<PAGE> 1
Registrant requests automatic effectiveness upon filing as per Rule 462 of the
Securities Act of 1933
As filed with the Securities and Exchange Commission on April 14, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
Form S-8
Registration Statement
Under
The Securities Act of 1933
---------------
Merge Technologies Incorporated
(Exact name of issuer as specified in its charter)
WISCONSIN 39-1600938
(State of Incorporation) (I.R.S. Employer
Identification No.)
1126 South 70th Street, Suite 107B,
Milwaukee, Wisconsin 53214-3151
(Address of Principal Executive Offices) (Zip Code)
AMENDED AND RESTATED STOCK OPTION PLAN FOR THE EMPLOYEES OF MERGE
TECHNOLOGIES INCORPORATED
(Full title of the plan)
WILLIAM C. MORTIMORE, PRESIDENT
MERGE TECHNOLOGIES INCORPORATED
1126 SOUTH 70TH STREET, SUITE 107B
MILWAUKEE, WISCONSIN 53214-3151
With a copy to:
MITCHELL D. GOLDSMITH, ESQ.
DENNIS B. O'BOYLE, ESQ.
SHEFSKY & FROELICH LTD.
444 N. MICHIGAN, SUITE 2500
CHICAGO, ILLINOIS 60611
(Name and address of agent for service)
(414) 977-4000
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Aggregate Offering Registration Fee
Per Share Price
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 2,015,826 3.4375 (2) $6,929,401.80 (2) $1,829.36
value $.01
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Subject to increase (or decrease) in accordance with Rule 416 of Regulation
C to reflect a merger, consolidation, reorganization, recapitalization,
stock dividend, stock split or other change in the corporate structure of
the Registrant which results in a change in the number of shares issuable
pursuant to outstanding awards under the Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and 457(h) of Regulation C, on the basis of the
average of the high and low prices of the shares of common stock of the
Registrant on the Nasdaq SmallCap Market on April 4, 2000.
2
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed below are hereby incorporated by reference into
this Registration Statement:
1. The Company's Annual Report on Form 10-KSB, for fiscal year ended
December 31, 1999.
2. The Company's Registration Statement on Form 8-A dated January 9,
1998.
3. All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act of 1934 prior to the termination
of the offering made hereby, shall be deemed to be incorporated by reference in
this Prospectus.
All documents filed subsequently to the foregoing by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
registered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference into this Registration
Statement and to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
(See Item 3)
Item 5. Interests of Named Experts and Counsel.
Not Applicable
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Item 6. Indemnification of Directors and Officers.
The Registrant is incorporated under the Wisconsin Business Corporation
Law ("WBCL"). Under Section 180.0851(1) of the WBCL, the Registrant is required
to indemnify a director or officer, to the extent such person is successful on
the merits or otherwise in the defense of a proceeding, for all reasonable
expenses incurred in the proceeding if such person was a party because he or she
was a director or officer of the Registrant. In all other cases, the Registrant
is required by Section 180.0851(2) to indemnify a director or officer against
liability incurred in a proceeding to which such a person was a party because he
or she was a director or officer of the Registrant, unless it is determined that
he or she breached or failed to perform a duty owed to the Registrant and the
breach or failure to perform constitutes: (i) a willful failure to deal fairly
with the Registrant or its shareholders in connection with a matter in which the
director or officer has a material conflict of interest; (ii) a violation of
criminal law, unless the director or officer had a reasonable cause to believe
his or her conduct was lawful or 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) willful misconduct. Section
180.0858(1) provides that, subject to certain limitations, the mandatory
indemnification provisions do not preclude any additional right to
indemnification or allowance of expenses that a director or officer may have
under the Registrant's articles of incorporation, bylaws, a written agreement or
a resolution of the Board of Directors or shareholders.
Section 180.0859 of the WBCL provides that it is the public policy of
the State of Wisconsin to require or permit indemnification, allowance of
expenses and insurance to the extent required to be permitted under Sections
180.0850 to 180.0858 of the WBCL, for any liability incurred in connection with
a proceeding involving a federal or state statute, rule or regulation regulating
the offer, sale or purchase of securities.
Section 180.0828 of the WBCL provides that, with certain exceptions, a
director is not liable to a corporation, its shareholders, or any person
asserting rights on behalf of the corporation or its shareholders, for damages,
settlements, fees, fines, penalties or other monetary liabilities arising from a
breach of, or failure to perform, any duty resulting solely from his or her
status as a director, unless the person asserting liability proves that the
breach or failure to perform constitutes any of the four exceptions to mandatory
indemnification under Section 180.0851(2) referred to above.
Under Article X of the Registrant's Amended and Restated By-laws,
directors and officers are indemnified against liability which they may incur in
their capacities as such to the full extent provided by applicable law and, in
addition, in accordance with any other rights such persons may have under a
resolution of the shareholders of the Registrant, a resolution of its Board of
Directors or under the Registrant's Restated Articles of Incorporation, as
amended and restated from time to time, or pursuant to any insurance policy, an
agreement or otherwise.
Under Section 180.0833 of the WBCL, directors of the Registrant against
whom claims are asserted with respect to the declarations of improper dividends
or distributions to shareholders or certain other improper acts which they
approved are entitled to contribution from other directors who approved such
actions and from shareholders who knowingly accepted an improper dividend or
distribution, as provided therein.
4
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Item 7. Exemption from Registration Claimed.
Not Applicable
Item 8. Exhibits.
