ----------
Net cash used in investing activities....................... (579,223) (987,488) (1,373,309) (1,088,166) (1,006,287)
--------- --------- ----------- ---------- ----------
Cash flows from financing activities:
Proceeds on line of credit................................ 25,000 250,000 -- -- --
Proceeds from loan agreement with Sirrom.................. -- -- -- -- 2,000,000
Financing fees associated with loan agreement with
Sirrom.................................................. -- -- -- -- (63,371)
Proceeds from revolving credit agreement.................. -- -- 753,000 753,000 470,000
Payments on line of credit................................ (25,000) -- (250,000) (250,000) --
Repayment of revolving credit agreement................... -- -- -- -- (1,223,000)
Repayments on senior notes payable........................ (102,299) -- -- -- --
Repayment of subordinated notes payable to shareholders
and related interest.................................... -- -- (375,000) (375,000) --
Borrowings from shareholders.............................. -- 150,000 -- -- --
Issuance of common stock, net of expenses................. -- 204,985 1,236,279 1,199,368 --
Proceeds from exercise of stock options................... -- -- -- -- 8,250
Principal payments under capital leases................... -- (11,596) (23,724) (24,681) (35,696)
--------- --------- ----------- ---------- ----------
Net cash provided by (used in) financing activities......... (102,299) 593,389 1,340,555 1,302,687 1,156,183
--------- --------- ----------- ---------- ----------
Net increase in cash and cash equivalents................... 11,614 19,153 138,762 (135,926) 368,306
Cash and cash equivalents, beginning of period.............. 117,569 129,183 148,336 148,336 287,098
--------- --------- ----------- ---------- ----------
Cash and cash equivalents, end of period.................... $ 129,183 $ 148,336 $ 287,098 $ 12,410 $ 655,404
========= ========= =========== ========== ==========
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Cash received (paid) for income taxes....................... $ (15,000) $ (3,000) $ -- $ -- $ --
Cash paid for interest...................................... 104,000 73,000 195,000 -- 132,000
NON CASH FINANCING AND INVESTING ACTIVITIES:
Property and equipment acquired through capital lease....... -- 60,000 17,000 17,000 30,000
Repayment of shareholder notes through issuance of common
stock..................................................... -- 150,000 -- -- --
Repayment of senior note payable through issuance of common
stock upon exercise of option............................. (99,200) -- -- -- --
Repayment of subordinated notes payable and related interest
through issuance of common stock.......................... -- -- 333,000 -- --
Accretion of put options related to redeemable common stock
and stock warrants........................................ 150,000 14,000 138,000 69,000 90,000
Forfeiture of put options related to redeemable common
stock..................................................... -- -- (82,000) -- --
Issuance of payable to shareholder in consideration for
services.................................................. -- -- 160,000 160,000 --
Issuance of common stock for acquisition of SST............. -- 528,000 -- -- --
</TABLE>
See accompanying notes to consolidated financial statements.
F-6
<PAGE> 64
MERGE TECHNOLOGIES INCORPORATED AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1994, 1995 AND 1996, AND
NINE MONTHS ENDED SEPTEMBER 30, 1996 AND 1997 (UNAUDITED)
(1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(a) Nature of Operations
Merge Technologies Incorporated and its wholly-owned subsidiary, Signal
Stream, Incorporated, (together, the Company) design, manufacture, market, and
support hardware and software products used in networks for the storage,
management, and distribution of medical imaging data. The Company's products
connect diverse medical equipment and systems, providing increases in efficiency
and productivity for hospitals and clinics. The Company sells its products in
the United States and internationally. Foreign sales, denominated in U.S.
dollars, accounted for approximately 57%, 50% and 37% of the Company's net sales
for the years ended December 31, 1994, 1995 and 1996, respectively. The
Company's raw materials are readily available and the Company is not dependent
on a single supplier or only a few suppliers.
In March 1996, the Company established a sales office in The Netherlands.
As of and for the year ending December 31, 1996, the sales office generated
approximately $660,000 in revenues, incurred a net loss of approximately
$210,000, and had a net liability position of approximately $210,000.
(b) Principles of Consolidation
The consolidated financial statements include the financial statements of
Merge Technologies Incorporated and its wholly-owned subsidiary. All significant
intercompany balances and transactions have been eliminated in consolidation.
(c) Cash and Cash Equivalents
For purposes of the statements of cash flows, the Company considers all
highly liquid debt instruments with original maturities of three months or less
to be cash equivalents. Cash equivalents include a $250,000 repurchase agreement
at December 31, 1996.
(d) Inventory
Inventory, consisting principally of finished goods, is stated at the lower
of cost or market. Cost is determined using the first-in, first-out method.
(e) Property and Equipment
Property and equipment are stated at cost. Equipment under capital leases
is stated at the present value of minimum lease payments.
Depreciation on property and equipment is calculated on the straight-line
method over the estimated useful lives of the assets. Useful lives of the
Company's major classes of property and equipment are five years for computer
equipment and seven years for office equipment. Equipment held under capital
leases and leasehold improvements are amortized straight line over the shorter
of the lease term or estimated useful life of the asset.
(f) Purchased and Developed Software
All research and development costs incurred prior to the point at which
management believes a project has reached "technological feasibility" are
expensed. Engineering costs incurred subsequent to reaching technological
feasibility are capitalized and reported at the lower of unamortized cost or net
realizable value. Amortization of purchased and developed software is provided
on a product-by-product basis over the expected economic life of the related
software, generally five years, using the straight-line method. This
F-7
<PAGE> 65
MERGE TECHNOLOGIES INCORPORATED AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
method results in greater amortization than the method based on the ratio that
current gross revenues for a product bear to the total of current and
anticipated future gross revenues for that product.
The Company assesses the recoverability of these costs by determining
whether the amortization of the capitalized costs over the remaining life of the
projects can be recovered through undiscounted future operating cash flows.
Acquired in-process technology for which technological feasibility has not
been achieved is expensed at date of purchase.
(g) Long-Lived Assets
The Company adopted the provisions of Statement of Financial Accounting
Standards ("SFAS") No. 121, Accounting for the Impairment of Long-Lived Assets
and for Long-Lived Assets to be Disposed Of, on January 1, 1996. SFAS No. 121
requires that long-lived assets and certain identifiable intangibles be reviewed
for impairment whenever events or changes in circumstances indicate that the
carrying amount of an asset may not be recoverable. Recoverability of assets to
be held and used is measured by a comparison of the carrying amount of an asset
to future net cash flows expected to be generated by the asset. If such assets
are considered to be impaired, the impairment to be recognized is measured by
the amount by which the carrying amount of the assets exceed the fair value of
the assets. Assets to be disposed of are reported at the lower of the carrying
amount or fair value less costs to sell. Adoption of SFAS No. 121 had no impact
on the Company's financial position, results of operations, or liquidity.
(h) Other Intangibles
Other intangibles represent the excess of purchase price over fair value of
net assets acquired and the customer list acquired through the acquisition of
Signal Stream Technologies, Inc. (note 2) and is amortized on a straight-line
basis over ten years, the expected period to be benefited. The Company assesses
the recoverability of this intangible asset by determining whether the
amortization of the balance over its remaining life can be recovered through
undiscounted future operating cash flows of the acquired operation. The amount
of impairment, if any, is measured based on projected discounted future
operating cash flows using a discount rate reflecting the Company's average cost
of funds. The assessment of the recoverability will be impacted if estimated
future operating cash flows are not achieved.
(i) Deferred Financing Fees
Deferred financing fees are amortized over the expected term of the related
debt.
(j) Income Taxes
Income taxes are accounted for under the asset and liability method.
Deferred tax assets and liabilities are recognized for the future tax
consequences attributable to differences between the financial statement
carrying amounts of existing assets and liabilities and their respective tax
bases and operating losses and tax credit carryforwards. Deferred tax assets and
liabilities are measured using enacted tax rates expected to apply to taxable
income in the years in which those temporary differences are expected to be
recovered or settled. The effect on deferred tax assets and liabilities of a
change in tax rates is recognized in income in the period that includes the
enactment date.
The Company files a consolidated Federal income tax return with its
subsidiary.
F-8
<PAGE> 66
MERGE TECHNOLOGIES INCORPORATED AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(k) Stock Option Plan
Prior to January 1, 1996, the Company accounted for its stock option plan
in accordance with the provisions of Accounting Principles Board ("APB") Opinion
No. 25, Accounting for Stock Issued to Employees, and related interpretations.
As such, compensation expense would be recorded on the date of grant only if the
current market price of the underlying stock exceeded the exercise price. On
January 1, 1996, the Company adopted SFAS No. 123, Accounting for Stock-Based
Compensation, which permits entities to recognize as expense over the vesting
period the fair value of all stock-based awards on the date of grant.
Alternatively, SFAS No. 123 also allows entities to continue to apply the
provision of APB Opinion No. 25 and provide pro forma net income and pro forma
earnings per share disclosures for employee stock option grants made in 1995 and
future years as if the fair-value-based method defined in SFAS No. 123 had been
applied. The Company has elected to continue to apply the provisions of APB
Opinion No. 25 and provide the pro forma disclosure provisions of SFAS No. 123.
(l) Financial Instruments
The Company's financial instruments include cash and cash equivalents,
accounts receivable, note payable to bank, accounts payable, and certain accrued
expenses. The carrying amounts approximate fair value because of the short
maturity of these instruments.
(m) Revenue Recognition
Revenue from product sales is recognized upon shipment. No significant
Company obligations exist with regard to delivery or customer acceptance
following shipment. Revenues from software maintenance are deferred and
recognized straight-line over the contract support period, which is generally
one year.
(n) Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires Company management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
(o) Interim Financial Information
The interim financial statements included herein are unaudited; however,
they include all adjustments of a normal recurring nature, which, in the opinion
of Company management, are necessary to present fairly the financial position of
the Company at September 30, 1997, and the results of operations and cash flows
for the nine months ended September 30, 1996 and 1997. Accounting measurements
at interim dates inherently involve greater reliance on estimates than at year
end. The results of operations for the interim periods presented are not
necessarily indicative of the results to be expected for the entire year.
(p) Net Earnings (Loss) Per Share
Net earnings (loss) per share data has been computed using the weighted
average number of shares of common stock and common equivalent shares from stock
options (when dilutive using the treasury stock method). Pursuant to Securities
and Exchange Commission Staff Accounting Bulletin No. 83, common stock warrants
and options issued during the twelve month period immediately preceding the
Company's proposed initial public offering have been included in the calculation
as if they were outstanding for all periods presented (even if antidilutive
using the treasury stock method and the anticipated initial public offering
price).
F-9
<PAGE> 67
MERGE TECHNOLOGIES INCORPORATED AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(q) Stock Dividend
On September 25, 1997, the Company declared a 6.77217-for-one stock split,
effective as of the date of declaration of effectiveness of the initial public
offering. The stock split will be effected as a stock dividend of 5.77217 shares
per share of Common Stock. The accompanying consolidated financial statements
and notes reflect this change in capital structure.
(2) BUSINESS COMBINATION
Effective May 1, 1995, Signal Stream, Incorporated (SSI), a wholly-owned
subsidiary of the Company formed to effect the acquisition of Signal Stream
Technologies, Inc. (SST), acquired all the outstanding shares of SST. The
purchase price consisted of 357,875 shares of Merge Technologies Incorporated
common stock. In addition, $77,328 in acquisition expenses were incurred. The
acquisition was accounted for as a purchase.
The consolidated statements of operations include the results of operations
of SST from the date of acquisition. The following unaudited pro forma summary
presents the consolidated results of operations for the years ended December 31,
1994 and 1995 as if the acquisition had occurred at the beginning of the year,
after giving effect to certain adjustments, including income taxes, acquired
in-process technology, and amortization of other intangibles. The net loss
presented for the year ended December 31, 1995 includes a $375,000 charge to
operations for acquired in-process technology. Pro forma results have been
prepared for informative purposes only and do not purport to be indicative of
what would have occurred had the acquisition been made as of the date stated or
of results which may occur in the future.
<TABLE>
<CAPTION>
UNAUDITED UNAUDITED
1994 1995
---------- ----------
<S> <C> <C>
Revenue..................................................... $2,750,000 $4,000,000
Net loss.................................................... (624,000) (770,000)
</TABLE>
(3) LICENSE AGREEMENT
The Company entered into an agreement in 1996 with a technology supplier
under which the Company has been granted a worldwide non-exclusive license to
duplicate and distribute encoding software used by the Company in recording
identifying marks on x-ray film. The Company was also granted a worldwide
exclusive license to duplicate and distribute decoding software embedded in hand
held readers. This exclusivity will lapse on November 1, 2000. In the event that
the Company ceases to distribute both licensed products for a period of
twenty-four months, any license in effect will automatically terminate.
In addition to the initial payment for the licenses of $288,100, the
Company is obligated to pay a royalty based upon the number of the products
distributed. The agreement is being amortized over the expected period of
benefit, 47 months. No products subject to royalty were sold in 1996.
(4) INDEBTEDNESS
(a) Note Payable to Bank
The Company entered into a $1,250,000 Revolving Credit Agreement
(Agreement) with a bank in June 1996. The Agreement replaced a $250,000 bank
line of credit. Availability of loans under the Agreement were subject to a
borrowing base calculated on inventory and accounts receivable. The loans bore
interest at the bank's reference rate, as defined in the Agreement, plus 0.5%.
The Agreement was collateralized by all assets of the Company. At December 31,
1996, the Company was in default with respect to several of the Agreement's
restrictive covenants and the note payable to bank was due on demand. The
interest rate was increased to the default rate, which represents the bank's
reference rate plus 5.5% (13.75% at December 31, 1996).
F-10
<PAGE> 68
MERGE TECHNOLOGIES INCORPORATED AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Subsequent to year-end, the Agreement was amended to reduce the credit
limit to $753,000 in conjunction with a forbearance agreement entered into with
the bank. Under the forbearance agreement, the officers and certain shareholders
of the Company provided personal guarantees. On March 18, 1997, the Company and
the bank entered into a reinstatement agreement under which the credit limit was
increased to $1,000,000 and a term loan of $250,000 was established. In June
1997, the principal and interest outstanding under this note payable to bank
were paid in full (note 4 (d)).
(b) Subordinated Notes Payable to Shareholders
In September 1995, the Company borrowed $150,000 from two shareholders. The
borrowings and related accrued interest were subsequently converted during 1995
to common stock.
Effective May 1996, the Company converted $222,712 of $686,064 subordinated
notes payable to shareholders (Notes) and related accrued interest into 191,766
shares of common stock. In addition, the Company settled the remaining $463,352
of the Notes and related accrued interest with the issuance of 33,861 shares of
the Company's common stock and a cash payment of $375,000. The Company realized
an extraordinary gain on the settlement.
Interest expense incurred on subordinated notes payable to shareholders was
approximately $88,300, $97,800 and $39,700 for the years ending December 31,
1994, 1995 and 1996, respectively.
(c) Note Payable to Shareholder
In June 1996, the Company issued a $160,000 note to a shareholder in
consideration for services the shareholder performed in assisting the Company
with raising capital. The note was due on January 1, 1997, and was non-interest
bearing. Effective December 31, 1996, the note payable to the shareholder was
discharged against a note due to the Company from the shareholder in connection
with the purchase of common stock (note 8(d)).
(d) Note Payable
In June 1997, the Company entered into a $2,000,000 Loan Agreement with
Sirrom Capital Corporation (Sirrom). The Loan Agreement bears interest at a
stated rate of 13.5%, payable monthly from August 1997 through May 2002.
Principal and any remaining interest is due in June 2002. The Loan Agreement
grants a security interest in substantially all of the Company's assets.
In connection with the Loan Agreement, the Company issued stock purchase
warrants expiring in July 2002, granting Sirrom the right to purchase 145,256
shares of the Company's common stock at $0.01 per share. Additional warrants
will be issued as follows if the principal is outstanding on the specified
dates: June 2000 -- 58,498; June 2001 -- 60,056; and June 2002 -- 61,667. The
stock purchase warrants are subject to a put option whereby Sirrom may sell the
warrants to the Company in the 30-day period prior to the expiration date of the
warrants. The put option price is equal to the fair market value of the common
stock issuable under the warrants.
The Company assigned a value of $1,089,422 to the warrants issued, which is
reflected as a debt discount and put warrant liability, based on the value of
common stock on the date of the transaction. The debt discount is being
amortized to interest expense over the expected term of the loan, which is six
months. The Company will reflect future changes in the fair value of the put
option or the warrants as either an increase or decrease in interest expense and
the associated put warrant liability.
