<PAGE> 1
As filed with the Securities and Exchange Commission on January 28, 1998
Registration No. 333-39111
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WASHINGTON, D.C. 20549
---------------
PRE EFFECTIVE
AMENDMENT
NO. 3 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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<PAGE> 2
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 JANUARY 28, 1998
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 7.
---------------------
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>
<CAPTION>
=============================================================================================================
PRICE TO UNDERWRITING PROCEEDS TO
PUBLIC DISCOUNT(1) COMPANY(2)
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<S> <C> <C> <C>
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 190,000 shares of Common Stock at an exercise
price of 130% 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.
<PAGE> 3
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 of the date
of declaration of effectiveness 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"), a third-party institutional
investor, See "Certain Transactions"; (iii) assumes repayment of a Secured
Promissory Note dated June 30, 1997, in favor of Sirrom Capital Corporation, a
third-party lender, ("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
3
<PAGE> 5
image-using device produced by another OEM. As a result, such "legacy" devices
have not been compatible with the 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.
4
<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 958,100 shares have
been granted and are outstanding; (ii) 100,000 shares of Common Stock to be
reserved for issuance under the Company's 1998 Stock Option Plan for
Directors, of which options to purchase 60,000 shares are expected to be
granted and outstanding within 30 days following the closing of the
Offering; and (iii) exercise of the Representative's Warrants to purchase up
to 190,000 shares of Common Stock at a price per share equal to 130% 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)...... $ 0.07 $ 0.05 $ 0.18 $ (0.21) $ (0.07) $ 0.00 $ 0.08
Net income (loss) per
common and common
equivalent share(4)...... $ 0.07 $ 0.05 $ 0.18 $ (0.21) $ (0.03) $ 0.05 $ 0.08
Weighted average number of
common and common
equivalent shares
outstanding(4)........... 2,153,125 2,407,103 2,521,253 2,777,834 3,969,391 3,907,745 4,712,994
</TABLE>
<TABLE>
<CAPTION>
SEPTEMBER 30, 1997
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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 14,758
</TABLE>
(footnotes on following page)
5
<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.
6
<PAGE> 8
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 AND WORKING
CAPITAL DEFICIENCIES; SUBSTANTIAL INTANGIBLE ASSETS AND NEGATIVE NET TANGIBLE
BOOK VALUE
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. As of September
30, 1997, the Company had working capital of approximately $1,957,000. However,
the Company experienced working capital deficiencies of approximately $(438,000)
in 1996 and $(1,243,000) in 1995. As of September 30, 1997, on a pro forma basis
giving effect to the Offering and related transactions, the Company had net
tangible book value of approximately $11,984,000. However, without giving effect
to the Offering and the related transactions, the Company had net tangible book
value of approximately $(54,000). The Company had intangible assets of
approximately $2,805,000 as of September 30, 1997. 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."
7
<PAGE> 9
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 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 76% 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 Konica accounted for approximately 18%, 14% and 11%, 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."
8
<PAGE> 10
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 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
and Ms. Doan 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."
9
<PAGE> 11
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 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, fund accounts
receivable, increase sales and marketing and research and development, hire
additional personnel and pay the Sirrom Termination Fee. Sirrom and Alpha,
third-party institutional investors, will benefit from the Offering through the
Company's repayment of the Sirrom Note and the redemption of Common Stock held
by Alpha. See "Use of Proceeds." The Company intends to use the balance of the
net proceeds of this Offering, approximately 12% of the total Offering proceeds,
for
10
<PAGE> 12
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 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
11
<PAGE> 13
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 determinations 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 $5.32 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. The offering price does not relate directly to the Company's
book value, cash flow, price-to-earnings ratio, price-to-sales ratio, debt-to-
equity ratio, or other such ratios. 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
and Working Capital Deficiencies; Substantial Intangible Assets and Negative Net
Tangible Book Value," "Substantial and Immediate Dilution; Significant Benefit
to Current Shareholders," "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."
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<PAGE> 14
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,
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, options to acquire up to 958,100 shares of
Common Stock are held by employees and pursuant to the Company's 1998 Stock
Option Plan for Directors, options to acquire 60,000 shares of Common Stock are
anticipated to be held by directors; 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 at an initial exercise price per share equal to 130% 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
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<PAGE> 15
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 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." In addition,
in order to register the Common Stock for sale in certain states, the thirteen
individuals listed in "Management" have entered into "lock-in" agreements which
prohibit the sale, pledge or encumbrance of all or a substantial majority of
their respective shares for a period of two years following the effective date
of the Offering, subject to the right to (i) sell up to 2.5% of the subject
shares per quarter during the second year of such agreement, and (ii) continue
existing pledges of Common Stock to secure personal borrowings in place prior to
the effectiveness of the Offering in the case of two of such individuals.
Moreover, in order to register the Common Stock for sale in certain states,
except for options to purchase 60,000 shares of Common Stock issuable under the
1998 Stock Option Plan for Directors expected to be granted and outstanding
within 30 days following the closing of the Offering, the Company will not grant
options or warrants in excess of 15% of the number of outstanding shares of
Common Stock to officers, directors, employees, holders of 5% or more of the
Common Stock or affiliates for a one-year period following the Offering.
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 expense, product research and development expense, general and
administrative expense 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.
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<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 $12,271,000. Such proceeds are
anticipated to be used as follows:
<TABLE>
<CAPTION>
APPROXIMATE PERCENTAGE OF
AMOUNTS NET PROCEEDS
----------- -------------
<S> <C> <C>
Sales and Marketing......................................... $ 3,000,000 24.4%
Research and Development.................................... 1,000,000 8.2%
Redemption of 424,757 shares of Common Stock held by
Alpha(1).................................................. 793,000 6.5%
Payment of the Sirrom Termination Fee(1).................... 245,000 2.0%
Repayment of the Sirrom Note(1)............................. 2,000,000 16.3%
Accounts receivable and inventory financing................. 2,000,000 16.3%
Establish and maintain domestic and international sales
offices................................................... 1,000,000 8.2%
Personnel expense........................................... 700,000 5.7%
Working Capital and General Corporate Purposes.............. 1,533,000 12.4%
----------- -----
Net Proceeds................................................ $12,271,000 100%
=========== =====
</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."
15
<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 $11,984,000, or $2.18 per share, representing an
immediate increase in pro forma net tangible book value of $2.19 per share to
existing shareholders and an immediate dilution of $5.32, 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)....... 2.19
Pro forma net tangible book value per share of Common Stock after
the Offering..................................................... 2.18
-----
Dilution per share to new investors(3)............................. $5.32
=====
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 $2.44, representing an immediate
increase in pro forma net tangible book value of $2.45 per share to existing
shareholders and an immediate dilution of $5.06 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 958,100 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 1998 Stock Option Plan for Directors, of which options to purchase
60,000 shares are expected to be granted and outstanding within 30 days
following the closing of the Offering; and (iv) 190,000 shares issuable upon
exercise of the Representative's Warrants. 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."
16
<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 15,430
Accumulated deficit........................................ (103) (770)
Cumulative translation adjustment.......................... 43 43
------ -------
Total shareholders' equity................................. 2,751 14,758
------ -------
Total capitalization....................................... $5,588 $14,789
====== =======
</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 958,100 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 1998 Stock Option Plan for
Directors, of which options to purchase 60,000 shares are expected to be
granted and outstanding within 30 days following the closing of the
Offering; 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."
