- Current report filing (8-K)
June 02 2009 - 6:01AM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date of
Report (Date of earliest event
reported): May
30, 2009
Merge
Healthcare Incorporated
(Exact
name of registrant as specified in its charter)
Delaware
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39-1600938
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(State
or Other Jurisdiction of
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(I.R.S.
Employer
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Incorporation
or Organization)
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Identification
No.)
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6737
West Washington Street, Suite 2250
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Milwaukee,
Wisconsin
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53214
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(Address
of Principal Executive Offices)
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(ZIP
Code)
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(414)
977-4000
(Registrant's
telephone number, including area code)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
T
Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
T
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR 240.14d-2(b))
o
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR 240.13e-4(c))
Item
1.01. Entry into a Material Definitive Agreement.
Proposed Transaction with
etrials Worldwide Inc.
On May
30, 2009, etrials Worldwide, Inc. (“etrials”), Merge Healthcare Incorporated
(the “Registrant”) and Merge Acquisition Corp., a newly formed wholly-owned
subsidiary of Registrant (“Merger Sub”), entered into an Agreement and Plan of
Merger (the “Merger Agreement”) pursuant to which Merger Sub will commence a
tender offer (the “Offer”) to acquire all of the outstanding shares of common
stock of etrials (the “Shares”) in exchange for: (i) $0.80 in cash, without
interest (the “Cash Consideration”), and (ii) 0.3448 newly issued shares of
Registrant’s common stock, par value $0.01 per share, for each share of etrials
common stock (collectively, the “Offer Price”). Following the consummation of
the Offer, Merger Sub will merge with and into etrials (the “Merger”), and all
Shares not acquired in the Offer (other than Shares held by the etrials’ holders
who have properly exercised their dissenters’ rights under Section 262 of the
Delaware General Corporation Law) will be converted into the right to receive
the greater of (i) the Offer Price and (ii) the highest price per Share paid to
any holder of etrials common stock pursuant to the Offer, in the same form of
consideration paid (the “Merger Consideration”). The Merger Agreement contains
customary representations, warranties and covenants by the parties. etrials has
also agreed not to solicit or initiate discussions with third parties regarding
other proposals to acquire etrials and to certain restrictions on its ability to
respond to such proposals. The Merger Agreement also includes customary
termination provisions for etrials and Registrant and provides that, in
connection with the termination of the Merger Agreement under specified
circumstances, etrials will be required to pay Registrant a termination fee of
$500,000, plus reimburse Registrant for reasonable out of pocket expenses up to
$250,000.
Registrant
agreed that Merger Sub would commence the Offer as promptly as practicable. The
Offer will remain open for 20 business days, subject to extensions in certain
instances. The obligation to accept for payment and pay for the Shares tendered
in the Offer is subject to customary conditions, including, among other things:
(i) the tender of a majority of the total number of outstanding Shares, on a
fully diluted basis, (ii) Registrant must file a Form S-4 registering the common
stock to be issued in the Offer, and such registration statement must go
effective, (iii) the absence of any law prohibiting, restraining or enjoining
the Offer, (iv) the absence of any material adverse effects on etrials, (v) the
accuracy of the representations of etrials, and (vi) compliance with covenants
by etrials.
In the
Merger Agreement, etrials granted to Registrant and Merger Sub an irrevocable
option (the “Top-Up Option”) to purchase, at a per Share price equal to the
greater of (i) $1.70 and (ii) an amount equal to the highest price per Share
paid pursuant to the Offer, up to that number of newly issued Shares that, when
added to the number of Shares, directly or indirectly, owned by Registrant and
Merger Sub constitutes one Share more than 90% of the Shares outstanding, on a
fully diluted basis. The Top-Up Option is exercisable only after Registrant and
Merger Sub own at least 80% of the outstanding Shares and prior to the fifth
business day after the expiration date of the Offer or any subsequent offering
period, and is not exercisable if the number of Shares that would need to be
issued (taken together with the number of Shares outstanding, on a fully diluted
basis) exceeds the number of authorized but unissued Shares.
In
addition, certain stockholders of etrials have agreed to enter into tender and
support agreements pursuant to which such stockholders have committed to accept
the Offer and to tender all Shares beneficially owned by them, which represents,
in the aggregate, approximately 33% of etrials’ outstanding Shares.
Other
Information
The
foregoing descriptions of the Merger Agreement and the form of Stockholder
Support Agreement for the acquisition of etrials by Registrant are qualified in
their entirety by reference to the full texts of the Merger Agreement and the
form of Stockholder Support Agreement, which are filed as exhibits
hereto.