Proceeds from the Loan Agreement were used to fully pay the principal and
interest outstanding on the note payable to bank (note 4(a)), and are also
available to repurchase certain outstanding shares of the
F-11
<PAGE> 69
MERGE TECHNOLOGIES INCORPORATED AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Company's common stock, and provide additional working capital for sales,
marketing, and product development expenditures.
(5) EMPLOYEE BENEFIT PLAN
The Company maintains a contributory deferred profit-sharing plan (401(k))
covering employees who meet minimum service requirements and have elected to
participate. Company contributions, which are at the discretion of the Board of
Directors, totaled $6,900, $15,900 and $30,800 for the years ended December 31,
1994, 1995 and 1996, respectively.
(6) INCOME TAXES
Actual income taxes vary from the expected income taxes (computed by
applying the statutory Federal income tax rate of 34% to loss before income
taxes and extraordinary item) as a result of the following:
<TABLE>
<CAPTION>
YEARS ENDED
DECEMBER 31,
-----------------------------------
1994 1995 1996
--------- --------- ---------
<S> <C> <C> <C>
Expected tax expense (benefit)...................... $ 160,000 $(165,000) $ (96,000)
Increase (decrease) in income taxes resulting from:
Nondeductible amortization and acquired in-process
technology..................................... -- 169,000 50,000
Change in the beginning of the year balance of the
valuation allowance for deferred tax assets
allocated to income tax expense................ (126,000) 125,000 140,000
Research and experimentation credit............... (81,000) (137,000) (137,000)
Nondeductible expenses............................ 27,000 5,000 42,000
State and local income taxes, net of federal
income tax benefit............................. 19,000 (3,000) (10,000)
Other............................................. 1,000 6,000 11,000
--------- --------- ---------
Actual tax expense.................................. $ -- $ -- $ --
========= ========= =========
</TABLE>
F-12
<PAGE> 70
MERGE TECHNOLOGIES INCORPORATED AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The tax effects of temporary differences that give rise to significant
portions of the deferred tax assets and deferred tax liabilities at December 31,
1996 are presented below:
<TABLE>
<CAPTION>
DECEMBER 31,
------------------------
1995 1996
---------- ----------
<S> <C> <C>
Deferred tax assets:
Accounts receivable, principally due to allowance for
doubtful accounts..................................... $ 15,000 $ 29,000
Accrued wages............................................ 18,000 39,000
Research and experimentation credit carryforward......... 359,000 496,000
Net operating loss carryforwards......................... 691,000 741,000
---------- ----------
Total gross deferred tax assets............................ 1,083,000 1,305,000
Less valuation allowance................................. (353,000) (432,000)
---------- ----------
Net deferred tax asset..................................... 730,000 873,000
---------- ----------
Deferred tax liabilities:
Property and equipment, principally due to differences in
depreciation.......................................... (44,000) (61,000)
Software development costs............................... (686,000) (804,000)
Other.................................................... -- (8,000)
---------- ----------
Total gross deferred liabilities........................... (730,000) (873,000)
---------- ----------
Net deferred taxes......................................... $ -- $ --
========== ==========
</TABLE>
The net change in the total valuation allowance for the years ended
December 31, 1994, 1995 and 1996 was an increase (decrease) of $(126,000),
$312,000 and $79,000, respectively. In assessing the realizability of deferred
tax assets, management considers whether it is more likely than not that some
portion or all of the deferred tax assets will not be realized. The ultimate
realization of deferred tax assets is dependent upon the generation of future
taxable income during the periods in which those temporary differences become
deductible. Management considers the scheduled reversal of deferred tax
liabilities, projected future taxable income, and tax planning strategies in
making this assessment. Based upon the level of historical taxable income,
management believes it is more likely than not the Company will realize the
benefits of these deductible differences net of the existing valuation
allowances. The amount of the deferred tax asset considered realizable, however,
could be reduced in the near term if estimates of future taxable income during
the carryforward period are reduced. Subsequently recognized tax benefits
relating to the valuation allowance for deferred tax assets as of December 31,
1996 will be allocated as follows:
<TABLE>
<S> <C>
Income tax benefit that would be reported in the statement
of operations............................................. $347,000
Goodwill and other noncurrent intangible assets............. 85,000
--------
Total............................................. $432,000
========
</TABLE>
At December 31, 1996, the Company has net operating loss carryforwards
totaling approximately $1,975,000 for federal and state income tax purposes
which begin to expire in 2010.
(7) LEASES
The Company is obligated under various capital leases for computer
equipment that expire at various dates during the next three years. At December
31, 1996, the gross amount of computer equipment under capital leases was
$116,069 and related accumulated amortization was $37,553.
F-13
<PAGE> 71
MERGE TECHNOLOGIES INCORPORATED AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The Company has a noncancelable operating lease for its main office
facility. The lease is for an initial eight-year term expiring in August 2004.
The Company can terminate the lease after the expiration of the fourth year,
subject to certain termination costs. Total rent expense associated with this
lease for the years ended December 31, 1994, 1995 and 1996 was approximately
$57,000, $76,000 and $116,000, respectively.
Future minimum lease payments under noncancelable operating leases (with
initial or remaining lease terms in excess of one year) and future minimum
capital lease payments as of December 31, 1996, are:
<TABLE>
<CAPTION>
OPERATING CAPITAL
---------- --------
<S> <C> <C>
1997........................................................ $ 159,100 $ 69,188
1998........................................................ 159,100 17,034
1999........................................................ 158,600 6,037
2000........................................................ 156,000 --
2001........................................................ 156,000 --
Later years, through 2004................................... 416,200 --
---------- --------
Total minimum lease payments................................ 1,205,000 92,259
Less amount representing interest......................... 19,875
--------
Present value of net minimum capital lease payments......... 72,384
Less current installments of obligations under capital
leases................................................. 55,959
--------
Obligations under capital leases, excluding current
installments.............................................. $ 16,425
========
</TABLE>
(8) SHAREHOLDERS' EQUITY
(a) Common and Preferred Stock
In 1996, the Company sold 1,090,319 shares of common stock at approximately
$1.48 a share. The Company incurred approximately $224,000 of expenses in
connection with the sale of the common stock.
In April 1995, the Company converted each share of issued and outstanding
Class A common stock and Class B common stock into one share of newly created
common stock, par value $0.01. Each existing option to acquire Class A or Class
B common stock was also converted into an option to acquire one share of the
newly created common stock.
In 1996, 5,000,000 shares of preferred stock, $0.01 par value, were
authorized. The Company has not issued any shares of preferred stock.
(b) Stock Redemption Agreement
In May 1995, the Company entered into a Stock Redemption Agreement (SR
Agreement) with the former Class B shareholders and the former Class B option
holders. Under the terms of the SR Agreement, the Company may redeem all (but
not less than all) of the former Class B shares and the shares of common stock
that may be acquired by the exercise of a former Class B option at $1.53 per
share (the "call option"). The Company's call option was to expire on March 1,
1997.
These shares are also subject to a put option exercisable by the former
Class B shareholders, to put their shares back to the Company (for cash) at the
book value of the Company on the date exercised. The put option cannot be
exercised until June 30, 1997, and expires on June 30, 1998. The Company is
recording the redemption price of the common stock subject to the put feature by
adjusting interest expense and the put option liability.
F-14
<PAGE> 72
MERGE TECHNOLOGIES INCORPORATED AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
In March 1997, the Company amended the SR Agreement to extend the Company's
call option and the holder's put option through October 1998. The call price
ranges from $1.56 to $2.37 and the put price ranges from $0.71 to $1.52.
As of December 31, 1995, there were 616,674 shares of former Class B stock
and 60,536 former Class B options outstanding which were subject to call and put
rights. In April 1996, the number of shares and options subject to the call and
put options was reduced to 424,757 and 13,253, respectively, as a provision of
the conversion of the Notes into common shares (see note 4). During the six
months ended June 30, 1997, the 13,253 options subject to the call and put
expired.
(c) Stock Option Plan
The Company maintains a stock option plan for employees of Merge
Technologies Incorporated (Plan) which provides for the granting of a maximum of
1,015,826 shares of common stock. Under this Plan, options have an exercise
price equal to the fair market value of the stock at the date of grant. The
majority of the options vest 25% immediately with the remaining vesting over a
three-year period. The options granted under this plan expire six years from the
date of grant.
The fair value of each option grant is estimated on the date of grant using
the Black-Scholes option-pricing model with the following assumptions used for
grants in 1996: expected option lives of four years, expected volatility and
dividend yield of 0%, and a risk-free interest rate of 5.63%. The weighted
average grant-date fair value of options granted in 1996 calculated using the
Black-Scholes model was $0.29. The weighted average remaining contractual life
for options granted in 1996 and outstanding at December 31, 1996 was 5.8 years.
The Company applies APB Opinion No. 25 and related interpretations in
accounting for its plans. All options under the plans have been granted at
exercise prices not less than the market value at the date of the grant. Had the
Company determined compensation cost based on the fair value at the grant date
for its stock options under SFAS No. 123, the Company's net loss would have been
increased to the pro forma amounts indicated below:
<TABLE>
<CAPTION>
1995 1996
--------- ---------
<S> <C> <C>
Net loss available to common shareholders
As reported............................................... $(574,373) $(113,679)
Pro forma................................................. (574,373) (177,000)
Loss per common and common equivalent share
As reported............................................... (0.21) (0.03)
Pro forma................................................. (0.21) (0.04)
</TABLE>
Pro forma net loss reflects only options granted in 1995 and 1996.
Therefore, the full impact of calculating compensation cost for stock options
under SFAS No. 123 is not reflected in the pro forma net loss amounts presented
above because compensation cost is reflected over the options' vesting period of
three years and compensation cost for options granted prior to January 1, 1995
is not considered.
F-15
<PAGE> 73
MERGE TECHNOLOGIES INCORPORATED AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
A summary of stock options is as follows:
<TABLE>
<CAPTION>
CLASS A CLASS B COMMON
-------------------- ------------------- -------------------
WEIGHTED WEIGHTED WEIGHTED
AVERAGE AVERAGE AVERAGE
EXERCISE EXERCISE EXERCISE
NUMBER PRICE NUMBER PRICE NUMBER PRICE
-------- -------- ------- -------- ------- --------
<S> <C> <C> <C> <C> <C> <C>
Options outstanding,
January 1, 1994............. 671,792 $0.15 60,536 $0.33 -- $ --
Options exercised............. (671,792) 0.15 -- -- -- --
Options outstanding, December
31, 1994.................... -- -- 60,536 0.33 -- --
Conversion of options......... -- -- (60,536) 0.33 60,536 0.33
Options outstanding, December
31, 1995.................... -- -- -- -- 60,536 0.33
Options granted............... -- -- -- -- 776,944 1.48
Options outstanding, December
31, 1996.................... -- -- -- -- 837,480 $1.39
Options exercisable, December
31, 1996.................... -- -- -- $ -- 275,472 $1.27
</TABLE>
(d) Note Receivable in Connection with Purchase of Common Stock
In June 1996, a shareholder of the Company issued a $200,000 non-interest
bearing note due on or before June 1, 1999 to purchase 135,443 shares of the
Company's common stock at $1.48 per share, the fair market value of the stock on
the date of the note. The present value of the note was $150,000. The Company
has recognized interest income on the note at an imputed interest rate of 10%.
Effective December 31, 1996, the note receivable was offset with a note payable
by the Company to the shareholder (note 4(c)).
(9) SIGNIFICANT CUSTOMERS
The Company had two customers that accounted for 35% and 13%, respectively,
of net sales for the year ending December 31, 1994.
The Company had two customers that accounted for 32% and 12%, respectively,
of consolidated net sales for the year ending December 31, 1995. The Company had
two customers and one distributor that accounted for 15%, 10%, and 26%,
respectively, of consolidated net sales for the year ending December 31, 1996,
and two customers and one distributor that accounted for 15%, 11% and 28%,
respectively of consolidated net sales for the nine months ended September 30,
1997. Accounts receivable at December 31, 1996, from one distributor accounted
for approximately 30% of outstanding consolidated amounts (24% at September 30,
1997).
(10) PROFESSIONAL FEES RELATED TO PROPOSED FINANCING
The Company incurred $364,000 in fees in preparation for an initial public
offering in 1996 that was canceled.
(11) CONSULTING AGREEMENT
In June 1996, the Company entered into a three-year consulting agreement
with one of its shareholders for financing and other business services. Pursuant
to the terms of the consulting agreement, the shareholder will be paid $3,500
per month during the term of the agreement plus out-of-pocket expenses. In the
opinion of management of the Company, such fee is representative of the fee the
Company would be required to pay an independent third-party to receive similar
financing and other business services. The Company and the shareholder have
agreed to terminate this consulting agreement effective upon the closing of the
Offering.
F-16
<PAGE> 74
BACK COVER PAGE
The back cover page depicts a radiologist in a clinic using the CaseWorks
product. The clinic is being viewed over the left shoulder of the radiologist
who is looking at a flat panel CaseWorks screen and a film light box. Additional
magnified images of CaseWorks features are set off the lower right hand side of
the diagram. The bottom-left corner of the diagram contains descriptive
CaseWorks text.
[Back Cover Printed Here]
<PAGE> 75
======================================================
NO DEALER, SALESPERSON, OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS AND, IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY, OR THE UNDERWRITERS. THIS PROSPECTUS DOES
NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY
SECURITIES OTHER THAN THOSE TO WHICH IT RELATES OR AN OFFER TO SELL, OR A
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES, BY ANY PERSON IN ANY
JURISDICTION WHERE SUCH OFFER OR SOLICITATION WOULD BE UNLAWFUL. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS
CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF.
---------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Prospectus Summary.................... 2
Risk Factors.......................... 6
The Company........................... 14
Use of Proceeds....................... 14
Dilution.............................. 15
Capitalization........................ 16
Dividend Policy....................... 16
Selected Consolidated Financial
Data................................ 17
Management's Discussion and Analysis
of Financial Condition and Results
of Operations....................... 19
Business.............................. 28
Management............................ 40
Certain Transactions.................. 44
Principal Shareholders................ 46
Description of Securities............. 47
Shares Eligible for Future Sale....... 51
Underwriting.......................... 52
Legal Matters......................... 54
Experts............................... 54
Additional Information................ 54
Index to Financial Statements......... F-1
</TABLE>
---------------------
UNTIL , 1998 (25 DAYS AFTER THE DATE OF THIS PROSPECTUS), ALL
DEALERS EFFECTING TRANSACTIONS IN THE COMMON STOCK OFFERED HEREBY, WHETHER OR
NOT PARTICIPATING IN THIS DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS.
THIS IS IN ADDITION TO THE OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS WHEN
ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR
SUBSCRIPTIONS.
======================================================
======================================================
1,900,000 SHARES
MERGE TECHNOLOGIES
INCORPORATED
COMMON STOCK
-----------------
PROSPECTUS
-----------------
H.C. WAINWRIGHT & CO., INC.
, 1998
======================================================
<PAGE> 76
PART II - INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 180.0851 of the WBCL allows a Wisconsin corporation to limit
its obligation to indemnify officers and directors by providing so in the
articles of incorporation. The Company's By-Laws provide for indemnification of
directors and officers to the fullest extent permitted by Wisconsin law.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the
Registrant pursuant to the foregoing provisions or otherwise, the Registrant has
been informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is
therefore unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless, in the opinion of counsel, the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the WBCL and will be governed by the final adjudication
of such issue.
II-1
<PAGE> 77
ITEM 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following is a schedule of the estimated expenses to be incurred by
the Company in connection with the issuance and sale of the securities being
registered hereby, other than underwriting discounts and commissions.
<TABLE>
<S> <C>
Registration Fee $5,297
NASD Filing Fee $2,248
Blue Sky Fees and Expenses $35,000
Accounting Fees and Expenses $150,000
Legal Fees and Expenses $120,000
Printing Expenses $75,000
Transfer Agent and Registrar Fees $1,000
Underwriter's Non accountable Expense $456,000
NASDAQ Quotation Fee $10,000
Director and Officer Liability Insurance Premiums $30,000
Miscellaneous $25,000
----------
Total $909,545
==========
</TABLE>
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES
Effective May 1996, the Company converted $222,712 of $686,064
subordinated and junior subordinated notes of indefinite maturity and bearing
interest at a rate equal to the prime rate plus 3% for the subordinated notes
and prime rate plus 4% for the junior subordinated notes payable to Mr. Robert
T. Geras, Mr. Warren B. Cozzens, Mr. Mitchell D. Goldsmith, Mr. Phillip J.
Hanrahan, Mr. Thomas Jennings, Ms. Mary Jennings, Mr. Christopher Kalmus, Mr.