17
<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)...................... $ 0.07 $ 0.05 $ 0.18 $ (0.21) $ (0.07) $ (0.00) $ 0.08
Net income (loss) per common and
common equivalent share(4).... $ 0.07 $ 0.05 $ 0.18 $ (0.21) $ (0.03) $ 0.05 $ 0.08
Weighted average number of
common and common equivalent
shares outstanding(4)......... 2,153,125 2,407,103 2,521,253 2,777,834 3,969,391 3,907,745 4,712,994
</TABLE>
18
<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.
19
<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
20
<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.
21
<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................................. (3.6) (3.7) (1.5) (2.1) (8.8)
----- ----- ----- ----- -----
Income (loss) before income taxes and extraordinary
item............................................. 19.4 (15.5) (4.4) 0.3 5.2
Income tax expense................................. -- -- -- -- --
----- ----- ----- ----- -----
Income (loss) before extraordinary item............ 19.4 (15.5) (4.4) 0.3 5.2
Extraordinary gain on extinguishment of debt....... -- -- 2.6 4.0 --
----- ----- ----- ----- -----
Net income (loss).................................. 19.4% (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
22
<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
23
<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 new software license
agreements entered into with OEMs and the introduction of hardware interface
products acquired in the merger with SST.
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
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<PAGE> 26
engage in research and development of emerging product lines in addition to its
practice of developing products only after receiving customer orders.
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 the 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 agreements with its European employees (all of which the Company
believes to be at fair market wage rates) and with Mr. Mortimore, under the
terms of which the Company is obligated to pay Mr. Mortimore an annual salary of
$160,000, 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
29
<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.
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<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; and (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.
MERGECOM NETWORK
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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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 specific implementations of 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
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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.
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 76% 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 Konica
accounted for approximately 18%, 14% and 11%, 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
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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 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
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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 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 Quality System Regulation and other applicable regulations.
The FDA generally 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. Certain
medical devices are exempt from premarket notification clearance by the FDA.
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. The software toolkits are not freestanding products and are
incorporated as components of other medical devices. The manufacturer of the
completed medical device is responsible for obtaining any required clearance or
approval from the FDA. The CaseWorks management tool and the ReportManager
integration tool are currently under development. Their regulatory status and
premarket submission requirements will be determined when product development is
completed. 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.
The Food and Drug Administration Modernization Act of 1997 (the
"Amendment") was enacted on November 21, 1997, and will become effective 90 days
thereafter. The Amendment is designed, in part, to
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facilitate the FDA's premarket notification clearance process for new products.
The Company believes that the new regulatory policy may enable device-makers to
introduce new products more quickly. However, the extent to which the Amendment
will speed the FDA's clearance process is not known at this time.
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.
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 Informatics 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
42
<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 fiscal 1997
and fiscal 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>
LONG TERM COMPENSATION
ANNUAL COMPENSATION AWARDS
------------------- ----------------------
SECURITIES
NAME AND PRINCIPAL OTHER ANNUAL UNDERLYING ALL OTHER
POSITION YEAR SALARY BONUS COMPENSATION OPTIONS COMPENSATION
------------------ ---- -------- --------- ------------ ---------------------- ------------
<S> <C> <C> <C> <C> <C> <C>
William C. Mortimore,......... 1997 $136,667 0 0 0 $2,733(1)
President and CEO 1996 130,101 0 0 67,721 2,602(1)
Michael J. Franco,............ 1997 110,000 0 0 0 2,168(1)
Chief Technical Officer 1996 102,391 0 0 150,518(2) 2,048(1)
William L. Stafford,.......... 1997 110,000 0 0 0 1,587(1)
Vice President-Sales, 1996 (3) (3) (3) 67,721 (3)
Assistant Secretary
David M. Noshay,.............. 1997 100,300 $12,184(4) $43,820(5) 50,791 2,416(1)
Vice President-Marketing 1996 (3) (3) (3) 16,930 (3)
Dwight A. Simon,.............. 1997 110,000 0 0 0 1,626(1)
Vice President-Engineering 1996 $ (3) (3) (3) 67,721 $ (3)
</TABLE>
- ---------------
(1) Represents the Company's contributions to its 401(k) plan for the benefit of
its employees.
(2) Includes 82,797 options granted pursuant to an employment agreement entered
into in 1995 in connection with the Company's purchase of SST.
43
<PAGE> 45
(3) Annual salary and bonus received by Messrs. Stafford, Noshay and Simon in
fiscal 1996 was less than $100,000.
(4) Mr. Noshay receives a quarterly incentive sales bonus.
(5) Mr. Noshay received a relocation allowance of $41,620 and an automobile
reimbursement of $2,200 in fiscal 1997.
OPTION GRANTS IN 1997 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>
David M. Noshay............... 50,791 22% $6.75(2) 07/31/2003 $116,819 $264,621
</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) Options were granted at an exercise price equal to the estimated fair market
value of the Common Stock on the date of the grant.
AGGREGATED 1997 FISCAL YEAR END OPTION VALUES
<TABLE>
<CAPTION>
NUMBER OF SECURITIES VALUE OF UNEXERCISED
UNDERLYING UNEXERCISED IN-THE-MONEY
OPTIONS AT OPTIONS AT
SHARES FISCAL YEAR END FISCAL YEAR END
ACQUIRED ---------------------------- ---------------------------
NAME ON EXERCISE EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
---- ----------- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C>
William C. Mortimore................. 0 33,860 33,861 $203,837 $203,843
Michael J. Franco.................... 0 116,657 33,861 702,275 203,843
William L. Stafford.................. 0 33,860 33,861 203,837 203,843
David M. Noshay...................... 0 0 67,721 0 140,011
Dwight A. Simon...................... 0 33,860 33,861 $203,837 $203,843
</TABLE>
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 equal to the
Offering price. 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 1998 Stock Option Plan for Directors (the
"Directors Plan") within 30 days following the closing of the Offering.
44
<PAGE> 46
The Company is currently authorized to issue up to 100,000 shares of Common
Stock under the Directors Plan, which the Board of Directors approved in
January, 1998. Each of the six non-employee directors of the Company will be
granted an option to purchase 10,000 shares of Common Stock as of the date
immediately following the Closing of the Offering. A copy of the Directors Plan
has been filed as an exhibit to the Registration Statement of which this
Prospectus is a part. The purposes of the Directors Plan are to attract and
retain the best available personnel for service as directors, to provide
additional incentive to individuals to serve as director, and encourage their
continued service on the Board. Each option granted under the Directors Plan
will be evidenced by a written agreement between the Company and the
participant. The price to be paid for each share of Common Stock upon the
exercise of an option granted under the Directors Plan is 100% of the fair
market value of the Common Stock on the date of the grant (which will be the
price per share offered pursuant to this Prospectus for the initial options to
purchase 60,000 shares to be granted under the Directors Plan). For so long as
the Common Stock is traded on the Nasdaq SmallCap Market, the fair market value
of a share of Common Stock will be the mean between the bid and asked price (as
reported by Nasdaq) for such stock on the trading day prior to the date of
grant. Options granted under the Directors Plan may be exercised no later than
ten years after the date of grant, and shall vest as to one third of the shares
as of each of the first three anniversaries of the Closing of this Offering with
respect to the options presently scheduled to be granted.
45
<PAGE> 47
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. The Sirrom Note and related loan
transactions were approved at a duly convened meeting by three of the four
members of the Company's Board of Directors. However, this transaction was not
approved by a majority of the Company's independent directors because one of the
two independent directors was not present at the meeting.
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.
46
<PAGE> 48
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;
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 offset 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. With the exception of the Sirrom Note and related
47
<PAGE> 49
loan transactions, each of the transactions described above was approved by all
of the Company's independent directors.
