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 August 15, 2003
Registration No. 333-_____
UNITED STATES 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 Registrant in its Charter)
Wisconsin 39-1600938
(State or other jurisdiction of (IRS Employer Identification Number)
incorporation or organization)
1126 South 70th Street, 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)
Richard A. Linden, President & CEO
Merge Technologies Incorporated
1126 South 70th Street, Suite 107B
Milwaukee, Wisconsin 53214-3151
With a copy to:
Mitchell D. Goldsmith, Esquire
Dennis B. O'Boyle, Esquire
Shefsky & Froelich Ltd.
444 North 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)
CALCULATION OF REGISTRATION FEE
Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registred Registered Offering Price Per Aggregate Offering Registration
Share Price Fee
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Common Stock, par 3,265,826 (1) $13.61 (2) $44,447,891.86 (2) $3,595.83 (3)
value $.01
(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
Amended and Restated Stock Option Plan for the Employees of Merge
Technologies Incorporated (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 National Market on August 12, 2003.
(3) Pursuant to Rule 429 under the Securities Act of 1933, as amended
(referred to herein as the "Act"), this Registration Statement also
relates to 2,015,826 shares registered on Registration Statement No.
333-34884 filed with the Commission (as hereinafter defined) on April
14, 2000, and 500,000 shares registered on Registration Statement No.
333-100104 filed with the Commission on September 26, 2002. Since we
are registering only 750,000 new shares, and have previously paid
registration fees for the previously registered 2,515,826 shares, our
new registration fees are $825.79.
PART II
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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. Our Annual Report on Form 10-KSB, as amended, for fiscal year
ended December 31, 2002.
2. Our Quarterly Reports on Form 10-Q, as amended, for the
quarters ended March 31, 2003 and June 30, 2003.
3. Our Proxy Statement dated April 14, 2003, for our 2003 Annual
Meeting of Shareholders.
4. Our Current Reports on Form 8-K filed on March 6, 2003, March
11, 2003 (amending the Form 8-K for the event dated June 28,
2002), April 22, 2003, April 30, 2003, July 10, 2003, July 29,
2003 and July 30, 2003.
5. Our Form 8-A dated January 9, 1998.
All documents which we file subsequently to the foregoing pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the 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
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under the Wisconsin Business Corporation Law ("WBCL"), our directors
and officers are entitled to mandatory indemnification from us 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 us and such breach or failure
constituted: (i) a willful failure to deal fairly with us or our 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) willful misconduct. The WBCL allows a corporation to limit
its obligation to indemnify officers and directors by providing so in its
articles of incorporation. Our Bylaws provide for indemnification of directors
and officers to the fullest extent permitted by Wisconsin law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable
ITEM 8. EXHIBITS.
Exhibit Number
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5 Opinion of Herrling, Clark, Hartzheim & Siddall, Ltd. regarding
legality
10 Amended and Restated Stock Option Plan for the Employees of Merge
Technologies Incorporated (Incorporated by reference from our Form S-8
Registration Statement (Commission File No. 333-34884) filed with the
Commission (as hereinafter defined) on April 14, 2000.)
23.1 Consent of Herrling, Clark, Hartzheim & Siddall, Ltd. (Please refer to
Exhibit 5 of this Registration Statement.)
23.2 Consent of KPMG LLP
24 Power of Attorney (Please refer to the Signature Page to this
Registration Statement.)
Item 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
1. To file, during any period in which it offers or sells
securities, a post-effective amendment to this Registration
Statement;
(i) to include any Prospectus required by Section 10(a)(3)
of the Act; and
(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 additional or changed material
information on the plan of distribution;
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. For determining liability under the Act, to treat each such
post-effective amendment as a new Registration Statement of
securities offered, and the offering of the securities at that
time to be the initial public offering thereof.
3. To file a post-effective amendment to remove from registration
any of the securities that remain unsold at the end of the
offering.
4. Insofar as indemnification for liabilities arising under the
Act 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 (referred to
herein as the "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.
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 County of Milwaukee, State of Wisconsin, on August 15,
2003.
MERGE TECHNOLOGIES INCORPORATED
By: /s/ Richard A. Linden
---------------------------------------
Richard A. Linden
President and Chief Executive Officer
SIGNATURE PAGE / 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 Richard A.
Linden and Scott T. Veech 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.
SIGNATURES TITLE DATE
/s/ William C. Mortimore Chairman of the Board of August 15, 2003
--------------------------- Directors and Chief
William C. Mortimore Strategy Officer
/s/ Richard A. Linden Director, President and August 15, 2003
--------------------------- Chief Executive Officer
Richard A. Linden
/s/ Robert A. Barish, M. D. Director August 15, 2003
---------------------------
Robert A. Barish, M. D.
/s/ Patrice M. Bret, M. D. Director August 15, 2003
---------------------------
Patrice M. Bret, M. D.