Henry Kuehn, Mr. Jeffrey Lane, Mr. Michael Lechter, Terry Mikkelson, Mr.
Michael Regenfuss, Mr. Luke E. Sims, and Mr. Frederick P. Stratton, Jr. (the
"Shareholder Notes") and related accrued interest into 191,766 shares of Common
Stock. In addition, the Company discharged the remaining $463,352 of the
Shareholder Notes and related accrued interest with the issuance of 33,861
shares of Common Stock and a cash payment of $375,000. This sale was exempt
from registration as a non-public offering of securities under Regulation D,
promulgated under Section 4(2) of the Securities Act.
In 1995, the Company issued 111,741 shares of Common Stock in a private
placement at $1.34 per share, for aggregate consideration of $150,000. In
connection with this private placement, Robert T. Geras, a Director of the
Company, and Warren B. Cozzens, a former Director, purchased 22,348 and 89,393
shares of Common Stock, respectively. All Common Stock was paid for with cash.
There were no underwriting discounts or commissions in this sale. This sale was
exempt from registration as a non-public offering of securities under
Regulation D, promulgated under Section 4(2) of the Securities Act. No general
solicitation or general advertising was made in connection with this private
placement, and each of the purchasers in this private placement had the
opportunity to ask questions of officers of, and to obtain information from,
the Company.
In 1995 and 1996, the Company issued an aggregate of 1,229,148 shares
of its Common Stock to 45 accredited investors in a private placement at $1.48
per share. The Company received consideration in connection with this private
placement of $205,000 in 1995 and $1,610,000 in 1996. In connection with such
private offering, Mr. Geras, a director of the Company, purchased 182,848
shares at the same price offered to other investors. Mr. Cozzens, a former
director, also purchased 257,342 shares in this private offering. These amounts
reflect the total offering price. There were no underwriting discounts or
commissions in this sale. This sale was exempt from registration as a
non-public offering of securities under Regulation D, promulgated under Section
4(2) of the Securities Act. No general solicitation or general advertising was
made in connection with this private placement, and each of the purchasers in
this private placement had the opportunity to ask questions of officers of,
and to obtain information from, the Company.
Effective July 7, 1996, the Company's shareholders approved and adopted the
1996 Stock Option Plan for employees of the Company (the "1996 Plan") which
currently provides for the grant of options to purchase, in the aggregate, up to
1,015,826 shares of Common Stock. The 1996 Plan provides for the grant to
employees of incentive stock options ("ISOs") and non-qualified stock options.
As of the date hereof, the Company has granted options under the 1996 Plan to
purchase 939,815 shares of Common Stock at exercise prices ranging from $1.48 to
$6.75 per share. The transaction described above was exempt from registration
under Rule 701, promulgated under Section 3(b) of the Securities Act.
II-2
<PAGE> 78
On June 30, 1997, Registrant entered into a Loan Agreement, as modified
by the Merge/Sirrom Revised Modification Agreement dated as of October 30, 1997
(the "Sirrom Note Agreement") with Sirrom under which it issued (i) a
Secured Promissory Note dated June 30, 1997 in favor of Sirrom in the principal
amount of two million dollars ($2,000,000) (the "Sirrom Note"), and (ii) a
Stock Purchase Warrant issued to Sirrom dated June 30, 1997, as modified by the
Merge/Sirrom Revised Modification Agreement dated as of October 30, 1997 (the
"Sirrom Warrant"). In connection with and in consideration of the Sirrom Note
Agreement, Sirrom was granted the right to acquire for nominal consideration, a
base amount of 145,256 shares of the Common Stock. Under the terms of the
Sirrom Warrant, in the event the loan is outstanding in whole or in part on the
following dates, the base amount would be increased to the following:
<TABLE>
<S> <C>
June 30, 2000 203,754
June 30, 2001 205,312
June 30, 2002 206,923
</TABLE>
The issuance of the Sirrom Note and the Sirrom Warrant were exempt from
registration under Section 4(2) of the Securities Act.
Effective May 1, 1995, Signal Stream Technologies, Inc. ("SST") was merged
with and into Signal Stream Incorporated, a Wisconsin corporation ("SSI"), a
wholly-owned subsidiary of the Company, with SSI as the surviving corporation.
The Company acquired all of the outstanding shares of SST, and the transaction
was accounted for as a purchase of SST by the Company. A total of 753,742 shares
of SSI's Series A Preferred Stock were converted into 1/40th of a share of the
Common Stock (pre-Common Stock Dividend) and 5,142,280 shares of SST Common
Stock were converted into 1/120 of a share of the Common Stock (pre-Common Stock
Dividend). All shares of the Common Stock issued to SST shareholders were
unregistered.
Except as otherwise indicated, the transactions described above were exempt
from registration under Section 4(2) of the Securities Act. No general
solicitation or general advertising was made in connection with any of the
transactions described above, and each of the purchasers in these transactions
had the opportunity to ask questions of officers of, and to obtain information
from, the Company.
ITEM 27. EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. PAGE NO.
- ----------- --------
<S> <C>
1 Form of Underwriting Agreement. (1)
3.1 Articles of Incorporation of Registrant. (1)
3.2 By-Laws of Registrant. (1)
4.1 Stock Purchase Warrant issued June 30, 1997 by Registrant to
Sirrom Capital Corporation. (1)
4.2 Form of Lock-Up Agreement (1).
</TABLE>
II-3
<PAGE> 79
<TABLE>
<S> <C>
4.3 Form of Common Stock Certificate. (1)
4.4 Form of Representative's Warrants (1)
5.1 Opinion of Foley & Lardner regarding legality.
10.1 Employment Agreement dated September 1, 1997 between
Registrant and William C. Mortimore. (1)
10.2 Loan Agreement dated June 30, 1997 between Registrant and
Sirrom Capital Corporation. (1)
10.3 Security Agreement dated June 30, 1997 between Registrant and
Sirrom Capital Corporation. (1)
10.4 Secured Promissory Note dated June 30, 1997 between Registrant
and Sirrom Capital Corporation. (1)
10.5 Merge/Sirrom Revised Modification Agreement dated as of
October 30, 1997.
10.6 OEM Purchase Agreement between Registrant and Philips Medical
Systems Nederland B.V. dated September 24, 1994 and First
Amended Agreement dated June 4, 1996 (2).
10.7 Annual Master License Agreement between Registrant and
Siemens Aktiengesell shaft dated October 15, 1995 (2).
10.8 Distribution Agreement with Picker International, Inc. (2).
10.9 1996 Stock Option Plan for Employees of Registrant dated May
13, 1996. (1)
10.10 Office Lease for West Allis Center dated May 24, 1996 between
Registrant and Whitnall Summit Company, LLC, together with
Supplement Office Space Lease dated July 3, 1997.(1)
10.11 Alpha Capital Venture Partners Limited Agreement dated March
1, 1997.(1)
10.12 Consulting Agreement with Robert T. Geras dated June 1, 1996.
(3)
10.13 1997 Stock Option Plan For Directors.(3)
11 Statement regarding computation of per share earnings.
21 Subsidiaries of Registrant.(1)
23.1 Consent of Foley & Lardner (see Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP
24 Power of Attorney.(1)
27.1 Financial Data Schedule.
27.2 Financial Data Schedule.
27.3 Financial Data Schedule.
27.4 Financial Data Schedule.
27.5 Financial Data Schedule.
</TABLE>
II-4
- -----------------
(1) Incorporated by reference to Registration Statement No. 333-39111 filed
October 30, 1997.
(2) The Registrant has requested confidential treatment of certain terms
contained in these Agreements; redacted text is indicated by [*]'s.
(3) To be filed by amendment.
<PAGE> 80
ITEM 28. UNDERTAKINGS
A. Supplementary and Periodic Information, Documents and Reports.
Subject to the terms and conditions of Section 15(d) of the Securities
Exchange Act of 1934, as amended, the Registrant hereby undertakes to file with
the Securities and Exchange Commission such supplementary and periodic
information, documents and reports as may be prescribed by any rule or
regulation of the Commission heretofore or hereafter duly adopted pursuant to
authority in that Section.
B. Provisions for Certificates.
The undersigned Registrant hereby undertakes to provide to the
Underwriters at the closing, certificates in such denominations and registered
in such names as required by the Underwriters to permit prompt delivery to each
purchaser.
C. Indemnification.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
Registrant pursuant to the foregoing provisions or otherwise, the Registrant has
been informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is
therefore unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless, in the opinion of counsel, the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
D. Undertakings Pursuant to Rule 430A.
For the purposes of determining any liability under the Securities Act
of 1933, as amended, the information omitted from the Prospectus filed as a part
of this Registration Statement in reliance on Rule 430A and contained in a form
of prospectus filed pursuant to rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be a part of this Registration Statement as of
the time it was declared effective.
For the purpose of determining any liability under the Securities Act
of 1933, as amended, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering of those securities.
II-5
<PAGE> 81
SIGNATURES
In accordance with the requirements of the Securities Act, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements of filing on Form SB-2 and authorized this
Pre-Effective Amendment No. 1 to Registration Statement to be signed on its
behalf by the undersigned, in the City of Milwaukee, State of Wisconsin, on
December 18, 1997.
MERGE TECHNOLOGIES INCORPORATED
(Registrant)
By: /s/ William C. Mortimore
----------------------------
William C. Mortimore
President, Chief Executive Officer and Director
In accordance with the requirements of the Securities Act, this Pre -
Effective Amendment No. 1 to the Registration Statement was signed by the
following persons in the capacities indicated this 18th day of December, 1997.
<TABLE>
<CAPTION>
NAME POSITION DATE
- ---- -------- ----
<S> <C> <C>
/s/ William C. Mortimore President and Director December 18, 1997
- ------------------------ (Pricipal Executive Officer) -----------------
William C. Mortimore
/s/ Colleen M. Doan Chief Financial Officer, Secretary December 18, 1997
- ----------------------- and Treasurer (Principal Accounting -----------------
Colleen M. Doan Officer and Principal Financial Officer)
The entire Board of Directors:
William C. Mortimore
Robert T. Geras
David B. Pivan
By /s/ William C. Mortimore December 18, 1997
------------------------ -----------------
William C. Mortimore
as Attorney-in-fact
</TABLE>
II-6
<PAGE> 82
EXHIBIT INDEX
<TABLE>
<S> <C>
5.1 Opinion of Foley & Lardner regarding legality.
10.5 Merge/Sirrom Revised Modification Agreement dated as of
October 30, 1997.
10.6 OEM Purchase Agreement between Registrant and Philips Medical
Systems Nederland B.V. dated September 24, 1994 and First
Amended Agreement dated June 4, 1996 (1).
10.7 Annual Master License Agreement between Registrant and
Siemens Aktiengesell shaft dated October 15, 1995 (1).
10.8 Distribution Agreement with Picker International, Inc. (1).
11 Statement regarding computation of per share earnings.
23.1 Consent of Foley & Lardner (see Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP
27.1 Financial Data Schedule.
27.2 Financial Data Schedule.
27.3 Financial Data Schedule.
27.4 Financial Data Schedule.
27.5 Financial Data Schedule.
</TABLE>
- -----------------
(1) The Registrant has requested confidential treatment of certain terms
contained in these Agreements; redacted text is indicated by [*]'s.
<PAGE> 1
EXHIBIT 5.1
[FOLEY & LARDNER LETTERHEAD]
December 9, 1997
Merge Technologies Incorporated
1126 South 70th Street
Suite S107B
Milwaukee, WI 53214-3151
Ladies and Gentlemen:
We have acted as counsel for Merge Technologies Incorporated, a
Wisconsin corporation (the "Company"), with respect to the preparation of a
Registration Statement on Form SB-2 (the "Registration Statement"), including
the prospectus constituting a part thereof (the "Prospectus"), filed by the
Company with the Securities and Exchange Commission under the Securities Act of
1933, as amended (the "Securities Act"), relating to 1,900,000 shares of the
Company's common stock, $.01 par value ("Common Stock"), together with up to
285,000 additional shares of Common Stock being registered to cover the
over-allotment option granted by the Company to the underwriters.
In connection with our representation, we have examined: (a)
the Registration Statement, including the Prospectus; (b) the Restated Articles
of Incorporation and Amended and Restated By-laws of the Company; (c)
resolutions of the Company's Board of Directors relating to the authorization
of the issuance of certain of the securities covered by the Registration
Statement; and (d) such other proceedings, documents and records as we have
deemed necessary to enable us to render this opinion.
Based on the foregoing, we are of the opinion that:
1. The Company is a corporation validly existing under the
laws of the State of Wisconsin.
2. The shares of Common Stock covered by the Registration
Statement that are to be offered and sold by the Company, when the price
thereof has been determined by action of the Company's Board of Directors and
when issued and paid for in the manner contemplated in the Registration
Statement and Prospectus, will be validly issued, fully paid and nonassessable,
except with respect to debts owing to employees of the Company for services
performed, but not exceeding six months' service in any one case, as provided
in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law.
<PAGE> 2
Merge Technologies Incorporated
December 9, 1997
Page 2
We consent to the use of this opinion as an exhibit to the
Registration Statement and to the references to our firm therein. In giving
our consent, we do not admit that we are "experts" within the meaning of
Section 11 of the Securities Act or within the category of persons whose
consent is required by Section 7 of the Securities Act.
Very truly yours,
/s/ Foley & Lardner
FOLEY & LARDNER
<PAGE> 1
EXHIBIT 10.5
MERGE/SIRROM REVISED MODIFICATION AGREEMENT
AGREEMENT as of this 30th day of October, 1997 between Merge Technologies
Incorporated, a Wisconsin corporation ("Borrower") and Sirrom Funding
Corporation ("Lender"), the assignee and wholly-owned subsidiary of
Sirrom Capital Corporation ("Sirrom").
RECITALS
0.1 The Borrower borrowed $2,000,000 (the "Loan") from Sirrom pursuant to
a Loan Agreement dated June 30, 1997 ("Loan Agreement") and Sirrom has assigned
the Loan Agreement and all documents evidencing, securing or relating to the
Loan to Lender, its wholly-owned subsidiary. Capitalized terms of the Loan
Agreement and not otherwise defined shall have the same meaning set forth in the
Loan Agreement.
0.2 The Borrower issued a Stock Purchase Warrant (the "Warrant") to Sirrom
to purchase 21,449 shares of its Common Stock for nominal consideration, and
provided Sirrom the right to put to the Borrower any Common Stock purchased
pursuant to the Warrant during the 30 day period preceding the fifth anniversary
of the outside date for exercising the Warrant, and the Warrant has been
assigned to Lender.
0.3 The Borrower proposes to declare a 5.77217-for-1 stock dividend of
its Common Stock, which would increase the shares purchasable per the Warrant to
145,256 shares as of the date hereof. The Borrower purposes to make an initial
public offering ("IPO") of its Common Stock through an underwriting led by H.C.
Wainwright & Co. as representative of the Underwriters of not less than
1,900,000 post-dividend shares at a price range of approximately $6.50 to $8.50
per share (the actual per share price being the "IPO Price").
0.4 The parties are desirous of modifying the Loan Agreement and Warrant
on the terms set forth below, and this document shall supercede the agreement
between the parties dated as of October 6, 1997.
NOW THEREFORE, in consideration of the premises and covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Recitals. The recitals set forth above are incorporated by reference
herein and made a part hereof as if fully rewritten.
2. Loan Agreement and Warrant Modification. Effective on the date of the
initial closing of the IPO ("Closing Date") the parties shall take the following
steps with respect to the Warrant and Loan Agreement:
a. Lender shall exercise the Warrant as to seventy-five percent (75%)
of the shares of Common Stock purchasable pursuant to the Warrant (presently
expected to be 108,942 shares -- the "Lender Shares");
<PAGE> 2
b. Lender shall terminate its put rights with respect to the Warrant
(or otherwise existing under the Loan Agreement) and Lender shall terminate its
right to exercise the Warrant for the remaining one-quarter of the shares
purchasable thereunder (presently expected to be 36,314 shares - the "Cancelled
Warrant Shares") in consideration for payment of a termination fee equal to
ninety percent of the IPO Price multiplied by the number of Cancelled Warrant
Shares;
c. The Borrower shall pay off all outstanding indebtedness to
Lender pursuant to the Loan Agreement; and
d. The Borrower shall agree to file a registration statement under
Form SB-2 or S-1, as applicable, 120 days following the Closing Date, to
register the Lender Shares and shall use its best efforts to cause such
registration statement to be declared effective as quickly as possible, but in
no event prior to 180 days following the Closing Date, and Lender further agrees
to not sell, pledge, encumber or otherwise dispose of any of its Lender Shares
or its interest in the Warrant or in any rights in said securities for a period
of 180 days following the closing date. Borrower agrees to maintain the
effectiveness of the registration statement for a period of at least 6 months,
all at the Borrower's sole cost and expense. The parties agree to execute a
registration rights agreement incorporating the above terms and the terms and
conditions presently in force and effect with respect to the Registration
Rights Agreement between the parties.