The Exhibits to this Registration Statement are listed in the Exhibit
Index on page 9 of this Registration Statement, which Exhibit Index is
incorporated herein by reference.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement;
(i) To include any Prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the Prospectus any facts or events
arising after the effective date of this Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information
in this Registration Statement;
Provided, however, that paragraphs (1)(i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in a periodic report filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference into this Registration Statement.
2. That, for the purposes of determining any liability under the
Securities Act of 1933, each such post-effective amendment 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 thereof.
3. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
4. That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities and Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in this Registration Statement shall be deemed to be a new
5
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Registration Statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
5. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in such 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 its 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements of filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Milwaukee, State of Wisconsin, on April 14, 2000.
MERGE TECHNOLOGIES INCORPORATED
By: /s/ William C. Mortimore
------------------------------------
William C. Mortimore
President and Chief Executive Officer
7
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GRANT OF POWER OF ATTORNEY
Each person whose signature appears below as a Director and/or officer
of Merge Technologies Incorporated hereby constitutes and appoints William C.
Mortimore and Colleen M. Doan his true and lawful attorney-in-fact and agent,
with full power of substitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all subsequent amendments (including
post-effective amendments) to this Registration Statement, and to file the same
with all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto such attorneys-in-fact and
agents, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that such attorneys-in-fact and agents, or either of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- ---------- ----- ----
<S> <C> <C>
/s/William C. Mortimore
- ----------------------------------
William C. Mortimore President and Chief Executive Officer, April 14, 2000
Director
/s/ Robert T. Geras
- ----------------------------------
Robert T. Geras Director April 14, 2000
/s/ Robert A. Barish
- ----------------------------------
Robert A. Barish, M.D. Director April 14, 2000
/s/ Dennis Brown
- ----------------------------------
Dennis Brown Director April 14, 2000
/s/ Michael D. Dunham
- ----------------------------------
Michael D. Dunham Director April 14, 2000
/s/ Douglas S. Harrington
- ----------------------------------
Douglas S. Harrington, M.D. Director April 14, 2000
/s/ Kevin E. Moley
- ----------------------------------
Kevin E. Moley Director April 14, 2000
/s/ Hymie S. Negin
- ----------------------------------
Hymie S. Negin Director April 14, 2000
/s/ Colleen M. Doan
- ----------------------------------
Colleen M. Doan Chief Financial Officer, Secretary and
Treasurer (Principal Accounting Officer and
Principal Financial Officer) April 14, 2000
</TABLE>
8
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No.
- -----------
<S> <C>
4 Amended and Restated Stock Option Plan for the Employees of Merge Technologies
Incorporated/Merge Technologies Incorporated 1998 Stock Option Plan for Directors (1)
5 Opinion of Michael, Best & Friedrich LLP re: legality
23.1 Consent of Michael, Best & Friedrich LLP (included in Exhibit 5)
23.2 Consent of KPMG LLP
24 Power of Attorney (see the Signature Page to this Registration Statement)
99 None
</TABLE>
(1) Incorporated by reference to exhibits to Registrant's Registration
Statement on Form 8-A declared effective January 9, 1998.
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EXHIBIT 5
April 14, 2000
Merge Technologies Incorporated
1126 South 70th Street
Milwaukee, Wisconsin 53214
RE: MERGE TECHNOLOGIES INCORPORATED
AMENDED AND RESTATED STOCK OPTION PLAN FOR EMPLOYEES
Ladies and Gentlemen:
We have acted as special counsel to you ("Merge"), in connection with
the filing by Merge of its registration statement on Form S-8 (the "Registration
Statement") on or about the date of this letter with the Securities and Exchange
Commission pursuant to the provisions of the Securities Act of 1933, as amended
(the "Act"), covering the proposed registration of up to 2,015,826 shares of
common stock of Merge, $0.01 par value per share (the "Shares") related to
Merge's Amended and Restated Stock Option Plan for Employees (the "Plan"). We
have reviewed the corporate proceedings of Merge (the "Corporate Proceedings")
taken and to be taken to authorize the issuance of the Shares by Merge.
As special counsel to Merge, we are familiar with its Restated Articles
of Incorporation, and its Amended and Restated By-laws, and other documents,
records and certificates of Merge that we consider necessary for the purposes of
this opinion. Based upon the foregoing, we are of the opinion that:
1. Merge is a corporation validly existing under the laws of the State
of Wisconsin and has the authority to carry on its present business and is duly
qualified to own its properties and conduct its business in those states where
such authorization is presently required, except where the failure to so qualify
does not have a material adverse effect on the Company; and
2. Upon completion of the Corporate Proceedings, the Shares, when
executed by the proper officers of Merge and upon receipt of consideration
therefor in accordance with the Corporate Proceedings, will be validly issued,
fully paid and non-assessable, except as provided in Wis. Stat. Section
180.0622(2)(b) and judicial interpretations thereof.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the heading "Legal
Opinions" in the Registration Statement and related prospectus.
Very truly yours,
Michael Best & Friedrich LLP
/s/ Michael J. McDonagh
Michael J. McDonagh
<PAGE> 1
EXHIBIT 23.2
The Board of Directors
Merge Technologies Incorporated:
We consent to incorporation by reference in this registration statement on Form
S-8 of Merge Technologies Incorporated and subsidiary (Company) of our report
dated February 25, 2000, relating to the consolidated balance sheets of the
Company as of December 31, 1998, and 1999, and the related consolidated
statements of operations, shareholders' equity, cash flows, and comprehensive
income for each of the years in the three-year period ended December 31, 1999,
which report appears in the December 31, 1999, annual report on Form 10-KSB of
the Company.
/s/ KPMG LLP
Chicago, IL
April 14, 2000