Company's agreement with the Representative. The Company has granted H.C.
Wainwright & Co., Inc. the right to nominate one Director to the Company's Board
of Directors. H.C. Wainwright & Co., Inc. has nominated Robert A. Barish, M.D.
as an independent director. As a result, the Representative may have the ability
to influence the affairs of the Company. See "Underwriting."
48
<PAGE> 50
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(3)......................................... 728,591 17% 728,591 12%
c/o Merge Technologies Incorporated
1126 South 70th Street, Suite S107B
Milwaukee, WI 53214-3151
William C. Mortimore(4).................................... 545,160 13% 545,160 9%
c/o Merge Technologies Incorporated
1126 South 70th Street, Suite S107B
Milwaukee, WI 53214-3151
Alpha Capital Venture Partners, Limited(2)................. 546,067 13% 121,309 2%
122 South Michigan Avenue, Suite 1700
Chicago, IL 60642
Michael J. Franco(5)....................................... 225,737 5% 225,737 4%
c/o Merge Technologies Incorporated
1126 South 70th Street, Suite S107B
Milwaukee, WI 53214-3151
David B. Pivan............................................. 57,624 1% 57,624 (*)
1765 South Lane
Northbrook, IL 60062
Robert A. Barish, M.D. .................................... -- (*) -- (*)
c/o Merge Technologies Incorporated
1126 South 70th Street, Suite S107B
Milwaukee, WI 53214-3151
Dennis Brown............................................... -- (*) -- (*)
c/o Merge Technologies Incorporated
1126 South 70th Street, Suite S107B
Milwaukee, WI 53214-3151
Michael D. Dunham.......................................... -- (*) -- (*)
c/o Merge Technologies Incorporated
1126 South 70th Street, Suite S107B
Milwaukee, WI 53214-3151
Douglas S. Harrington, M.D. ............................... -- (*) -- (*)
c/o Merge Technologies Incorporated
1126 South 70th Street, Suite S107B
Milwaukee, WI 53214-3151
Kevin E. Moley............................................. -- (*) -- (*)
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>
- ---------------
(*) Less than 1% of outstanding Common Stock.
(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.
49
<PAGE> 51
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
50
<PAGE> 52
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 though 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.
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<PAGE> 53
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 defines 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
Section 180.1131 and Section 180.1132 of 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
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<PAGE> 54
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 provisions of the Company's Articles
and By-Laws may have significant antitakeover effects, including 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.
The Board of Directors has approved a resolution that the Company shall, at
its next annual meeting of stockholders, propose to take all actions that are
legally necessary or permitted to "opt-out" of Section 180.1141, Section
180.1131 and Section 180.1150 of the WBCL. In addition, the Directors have
agreed to vote shares held by them as of the date of this resolution in favor of
such proposals and to recommend that stockholders adopt these proposals.
TRANSFER AGENT AND REGISTRAR
Firstar Trust Company will be the Transfer Agent and Registrar for the
Common Stock.
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<PAGE> 55
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
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." In addition,
in order to register the Common Stock for sale in certain states, the thirteen
individuals listed in "Management" have entered into "lock-in" agreements which
prohibit the sale, pledge or encumbrance of all or a substantial majority of
their respective shares for a period of two years following the effective date
of the offering, subject to the right to (i) sell up to 2.5% of the subject
shares per quarter during the second year of such agreement, and (ii) continue
existing pledges of Common Stock to secure personal borrowings in place prior to
the effectiveness of the Offering in the case of two of such individuals.
Moreover, in order to register the Common Stock for sale in certain states,
except for options to purchase 60,000 shares of Common Stock issuable under the
1998 Stock Option Plan for Directors expected to be granted and outstanding
within 30 days following the closing of the Offering, the Company will not grant
options or warrants in excess of 15% of the number of outstanding shares of
Common Stock to officers, directors, employees, holders of 5% or more of the
Common Stock or affiliates for a one-year period following the Offering.
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 at an
initial exercise price per share equal to 130% 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."
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<PAGE> 56
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."
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. The public offering price,
concession and discount will not be changed until after the Offering has been
completed.
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, 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
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<PAGE> 57
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 at an
initial exercise price per share equal to 130% 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 demand and incidental registration rights
relating to the underlying Common Stock, requiring the Company to file, at any
time from the first anniversary of the effective date of this Offering 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 on the first anniversary of
the effective date of this Offering and ending on the day immediately preceding
the fifth anniversary of the effective date of this Offering. The
Representative's Warrants cannot be transferred, assigned or hypothecated, in
whole or in part, for a period of twelve months from the effective date of the
Offering, 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 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. In addition, in order to
register the Common Stock for sale in certain states, the thirteen individuals
listed in "Management" have entered into "lock-in" agreements which prohibit the
sale, pledge or encumbrance of all or a substantial majority of their
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respective shares for a period of two years following the effective date of the
offering, subject to the right to (i) sell up to 2.5% of the subject shares per
quarter during the second year of such agreement, and (ii) continue existing
pledges of Common Stock to secure personal borrowings in place prior to the
effectiveness of the Offering in the case of two of such individuals. Moreover,
in order to register the Common Stock for sale in certain states, except for
options to purchase 60,000 shares of Common Stock issuable under the 1998 Stock
Option Plan for Directors expected to be granted and outstanding within 30 days
following the closing of the Offering, the Company will not grant options or
warrants in excess of 15% of the number of outstanding shares of Common Stock to
officers, directors, employees, holders of 5% or more of the Common Stock or
affiliates for a one-year period following the Offering.
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 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
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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., 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.
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<PAGE> 60
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> 61
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> 62
MERGE TECHNOLOGIES INCORPORATED AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
ASSETS
<TABLE>
<CAPTION>
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> 63
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............ $ 0.18 $ (0.21) $ (0.07) $ 0.00 $ 0.08
========== ========== ========== ========== ==========
Net income (loss) per common and
common equivalent share............ $ 0.18 $ (0.21) $ (0.03) $ 0.05 $ 0.08
========== ========== ========== ========== ==========
Weighted average number of common and
common equivalent shares
outstanding........................ 2,521,253 2,777,834 3,969,391 3,907,745 4,712,994
========== ========== ========== ========== ==========
</TABLE>
See accompanying notes to consolidated financial statements.
F-4
<PAGE> 64
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
-------- ------ ---------
<CAPTION>
RETAINED
EARNINGS CUMULATIVE TOTAL
(ACCUMULATED TRANSLATION SHAREHOLDERS'
DEFICIT) ADJUSTMENT EQUITY
------------ ----------- -------------
<S> <C> <C> <C>
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> 65
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 (used in) 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> 66
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> 67
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> 68
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> 69
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> 70
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> 71
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> 72
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> 73
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> 74
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> 75
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 14%, 11% and 18%,
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> 76
[THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 77
[THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 78
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> 79
======================================================
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.................... 3
Risk Factors.......................... 7
The Company........................... 15
Use of Proceeds....................... 15
Dilution.............................. 16
Capitalization........................ 17
Dividend Policy....................... 17
Selected Consolidated Financial
Data................................ 18
Management's Discussion and Analysis
of Financial Condition and Results
of Operations....................... 20
Business.............................. 29
Management............................ 41
Certain Transactions.................. 45
Principal Shareholders................ 48
Description of Securities............. 49
Shares Eligible for Future Sale....... 53
Underwriting.......................... 54
Legal Matters......................... 56
Experts............................... 56
Additional Information................ 56
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 LOGO]
MERGE TECHNOLOGIES
INCORPORATED
COMMON STOCK
-----------------
PROSPECTUS
-----------------
H.C. WAINWRIGHT & CO., INC.