3. Term. This Agreement shall be for a term ending February 28, 1998.
Prior to the earlier of such date or the day following the Closing Date Lender
agrees it shall not sell the Warrant or any of the shares purchasable
thereunder. If the IPO is not consummated by February 28, 1998 the terms of this
Agreement shall be null and void in all respects, with no liability to any
party.
4. Miscellaneous. The term of sections 7.1 through 7.16 of the Loan
Agreement are incorporated by reference herein and made a part hereof as if
fully rewritten.
In witness whereof, the undersigned have executed this Agreement as of the
date first set forth above.
SIRROM FUNDING CORPORATION MERGE TECHNOLOGIES
INCORPORATED
By: /s/ [signature] /s/ William C. Mortimore
------------------------ ---------------------------------
Its: William C. Mortimore, President
----------------
Consented and agreed to:
SIRROM CAPITAL CORPORATION
By: /s/ John Dyslin
------------------------
Its: VP
----------------
2
<PAGE> 1
EXHIBIT 10.6
OEM PURCHASE AGREEMENT
between
Merge Technologies Inc
and
Philips Medical Systems Nederland B.V
CONTENTS
- --------
I. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II. Quantities and Pricing . . . . . . . . . . . . . . . . . . . . . . . 4
III. Planning and Ordering Procedure . . . . . . . . . . . . . . . . . . 5
IV. Development Phase/Type Approval Testing/Release for Delivery . . . . 5
V. Product Documentation . . . . . . . . . . . . . . . . . . . . . . . . 6
VI. Delivery, Inspection and Payment . . . . . . . . . . . . . . . . . . 7
VII. Warranty on Hardware . . . . . . . . . . . . . . . . . . . . . . . . 9
VIII. Software and Warranty on Software . . . . . . . . . . . . . . . . . 10
IX. Government Approvals, Compliance with Law, GMP/Quality Control
Audits and Recalls . . . . . . . . . . . . . . . . . . . . . . . . . 10
X. Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . 12
XI. Confidentiality and Use of Data . . . . . . . . . . . . . . . . . . 13
XII. Service Support and Spare Parts . . . . . . . . . . . . . . . . . . 14
XIII. Access to and Use of OEM Data . . . . . . . . . . . . . . . . . . . 14
XIV. Indemnity and Limitation of Liability . . . . . . . . . . . . . . . 15
XV. Term and Termination . . . . . . . . . . . . . . . . . . . . . . . . 15
XVI. Other Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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<PAGE> 2
-2-
OEM PURCHASE AGREEMENT
between
Merge Technologies Inc
and
Philips Medical Systems Nederland B.V.
This AGREEMENT is entered into this 24th day of September, 1994 (hereinafter
"Agreement") by and between Merge Technologies Inc., a corporation organized
and existing under the laws of the State of Wisconsin with its principal place
of business at 1126 South 70th Street, Milwaukee, WI 53214, USA (hereinafter
"OEM"), and Philips Medical Systems Nederland B.V., a corporation organized and
existing under the laws of the Kingdom of the Netherlands, with a place of
business at Veenpluis 4-6, 5684 PC Best, the Netherlands (hereinafter "PMSN".)
WHEREAS OEM manufactures and sells interface equipment and software packages
enabling the interconnection of various diagnostic and therapy systems of
various medical equipment providers; and
WHEREAS PMSN is in the business of manufacturing, selling and servicing a broad
range of medical imaging and therapy systems including workstations and desires
to incorporate equipment manufactured by OEM into these systems to effect the
desired interconnection through its workstations.
FOR AND IN CONSIDERATION of the premises and mutual covenants set forth herein,
and for other good and valuable consideration, the receipt to which is hereby
acknowledged, the parties hereby agree as follows:
I. Definitions
A. "Affiliate Company(ies)": Means any company, corporation, partnership or
other legal entity, present or future, which is controlled by one of the
parties. Philips
-------- --------
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<PAGE> 3
-3-
Electronics N. V. and any company controlled by it shall also be
deemed to be affiliate companies of PMSN. For this purpose,
"control" means direct or indirect beneficial ownership of more than
50% of the voting stock or of more than 50% interest in the income
of such corporation or entity.
B. "Product(s)": Means all OEM's hardware and software products as
listed in Attachment A and having the specifications and
characteristics set forth in Attachments B, attached hereto, or
otherwise as amended by written agreement of the parties. Products
include Software as defined hereinafter.
C. "Spare Part(s)": Means spare or replacement parts for the Product
including, but not limited to those spare or replacement parts
listed in Attachment H, attached hereto.
D. "Term": Means the time period set forth in Section XV below and any
extensions thereof.
E. "Agreement": Means this document, the Attachments thereto and any
written amendment to this document which is executed by the parties
as provided below.
F. "Type Approval Testing": Means the procedure described in
paragraphs IV A and B below.
G. "Purchase Order(s)": Means PMSN's standard purchase order form,
issued to OEM to specify delivery point, delivery schedule and
Product configuration and commit PMSN to purchase of a given unit of
Product.
H. "Epidemic Failure": Means the repeat of a certain type of failure
of Product or Parts such that a pattern is recognized, present in at
least three (3) of ten (10) sequentially delivered Products.
J. "Manuals": Means all technical documentation considered necessary
by PMSN for the purpose of installing, servicing and repairing
Products. This documentation includes, but is not limited to,
installation, operator, and maintenance manuals.
K. "Software": Means all operational computer programs, including
firmware, necessary for operation of the Product. In case the
Product concerned is Software only,
-------- --------
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<PAGE> 4
-4-
special arrangements may be made and will be part of the specification as
attached hereto in Attachment B.
L. "DICOM": Means the interface protocol version 3.0, or higher, as defined
by the working group 3 of ACR-NEMA.
II. Quantities and Pricing
A. OEM agrees to sell and PMSN agrees to purchase, subject to successful
completion of Type Approval Testing as set forth below and at the condition
specified in Attachment H, Products as listed in Attachment A which
conforms to the Specifications in Attachment B, at prices to be determined
in accordance with the Prices and Planned Yearly Numbers as specified in
Attachment C.
All prices set forth in this Agreement are in United States dollars.
B. Purchase Orders issued by PMSN before successful completion of Type
Approval Testing as provided in paragraph IV B below shall be contingent
upon OEM's meeting the milestones required for PMSN approval of Product as
described in paragraphs IV A and B below.
C. Open
D. The pricing as listed in Attachment C shall apply to all Purchase Orders
tendered to OEM during the Term of this Agreement.
E. If new Product prices are to be negotiated, negotiations shall commence at
least three (3) months before the new price is to become effective.
F. When price negotiations referred to in paragraph II E above extend beyond
the price-validity period as specified in Attachment C, the prices valid
for the previous period will continue to remain in effect until such time
as the parties have reached mutual agreement on the new prices.
G. If no agreement can be reached on new prices after serious negotiations,
PMSN has the right to terminate this Agreement giving OEM a thirty (30)
days prior written notice. In the event of such termination, PMSN
-------------- ---------------
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<PAGE> 5
-5-
shall complete its Purchase Orders as placed before the date of said
termination.
H. Price increases shall not [**]. In the event OEM would [**].
J. PMSN may have any of the PMSN Affiliate Companies such as Graner
Company, Port Chester, NY, USA, execute logistic procedures, such as,
without limitation, placing Purchase Orders, payments of invoices,
transport arrangements, shipping instructions and handling of return
shipments for repair or replacement on behalf of PMSN.
III. Planning and Ordering Procedure
On a monthly basis PMSN will provide OEM with [**] during said
twelve months, if so requested by OEM. Such forecasts including the
quantities and delivery Schedules therein shall not bind either party
except as to those orders listed in the forecast for which PMSN has
issued unconditional Purchase Orders, such Purchase Orders confirmed by
OEM within ten (10) days after receipt of same, and not having been
cancelled or terminated as provided in this Agreement. The terms of
this Agreement shall govern over any contrary, different or
additional terms (other than as to Product configuration, delivery
schedule and delivery condition) in PMSN's Purchase Order or in any
other standard form documentation submitted by either party. Delivery
time for Products so forecasted shall be [**], delivery time
of Products over and above the forecasted numbers will be [**].
IV. Development Phase/Type Approval Testing/Release for Delivery
-------------- ---------------
Initials Initials
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[**] Confidential Treatment
<PAGE> 6
-6-
A. Before the start of commercial deliveries under this Agreement and in
accordance with the agreed milestones, including, but not limited to, those
specified in Attachment J, OEM shall execute Type Approval Tests in order
to ascertain that the Product conforms to the applicable Specifications,
including the agreed quality standards and governmental approvals and
certifications. OEM shall provide PMSN with the supporting evidence
thereof, it being understood that Products already accepted and approved
prior to the execution date of this Agreement shall not pass any further
Type Approval Tests.
B. Upon completion of the tests as per paragraph IV A above and if PMSN is
satisfied with the results of these tests, PMSN shall provide OEM with a
written release statement ("Release for Delivery Certificate") to authorize
the start of deliveries under any open Purchase Order(s). PMSN shall have
no obligation to purchase a Product, Spare Part or any other items under
this Agreement unless Type Approval Testing is completed successfully, even
if written Purchase Orders for Products and related Spare Parts are placed
with OEM before Type Approval Testing is complete.
C. Once a Product is released for delivery by PMSN, OEM shall not make any
changes or modifications in the Product concerning the interface between
Philips' modalities and the Product, neither in hardware nor in software
without prior written consent of PMSN. This requirement however does not
preclude OEM from using equivalent components and parts that do not affect
form, fit, or function of the Product or interchangeability of Spare Parts
or compliance with the Specifications, including certification. OEM shall
supply to PMSN updated Spare Part lists at six month intervals to indicate
at what serial number the updated Spare Parts are applicable.
D. OEM shall advise PMSN in advance of any and all changes or modifications to
a Product or similar items in OEM's product line and afford PMSN the
opportunity to have these changes or modifications incorporated in Products
without additional charge to PMSN.
V. Product Documentation
-------------- ---------------
Initials Initials
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<PAGE> 7
-7-
A. OEM, at its own expense, shall furnish to PMSN such engineering
drawings, handbooks, operator and service manuals (in OEM's standard
format) and other technical data as PMSN shall reasonably request
with respect to Products purchased hereunder and other items used as
Service or Spare Parts for Product sold to PMSN. PMSN shall have the
right to duplicate and distribute to customers all such documents
regardless of whether or not they are included in the grant of
rights in paragraph X B below. Documentation which PMSN is not
required to distribute to its customers may be designated by OEM as
confidential and shall be held in confidence by PMSN as provided in
Section XI below. The Manuals supplied by OEM shall be reviewed and
approved by PMSN and, at a minimum, incorporate the information set
forth in the PMSN standards which would apply to this documentation
if it were prepared by PMSN. PMSN shall assist OEM in producing the
said Manuals and documentation and shall bear its own costs and
expenses, but not those of OEM, with respect to such assistance.
B. All said Manuals and documentation shall be updated and kept current
by OEM during the lifetime of the Product and include an implemented
changes and modifications pertaining to the Product. Corrections
shall be furnished to PMSN without additional charges.
VI. Delivery, Inspection and Payment
A. All shipments by OEM shall be in compliance with their respective
Specifications, except as provided in Section IV D above.
B. One copy of the operator and service Manual shall be included with
each item of Product which is shipped by OEM to PMSN or directly to
PMSN's customers, except that two copies of these Manuals shall be
included in shipments of Product to the United States Veterans
Administration, Department of Defense or other customers of PMSN
which are agencies of the United States Government.
C. Unless otherwise specified, any goods to be delivered hereunder
shall be boxed, crated, carted and stored without charge and shall
be packed and packaged (a) to insure safe arrival at their ultimate
destination, (b) to secure the lowest transportation costs; and (c)
to comply
-------------- ---------------
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<PAGE> 8
-8-
with requirements of common carriers. PMSN's order numbers and symbols must
be plainly marked on invoices, packages, Bill of Lading and shipping orders.
Shipping memos and packing lists must accompany goods. Bills of Lading or
Shipping Receipts shall accompany each invoice. PMSN's count or weight shall
be final and conclusive on shipments not accompanied by packing lists. Goods
must be routed in accordance with PMSN's instructions. All shipments must
contain a packing list and the box or crate containing the packing list must
be clearly identified.
D. Time is and shall remain the essence of deliveries under this Agreement,
therefore it is expressly agreed that all deliveries shall be made as
confirmed by OEM and no act of PMSN, including without limitation,
acceptance of late deliveries shall constitute a waiver of this provision.
PMSN shall also have the right to refuse or return at OEM's risk and expense
shipments made in excess of the quantities specified in the applicable
Purchase Order or in advance of confirmed delivery schedule. OEM shall
notify PMSN immediately of any actual or potential labor disputes or other
cause which is delaying or threatens to delay the timely performance of
Purchase Orders.
E. Delivery of Products shall be Ex-Works OEM's plant at Milwaukee. "Ex-Works"
as this term is defined in the 1990 Incoterms, issued by the International
Chamber of Commerce, Paris, France. Title and risk of loss or damage to the
Products or Spare Parts shall pass from OEM to PMSN at the said delivery
condition Ex-Works.
F. PMSN shall have the right to reject all or any of the Product or Spare
Part(s) which are proved not to meet their Specifications, provided that
such claim shall be submitted to OEM with the supporting evidence within
thirty (30) days after the arrival date at the installation site.
G. In case of such rejection, OEM and PMSN shall decide in joint consultation
whether PMSN will:
(i) replace defective Spare Parts or units or
(ii) that OEM will replace at no charge to PMSN the pertaining Product(s).
-------------- ---------------
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<PAGE> 9
-9-
In case of replacement of defective Spare Parts or units, such defective
items shall be returned to OEM for full credit.
H. All Products or parts thereof to be supplied by OEM to PMSN
pursuant to this Agreement shall be checked and tested by OEM in
accordance with the Acceptance Procedures specified in Attachment D, to
be in compliance with the Specifications. OEM shall keep record of the
test results at least ten (10) years after delivery of each single
Product or parts thereof and on request provide PMSN with copies. These
Acceptance Procedures will be agreed upon between the parties hereto as
well as the specimen of a Test- Certificate that should be signed by
OEM's responsible quality officer and shall accompany each Product as
evidence that the Product complies with the applicable Specifications. A
copy of the associated Test Certificate shall be shipped with each
Product unit. Each unit of Product shall meet the requirements of the
Type Approval Testing, even though such testing may not be repeated for
each such unit.
J. It is explicitly understood by OEM that PMSN is not obligated to
execute any incoming inspection or other inspection concerning
compliance with the Specifications of Products delivered hereunder by
OEM and OEM shall be fully responsible for and hold PMSN and the PMSN
Affiliate Companies harmless from claims for damages resulting from any
non-compliance as well as from non acceptance of Products as per
paragraph VI F above.
K. OEM shall be paid the prices stipulated herein, less deductions,
if any, as herein provided, after delivery, inspection and acceptance by
PMSN of the Product or Part(s) at PMSN's plant or other place designated
in the Purchase Order and the submission of proper invoices or vouchers,
except that PMSN shall have the right to defer payment on advance
deliveries until the time such payment would have been due if the
deliveries had been made as scheduled. Unless otherwise specified,
payment will be made on partial deliveries inspected and accepted by
PMSN when the amount due on such deliveries so warrants. PMSN shall pay
all invoices within forty five (45) days from date of receipt.
VII. Warranty on Hardware
-------------- ---------------
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<PAGE> 10
-10-
A. OEM warrants to PMSN that all hardware of Products delivered under
this Agreement will meet the Specifications which are attached to this
Agreement and made a part hereof as Attachment B, will conform to the
list of government and industry standards attached hereto as Attachment
F and will be free from defects due to faulty design or materials, or
improper workmanship, for [**] from the date the installation
is complete at PMSN's customer's site or [**] of invoice date,
whichever is earlier. This warranty of OEM shall be under the terms of
OEM's Warranty which is attached hereto and made a part hereof as
Attachment E. Replacement Products provided under the terms of
Attachment E shall be shipped to PMSN within three (3) business days of
receipt of OEM of the Product being replaced.