/s/ Dennis Brown Director August 15, 2003
---------------------------
Dennis Brown
/s/ Michael D. Dunham Director August 15, 2003
---------------------------
Michael D. Dunham
/s/ Robert T. Geras Director August 15, 2003
---------------------------
Robert T. Geras
/s/ Anna M. Hajek Director August 15, 2003
---------------------------
Anna M. Hajek
/s/ Richard A. Reck Director August 15, 2003
---------------------------
Richard A. Reck
/s/ Scott T. Veech Chief Financial Officer, August 15, 2003
--------------------------- Secretary and Treasurer
Scott T. Veech (Principal Accounting
Officer and Principal
Financial Officer)
EXHIBITS
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Exhibit Number
---------------
5 Opinion of Herrling, Clark, Hartzheim & Siddall, Ltd. regarding
legality
10 Amended and Restated Stock Option Plan for the Employees of Merge
Technologies Incorporated (Incorporated by reference from our Form S-8
Registration Statement (Commission File No. 333-34884) filed with the
Commission on April 14, 2000.)
23.1 Consent of Herrling, Clark, Hartzheim & Siddall, Ltd. (Please refer to
Exhibit 5 of this Registration Statement.)
23.2 Consent of KPMG LLP
24 Power of Attorney (Please refer to Signature Page of this Registration
Statement.)
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EXHIBIT 5
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August 13, 2003
Merge Technologies Incorporated
1120 S. 70th Street
Suite S107B
Milwaukee, Wisconsin 53214-3151
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as special Wisconsin securities counsel to Merge
Technologies Incorporated, a Wisconsin corporation (the "Company"), in
connection with the preparation and filing of the registration statement on
Form S-8 (the "Registration Statement"), with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Act") and the prospectus contained therein with respect to registering an
increase of 750,000 shares (the "Option Shares") to the Amended and Restated
1996 Stock Option Plan for Employees of Merge Technologies, Inc. (the "Plan").
In connection with the registration of the Option Shares, you have requested
our opinion with respect to the matters set forth below.
For purposes of this opinion, we have reviewed the Registration
Statement. In addition, we have examined the originals or copies certified or
otherwise identified to our satisfaction of: (i) the Company's Articles of
Incorporation, as amended to date; (ii) the By-laws of the Company, as amended
to date; (iii) records of the corporate proceedings of the Company as we deemed
necessary or appropriate as a basis for the opinions set forth herein; and (iv)
those matters of law as we have deemed necessary or appropriate as a basis for
the opinions set forth herein. We have not made any independent review or
investigation of the organization, existence, good standing, assets, business
or affairs of the Company, or of any other matters. In rendering our opinion,
we have assumed without inquiry the legal capacity of all natural persons, the
genuineness of all signatures, the authenticity of all documents submitted to
us as originals, the conformity to original documents of all documents
submitted to us as certified or photostatic copies and the authenticity of
the originals of these documents submitted to us as copies.
We have not undertaken any independent investigation to determine
facts bearing on this opinion, and no inference as to the best of our
knowledge of facts based on an independent investigation should be drawn
from this representation. Further, our opinions, as hereinafter expressed,
are subject to the following exceptions, limitations and qualifications: (i)
the effect of bankruptcy, insolvency, fraudulent conveyance, reorganization,
arrangement, moratorium or other similar laws now or hereafter in effect
relating to or affecting the rights and remedies of creditors; and (ii) the
effect of general principles of equity whether enforcement is considered in
a proceeding in equity or at law and the discretion of the court before
which any proceeding therefore may be brought.
We are admitted to the practice of law only in the State of
Wisconsin and, accordingly, we do not purport to be experts on the laws of
any other jurisdiction nor do we express an opinion as to the laws of
jurisdictions other than the laws of the State of Wisconsin and the Wisconsin
Business Corporation Law, as currently in effect.
On the basis of, and in reliance upon, the foregoing, and subject to
the qualifications contained herein, we are of the opinion that the Option
Shares, when issued pursuant to the Plan, will be validly issued, fully-paid
and nonassessable.
We hereby consent to your filing this opinion as an exhibit to the
Registration Statement.
This opinion is rendered only to you and is solely for your benefit
in connection with the transactions covered hereby. This opinion may not be
relied upon by you for any other purpose or furnished, or quoted to, or
relied upon by any other person, firm or corporation for any purpose without
our prior express written consent.
Respectfully submitted,
HERRLING, CLARK, HARTZHEIM & SIDDALL, LTD.
/s/ Greg P. Curtis
------------------------------
Greg P. Curtis
GPC/csd
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EXHIBIT 23.1
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Please refer to Exhibit 5 of this Registration Statement.
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EXHIBIT 23.2
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INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Merge Technologies Incorporated:
We consent to the use of our report dated March 28, 2003, with respect
to the consolidated balance sheets of Merge Technologies Incorporated and
subsidiaries as of December 31, 2002 and 2001, and the related consolidated
statements of operations, shareholders' equity, cash flows, and comprehensive
income (loss) for each of the years in the three-year period ended December
31, 2002, incorporated herein by reference. Our report on the consolidated
financial statements refers to the adoption of the provisions of Statement
of Financial Accounting Standards No. 142 "Goodwill and Other Intangible
Assets" on January 1, 2002.
/s/ KPMG LLP
----------------------
Chicago, Illinois
August 14, 2003
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EXHIBIT 24
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Please refer to Signature Page of this Registration Statement.