, 1998
======================================================
<PAGE> 80
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> 81
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 $250,000
Legal Fees and Expenses $120,000
Printing Expenses $75,000
Transfer Agent and Registrar Fees $1,000
Underwriter's Non accountable Expense $427,500
NASDAQ Quotation Fee $10,000
Director and Officer Liability Insurance Premiums $30,000
Miscellaneous $25,000
----------
Total $981,045
==========
</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. Each of the purchasers
in the transactions described above was given access to financial and non-
financial information about the Company and was a sophisticated investor
capable of understanding the merits and risks of his or her investment.
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> 82
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 Amended Underwriting Agreement. (1)
3.1 Articles of Incorporation of Registrant. (2)
3.2 By-Laws of Registrant. (2)
4.1 Stock Purchase Warrant issued June 30, 1997 by Registrant to
Sirrom Capital Corporation. (2)
4.2 Form of Lock-Up Agreement (2).
</TABLE>
II-3
<PAGE> 83
<TABLE>
<S> <C>
4.3 Form of Common Stock Certificate. (2)
4.4 Form of Representative's Warrants (1)
5.1 Opinion of Foley & Lardner regarding legality. (3)
10.1 Employment Agreement dated September 1, 1997 between
Registrant and William C. Mortimore. (2)
10.2 Loan Agreement dated June 30, 1997 between Registrant and
Sirrom Capital Corporation. (2)
10.3 Security Agreement dated June 30, 1997 between Registrant and
Sirrom Capital Corporation. (2)
10.4 Secured Promissory Note dated June 30, 1997 between Registrant
and Sirrom Capital Corporation. (2)
10.5 Merge/Sirrom Revised Modification Agreement dated as of
October 30, 1997. (3)
10.6 OEM Purchase Agreement between Registrant and Philips Medical
Systems Nederland B.V. dated September 24, 1994 and First
Amendment dated June 4, 1996. (4)
10.7 Intentionally omitted.
10.8 Distribution Agreement with Picker International, Inc. (4)
10.9 1996 Stock Option Plan for Employees of Registrant dated May
13, 1996. (2)
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.(2)
10.11 Alpha Capital Venture Partners Limited Agreement dated March
1, 1997.(2)
10.12 Consulting Agreement of Robert T. Geras dated June 1, 1996,
as terminated effective as of the closing of the Offering.(1)
10.13 Form of 1998 Stock Option Plan For Directors.(1)
11 Statement regarding computation of per share earnings.(1)
21 Subsidiaries of Registrant.(2)
23.1 Consent of Foley & Lardner (see Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP
24 Power of Attorney.(2)
27.1 Financial Data Schedule.(1)
27.2 Financial Data Schedule.(3)
27.3 Financial Data Schedule.(3)
27.4 Financial Data Schedule.(3)
27.5 Financial Data Schedule.(3)
</TABLE>
- -----------------
(1) Incorporated by reference to Pre-Effective Amendment No. 2 to Registration
Statement No. 333-39111 filed January 26, 1998.
(2) Incorporated by reference to Registration Statement No. 333-39111 filed
October 30, 1997.
(3) Incorporated by reference to Pre-Effective Amendment No. 1 to Registration
Statement No. 333-39111.
(4) The Registrant has requested confidential treatment of certain terms in
these Agreements. Redacted text is indicated by [**]'s; these Agreements
have been filed separately with the SEC.
II-4
<PAGE> 84
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> 85
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. 3 to Registration Statement to be signed on its
behalf by the undersigned, in the City of Milwaukee, State of Wisconsin, on
January 28, 1998.
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. 3 to the Registration Statement was signed by the
following persons in the capacities indicated this 28th day of January, 1998.
<TABLE>
<CAPTION>
NAME POSITION DATE
- ---- -------- ----
<S> <C> <C>
/s/ William C. Mortimore President and Director January 28, 1998
- ------------------------ (Pricipal Executive Officer) -----------------
William C. Mortimore
/s/ Colleen M. Doan Chief Financial Officer, Secretary January 28, 1998
- ----------------------- 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 January 28, 1998
------------------------ -----------------
William C. Mortimore
as Attorney-in-fact
</TABLE>
II-6
<PAGE> 86
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. PAGE NO.
- ----------- --------
<S> <C>
1 Form of Amended Underwriting Agreement. (1)
3.1 Articles of Incorporation of Registrant. (2)
3.2 By-Laws of Registrant. (2)
4.1 Stock Purchase Warrant issued June 30, 1997 by Registrant to
Sirrom Capital Corporation. (2)
4.2 Form of Lock-Up Agreement (2).
4.3 Form of Common Stock Certificate. (2)
4.4 Form of Representative's Warrants
5.1 Opinion of Foley & Lardner regarding legality. (3)
10.1 Employment Agreement dated September 1, 1997 between
Registrant and William C. Mortimore. (2)
10.2 Loan Agreement dated June 30, 1997 between Registrant and
Sirrom Capital Corporation. (2)
10.3 Security Agreement dated June 30, 1997 between Registrant and
Sirrom Capital Corporation. (2)
10.4 Secured Promissory Note dated June 30, 1997 between Registrant
and Sirrom Capital Corporation. (2)
10.5 Merge/Sirrom Revised Modification Agreement dated as of
October 30, 1997. (3)
10.6 OEM Purchase Agreement between Registrant and Philips Medical
Systems Nederland B.V. dated September 24, 1994 and First
Amendment dated June 4, 1996. (4)
10.7 Intentionally omitted.
10.8 Distribution Agreement with Picker International, Inc. (4)
10.9 1996 Stock Option Plan for Employees of Registrant dated May
13, 1996. (2)
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.(2)
10.11 Alpha Capital Venture Partners Limited Agreement dated March
1, 1997.(2)
10.12 Consulting Agreement of Robert T. Geras dated June 1, 1996,
as terminated effective as of the closing of the Offering.(1)
10.13 Form of 1998 Stock Option Plan For Directors.(1)
11 Statement regarding computation of per share earnings.(1)
21 Subsidiaries of Registrant.(2)
23.1 Consent of Foley & Lardner (see Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP
24 Power of Attorney.(2)
27.1 Financial Data Schedule.(1)
27.2 Financial Data Schedule.(3)
27.3 Financial Data Schedule.(3)
27.4 Financial Data Schedule.(3)
27.5 Financial Data Schedule.(3)
</TABLE>
- -----------------
(1) Incorporated by reference to Pre-Effective Amendment No. 2 to Registration
Statement No. 333-39111 filed January 26, 1998.
(2) Incorporated by reference to Registration Statement No. 333-39111 filed
October 30, 1997.
(3) Incorporated by reference to Pre-Effective Amendment No. 1 to Registration
Statement No. 333-39111.
(4) The Registrant has requested confidential treatment of certain terms in
these Agreements. Redacted text is indicated by [**]'s; these Agreements
have been filed separately with the SEC.
<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
-------------- ---------------
Initials Initials
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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 be applicable to unfilled purchase orders
which have been accepted by OEM. [**] 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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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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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
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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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[**] Confidential Treatment
<PAGE> 23
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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> 25
LIST OF ATTACHMENTS
-------------------
Attachment A(1) Product List and Product Characteristics
Attachment B(1) Product Specifications
Attachment C(1) Prices and Planned Yearly Numbers
Attachment D(1) Acceptance Procedure
Attachment E(1) 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(1) List with Prohibited/Restricted Substances
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<PAGE> 26
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ATTACHMENT F
LIST OF MANDATORY STANDARDS
Listed below are the mandatory standards that each OEM Product unit must
comply with.