B. Notwithstanding that PMSN may have worked with OEM in the
Preparation of the specification (including the Specifications attached
as Attachment B) for Products, it is understood that PMSN is relying on
the technical expertise of OEM with respect to the adequacy of the
Specifications and with respect to the proper manufacture of the Product
including those aspects of its manufacture which are addressed above.
VIII. Software and Warranty on Software
A. OEM warrants that the Software, when used within the scope of
application license set forth herein, will conform to the Specifications
during [**] after the first delivery thereof. During this
Warranty period OEM agrees to keep its Software current with all new
versions of Software produced by PMSN or other specified medical
equipment providers which would cause that particular Product to be non
operational or only partially operational. OEM agrees to provide within
one (1) month after acceptance by PMSN and free of charge to the
end-user and to PMSN any new Software version needed for only
in-warranty Product.
B. During the out-of-warranty period OEM agrees to keep its
Software current with all new versions of Software produced by PMSN or
other medical equipment providers which would cause a particular Product
to be non operational or only partially operational. New Software
versions for out of Warranty Products shall be available
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<PAGE> 11
-11-
on a to be agreed upon basis to PMSN whenever released by OEM.
IX. Government Approvals, Compliance with Law, GMP/Quality Control
Audits and Recalls
A. OEM agrees that the design of the Products and Spare Parts thereof
shall comply with the requirements as the parties may agree upon and as
further specified in Attachment B, which includes also the DICOM
Conformance Declaration. Any obligation for verification testing of
said requirements shall be the responsibility of OEM. Should it be
determined that the Products or Spare parts thereof are not in
compliance with the applicable agreed requirements then OEM shall make
the necessary changes at its own expense.
B. OEM shall comply with the requirements of the United States Food
and Drug Administration for good manufacturing practices ("GMP"),
establishment registration, device listing, Premarket Notification,
Medical Device Reporting (21 CFR Part 803), reporting under Radiation
Control for Health & Safety Act and labelling as they apply to the
manufacture and/or importation of Product by OEM. Authorized
representatives of the respective safety standards organizations
(including Underwriters Laboratories, ETL Testing Laboratories, Canadian
Standards Association, British Standards Institute, German Standards
Mark) and governmental agencies (including the FDA) shall be allowed
access to OEM's facilities or those of its subcontractors or vendors,
for the purpose of inspection during normal working hours pursuant to
applicable laws, regulations and the reasonable requirements of PMSN.
C. OEM agrees, to the extent necessary to comply with CDRH rules and
regulations pertaining to GMP and with the international ISO 9001
standard. Therefore, upon request and at least two (2) weeks advance
written notice to OEM, independent auditors may (i) inspect the storage
and quality of parts of Products in OEM facilities, and (ii) audit the
quality control procedures and methods applied by OEM in its facilities
in the development and manufacturing and assembling of Products in
accordance with GMP and ISO 9001.
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D. In the event any of the above requirements, safety in regulations and/or
standards might change, OEM shall, at its costs, make all the necessary
modifications in and to the Products and/or Spare Parts which have not
yet been accepted by the end-user.
E. OEM shall within fifteen (15) days after receipt of same respond to any
question and provide all necessary information to PMSN or one of its
Affiliated Companies Regulatory Department's arising out of a recall or
corrective action program or related program.
F. In the event that an Epidemic Failure of a Product or any Spare Part or
component thereof is found or that any recall program of Products, Spare
Part(s) or component(s) may be required, PMSN shall promptly notify OEM
thereof in writing. OEM and PMSN shall then promptly and jointly conduct
an investigation to determine the cause of such Epidemic Failure or
recall program. If and to the extent it is determined by PMSN, acting
reasonably and in good faith, as a result of such joint investigation,
that the cause of such Epidemic Failure or recall program is
attributable to any defect in (a) Product(s), Spare Part(s) or
component(s) thereof, OEM shall at its expense provide sufficient
Product(s), Spare Part(s) or component(s) to replace all such defective
Product(s), Spare Part(s) or component(s) in PMSN's inventory and also
those which have been delivered by PMSN to its customers. OEM shall
bear all reasonable costs and expenses (including shipping charges) for
replacing such Product(s), Spare Part(s) or components previously
shipped by OEM.
X. Intellectual Property
A. OEM covenants and guarantees that all Products and Spare Parts furnished
hereunder which are not of PMSN's design (and the normal use and sale
thereof), including, without limitation, the manufacture, use and sale
of products and systems/incorporating such Product and Spare Parts, are
free of infringement of any valid United States or foreign patent,
copyright, trade secret, maskwork right or trademark, and that OEM,
will, at its own expense, defend and hold PMSN harmless from any claims
or suits alleging such infringement by PMSN, its successors, assigns,
customers or any persons selling or using such goods or any product
manufactured by PMSN which may be
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claimed to involve any such alleged infringement. The purchase of the
Products shall confer on PMSN from OEM a worldwide, royalty-free,
non-exclusive license to use such Products and Spare Parts. Such license
also includes the right of PMSN and PMSN's Affiliates Companies to
sublicense others to use, reproduce, and to distribute copies for
back-up purposes, both externally and internally, of the Software and of
the related documentation, written material and/or derivative works of
the Software.
For Software only Products, special arrangements will be made and set
forth in Attachment B hereto when coming into force
B. PMSN shall have sole option as to the use of the following trademarks:
(a) the wordmark "PHILIPS" and Philips Shield Emblem and (b) such other
trademark(s) as, may be designated by PMSN ("Trademarks.") OEM
acknowledges all rights of PMSN in and to the Trademarks and further
agrees that the manufacture and supply of Products, Spare Parts and
packing, if any, bearing the Trademarks shall not be construed as a
grant of any rights in such Trademarks or as the use of such Trademarks
by or for the benefit of OEM.
C. OEM grants to PMSN and PMSN Affiliate Companies a personal, nonexclusive
right to sublicense the Software to customers provided that PMSN obtains
agreement from each such customer, before or at the time of furnishing
the Software, that, that only a personal, nontransferable right to use
the Software is granted to such customer; that no title to the Software
is transferred to such customer, that such customer will not copy the
Software except as necessary to use such Software on a single CPU;
that such customer will not transfer the Software, except as
authorized by the entity furnishing the Software; that such customer
will not in any form export, reexport, resell, ship or divert or cause
to be exported, reexported, resold, shipped or diverted, directly or
indirectly, the Software or a direct product thereof to any country for
which the United States Government or any agency thereof at the time or
export or reexport requires an export license or other governmental
approval without first obtaining such license or approval; and that such
customer will not reverse compile or disassemble the Software.
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XI. Confidentiality and Use of Data
Any specifications, parts of software, drawings, samples, designs and
other information labelled as confidential furnished by either party to
the other shall be maintained in confidence by the receiving party, and
shall not be reproduced, disclosed, duplicated, or used, except to the
extent required for performance under this Agreement, and with all
reasonable precautions to prevent any unauthorized reproduction or
disclosure, without the prior written consent of the disclosing party.
Upon completion of the parties obligations under this Agreement including
any legal and contractual obligations incurred by PMSN to its customers
and other third parties by reason of this Agreement, the receiving party
shall promptly return to the disclosing party, all specifications,
drawings, samples and other data, furnished by the disclosing party in
connection with this Agreement (together with all copies or reprints not
required to maintain existing installations) then in the receiving party's
possession or control, and the receiving party shall thereafter make no
further use, either directly or indirectly, of any such specifications,
drawings, samples, data or any information derived therefrom without the
disclosing party's written consent.
XII. Service Support and Spare Parts
A. OEM agrees to comply with all terms and conditions as set forth in the
Attachment G of this Agreement.
B. A list of Spare Parts, containing an information as required in the
Attachment G Section 7.1, is included hereto as Attachment H.
XIII. Access to and Use of OEM Data
PMSN will incorporate the Products into systems which are sold by PMSN to
its customers and in many cases be responsible for maintenance and repair
of the Products on a continuing basis as part of PMSN's systems. Moreover,
interconnection with systems of other medical equipment providers will
also be effected under this Agreement. Reference is made to the fact that
the Products and Spare Parts will be unique to OEM and cannot be replaced
by
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other components in systems sold by PMSN without considerable expense,
delay and irreparable damage to PMSN's on-going business, for which no
adequate monetary remedy exists. If for any reason, OEM should fail to
comply with production and delivery requirements hereunder or
discontinue manufacture of the Products or Spare Parts, without PMSN
being in material breach of its own obligations hereunder, OEM shall
provide to PMSN sufficient documentation concerning the Products and
Spare Parts, including but not limited to Specifications, drawings,
lists of parts and sub-vendors, and Software in source and object code
to the extent necessary to permit sustaining of Products, manufacture or
procurement of replacement product or parts from another source. In such
event, OEM agrees to grant and does hereby grant PMSN a perpetual,
non-exclusive, royalty-free license to use such data to sustain
Products, manufacture or have manufactured a replacement product
provided, however, that OEM is entitled to disclose such data if
received from a third party under a Non-Disclosure or the like
Agreement. If the latter is the case, OEM shall do its utmost to
convince the concerning third party that disclosure of confidential data
has to be arranged between the third party and PMSN in order to have the
installed based maintained appropriately.
XIV. Indemnity and Limitation of Liability
A. OEM agrees to protect, indemnify, and hold PMSN harmless against any
claim, loss, damage or expense, including attorney's fees which may
result from OEM's breach of excess or implied warranties including
claims of injury to persons (including death) or damage to property
which may result in any way from any act or omission of OEM of its
agents, employees or subcontractors or from a defect in the Product or
Spare Parts or the design, manufacture, sale operation, handling by OEM
or use, thereof.
B. Except as regards the indemnity by OEM set forth above, infringement of
intellectual property rights and PMSN's rights under Section XIII above,
neither party shall be liable to the other for special, indirect or
consequential damages (including but not limited to loss of business
goodwill, revenue or profits) by reason of any act or omission or
arising out of or in connection with this Agreement. The foregoing is a
separate,
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essential term of this Agreement and shall be effective upon the
failure of any remedy, exclusive or not.
XV. Term and Termination
A. This Agreement shall become effective on the date first above written
and shall for an initial term continue until July 31, 1996. Thereafter,
this Agreement shall automatically be renewed for successive period(s)
of one (1) year unless terminated with three (3) months written notice.
B. Upon expiration or termination of this Agreement, all Purchase Orders
placed under this Agreement shall remain in effect on the terms set
forth herein, notwithstanding such expiration or termination. The
non-breaching party may terminate an individual Purchase Order as to
which a material, uncured breach by the other party has occurred. In the
event of termination of this Agreement by either party because of a
material, uncured breach of this Agreement, the non-breaching party may
at its sole option terminate without obligation all Purchase Orders
placed under the terms of this Agreement.
C. The following shall be a material breach thereof: The insolvency, the
filing of a voluntary petition in bankruptcy, the filing of an
involuntary petition to have the party declared bankrupt provided it is
not vacated within 30 days thereafter, the appointment of a receiver or
trustee for either party provided such appointment is not vacated within
30 days thereafter, the execution of an assignment for the benefit of
creditors by either party, or the merger or reorganization of OEM or of
a sale of a substantial portion of OEM's assets provided that such
merger, reorganization or sale shall materially adversely affect OEM's
ability to perform the terms of this Agreement.
D. Termination or expiration of the term of this Agreement shall not
relieve either party of any rights and obligations then accrued under
Sections VII (inclusive of warranty) through XIV which by their nature
or expressly by the terms of this Agreement extend beyond the date of
termination, expiration or cancellation.
XVI. Other Provisions
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A. The validity, interpretation and performance of this Agreement and of
purchases made hereunder shall be governed by the laws of the State of New
York, without regard to the principles of choice of law.
B. Any notice or other communication required or permitted hereunder shall be
in writing and shall be deemed to have been given if placed in the United
States or the Netherlands, as the case may be, mail registered or
certified, postage prepaid, or if personally delivered, addressed as
follows:
If to OEM: Merge Technologies Inc.
1126 South 70th Street
Milwaukee, WI 53214
U.S.A.
Attn.: Vice President Sales & Service
If to PMSN: Philips Medical Systems Nederland B.V.
Veenpluis 4-6
5684 PC Best,
The Netherlands
Att. General Counsel
Building QM
C. No failure by either party to insist upon strict compliance by the other
party with any of the terms, provisions or conditions of this Agreement in
any instance shall be construed as a waiver or relinquishment by either
party of the other party's rights to insist upon strict compliance in the
future.
D. If any of the provisions of this Agreement are held to be void or
unenforceable by or as a result of determination of judicial authority
having competent jurisdiction, the decision of which is binding upon the
parties, the parties agree that such determination shall not result in the
unenforceability of the remaining portions of this Agreement. The parties
further agree to replace such void or unenforceable provisions with
provisions which will achieve to the extent possible, the economic,
business and other purposes of the void or unenforceable provisions.
E. This Agreement, the Attachments and any documents incorporated herein by
reference shall be the entire agreement between OEM and PMSN with respect
to its subject matter. This Agreement will supersede all prior
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discussions, negotiations and agreements between OEM and PMSN on the
subject matter set forth herein. This Agreement shall be amended only by
a writing signed by an officer of the party to be bound by such writing.
F. OEM hereby warrants to PMSN that Products and Spare Parts including
their packing materials, neither contain nor are manufactured with any
substances as specified in Attachment K which will be subject to update
from time to time by PMSN.
G. This Agreement sets forth the entire agreement between the parties
hereto with respect to the subject matter hereof and all oral and
written representations, warranties, agreements, and/or other
inducements relating to this Agreement and it subject matter prior to
the effective date have been included herein, or have been fully
performed and discharged, or, omitted, unless otherwise agreed upon and
confirmed in writing by both parties signed on or after the effective
date of this Agreement.
H. Neither PMSN's general conditions of purchase nor OEM's general
conditions of sale are applicable to this Agreement or to any Purchase
Order and order confirmations for products or Spare Parts in whole or in
part.
I. Either party's failure to insist in any instance upon strict performance
by the other party of any terms and covenants herein shall not be
construed as a permanent waiver of such terms or covenants, or as a
waiver of any other of the terms and covenants contained herein.
J. This Agreement shall be binding upon and inure to the benefit of the
parties hereto, their respective successors and permitted assigns. This
Agreement may not be assigned, transferred or hypothecated in whole or
in part by either party except by prior written consent of the other
party. However, no consent is required to an assignment or transfer in
whole or in part by PMSN to any of the PMSN Associated Companies. PMSN
shall notify OEM of such assignment or transfer in writing.
K. OEM shall not without PMSN's prior written consent use Philips' name or
trademark as such and/or use name in connection with any advertisement
or sale literature nor advertise that it is a supplier of PMSN or
Philips and/or
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jure), natural phenomena, such as earthquakes and floods, fires, riots,
wars, shipwrecks, freight embargoes, lockouts or other causes, whether
similar or dissimilar to those enumerated above, unforeseeable and beyond
the reasonable control of the parties and which prevent the total or
partial carrying out of any obligation under this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in a manner legally binding upon them effective this 24th day of
September, 1994.
OEM Philips Medical Systems
Nederland B.V.
J.K. van Soest
By: W.C. Mortimore By: J.K. van Soest
-------------------------- --------------------------
Title: President Title: Director
----------------------- -----------------------
Date: W.C. Mortimore Date: 28/9/94
------------------------ ------------------------
24-9-94
<PAGE> 20
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LIST OF ATTACHMENTS
Attachment A Product List and Product Characteristics
Attachment B Product Specifications
Attachment C Prices and Planned Yearly Numbers
Attachment D Acceptance Procedure
Attachment E OEM's Warranty
Attachment F List of Mandatory Standards
Attachment G Service Arrangements
Attachment H Spare Parts List
Attachment J Type Approval Procedure
Attachment K List with Prohibited/Restricted Substances
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FIRST AMENDMENT AGREEMENT
This Agreement is effective as of the date of last signature between
MERGE TECHNOLOGIES INC. of Milwaukee, Wisconsin, U.S.A. (hereinafter referred
to as "Merge")
and
PHILIPS MEDICAL SYSTEMS NEDERLAND B.V. of Best, the Netherlands (hereinafter
referred to as "PMSN")
WHEREAS, PMSN and Merge entered into an OEM Purchase Agreement dated September
24, 1994, for the supply of interface equipment and related software packages
by Merge to PMSN; and
WHEREAS, parties have agreed to license Merge to use the PMSN proprietary and
confidential Validation Set (as defined in Annex 1) in accordance with the
terms and conditions of this Agreement, however, for the sole purpose of
testing interfaces.