Notices
This
announcement and the description contained herein are for informational purposes
only and are not an offer to purchase or a solicitation of an offer to sell
securities of etrials. The tender offer described herein has not yet been
commenced. At the time the tender offer is commenced, Registrant and Merger Sub
intend to file a tender offer statement on a Schedule TO containing an offer to
purchase/prospectus, a letter of transmittal and other related documents, as
well as a registration statement on Form S-4, with the Securities and Exchange
Commission, or SEC. At the time the tender offer is commenced, etrials intends
to file with the SEC a solicitation/recommendation statement on Schedule 14D-9
and, if required, will file a proxy statement or information statement with the
SEC in connection with the Merger, the second step of the transaction, at a
later date. Such documents will be mailed to stockholders of record and will
also be made available for distribution to beneficial owners of common stock of
etrials. The solicitation of offers to buy Shares will only be made pursuant to
the offer to purchase/prospectus, the letter of transmittal and related
documents. Stockholders are advised to read the offer to purchase/prospectus and
the letter of transmittal, the solicitation/recommendation statement, the proxy
statement, the information statement and all related documents, if and when such
documents are filed and become available, as they will contain important
information about the tender offer and proposed Merger. Stockholders can obtain
these documents when they are filed and become available free of charge from the
SEC’s website at www.sec.gov, or from the information agent to be selected by
Registrant. In addition, copies of the solicitation/recommendation statement,
the proxy statement and other filings containing information about Registrant,
the tender offer and the Merger may be obtained, if and when available, without
charge, by directing a request to either; etrials Worldwide, Inc., Attention:
Jay Trepanier, Chief Financial Officer, at 4000 Aerial Center Parkway,
Morrisville, North Carolina 27560, or on etrials’s corporate website at
www.etrials.com; or to Merge Healthcare Incorporated, Attention: Julie Pekarek,
Investor Relations, at 6737 West Washington Street, Suite 2250, Milwaukee,
Wisconsin 53214-5650, or on Registrant’s corporate website at
www.merge.com.
Item
9.01 Financial Statements and Exhibits.
Exhibit
99.1
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Joint
News Release of the Registrant and etrials dated June 1,
2009.
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Exhibit
99.2
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Merger
Agreement, dated May 30, 2009, between Registrant and etrials Worldwide,
Inc.
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Exhibit
99.3
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Form
of Stockholder Support Agreement, dated May 30, 2009.
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Exhibit
99.4
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Confidentiality
and Non-Disclosure Agreement, dated May 6, 2009, between Registrant and
etrials Worldwide, Inc.
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Exhibit
99.5
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FAQ
Document of Registrant regarding acquisition of etrials Worldwide, Inc.
provided to Registrant’s employees following Joint News
Release.
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Exhibit
99.6
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Employee
Communication Script of employee meeting of etrials Worldwide, Inc. held
following Joint News Release regarding proposed acquisition by
Registrant.
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Exhibit
99.7
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FAQ
Document of etrials Worldwide, Inc. prepared for public distribution and
posted on website of etrials Worldwide, Inc. following Joint News Release
regarding proposed acquisition by Registrant.
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Exhibit
99.8
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FAQ
Document of etrials Worldwide, Inc. regarding proposed acquisition by
Registrant provided to its employees following Joint News
Release.
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Exhibit
99.9
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Form
of correspondence to be provided to customers of etrials Worldwide, Inc.
regarding proposed acquisition by
Registrant.
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SIGNATURES
Pursuant to the requirements of the
Securities Exchange Act of 1934, the Registrant has duly caused this report to
be signed on its behalf by the undersigned thereunto duly
authorized.
June
1, 2009
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MERGE
HEALTHCARE INCORPORATED
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/s/
Steven M. Oreskovich
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By: Steven
M. Oreskovich
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Title: Chief
Financial Officer
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EXHBIT
INDEX
Exhibit
Number
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Description
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99.1
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Joint
News Release of the Registrant and etrials Worldwide, Inc., dated June 1,
2009
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99.2
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Merger
Agreement, dated May 30, 2009, between Registrant and etrials Worldwide,
Inc.
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99.3
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Form
of Stockholder Support Agreement, dated May 30, 2009
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99.4
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Confidentiality
and Non-Disclosure Agreement, dated May 6, 2009, between Registrant and
etrials Worldwide, Inc.
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99.5
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FAQ
Document of Registrant regarding acquisition of etrials Worldwide, Inc.
provided to Registrant’s employees following Joint News
Release
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99.6
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Employee
Communication Script of employee meeting of etrials Worldwide, Inc. held
following Joint News Release regarding proposed acquisition by
Registrant
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99.7
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FAQ
Document of etrials Worldwide, Inc. prepared for public distribution and
posted on website of etrials Worldwide, Inc. following Joint News Release
regarding proposed acquisition by Registrant
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99.8
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FAQ
Document of etrials Worldwide, Inc. regarding proposed acquisition by
Registrant provided to its employees following Joint News
Release
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99.9
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Form
of correspondence to be provided to customers of etrials Worldwide, Inc.
regarding proposed acquisition by
Registrant
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