ELECTROMAGNETIC COMPATIBILITY
Radiated/Conducted/Magnetic Emissions
VDE/CISPR Level A requirements of
Philips Standard UXN-13850 section 4.2
Radiated/Conducted/Magnetic Immunity
per requirements of Philips EMC Standard UXN-13850 section 4.3
SAFETY REQUIREMENTS
Underwriters Laboratory (UL)
UL-1950: Standards for Safety of Information and Processing
Equipment
Canadian Standards Association (CSA)
CSA C22.2 No. 0: Definitions and General Requirements
CSA C22.2 No. 1: Safety of Data Processing Equipment
International Electrotechnical Commission (IEC)
EC-950: Safety of Information Technology Equipment
REGULATORY REQUIREMENTS
Food and Druq Administration (FDA)
Code of Federal Regulations (CFR) Title 21 Parts 800 - 1299
Other Requirements
Rules for creating Operating Manuals
per Philips Standard UXW-13122 (Marketing Instructions For use)
ENVIRONMENTAL Requirements
Temperature: 10 to 40 deg C
Relative Humidity: 20% to 90%
Condensation: No
Air Pressure: 50 to 110 kpa (lkpa = 10 millibar)
Vibration: g value = lg or less (when unit is on)
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= 2g or less (when unit is off)
. . frequency = 10Hz to 150Hz
. . amplitude = 0 to 0.15 mm (1/2 sine pulse)
Shock . . : g value = Sg or less (when unit is on)
. . = 10g or less (when unit is off)
. . pulse duration = 6msec to 10 msec
Storage Requirements
Temperature: -25 to +70 deg C
Relative Humidity: 5% to 95%
Condensation: No
Air Pressure: 50 to 110 kpa
Vibration: g value = 10g or less
. . frequency = 10Hz to 150Hz
. . amplitude = 0 to 0.75 mm ( 1/2 sine pulse)
Shock (in shipping package) : g value = 25g or less pulse duration = 6msec to
10 msec Testing to verify that the Product unit can meet these environmental
requirements will be based on the following EC standards:
IEC-68- 1 . Basic Environmental Testing Procedure
EC-68-2- 1/Ab Cold For Storage Test
EC-68-2-1/Ad Operational Temperature Test
EC-68-2-2/Bd Operational Temperature Test
EC-68-2-2/Bb Dry Heat For Storage Test
EC-68-2-3/Ca Steady State Damp Heat Test
EC-68-2-30/Db Cyclic Damp Heat Test
EC-68-2-6/Fc Vibration Test
EC-68-2-29/Eb Bump Test
ELECTRICAL REQUIREMENT
The Product unit shall be classified as operating to a type
"S1" mains power source.
Type "S 1 " is defined as a normal AC mains power source
(either single or three phase).
This is the branch circuit of the Hospital, including the
supply for cord connected
equipment. Refer to Philips Standard UXN-13701 (Mains Supply
Equipment
Requirements) for additional information.
Voltage . : 1 10vac +/-10%
. . 220vac +/- 10%
Frequency : 50Hz / 60Hz +/- 1%
Immunity : per Philips Standard UXN-13701 section 4.2
Emission : per Philips Standard UXN-13701 section 4.3
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ATTACHMENT G
Service Arrangements
INTRODUCTION
This Attachment sets service requirements for certain products ("Products") as
defined in the OEM Purchase Agreement ("Agreement") between Merge Technologies
Inc. ("OEM") and Philips Medical Systems Nederland B.V. ("PMSN") and is
incorporated by reference in that Agreement and made a part thereof, however
nothing in this Attachment overrides the Agreement to which it is attached.
1. Responsibilities
Unless agreed to otherwise PMSN shall be responsible for installing,
servicing and repairing Products. In order to enable PMSN to properly
fulfil its obligations towards its customers, OEM shall furnish to
PMSN before delivery of each new type of Product, free of charge, two
sets of technical, installation, operation and maintenance manuals,
("Service Manuals").
2. System Delivery
With each Product, OEM shall deliver a checklist regarding all parts
which comprise the delivery package, viz .:
- Packing list
- Configuration record
- Test results/Certificates
- Software (including application and test software),
- Documentation as further specified below.
2.1 Service Documentation
Service Manuals shall substantially be in accordance with PMSN's
guidelines for Service Documentation and in conformity with applicable
governmental and/or international regulations as specified in the
Agreement and the other Attachments to it.
If the Agreement does not provide otherwise, OEM shall be solely
responsible for the cost and expense of preparing and producing the
Service Manuals, except that PMSN shall, upon request, assist OEM in
producing the said Service Manuals and shall bear its own costs with
respect to such assistance.
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The Service Manuals shall contain at a minimum the following
sections:
- Introduction and Technical Data
- Pre-installation Data and Site Planning Information
- Installation
- Setting-to-work .
- Acceptance: Specification checks and data applicable
for field service Corrective Maintenance
- Diagnostic procedures for fault identification
- Adjustment procedures o Instructions for (dis)assembly
- Instructions for removal and replacement
- Procedures after repair or replacement
- Simplified drawings to facilitate fault finding
- Theory of operation and explanations
- Diagrams and drawings
- Repair procedures
- Spare Parts list including PMSN's 12 digit code
numbers
- Specification of required tools (if any), to be
classified for:
1. Pre-installation
2. Installation, setting to work and acceptance
3. Maintenance
No later than sixty (60) days prior to the first shipment of a new
Product, OEM shall forward a draft Service Manual for PMSN's attention to:
Philips Medical Systems Nederland B.V.
PO Box 10.000
5680 DA Best,
The Netherlands
Att: Purchase Group XCB, Building QJ,
so as to enable PMSN to review the Service Manuals before regular
shipments will take place.
The Service Manuals shall be kept updated during the lifetime of the
Product and include all implemented changes and modifications pertaining
to the Product. Corrections shall be furnished to PMSN without additional
charges.
The test and diagnostic software, if any, used by field service
personnel shall be made available by OEM on a
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media suitable for the Product and shall be supplied with each Product.
With each Product OEM shall supply, without additional charge to PMSN, one
set of fully updated Service Manuals, for both hardware and Software. An
additional set of Service Manuals shall be shipped with orders which are
identified as being for the United States Veterans Administration or other
United States Government agencies, also without additional charge to PMSN.
Additional copies of the documentation will be available at USD 1,500 per
copy.
2.2 Preventive (Planned) Maintenance Section Preventive Maintenance is
defined as the pre-planned actions performed to keep the Product in a
specified operating condition by means of systematic inspection,
detection and prevention of initial failures.
The preventive maintenance manual shall contain at least:
1. Schedule(s)
2. Instructions
3. List of Spare Parts to be replaced
4. List of Consumables
5. Specifications of required tools and lubricants
The Preventive Maintenance manual shall be forwarded separately for PMSN'
attention to the address in Section 2.1 above.
2.3 Language
All Service Manuals will be available in the English language. Operator
manuals must be made available in other languages, if legally required, on
terms and conditions to be agreed upon between the parties on a case
(language) by case basis.
3. Support
OEM agrees to make every effort to respond to PMSN's requests for
technical support as quickly as possible. If a request for support is
caused by a failure of OEM to perform under the terms of the
Agreement (e.g. because of incomplete shipments, shipment of the wrong
components, erroneous documentation or instructions), then OEM shall bear
all direct costs involved to solve the problem.