NOW THEREFORE, the parties have agreed as follows:
Article 1
Scope of Agreement
Subject to the terms and conditions hereinafter set forth, PMSN hereby grants
to Merge, to the extent PMSN has a free right to do so, a non-exclusive,
non-transferable and indivisible license, without the right to sublicense, to
use, for its own products only, PMSN's Test suite software-package, as
specified in Annex 1 hereto (hereinafter called "the Validation Set").
Article 2
Making available of the Validation Set
(1) PMSN shall make available the Validation Set, in object-code, to Merge. It
is hereby confirmed that Merge shall only use the Validation Set for the
authorised testing of its own products and products of third parties.
(2) Merge shall use the Validation Set properly and solely in accordance with
instructions given by related manuals or otherwise given by PMSN. The
Validation Set may only be used by experienced engineers of Merge.
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(3) Merge shall not copy or otherwise reproduce the Validation Set or any
information relating thereto provided by PMSN. Merge hereby fully
acknowledges PMSN's property rights (including its copyrights) in the
Validation Set.
(4) It is understood that PMSN does not undertake any obligation with regard to
service and maintenance of the Validation Set and/or related information.
However, PMSN is willing to take Merge's maintenance requirements into
account while definite PMSNs own maintenance program. In the event these do
not fit, parties shall discuss the matter in order to define reasonable
other opportunities to fulfil Merge's requirements.
Article 3
Liability
PMSN shall not be liable for any damages or losses other than those for which he
has expressly assumed liability in this Agreement, in particular PMSN shall not
be responsible for bodily injury or damage to property or other damages or
losses sustained by third parties or Merge, which may arise in consequence of
the use of Validation Set. PMSN's liability shall in no event be considered to
extend to indirect or consequential damages of any nature whatsoever including
loss of profit and/or revenue. Merge shall hold PMSN harmless against and
indemnify PMSN for all costs, damages and interests which might arise directly
or indirectly from any claim of third parties in this respect.
Article 4
Price and Payment
(1) Within thirty (30) days as from the date of last signature of this
Agreement, Merge will pay to PMSN an amount of [**] as license-fee for
1996.
(2) In the beginning of October 1996, Parties will discuss the terms of any
extension of this Agreement, including the license-fee for 1997.
Article 5
Improvements
Merge will provide PMSN with suggestions and information, such as
non-confidential test-results, to the extent relating to the quality and
performance of PMSN's Validation Set in order to enable PMSN to improve the
Validation Set and other products. Merge hereby grants PMSN and its affiliates
an unrestricted royalty-free license to use and implement the suggestions and
information, regardless whether it has been protected by Merge, e.g. through
patents.
RM2-96/15 WHS OAC
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It is understood that Merge itself will not change, adapt or otherwise modify
the Validation Set.
On the request of PMSN, Merge shall reasonably assist PMSN free of charge with
solving a problem relating to the Validation Set.
Article 6
Confidentiality
Any confidential information, if labelled as confidential, furnished by either
party to the other in connection with this Agreement, shall be treated as
confidential in accordance with the terms as set forth in the OEM Purchase
Agreement dated September 24, 1994.
Article 7
Term and Termination
(1) This Agreement shall enter into force on the date of last signature and
shall remain effective till December 31, 1996. This Agreement shall be
extended subject to and in accordance with the full agreement as to be
reached between PMSN and Merge prior to any such extension.
(2) In the event of a breach of the terms and conditions of this Agreement
by either party, the other party shall have the right to terminate this
Agreement forthwith by notice in writing, if such breach or failure is
not remedied within thirty (30) days after written notice describing
such breach has been given by the other party.
(3) If a party enters into a proceeding relating to dissolution, files a
voluntary petition in bankruptcy, seeks any court or governmental
protection from creditors or makes any assignment for creditors, or
should an order be entered pursuant to any law relating to bankruptcy or
insolvency appointing a receiver or trustee of if the ownership, control
or management of Merge changes, the other party may give written notice
terminating this Agreement and this Agreement shall be terminated in
accordance with the notice.
Article 8
Miscellaneous
(1) In case PMSN stops it activities with the Validation Set and PMSN
decides, at its sole discretion, to sell and/or license the Validation
Set, PMSN shall first offer the Validation Set for sale or by license to
Merge on terms to be mutually agreed upon.
(2) The terms and conditions contained in this Agreement and the Annexes
thereto constitute the entire Agreement between the parties hereto in
respect of the subject matter thereof and shall supersede any and all
prior communications, representations, agreements and/or understandings,
either oral or written, between the parties hereto in respect thereof.
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(3) No agreement or understanding varying or extending the terms and conditions
contained in this Agreement and its Annexes shall be binding upon either
party hereto unless made in writing and signed by duly authorised
representatives of the parties hereto.
IN WITNESS WHEREOF, this Agreement has been signed by both parties in duplicate
in a manner duly binding upon them.
MERGE TECHNOLOGIES INC. PHILIPS MEDICAL SYSTEMS
NEDERLAND B.V.
/s/ Oulio Christensen
Name: /s/ William L. Stafford Name: O.A. Christensen
-------------------------------- -----------------------------------
Title: V.P. Sales & Marketing Title: Director
------------------------------- ----------------------------------
Date: 4 June 1996 Date: 96 06 04
-------------------------------- -----------------------------------
<PAGE> 1
EXHIBIT 10.7
ANNUAL MASTER LICENSE AGREEMENT
This License Agreement is made and entered into this 15th day of October, 1995
("Effective Date"), by and between:
MERGE TECHNOLOGIES INC., a corporation organized and existing under the
laws of the State of Wisconsin with its principal place of business
located at 1126 South 70th St., Suite N508B, Milwaukee,
Wisconsin 53214-3151 ("MERGE"), and
SIEMENS AKTIENGESELLSCHAFT, Medical Engineering Group, a corporation
organized and existing under the laws of Federal Republic of Germany
and having as its principal place of business HenkestraBe 126,
D-91052 Erlangen ("SIEMENS").
WHEREAS, MERGE is owner or licensee for Use of the proprietary rights
(including the intellectual property rights) to certain software; and,
WHEREAS, SIEMENS desires to obtain from MERGE a license for Use of such
software for development of and in SIEMENS Systems;
NOW THEREFORE, in consideration of the premises, covenants and promises herein
set forth, SIEMENS and MERGE agree as follows:
1. DEFINITIONS
1.1 "Affiliate" of a party shall mean any business entity directly or
indirectly controlling or controlled by such party. For purposes of
the foregoing, "control" shall mean the right, directly or indirectly,
to direct the management or remove the board of directors (or their
equivalent) of an entity by virtue of ownership of more than forty
percent (40%) of the voting stock or voting rights of the entity.
1.2 "Agreement" shall mean this License Agreement, including any attached
Exhibits, and any other addenda and supplemental Exhibits, signed by
both parties, as may be appended from time to time.
1.3 [**] shall mean the applications program interface identified in
Schedule 1.3 for creating Systems which [**]
1.4 [**] shall mean the software modules identified in Schedule 1.4
1.5 "Documentation" shall mean the standard written documentation provided
with the [**] including the "Users Manual" and "Reference Manual".
1.6 "End-User" shall mean a customer of SIEMENS who acquires possession of
one or more of SIEMENS Systems for its own use.
1.7 "OEM" shall mean a customer of SIEMENS who resells directly or
incorporates in the OEM's product one or more of SIEMENS Systems.
1.8 "Licensed Software" shall mean [**] and [**] singly and collectively
provided by MERGE pursuant to this Agreement,
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and Modifications or Upgrades thereof, or portions thereof, if any,
which are distributed to SIEMENS.
1.9 "Modifications" shall mean changes, exclusive of Upgrades, added to or
integrated with the Licensed Software by MERGE to correct any
deficiencies or errors therein or to improve performance, usability or
functionality, but which do not add to or alter its basic function(s).
1.10 "Sublicense" shall mean an agreement to be entered into between SIEMENS
or Affiliates and the End-User or OEM which grants the End-User
or OEM only the right to [**] in a single specified SIEMENS System and
which obligates the End-User or OEM to take reasonable measures to
maintain the secrecy of the [**] and not to decompile, translate
or otherwise reverse engineer the [**]
1.11 "System" shall mean the products of SIEMENS, hardware combined with
software or software only, as reported at half-year intervals in the
format described in Schedule 1.11.
1.12 "Upgrades" shall mean modifications which add to or alter the
function(s) or otherwise implement substantial additional capability
within the Licensed Software.
1.13 "Maintenance Services" shall mean the services set forth in Schedule
1.13.
1.14 "Warranty Period" shall mean the time period identified in Schedule
1.14.
1.15 "Use", "Uses", or "Using" shall mean to install, load, execute, employ,
utilize, store and display the Licensed Software in a System and to read
and utilize the Documentation.
1.16 "Development Site(s)" shall mean the facility or facilities identified
in Schedule 1.16, as amended from time to time by agreement of the
parties.
2. LICENSE AND DISTRIBUTION RIGHTS
2.1 Subject to the terms and conditions of this Agreement, MERGE hereby
grants SIEMENS a non-exclusive, non-transferable (except to Affiliates),
worldwide right and license, to:
a. [**] at the Development Site(s) to create Systems which Use
Function Library Modules;
b. distribute, under Sublicense, [**] which are Used in SIEMENS
Systems; and
c. grant Sublicenses to OEM's and End-Users to [**] in those
SIEMENS Systems.
2.2 SIEMENS shall not distribute the [**] other than under a Sublicense
and shall not distribute the [**] other than as part of a SIEMENS
System.
2.3 All Sublicenses granted to End-Users shall:
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a. authorize Use of the [**] only in conjunction with a single
specified SIEMENS System and prohibit all other uses;
b. obligate the End-User to take reasonable measures to maintain
the secrecy of the [**]
c. prohibit End-User from reverse compiling, reverse assembling,
or reverse engineering the [**]
d. prohibit the End-User from copying the [**] except for backup
and archival purposes;
e. prohibit the End-User from any further sales, assignment, or
sublicensing of the [**] except that an End-User shall be
permitted to transfer its Sublicense to the [**] as part of a
resale or other transfer of its own SIEMENS System(s), so long
as (i) all copies of the [**] are transferred at the same time
with the SIEMENS Systems(s) or are destroyed by the time of
transfer; and (ii) the transferee agrees to be bound by the
terms of the Sublicense.
2.4 All Sublicenses granted to OEM's shall:
a. authorize Use of the [**] only in conjunction with a single
specified SIEMENS System and prohibit all other uses;
b. obligate the OEM to take reasonable measures to maintain the
secrecy of the [**]
c. prohibit the OEM from reverse compiling, reverse assembling, or
reverse engineering the [**]
d. prohibit the OEM from copying the [**] except as required
under OEM's agreement with SIEMENS for distribution of SIEMENS
Systems;
e. prohibit the OEM from distributing the [**] other than under
an End-User Sublicense in accordance with paragraph 2.3 hereof;
f. prohibit the OEM from distributing the [**] other than as part
of a SIEMENS System incorporated in or constituting a product
of the OEM.
2.5 SIEMENS shall not distribute or sublicense the [**]
2.6 SIEMENS shall take all reasonable steps to ensure against unauthorized
Use of the Licensed Software.
2.7 Subject to prior approval by MERGE, SIEMENS shall be entitled to
incorporate non-proprietary sections of the Documentation, in whole or
in part or any derivative thereof, into SIEMENS user's manuals and
marketing and sales literature for Systems, provided MERGE's proprietary
rights notices are appropriately displayed therein. SIEMENS shall be
allowed, however, to alter any configurable files to eliminate
associated screen display references to MERGE trademarks during boot-up
and operation of the System. Prior to printing user's manuals or
marketing/sales
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literature, SIEMENS shall provide MERGE a copy, in English, of that
material which in any way incorporates the Documentation for the purpose
of review and comment on the incorporation of portions of the
Documentation and adequacy and accuracy of MERGE's proprietary rights
notices. If SIEMENS does not receive a response from MERGE within thirty
(30) days from the date of receipt, then SIEMENS may publish the
material as is.
2.8 To the extent SIEMENS Uses the Licensed Software in demonstrations in
connection with marketing or sales of its systems, SIEMENS shall
protect all copies of the Licensed Software to prevent unauthorized Use
or copying by third parties.
2.9 SIEMENS shall not: (i) decompile, disassemble or otherwise attempt or
assist others to reverse engineer the Licensed Software; or (ii)
represent the Licensed Software has performance, application or
reliability characteristics that do not appear in the Documentation.
2.10 The license herein granted shall be effective on the Effective Date of
this Agreement, indicated above.
2.11 Neither title to nor ownership of the Licensed Software is transferred
hereunder to SIEMENS. Additionally, the license granted hereunder does
not include any right, either express or implied, to use, reproduce,
print or display the Licensed Software for any purpose not specified in
this Agreement.
3. MODIFICATIONS
3.1 MERGE will provide SIEMENS, not less frequently than every six (6)
months, with non-confidential information as is available covering the
upcoming twelve (12) months period regarding future enhancements and
Upgrades to be made to the Licensed Software.
3.2 SIEMENS, at any time, may request performance changes to the
specifications relating to Licensed Software. Such requests and the
related development charges must be mutually agreed upon in writing by
both parties prior to implementation and, having received such
agreement, shall be implemented within a commercially reasonable time
period relative to the scope of the request.
4. MAINTENANCE
4.1 During the Warranty Period, Merge shall provide Maintenance Services to
SIEMENS.
4.2 After the Warranty Period, [**] renewal notices will be delivered to
SIEMENS as specified in Section 11.6 below and will be deemed accepted
by SIEMENS if SIEMENS does not give MERGE notice of rejection within
forty-five (45) calendar days of notification. In no case will Merge be
obligated to provide [**] other than with respect to the most current
version of the Licensed Software.
5. LICENSE FEES, PRICING AND PAYMENT
5.1 Fees for the licenses, Sublicenses, and [**] provided by MERGE to
SIEMENS under this Agreement, are set forth in Schedule 5.1 of
this
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Agreement, as may be amended from time to time by MERGE pursuant to
Paragraph 5.5.
5.2 For the license(s) granted herein regarding [**] MERGE shall invoice
SIEMENS upon software shipment, and SIEMENS shall pay MERGE within
thirty (30) days after date of invoice.
5.3 For Maintenance Services hereunder, SIEMENS shall pay MERGE within
thirty (30) days of invoice, which invoice shall follow a renewal notice
by forty-five (45) days.
5.4 For Sublicenses granted by SIEMENS to End-Users and OEM's,
5.4.1 a non-refundable Annual Master Licensing fee in the amount set
in Schedule 5.1 shall be payable in [**] the first of such
payments to be made within [**] of the Effective Date and
subsequent such payments to be made within [***] of the
beginning of [**] plus
5.4.2 for each Sublicense granted in excess of the Included Unit
Number specified in Schedule 5.1, a Unit Licensing fee in the
amount set forth in Schedule 5.1, such payment(s) to be made
[**] of the end of each calendar quarter.
5.5 Fees as per Schedule 5.1 shall[**]
5.6 All Payments shall be made in U.S. Dollars, to the order of MERGE
TECHNOLOGIES INC. and delivered to MERGE TECHNOLOGIES INC., 1126 South
70th Street, Suite N508B, Milwaukee, Wisconsin 53214-3151, Attn:
Treasurer.
5.7 Siemens shall have [**] deems neccessary for Modifications or Upgrades.
5.8 The obligations of SIEMENS to pay MERGE are not dependent upon the
obligations or payments of an End-User or OEM to SIEMENS. SIEMENS agrees
to assume the credit risks of the End-Users and OEM's with which it
deals.
5.9 In addition to the fees and charges to be paid under this Agreement,
[**]
5.10 SIEMENS shall maintain at its place of business, referenced in this
Agreement, books and records so as to establish the payments due to
MERGE under this
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Agreement. Such books and records shall be maintained for at least two
(2) years following the expiration or termination of this Agreement.
Upon five (5) days written notice, MERGE may conduct, at MERGE's sole
cost and expense, such audits as reasonably necessary to determine
SIEMENS compliance with this Agreement and payment obligations under
this Agreement. SIEMENS agrees to cooperate with MERGE in performing
such audits, which shall be held during normal business at the
convenience of both parties. Any audit which is conducted shall be
subject to such reasonable security procedures and limitations as
SIEMENS may impose, and MERGE, its employees, agents and contractors
shall make no use of any information obtained in the course of such
audits other than for the purposes noted in this Section 5.10.
6. APPROVALS
6.1 SIEMENS shall bear all costs related to government or other agency
pre-market approvals. SIEMENS hereby warrants that it shall obtain all
such applicable and required approvals and certifications prior to
selling, distributing or marketing Licensed Software. MERGE shall
assist SIEMENS in obtaining any information over which MERGE has
control which is reasonably required by SIEMENS to obtain such
approvals and certifications.
7. TERM AND TERMINATION
7.1 The license herein granted to SIEMENS shall commence upon the
Effective Date and shall continue until terminated in accordance with
the provisions of this Section 7.
7.2 Either party may terminate this Agreement upon thirty (30) days
written notice in the event the other party materially breaches a
provision or obligation of this Agreement and remains in default after
the thirty (30) days written notice thereof has been given to the
breaching or defaulting party
7.3 Except where prohibited by law, this Agreement may, at the
option of one party, be terminated immediately by written notice as a
result of the commission or occurrence of any one or more of the
following events by the other party: (i) an appointment of a trustee or
receiver or administrative receiver for its assets or business; (ii) an
assignment of its assets to the benefit of its creditors; (iii) any
realization or levy of execution on its assets by any of its secured
creditors; (iv) declaration of insolvency by a court of competent
jurisdiction; (v) the filing of a petition of bankruptcy; or (vi)
indefinite suspension of the normal operation or conduct of its
business.
7.4 Upon termination of this Agreement for any reason, SIEMENS shall
have the right to fill all currently booked orders. SIEMENS agrees to
thereafter immediately discontinue any and all further manufacture,
marketing, sublicensing, sale and distribution of Licensed Software.
SIEMENS shall, however, subject to the terms and conditions herein
including Paragraph 2.9, retain its license granted hereunder to the
extent reasonably necessary to enable SIEMENS to provide support and
maintenance services to its valid sublicensed End-Users of the Licensed
Software. The provisions of this Paragraph 7.4 notwithstanding, upon
termination, all proprietary and confidential information received by
either party from the other shall be returned within thirty (30) days to
its rightful owner.
7.5 Termination of this Agreement shall not exempt SIEMENS from its
obligation to pay any and all accrued license fees due hereunder.
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7.6 All Sublicenses shall survive expiration or termination of this
Agreement for any reason.
8. WARRANTY AND INDEMNIFICATION
8.1 MERGE warrants that it has full power and authority to authorize and
license SIEMENS to Use the Licensed Software in accordance with the
terms hereof.
8.2 MERGE warrants only that, during the Warranty Period, the operation of
the Licensed Software delivered hereunder shall substantially conform to
the then current Documentation.
8.3 To the best knowledge of MERGE, the Licensed Software does not infringe
any existing patents or copyrights owned by third parties. MERGE shall
defend SIEMENS against any claim that the Use of the Licensed Software
by SIEMENS permitted under this Agreement constitutes a patent or
copyright infringement, but only to the extent that the action relates
solely to the Licensed Software, not materially altered or modified by
or on behalf of SIEMENS, and is not based on Use of the Licensed
Software on other than the System, or for which the Licensed Software
was not designed and recommended in the Documentation and provided that:
(a) SIEMENS gives MERGE written notice within five (5) days of notice of
any such claim; (b) MERGE controls the defense of any such action and
has the right to settle; and (c) SIEMENS fully cooperates with MERGE in
the defense of such claim. In the event that the Use of the Licensed
Software is enjoined by a court of competent jurisdiction, because of a
holding of patent or copyright infringement, MERGE, at its sole option,
shall: (a) procure for SIEMENS the right to continue Using the Licensed
Software; or (b) modify the Licensed Software to make it non-infringing,
while still performing substantially the same functions set forth in the
Documentation.
8.4 MERGE warrants that the process for development, production, and
servicing of the Licensed Software complies with the quality standards
specified by the US Food and Drug Administration's Good Manufacturing
Practice ("GMP") to the extent applicable. Upon SIEMENS' request, MERGE
will provide to SIEMENS results of U.S. Food and Drug Administration
GMP audits conducted during, and within a period of one year prior to,
the term of this Agreement.
8.5 THE FOREGOING ARE THE ONLY WARRANTIES MADE BY MERGE WITH RESPECT TO THE
LICENSED SOFTWARE PROVIDED HEREUNDER AND ARE MADE EXPRESSLY IN LIEU OF
ALL OTHER WARRANTIES, CONDITIONS, TERMS OR UNDERTAKINGS, AND
REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY
IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND SATISFACTORY
QUALITY.
8.6 ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT NOTWITHSTANDING,
EXCEPTING DAMAGES RESULTING FROM BREACHES OF SECTIONS 2 AND 9 OF THIS
AGREEMENT NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR ANY END-USER FOR
LOST PROFITS OR FOR SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR
CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND WHATSOEVER SUFFERED BY THE
OTHER EVEN IF THE PARTICULAR PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH CLAIMS AND DEMANDS.
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8.7 SIEMENS agrees to indemnify and hold harmless MERGE from any and all
liabilities, damages, losses, expenses, demands, claims, suits or
judgments, including all attorney's fees, costs, and expenses relating
to claims by third parties arising out of the negligent or intentional
acts or omissions of SIEMENS.
8.8 SIEMENS acknowledges that the terms of this Agreement were bargained
for, and the fees and charges, reflect, and are based upon SIEMENS'
acceptance of, all of the terms of this Agreement, including, but not
limited to Sections 8 and 9, hereof. MERGE is willing to undertake
greater potential liabilities in exchange for increased fees and
prices reflecting that exposure. SIEMENS has opted to accept
limitations on MERGE's liabilities as set forth herein rather than
paying those increased fees and charges.
9. PROPRIETARY RIGHTS AND CONFIDENTIAL INFORMATION
9.1 SIEMENS acknowledges that the Licensed Software represents valuable
trade secrets and confidential information proprietary to MERGE. All
specifications, applications, routines, subroutines, techniques,
Documentation, manuals, lists, source and object codes, application
codes, programs, systems, ideas, technical information, databases and
formulae contained in or embodied by Licensed Software or any part
thereof originating from MERGE and provided to SIEMENS for development
of the Systems and users manuals for Systems shall at all times and
for all purposes be deemed to be trade secrets and the sole and
exclusive property of MERGE.
9.2 SIEMENS agrees to hold all material and all information regarding the
Licensed Software in strictest confidence, not to make use thereof
other than as expressly permitted by this Agreement. SIEMENS shall
not release or disclose such information to any other party without
prior written consent of MERGE. SIEMENS shall take all reasonable
measures to maintain the secrecy of the Licensed Software and shall
exercise at least the same degree of care with respect to Licensed
Software that it exercises to protect its own proprietary information
to prevent same from entering into the public domain or falling into
the hands of others not bound by the provisions of this Agreement.
Notwithstanding the foregoing provisions of this Section 9, SIEMENS
shall have no obligation to maintain confidentiality of any
information which: is or becomes available within the public domain
through no act of SIEMENS in breach of this Agreement, or its
sublicensees in breach of a Sublicense; was demonstratively known by
SIEMENS prior to its transfer hereunder; is lawfully received
unrestricted from a third party that obtained the information
lawfully; or is subsequently independently developed by SIEMENS as
proven clearly or convincingly by its written records.
9.3 Both party's obligations under this Section 9 shall survive any
expiration or termination of this Agreement.
10. ESCROW/EMERGENCY MANUFACTURING RIGHTS
10.1 MERGE, at SIEMENS request, shall place in escrow a master copy of the
Licensed Software source code, and one complete set of all MERGE's
Documentation and other material which could be effectively used by
SIEMENS or its assigns to reproduce and service the Licensed Software,
Modifications or Upgrades thereof ("Escrow"). SIEMENS shall have full
and unrestricted use of this material only in the event that:
(i) MERGE's business is discontinued, (ii) in contravention of this
Agreement MERGE fails, refuses, is unable to deliver Licensed Software
to SIEMENS, or, (iii) [**]
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MERGE shall promptly deliver any new Modifications or Upgrades to the
Licensed Software source code, as may be released from time to time,
and associated documentation to Escrow.
10.2 SIEMENS and MERGE shall designate the Escrow holder hereunder and
execute an appropriate Escrow Agreement upon SIEMENS request of MERGE
for Escrow.
10.3 All costs of establishing and maintaining the escrow arrangement shall
be borne by SIEMENS, and SIEMENS shall reimburse MERGE for all costs
reasonably incurred by MERGE in reproduction, packaging and shipment
of materials deposited.
10.4 At such time as SIEMENS determines the Escrow is no longer needed, or
ten (10) years after last shipment of Licensed Software for Systems,
whichever is sooner, SIEMENS shall have all materials in Licensed
Software Escrow destroyed or returned to MERGE, at MERGE's option.
11. GOVERNING LAW AND DISPUTE RESOLUTION
11.1 This agreement is made under and shall be governed by and construed in
accordance with English law, without reference to conflict of law
principles. The rights and obligations of the parties shall not be
governed by the 1980 United Nations Convention on Contracts for the
Sale of Goods. Both parties expressly consent to: (a) exclusive
jurisdiction of the English courts; and (b) service of process being
effected upon it by confirmed telecopier message or registered mail
sent to the address for notices set forth in this Agreement.
11.2 It is the parties' desire that any disputes that might arise between
them be amicably settled, without resort to litigation. Subject to
paragraph 11.4, all disputes or disagreements arising between the
parties concerning the validity, construction or effect of this
Agreement or the rights and obligations created hereunder (other than
SIEMENS' payment obligations), that cannot be resolved by the involved
employees of the parties shall be brought before a conciliation
committee, consisting of one management executive representing each
party. Either party may initiate the proceeding by written notice,
stating, with particularity, the issues to be resolved. The executives
shall be of at least vice presidential level, and with the authority to
bind the parties. The conciliation committee shall, within two (2) weeks
after being informed of a dispute, meet in person at New York, New York,
U.S.A., or such other location agreed to by the parties, and attempt to
work out a settlement.
11.3 Subject to paragraph 11.4, any controversy or claim arising out of or
relating to this Agreement which cannot be amicably settled by the
conciliation committee within twenty-one (21) days of notice of the
dispute shall be fully and finally settled by binding arbitration, under
the auspices, and in accordance with the Arbitration Rules of the London
Court of International Arbitration (LCIA) then in effect, modified as
follows:
11.3.1 The dispute shall be submitted to, and a decision
rendered by a single Arbitrator who is (a) agreeable
to both parties, or (b) if agreement cannot be reached
within twenty-one (21) days of initiation of the
proceedings, chosen by the British Computer Society
pursuant to LCIA rules. The language to be used in the
arbitration proceeding shall be English.
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11.3.2 Within ninety (90) days of initiation of the proceedings or
such other time period as agreed to by the parties and
Arbitrator, the Arbitrator shall hold a hearing as set forth in
paragraphs 11.3.8 and 11.3.9. The hearing shall be held in
London, England, U.K., or such other location agreed to by the
parties and the Arbitrator.
11.3.3 Within thirty (30) days of initiation of the proceedings or
such other time period as agreed to by the parties, each party
shall provide to the other and to the Arbitrator, personally or
by overnight courier, an initial disclosure, including:
a. A preliminary statement of the issues in controversy to
be resolved by the proceedings;
b. The name and, if known, the address and telephone
number, of each individual likely to have personal
knowledge of facts relating to the subject of the issues
in controversy; and
c. Subject to paragraph 11.3.16, a copy of all documents
and thing in the possession, custody or control of the
party that are relevant to the subject of the issues in
controversy.
11.3.4 Within ten (10) days of receipt of the initial disclosure each
party shall provide to the other and to the Arbitrator,
personally or by overnight courier, a supplemental disclosure,
including:
a. A preliminary statement of any additional issues in the
controversy to be resolved by the proceedings raised by
the other party's initial disclosure;
b. The name and, if known, the address and telephone
number, of each individual likely to have personal
knowledge of facts relating to the subject of the issues
in controversy raised in the other party's initial
disclosure or the additional issues; and
c. A copy of all documents in the possession, custody or
control of the party that are relevant to the subject of
the issues in controversy raised in the other party's
initial disclosure or the additional issues.
11.3.5 At least thirty (30) days prior to hearing, the parties shall
jointly submit to the Arbitrator a statement of the issues and a
statement of non-disputed facts.
11.3.6 At least twenty (20) days prior to hearing, each party shall
provide to the other and to the Arbitrator, personally or by
overnight courier, a pre-hearing brief, stating its version of
the facts, the applicable law, and an argument in support of its
position. The statement of facts shall be supported by sworn
affidavits based upon personal knowledge and authenticated
documents and things, copies of which shall be provided with the
brief. The statement of applicable law shall include citations
to all relevant cases and statutes. Copies of all cited cases
and statutes shall be provided with the brief.
11.3.7 Within five (5) working days of the submission of the
pre-hearing briefs, each party shall submit, and serve
personally, or by overnight courier, upon
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the other party, a reply brief responding to the pre-hearing
brief of the other party.
11.3.8 At the hearing, each party shall have the opportunity to be
heard and to cross-examine the individuals providing statements
of fact in support of, or otherwise having personal knowledge of
facts relevant to, the other party's position. Either party
and/or the Arbitrator can by written notice at least five (5)
working days in advance of the hearing require the attendance at
the hearing of any individual having personal knowledge of facts
pertinent to the dispute.
11.3.9 The hearing shall be conducted as follows:
a. The party initiating the proceeding shall present its
case, with specific reference to the supporting
affidavits, transcripts, and exhibits.
b. The responding party may then cross-examine any of
the individuals submitting statements in support of the
initiating party's brief. Upon conclusion of the
cross-examination of each witness by the responding
party, the initiating party may examine the witness on
issues raised by the cross-examination.
c. Upon conclusion of the presentation of the initiating
party's case, the responding party shall present its
case, making specific reference to the supporting
statements and exhibits.
d. The initiating party may then cross-examine any of the
individuals submitting statements in support of the
responding party's brief. Upon conclusion of the
cross-examination of each witness by the initiating
party, the responding party may examine the witness on
issues raised by the examination.
e. Upon conclusion of the presentation of the responding
party's case, the initiating party shall have the
opportunity to make a closing statement. The responding
party shall then have the opportunity to make a closing
statement.
11.3.10 All statements and testimony must be based upon
personal knowledge. All documents and things must be
authenticated by statements based on personal knowledge. Any
statement or testimony not based upon personal knowledge, or
any document or thing which is not authenticated, shall not be
considered by the Arbitrator, except upon agreement of the
parties or upon a showing of exceptional circumstances.
11.3.11 Failure to comply with the disclosure requirements of
this arbitration, or to make individuals reasonable available
to the other party shall be sanctioned. If it is shown, or it
otherwise becomes apparent to the Arbitrator that a party
withheld information that was required to be disclosed under
this section, the Arbitrator shall award the aggrieved party
the costs of proving the facts supported by the withheld
information.
11.3.12 Unless agreed upon by the parties and the Arbitrator,
the Arbitrator shall immediately upon the end of the hearing
begin to consider the evidence and shall work full time and
solely upon the matter until a decision is rendered.
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However, the Arbitrator may reconvene the hearing for further
questioning of individuals if deemed necessary.
11.3.13 The Arbitrator shall award costs and fees to the prevailing
party, unless good cause is found for the contrary.
11.3.14 At the request of any party, a written arbitration order
and/or award shall be issued, enforcement of which may be
undertaken in any Court of competent jurisdiction.
11.3.15 Any time period may be shortened or extended by agreement of
the parties.
11.3.16 To the extent that any materials required to be disclosed in
the course of the arbitration of this section 11.3 are
confidential, all reasonable measures shall be taken to maintain
the confidentiality of such information consistent with this
Agreement. To this end, the Arbitrator shall enter into a
confidentiality agreement consistent with the terms of this
Agreement. To the extent that any materials required to be
disclosed in the course of the arbitration of section 11.3 are
confidential, and would not be available to the requesting party
under the Agreement, the providing party may designate such
materials as "attorneys eyes only". "Attorneys eyes only"
materials shall be disclosed to the attorneys and Arbitrator
only, and shall not be disclosed to employees of the requesting
party.
11.3.17 In the event that these modifications are in conflict with the
rules then in effect of the LCIA, these modifications shall take
precedence.