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4. Maintenance
4.1 Repair Policy Repair will be done where practicable by replacing field
exchangeable units. Exchangeable units are, e.g.:
- Printed Circuit Boards
- Keyboards
- Power Supplies
- Motors
- Disc Drives
- Cable Assy's
- etc.
4.2 Reliability
OEM shall make available free of charge, all such relevant data regarding
reliability of the Products, such as, but not limited to, MTBF and MTTR
figures, problem reports at system and part level, field failures at
system and part level, etc. PMSN shall forward to OEM, all information
concerning the performance and behaviour of OEM's Products in use with
systems distributed by PMSN.
5. Field Change Order ("FCO"), Problem Reporting ("PO") and Service Information
("SI") Program
OEM shall maintain a field change order, problem reporting and service
information program in accordance with good industry practice. The
following procedures are intended as minimum requirements for the program
which OEM has in place and for interfacing this program with PMSN's
procedures.
Changes which affect Form, Fit, Function, or Certification of the Product,
or Spare Parts stock may only be implemented after consultation between
OEM and PMSN and mutual agreement.
5.1 Form of FCO
Field modifications, if any, will be made available to PMSN in the form of
modification kits. These kits will contain:
- Implementation instructions, including a list of
applicable Products and serial numbers
- Material and Spare Parts
- Special tools (if any)
- Service Documentation updates
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5.2 Categories and Implementation of FCO's Three (3)
categories will be distinguished:
1. Action for Safety MANDATORY
2. Action for Performance MANDATORY
3. Service Tip
Classification into any of these categories shall be based upon
consultation and mutual agreement.
OEM shall, in any event, be responsible for all costs and expenses
associated with implementing an Action for Safety at any time during the
useful life of each unit of Product
The terms and conditions on which OEM will implement an Action for
Performance (also after the expiration of the warranty on each unit of
Product) or Service Tip on request of PMSN, not due to failures of
the Product, will be borne by OEM for materials only, unless Products are
returned to OEM in which case all costs will be borne by OEM, except
forwarding cost which will be for the account of PMSN.
OEM shall, moreover, be responsible for material cost and expense related
with any Action for Performance which may be the subject of a corrective
action, recall or otherwise be the subject of an order, notice or other
finding by the United States Food and Drug Administration or other
regulatory agency. In case of factory repair, PMSN shall absorb the
related forwarding charges.
Implementation of an Action for Safety or an Action for Performance shall
include, without limitations, providing to PMSN and to all affected
installations, any necessary Software releases and additional or
replacement hardware.
5.3 Field Problem Reporting
PMSN will make all reasonable efforts to report to OEM problems with the
Product (including its hardware, firmware and Software) and may use one of
its own internal forms form for this purpose. In order to shorten response
times from OEM, PMSN may report urgent problems by telephone or telefax.
OEM agrees to confirm receipt of telephone reports in writing if PMSN does
not do so. This problem reporting system is directed at service and
maintenance problems and shall be in addition to any reporting system
which OEM and PMSN are required) law
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to implement. Three categories of Problems are defined, viz .:
I. VERY URGENT PROBLEMS
- Disables the use of the Product or causes unacceptable operation of
an application Program.
II. URGENT PROBLEMS
- Disables the use of the Product under certain conditions.
- Disables the use of certain function(s) of the Product.
III. ROUTINE PROBLEMS
- Problems other than VERY URGENT or URGENT.
As soon as possible, but ultimately within two (2) working days after a
Problem has been reported, OEM shall confirm its receipt and start
reproducing and analyzing the Problem. In its confirmation OEM shall
indicate the manner and time frame in which OEM expects to have a
preliminary and/or definite solution available, but always within the
time frames as defined hereinafter
OEM shall provide solutions to Problems at the latest within the
following time frames:
Preliminary Definite
VERY URGENT one (1) week six (6) weeks
URGENT two (2) weeks sixteen (16) weeks
ROUTINE not applicable sixteen (16) weeks
5.4 Service Information
OEM shall include PMSN in the distribution list for technical information
bulletins distributed by OEM to its own service organization and keep the
Service Manuals up to date, particularly in respect of changes of
Spare Parts and replacements. Field Change Orders will include revision
pages for the Service Manuals.
OEM shall supply new documents at least thirty (30) days before the
first delivery of changed Products to PMSN.
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6. Configuration
6.1 Identification/Labellinq of Spare Parts
PMSN shall inform OEM about PMSN's coding and identification method with
regard to Spare Parts. From all Spare Parts, assemblies and sub-assemblies
of interest to PMSN, the Spare Part and packing will be clearly coded and
marked in accordance with PMSN's specifications.
Shipping documents and invoices will bear the corresponding PMSN 12
digit Spare Parts number for each Part. For this purpose, PMSN shall
designate a block of 12 digit code numbers for Spare Parts supplied by OEM
which OEM shall then cross-reference to parts on its own listings and
update as additional Spare Parts are designated by OEM for later versions
of the Product or additional products of OEM which are purchased by PMSN.
6.2 Registration
If the Product is purchased by PMSN in several different forms or is
modified on a continuing basis by OEM, OEM shall deliver a Configuration
Record with each Product indicating:
- Product name:
- Type/code and serial number of PCBs, including HW, FW and SW level (if
any).
- Identification of assemblies and sub-assemblies contained in the
Product Spare Part numbers and serial number.
The same procedure shall apply for delivery of Field Change Order kits.
Moreover, OEM shall with each FCO kit, provide PMSN with the resulting
Configuration Registration list for such a modified Product, assembly or
subassembly thereof.
7. Spare Parts
OEM undertakes that it will assure that Spare Parts are available Spare
Parts for the Products during a period of 10 (ten) years after the last
delivery of a type of Product by OEM under this Agreement. OEM will also
assure availability of Spare Parts prior to the first dispatch of each new
type of Product.
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OEM may, at its discretion, substitute functionally equivalent Spare Parts,
subject to informing PMSN previously in writing and making available at a
50% discount rate, a mutually agreed number of such equivalent Spare Parts
for PMSN to test, and provided that PMSN approves these Spare Parts in
writing. Stocks of Spare Parts built up by PMSN that become obsolete
because of Field Change Orders, initiated or caused by OEM, shall be
returned at OEM'S expense and OEM shall credit PMSN the actual purchase
value.
7.1 Spare Parts List
OEM shall provide PMSN with a list of Spare Parts in the Product as built,
containing the following information:
- Spare Part number and conversion to PMSN 12 NC
- Description of the Spare Part
- Price of the Spare Part
- Exchange price
- Guaranteed delivery time per Spare Part or group of Spare Parts
- OEM's name and address
- Repair time and price, if applicable
- Indication of any export restrictions (e.g. for Software) which may
apply under United States law.
OEM shall provide PMSN with recommendations for the stocking of Spare Parts
required to support and maintain the Products. OEM shall yearly update
these recommendations during the lifetime of the Product based upon
historical usage and changes of the Spare Parts.
OEM will timely provide information to PMSN so as to allow it to place the
initial purchase order for Spare Parts prior to the first Product delivery,
so as to enable PMSN to perform its service obligation from the moment that
the first customer installation takes place.
Delivery of such parts shall be made concurrently with the first delivery
of Products, or such other date as agreed to by the parties.
OEM will recommend and allow PMSN to initiate an end-of-life order after
the agreed period of Spare Parts availability has expired.
To facilitate Spare Parts distribution and shipping if they are subject to
export restrictions, OEM agrees to include PMSN on OEM's distribution
license.
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7.2.1 Priority 1 Orders
Spare Parts to be delivered under 'Priority 1 order' (breakdown and
out-of-stock situations within PMSN) shall be delivered by OEM, on an
Ex-works Milwaukee basis, within a period of 24 hours after notification,
by courier service to a PMSN ship-to address. OEM shall make appropriate
shipping arrangements, but shall be reimbursed for reasonable freight
costs by PMSN. OEM shall immediately inform PMSN of the relevant shipping
information and expected time of arrival. Extra handling charges for
priority 1 orders may not exceed a price of USD 200.
7.2.2 Priority 2 Orders
Spare Parts to be delivered under 'Priority 2 orders' (replenishment
orders) may be placed by PMSN during the term of this Agreement. These
will have a lead time of one week, unless agreed to otherwise by the
parties.
7.3 Excess Spare Parts
Excess Spare Parts may be returned by PMSN to OEM for full credit
provided such return shipment is approved by OEM. Excess Spare Parts are
defined as those parts that are in excess of a one-year supply based upon
historical usage over the last six months.
7.4 Repair Services
Spare Parts which are identified as repairable, may be returned by PMSN to
OEM for warranty and non-warranty repair, and will be repaired to the
highest configuration level within 6 (six) calendar weeks or be replaced
within 1 (one) week. OEM will provide repair services for a period of at
least 10 (ten) years after delivery of the last Product. No moulds or
other manufacturing equipment should be disposed of by OEM without the
prior permission of PMSN. ~
Repairs shall not affect form, fit, function or certification of the Spare
Part(s).
OEM is responsible for risk of loss and for arranging transportation and
insurance for shipment of Product and Spare Parts to and from OEM for
warranty repairs.
To the extent practicable, for any Product or Spare Parts which it is
cost-effective for PMSN to have repaired.
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non-warranty repairs shall be performed by OEM on a fixed price basis.
Transportation charges and shipping to and from OEM for non-warranty
repairs are the responsibility of PMSN.
If PMSN elects to repair exchangeable Spare Parts in its own workshops,
then the OEM shall transfer to PMSN, all relevant information covering:
- Trouble shooting
- Component specifications (names and addresses of vendors included)
- Adjustment procedures
- Tools and repair aids (specifications and prices)
Hard Disc Assemblies (HDA):
If HDAs are returned for repair and still contain data, they shall not be
read by the OEM. When the HDA is reused, it shall be erased by OEM before
re-shipping.
7.5 Warranty on Spare Parts
The duration of the warranty period for Spare Parts is [**] to commence
on the date of delivery or date of invoice, whichever is earlier.
7.6 Storage Conditions and Handling Procedures
OEM will provide PMSN with storage conditions, such as temperature,
humidity, shelf life and air pressure, in the event that limitations of
this nature apply to certain Spare Parts.
7.7 Packinq
Each Spare Part will be packed in such a way, that it can be stored without
repacking (if necessary, electrostatic discharge-packing is to be used).
Spare Parts will be pre-packed in standard order quantities on request of
PMSN.
7.8 Prices
Prices of Spare Parts for any new Product of OEM shall be agreed upon
between the parties when that new Product is added to the scope of this
Agreement.
Repair Prices of Spare Parts for the Product shall be agreed upon between
the parties, but shall not, in any event, exceed [**] of the original
purchase price.
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[**]
Price changes, if any, will occur once per calendar year. Negotiations
regarding price changes shall be initiated by OEM no later than two months
before the proposed pricing changes are scheduled to take effect.
The price of all Spare Parts necessary to complete one unit of a given type
of Product, shall not exceed the original list price of that Product by
more than [**].
7.9 Modifications to Spare Parts (because of FCO's)
For modifications to Spare Parts, or at the introduction of new options or
Products, OEM shall use its best efforts to supply new Spare Parts and
price lists at least thirty days before the first delivery takes place.
7.10 Second Sourcing
OEM shall provide PMSN with manufacturer's name and part number(s) for
generic Spare Parts, to enable PMSN, if so desired, to purchase directly
these generic Spare Parts (e.g. switches, power supplies, etc.) from their
respective vendors.
It is, however, understood that OEM will remain responsible, in case
certain Spare Parts are no longer available from such vendors. OEM shall
then take all action necessary to find substitutes for such nonavailable
Spare Parts, as soon as possible, and perform at its own expense, any
engineering work connected with such a substitution.
8. Training
OEM shall provide two (2) days instruction in formal training classes for a
maximum of fifty (50) participants (to be divided over several classes)
free of charge. This training will be done concurrently with the initial
shipment of each Product, and shall be in sufficient detail to provide PMSN
personnel with all information and background necessary to allow them to
conduct training for other PMSN technical personnel. Additional training,
if required, shall be available from OEM as set out in the Agreement or its
Attachments at a price not to exceed USD [**] per instructor day of
training.
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PMSN may select the location for the instructor training classes to be
given. Both parties will bear their own expenses for travel and lodging.
OEM will assist PMSN with all documents and other training aids necessary
for successful secondary training classes held by PMSN.
During instructor training classes, a complete set of Service Manuals will
be made available by OEM to the participants. If important improvements are
made to Products or new contract items are added, OEM shall provide
training and documentation for them on the same conditions as stated above.
9. Software Support and Maintenance
With regard to support and maintenance of Software, the following
additional terms and conditions have been agreed:
9.1 General
OEM shall provide support, preventive and corrective Maintenance of
Software. For this purpose OEM undertakes to keep available a well
equipped, organized and staffed software maintenance and support department
with capable, trained and experienced personnel that has adequate know-how
regarding the various versions of the Software.
9.2 Definitions
The following definitions shall apply in addition to the definitions in
this Agreement:
"Compatibility" shall mean that a new Release or a new Level can replace
the former Release(s) or Level(s) of the Software without degrading the
functionality and/or affecting the interfacing of the Product or Software.
"Release(s)" shall mean a specified set of functions. A new Release of the
Software will be made as a result of changed functional specifications and
will also contain the solutions to Problems of previous Levels. A Release
may comprise a number of Versions.
"Version(s)" shall mean a distinction between various Software programs
which fulfil essentially the same class of functions, but which are
different for alternative hardware choices and/or slightly different
Software configurations and/or differences in performance and/or for
commercial reasons.
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"Level(s)" shall mean improved Software having the same functional
specifications as before, but originating from changed (corrected) source
code.
9.3 Maintenance Fee
After the applicable free-of-charge Software warranty period(s),
maintenance and support specified in this Attachment shall be available
from OEM at a reasonable all-inclusive maintenance fee. This fee will be
subject to mutual agreement between the parties hereto. unless otherwise
agreed to, such all-inclusive maintenance fee shall include all actions and
activities (including forwarding costs) associated with maintenance and
support of the Software and copies of reports, solutions and Levels by OEM.
9.4 Support
While maintaining Compatibility OEM shall actively:
- search the Software for errors and offer corrections therefor
- investigate, produce and offer enhancements to the Software which
improves and optimizes the user friendliness of the Software
- provide on request advice with regard to the capabilities of the
Software in order to fully exploit its potential.
9.5 Preventive Maintenance
While maintaining Compatibility OEM shall, if PMSN has purchased
Maintenance, provide Preventive Maintenance by:
- Issuing from time to time, in such a sequence as shall be agreed upon,
generally available new Releases (updates and upgrades) of the
Software. These Releases shall be made available to PMSN at the same
time as OEM issues the same, or parts thereof, for its own use. PMSN
may obtain as many copies of each new Release as it may decide, but
not exceeding the number of Products delivered to PMSN at that time.
- Providing information regarding the contents, installation and user
aspects of such new Releases in sufficient detail to enable a smooth
installation and use by the user.