11.4 Notwithstanding anything herein to the contrary, judicial proceedings
may be brought without the need for prior arbitration: (a) by MERGE, for
nonpayment by SIEMENS of undisputed fees or (b) any party to obtain a
temporary restraining order, preliminary injunction or other interim or
provisional judicial relief if, in its judgment, such action is
necessary to avoid irreparable damage or to preserve the status quo. If
such action for interim or provisional judicial relief is taken, the
parties will start or continue, as the case may be, to participate in
good faith in the dispute resolution procedures specified in this
section 11. The provisions of this section shall be specifically
enforceable.
12. GENERAL PROVISIONS
12.1 Relationship of the Parties. Both parties to this Agreement are
independent legal entities and neither is the agent or employee of the
other for any purpose whatsoever. The parties do not intend to create a
partnership or joint venture between themselves. Unless expressly
provided otherwise in this Agreement, neither party will have the right
to bind the other to any agreement with a third party or to incur any
obligation or liability on behalf of the other party.
12.2 Modifications. The provisions of this Agreement may be waived, amended,
modified, supplemented, terminated or discharged only by an agreement in
writing signed by both parties.
12.3 Invalidity. If any provision of this Agreement is declared or found to
be illegal, unenforceable or void, then both parties shall be relieved
of all obligations arising under such provision. This Agreement shall be
deemed amended by modifying such provision to the extent necessary to
make it legal and enforceable. If the
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remainder of this Agreement is not affected by such declaration or
finding and is still capable of substantial performance, then the
remainder shall be enforced to the extent permitted by law.
12.4 Survivability. Termination or expiration of this Agreement for any
reason shall not release either party from any liabilities or
obligations set forth in this Agreement which (i) the parties have
expressly agreed shall survive any such termination or expiration, or
(ii) remain to be performed and by their nature would be intended to
be applicable following any such termination or expiration.
12.5 Entire Agreement. This Agreement is intended to constitute the final,
entire, complete and exclusive agreement between the parties
pertaining to the subject matter thereof. This Agreement expressly
supersedes all prior written and oral agreements and understandings
between the parties hereto with respect to the subject matter hereof.
12.6 Notices. All such notices and demands of any kind which either party
desires to give to the other party shall be in writing and shall be
delivered by hand, by courier or by facsimile (original being mailed
thereafter) or by mailing a copy thereof by certified or registered
mail, postage prepaid, with return receipt requested, to the party at
the address set forth below. Notice by hand shall be considered complete
on delivery; notice by courier shall be considered complete at the date
of delivery as demonstrated by the signed docket of delivery; notice by
facsimile shall be considered complete on confirmation of successful
transmission; and notice by mail shall be deemed complete at the date of
delivery as shown by the registry or certification receipt. The
addresses to which notices and demands shall be delivered, as follows,
may be changed from time to time by notice served as hereinabove
provided.
To SIEMENS: SIEMENS AKTIENGESELLSCHAFT
Bereich Medizinische Technik
HenkestraBe 127
D-91050 Erlangen, GERMANY
ATTN: Mr. Thomas Kunert, BN EP 12
Fax No.: (49)(9131) 84-8691
To MERGE: MERGE TECHNOLOGIES INC.
1126 South 70th Street
Suite N508B
Milwaukee, WI 53214-3151
ATTN: Vice-President, Sales and Service
FAX No.: (1) (414) 475-3940
12.7 Export. SIEMENS acknowledges the Licensed Software and Documentation
may be subject to the limitations on transfer imposed by the United
States Export Administration Act of 1979 as amended, and/or the Canadian
Import/Export Controls Act. SIEMENS will not, and will not assist or
permit others under its control and direction to, export the Software
or Documentation or any part thereof, in contravention of these statutes
or their related rules and regulations.
12.8 Severability. All provisions of this Agreement are divisible so that if
any one provision is declared invalid or unenforceable as written, then
such provision shall be stricken from the Agreement without affecting
the remainder of the Agreement unless the removal of said provision
shall constitute a material failure of
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consideration, in which event the Agreement shall be terminated at the
election of the party affected by such failure of consideration.
12.9 Waiver. Failure by either Party to enforce any of the provisions of
this Agreement or any rights with respect to hereto, or failure to
exercise any provisions or rights specified herein, shall in no way be
considered a waiver of such provisions or rights or in any way affect
the validity of this Agreement. The failure by either Party to enforce
any of the said provisions or rights shall not prejudice such Party from
later enforcing or exercising the same or any other provisions or rights
it may have under this Agreement.
12.10 Force Majeure. Neither party shall be in default if failure to perform
any obligation under this Agreement, other than to timely pay fees under
Section 5, is caused solely by supervening conditions beyond that
party's control, including acts of God, civil commotion, labor disputes
and governmental demands and requirements.
12.11 Assignment. Except as expressly permitted herein, neither party may
assign or transfer its rights hereunder without the prior written
consent of the other party hereto, which consent will not be
unreasonably withheld, except that MERGE may assign this agreement to a
purchaser of MERGE's entire business related to this agreement. This
Agreement shall inure to the benefit of any permitted assigns,
successors in business or subsidiaries and Affiliates of the assigning
party. Any purported assignment which is in violation of this paragraph
12.11 shall be null and void.
12.12 Conflicts of Interest. Both parties represent that neither has any
obligations or commitments inconsistent with this Agreement.
12.13 Further Assurances. Each of the parties hereby agrees to take or cause
to be taken such further actions and to execute, deliver, and file, such
further documents and instruments as may be necessary or as may
reasonably be requested in order to fully effectuate the purposes,
terms, and conditions of this Agreement.
THE PARTIES hereto have caused this Agreement (including attached Schedules
noted below) to be executed as of the Effective Date.
SIEMENS AKTIENGESELLSCHAFT MERGE TECHNOLOGIES INC.
Medical Engineering Group
<TABLE>
<S> <C> <C>
/s/ Freese-Hazmann Signature: /s/ Helmut Weiss Signature: /s/ William L. Stafford
- ----------------------- -------------------------- -----------------------------
Freese-Hazmann Printed Name: Dr. Helmut Weiss Printed Name: William L. Stafford
- ----------------------- ----------------------- ---------------------------
Bus. Administrator Title: Senior Director Title: V.P. Sales & Service
- ----------------------- ------------------------------ ----------------------------------
23 March 1996 Date: 27 March 1996 Date: 3 February 1996
- ----------------------- ------------------------------- -----------------------------------
</TABLE>
ATTACHMENTS:
SCHEDULE 1.3 [**]
SCHEDULE 1.4 [**]
SCHEDULE 1.11 System(s)
SCHEDULE 1.13 [**]
SCHEDULE 1.14 Warranty Period
SCHEDULE 1.16 Development Site(s)
SCHEDULE 5.1 License Fees & Minimums
________________________________________________________________________________
VAML95 Page 14 of 14 Confidential
<PAGE> 1
EXHIBIT 10.8
[PICKER LETTERHEAD]
July 31, 1995
William L. Stafford
Vice President, Sales and Service
Merge Technologies, Inc.
1126 South 70th Street
Milwaukee, Wisconsin 52314-3151
RE: LETTER OF INTENT
Dear Mr. Stafford:
This Letter of Intent will set forth a summary of the principal terms of a
Distribution Agreement ("Agreement") that Picker International, Inc. ("Picker")
and Merge Technologies, Inc. ("Merge") intend to enter into establishing
Picker as a Value Added Reseller of Merge components. The purpose of this
Agreement is to allow the parties to grow a systems integration business in the
area of image management and distribution for diagnostic imaging.
Relationship:
Picker shall serve as a non-exclusive, independent, Value Added Reseller of
Merge components.
Term:
The term of the Agreement shall be three years from the date of signing,
renewable at the end of the term for additional term(s) of one year.
Territory:
Picker's territory shall include [**]
Products:
Picker shall have rights to distribute the products listed on Attachment A,
including any new or improved versions or related products which Merge may
develop during the term of this Agreement.
Responsibilities of Picker:
Sale, installation, and on-site service support of the products; provision of
reports concerning sales/quotation activity and forecasts; provision of
end-user feedback.
Responsibilities of Merge:
Provision of sales collaterals; support of the selling effort through training
of and response to Picker's HCP region sales specialists; training of core
service personnel and provision of service documentation (either in bulk or
electronic, reproducible); provision of consulting, support, and/or integration
services on a fee basis in support of Picker's efforts with its customers.
<PAGE> 2
Mr. William L. Stafford
July 31, 1995
Page 2
Pricing:
Systems: [**] during the first year of the Agreement. [**] sales are
FOB ex works Milwaukee, 10% on order with balance invoiced at
shipment.
Service: [**] billable in 1/2 day increments, plus documented
travel and reasonable per diem expense. Service shall be
preauthorized by Picker HCP via purchase order or other HCP
authorized mechanism. Included services consist of [**]
Goals:
First Year Sales: [**]
Second Year Sales: [**]
Third Year Sales: [**]
Average System value at end-user list price - [**]
Promotion:
Picker and Merge will work in collaboration to develop promotions and other
marketing programs for the Products. Implementation of such promotion will be
the responsibility of Picker, and Picker shall determine the promotions to be
utilized.
Other Agreements:
Picker will execute all agreements necessary to implement the intent of this
Agreement, including Merge's software licensing agreement and purchase
documentation in agreed-upon form.
We look forward to working with you.
Very truly yours,
/s/ Kathleen H. Fehling
Kathleen H. Fehling
Vice President, Marketing and Service
Picker Health Care Products Division
ACCEPTED:
MERGE TECHNOLOGIES, INC.
BY: /s/ William L. Stafford DATE: August 15, 1995
ITS: Vice President, Sales and Service
<PAGE> 3
ATTACHMENT A
PRODUCTS
Model Description List Price
[**] Laser Film Manager, MergeCOM-3 (DICOM) input to [**]
parallel laser print port output with queue control and
refilming capability
[**] DICOM Print Server, DICOM input to Helios 8x10 and [**]
parallel laser print port output
[**] Digital Print Interface, parallel laser port input, with [**]
host control protocol or keypad and foot switch, to
MergeCOM-3 (DICOM) output, TCP/IP
[**] Video Print Interface, analog video print input (up [**]
to 40mhz video), with host control protocol or keypad
and foot switch, to MergeCOM-3 (DICOM) output, TCP/IP
[**] Ultrasound Print Interface, analog video print input [**]
(up to 15mhz video), with keypad and foot switch, to
MergeCOM-3 (DICOM) output, TCP/IP
<PAGE> 1
EXHIBIT 11
Merge Technologies Incorporated
Statement Regarding Computation of Net Income (Loss) per share of Common Stock
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
1994 1995 1996
------------ -------------- --------------
<S> <C> <C> <C>
Net income (loss) before extraordinary item $ 466,105 $ (574,373) $ (283,193)
Net income (loss) $ 466,105 $ (574,373) $ (113,679)
Weighted average Common
Shares outstanding 2,928,170 2,273,432 3,464,989
Common Stock equivalents 563,093 - -
Additional shares pursuant
to SAB 83 computation 504,402 504,402 504,402
------------- ------------- -------------
Shares used in computing
net income (loss)
per share of Common Stock 3,995,665 2,777,834 3,969,391
============= ============= =============
Net income (loss) before extraordinary item per
share of Common Stock $ 0.12 $ (0.21) $ (0.07)
============= ============= =============
Net income (loss) per
share of Common Stock $ 0.12 $ (0.21) $ (0.03)
============= ============= =============
</TABLE>
<TABLE>
<CAPTION> NINE MONTHS ENDED SEPTEMBER 30,
1996 1997
------------- -----------
<S> <C> <C>
Net income (loss) before extraordinary item $ 13,156 $ 356,998
Net income (loss) $ 182,670 $ 356,998
Weighted average Common
Shares outstanding 3,319,449 3,896,862
Common Stock equivalents 83,894 311,730
Additional shares pursuant
to SAB 83 computation 504,402 504,402
------------- -----------
Shares used in computing
net income (loss)
per share of Common Stock 3,907,745 4,712,994
============= ===========
Net income (loss) before extraordinary item per
share of Common Stock $ 0.00 $ 0.08
============= ===========
Net income (loss) per
share of Common Stock $ 0.05 $ 0.08
============= ===========
</TABLE>
<PAGE> 1
EXHIBIT 23.2
Consent of KPMG Peat Marwick LLP
The Board of Directors
Merge Technologies, Inc.:
We consent to the use of our report included herein and to the reference to our
firm under the heading "Experts" in the prospectus.
/s/ KPMG Peat Marwick LLP
Chicago, Illinois
December 18, 1997
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1994
<PERIOD-START> JAN-01-1994
<PERIOD-END> DEC-31-1994
<CASH> 0
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 0
<DEPRECIATION> 0
<TOTAL-ASSETS> 0
<CURRENT-LIABILITIES> 0
<BONDS> 0
0
0
<COMMON> 0
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 0
<SALES> 0
<TOTAL-REVENUES> 2,420,090
<CGS> 387,715
<TOTAL-COSTS> 1,213,199
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 88,314
<INCOME-PRETAX> 466,105
<INCOME-TAX> 0
<INCOME-CONTINUING> 466,105
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 466,105
<EPS-PRIMARY> 0
<EPS-DILUTED> 0.12
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-START> JAN-01-1995
<PERIOD-END> DEC-31-1995
<CASH> 148,336
<SECURITIES> 0
<RECEIVABLES> 827,944
<ALLOWANCES> 40,000
<INVENTORY> 248,985
<CURRENT-ASSETS> 1,203,561
<PP&E> 749,029
<DEPRECIATION> 234,063
<TOTAL-ASSETS> 3,604,050
<CURRENT-LIABILITIES> 2,446,527
<BONDS> 0
0
0
<COMMON> 1,220,616
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 3,604,050
<SALES> 0
<TOTAL-REVENUES> 3,718,082
<CGS> 752,630
<TOTAL-COSTS> 3,042,237
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 141,231
<INCOME-PRETAX> (574,373)
<INCOME-TAX> 0
<INCOME-CONTINUING> (574,373)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (574,373)
<EPS-PRIMARY> 0
<EPS-DILUTED> (0.21)
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> DEC-31-1996
<CASH> 287,098
<SECURITIES> 0
<RECEIVABLES> 1,577,233
<ALLOWANCES> 77,000
<INVENTORY> 404,493
<CURRENT-ASSETS> 2,216,076
<PP&E> 1,085,100
<DEPRECIATION> 401,176
<TOTAL-ASSETS> 5,393,665
<CURRENT-LIABILITIES> 2,653,823
<BONDS> 0
0
0
<COMMON> 2,893,076
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 5,393,665
<SALES> 0
<TOTAL-REVENUES> 6,384,659
<CGS> 1,626,882
<TOTAL-COSTS> 4,495,430
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 134,121
<INCOME-PRETAX> (283,193)
<INCOME-TAX> 0
<INCOME-CONTINUING> (283,193)
<DISCONTINUED> 0
<EXTRAORDINARY> 169,514
<CHANGES> 0
<NET-INCOME> (113,679)
<EPS-PRIMARY> 0
<EPS-DILUTED> (0.03)
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-1-1996
<PERIOD-END> SEP-30-1996
<CASH> 0
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 0
<DEPRECIATION> 0
<TOTAL-ASSETS> 0
<CURRENT-LIABILITIES> 0
<BONDS> 0
0
0
<COMMON> 0
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 0
<SALES> 0
<TOTAL-REVENUES> 4,252,212
<CGS> 1,013,353
<TOTAL-COSTS> 2,820,601
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 98,247
<INCOME-PRETAX> 13,156
<INCOME-TAX> 0
<INCOME-CONTINUING> 13,156
<DISCONTINUED> 0
<EXTRAORDINARY> 169,514
<CHANGES> 0
<NET-INCOME> 182,670
<EPS-PRIMARY> 0
<EPS-DILUTED> 0.05
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> SEP-30-1997
<CASH> 655,404
<SECURITIES> 0
<RECEIVABLES> 1,589,855
<ALLOWANCES> 71,000
<INVENTORY> 749,456
<CURRENT-ASSETS> 3,079,236
<PP&E> 1,377,033
<DEPRECIATION> 564,234
<TOTAL-ASSETS> 6,710,106
<CURRENT-LIABILITIES> 1,121,980
<BONDS> 0
0
0
<COMMON> 2,810,934
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 6,710,106
<SALES> 0
<TOTAL-REVENUES> 6,799,626
<CGS> 1,573,817
<TOTAL-COSTS> 3,828,311
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 565,646
<INCOME-PRETAX> 356,998
<INCOME-TAX> 0
<INCOME-CONTINUING> 356,998
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 356,998
<EPS-PRIMARY> 0
<EPS-DILUTED> 0.08
</TABLE>