Each new Release shall consist of at least:
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- All Corrective Maintenance definite solutions previously made
available to PMSN pursuant to section 9.6 hereafter.
- All definite solutions for Problems in the Software previously made
available in similar software packages to other customers of OEM.
- Such other corrections and enhancements of the Software is OEM makes
generally available to others.
9.6 Corrective Maintenance
While maintaining Compatibility and without prejudice to the procedures of
article 5.3. of this Attachment, OEM shall provide Corrective Maintenance
by:
- delivering as soon as possible solutions for VERY URGENT and URGENT
PROBLEMS in the form of preliminary solutions (temporary fixes only,
no corrections to the Software) and definite solutions (corrections to
the Software) if necessary in an unscheduled Level of the Software.
- delivering solutions for ROUTINE PROBLEMS in the form of definite
solutions as part of the next Level of the Software.
If OEM cannot provide a definite solution without violating the
Compatibility of the Software, then OEM shall timely inform PMSN in
writing, together with a comprehensive explanation of the reasons and
consequences. OEM shall refrain from any activity to implement such a
definite solution unless PMSN has accepted the consequences in writing.
Both preliminary and definite solutions will be made available to PMSN as
soon as possible after OEM has produced and tested these solutions.
Definite solutions will always be included in the next available Level of
any Release. The solutions shall be documented and made available to PMSN
by fastest means of Communication and/or transportation.
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10. Duration
Unless explicitly stated to the contrary in the Agreement itself, the
arrangements set forth in this Attachment shall be in effect as of the date
of this Agreement and continue until ten (10) years after delivery of the
last unit of Product by OEM to PMSN under this Agreement.
OEM Philips Medical Systems
Nederland and B.V.
/s/ J.K. van Soest
By: [SIG] By: J.K. van Soest
-------------------------- ----------------------
Title: President Title: Director
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Date: 24-9-94 Date: 28/9/94
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ATTACHMENT H (to be provided by OEM)
Spare Parts List
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ATTACHMENT J
PRODUCT APPROVAL PROCEDURE
This Attachment is a procedure for Products' classification with regard to
testing and marketing those Products. This procedure applies only to
Products which are either not medical devices (as defined in section 201
(h) of the United States Food Drug and Cosmetic Act) and not otherwise
subject to regulation by the United States Food and Drug Administration or
similar agencies, or, if a Product is a medical device, all legal
requirements for distributing that Product have been met by OEM. OEM
agrees to provide PMSN with Products on the terms and conditions below.
A. OEM agrees to provide PMSN with a list of Products indicating for
each a Class category as specified below:
Class I: The Product has been installed in the field connecting the
specified input modality with the Philips PACS. The operation of
the Product has been tested and approved by PMSN as set forth in
paragraph C below.
Class II: The Product has not been installed in the field connecting
the specified input modality with the Philips PACS. OEM confirms
that the Product has been installed in the field connecting the
specified input modality with some output modality other than
Philips PACS. The operation of the Product has been tested and
approved by PMSN as specified in paragraph D below.
Class III: the Product has not been installed in the field
connecting the specified input modality with the Philips PACS. OEM
confirms that the Product has been installed in the field connecting
the specified input modality with some output modality other than
Philips PACS. The operation of the Product has not been tested and
approved by PMSN.
Class IV: all others
B. OEM agrees to sell and PMSN agrees to purchase all Class I Products
under the terms of this Agreement without further testing.
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C. When requested by PMSN, OEM agrees to make available to PMSN one Class II
unit for Beta Test at the following conditions:
- OEM will ship the Product to PMSN without invoice;
- OEM will invoice after receiving a written acceptance of the Product
from PMSN, or after 60 days from shipping date if no problems, in
writing, are reported by PMSN;
- when a problem related to the Product is reported in writing by PMSN
to OEM, the 60 days period will restart from the date of PMSN's
written communication to OEM;
- if necessary a preliminary acceptance test will be performed by PMSN
before shipping the equipment to the Beta site;
- PMSN will pay OEM's standard fee for installation and customer
training costs at the Beta site;
- PMSN and OEM have to provide at no additional cost the necessary
technical support needed to solve any problem during the test period.
This support may include visiting the Site;
- after 2 weeks of routine operation without major problems caused by
any part of the system (including the Modality and Philips PACS), the
test will be considered completed. However the final acceptance of the
Product will not take place until PMSN has indicated its approval in
writing;
- if the Product is not approved by the customer and is returned to PMSN
within the 60 days period, for any reason and without further
conditions, same Product will be returned to OEM, the related invoice
will be cancelled and any payment otherwise due OEM will be withheld
by PMSN;
- if problems related to the Product still persist after 5 weeks from
the installation of the equipment, PMSN may decide to remove the
Product from the site and refuse to upgrade the Product to Class 1. In
this case the Product will be returned to OEM, the related invoice
will be cancelled and any payment otherwise due OEM will be withheld
by PMSN.
D. When requested by OEM, PMSN agrees to evaluate one Class III unit for
upgrading to Class II on the following conditions:
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- the unit has been tested by OEM and conforms to the agreed procedure
for Type Approval Testing. OEM shall provide PMSN with the supporting
evidence thereof;
- OEM will make available one complete unit (hereinafter referred to as
"Product Prototype") plus all necessary accessories to PMSN without
charge for engineering evaluation and system testing;
- the test will be performed using a Modality Simulator and the Product
Prototype. In the Modality Simulator a defined (clinically relevant)
set of images will be downloaded. An appropriate software provided by
OEM will allow the simulator to send all images to the DMIA. It shall
be possible for PMSN to determine the set of images needed for a
particular modality;
- it shall be possible for PMSN to perform the test in a place of its
own choice, hereinafter referred to as the "Test Facility", including,
but not limited to, PMSN's and OEM's facilities;
- when required by PMSN OEM will make available at the test facility,
and at no charge, all necessary equipment and software including, but
not limited to, the Modality Simulator with all necessary
accessories, the Modality Simulator software, the appropriate set of
images on an appropriate media, the Product prototype, and the
associated Merge Interface Software;
- OEM will also provide all necessary product documentation
(installation and user manuals). These manuals must be produced by
OEM;
- the set of images has to be collected by OEM at an Hospital site using
an appropriate procedure and storage media (to be defined by OEM);
- a specific software tool (to be developed by OEM) will be used to
protect Hospital and Patient confidentiality;
- a Modality Simulator only will be supplied when the need thereto is
mutually determined by the parties and subject to the expected numbers
to be produced.
E. At the end of a particular test, and after receiving a written
communication from PMSN, OEM shall then proceed to upgrade the
particular Product Class as specified in the related communication.
-------- --------
Initials Initials
Merge PMSN
<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 North America, the United States territories
and the countries of the Carribean basin. Picker shall have the option to
expand distribution rights to include Latin (Central and South) America on
mutually agreeable terms.
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
LFM Laser Film Manager, MergeCOM-3 (DICOM) input to $18,500
parallel laser print port output with queue control and
refilming capability
DPS DICOM Print Server, DICOM input to Helios 8x10 and 16,500
parallel laser print port output
DPI Digital Print Interface, parallel laser port input, with 16,500
host control protocol or keypad and foot switch, to
MergeCOM-3 (DICOM) output, TCP/IP
VPI Video Print Interface, analog video print input (up 16,500
to 40mhz video), with host control protocol or keypad
and foot switch, to MergeCOM-3 (DICOM) output, TCP/IP
UPI Ultrasound Print Interface, analog video print input 13,500
(up to 15mhz video), with keypad and foot switch, to
MergeCOM-3 (DICOM) output, TCP/IP
<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
January 28, 1998
