Attached files
| file | filename |
|---|---|
| 8-K - MERGE HEALTHCARE INC | m08984_8k.htm |
| EX-99.2 - MERGE HEALTHCARE INC | m82984_x2.htm |
| EX-99.1 - MERGE HEALTHCARE INC | m82984_x99030410.htm |
FORM
OF EQUITY COMMITMENT LETTER
[Date]
Merge
Healthcare Incorporated
6737 West
Washington St., Suite 2250
Milwaukee,
WI 53214
Phone:
(414) 977-4200
Facsimile
No.: (414) 977-4202
Attention: Justin
C. Dearborn
Re: Equity
Commitment
Ladies
and Gentlemen:
I (“Buyer”) intend to
purchase, directly or through one of my controlled affiliates, equity securities
of Merge Healthcare Incorporated, a Delaware corporation (“Parent”), in
connection with the acquisition (the “Acquisition”) by
Parent of AMICAS, Inc., a Delaware corporation (the “Company”), by merger
of a wholly-owned subsidiary of Merge (“Merger Sub”) with and
into the Company, pursuant to that certain Agreement and Plan of Merger to be
entered into by and among Parent, Merger Sub and the Company (the “Merger Agreement”).
Capitalized terms used but not defined herein shall have the meanings ascribed
to them in the Merger Agreement as currently drafted by Parent.
This is
to advise you that, upon the terms and subject to the conditions set forth
below, Buyer hereby commits to purchase or cause to be purchased equity
securities of Parent on or prior to the consummation of the Offer (the “Equity Commitment”)
for $[---------------] in
cash (the “Purchase
Price”). Buyer may allocate a portion of its investment to
co-investors, including its affiliates and partners, provided that such
allocation shall not relieve Buyer of its obligations hereunder. The
key terms of the equity securities to be purchased pursuant to the Equity
Commitment are set forth on Exhibit A hereto.
Upon the
execution of this letter, Buyer agrees to deposit in cash the Purchase Price
(the “Deposit”). The
Deposit shall be made by wire transfer to a bank account of Parent (“Deposit
Date”) pursuant to the wire transfer instructions set forth on Exhibit B
hereto. As soon as practicable, Parent shall set up an escrow account
to hold all of the funds deposited by the investors of the equity securities
(the “Escrow”). Upon
the formation of the Escrow account, Parent shall transfer the Deposit to the
Escrow. The funds held in the Escrow may be withdrawn only (a) to
complete the Equity Commitment or (b) if the Equity Commitment is terminated in
accordance with the terms of this letter, to be returned to Buyer.
In exchange for the Equity Commitment
and the Escrow, Buyer shall receive a fee equal to two percent (2%) of the
Purchase Price, such fee to be paid upon the completion of the Merger or the
termination of the Equity Commitment in accordance with the terms of this
letter. In addition, in the event that the commitment set forth
herein shall expire prior to the issuance of any equity securities in accordance
with the terms of this letter, then Buyer shall receive interest on the Deposit,
which shall accrue daily at a 6% annual rate.
[Date]
Page
Buyer’s
obligation under this letter is subject only to: (1) the terms of this letter
and (2) the satisfaction or waiver of the conditions to Parent’s and Merger
Sub’s obligation to close the Offer and the Merger that are set forth in the
definitive Merger Agreement.
The
commitment set forth herein shall expire (a) upon the valid termination of the
definitive Merger Agreement in accordance with its terms, or (b) on April 18,
2010 if and only if a definitive Merger Agreement is not entered into by that
date. Nothing set forth in this letter shall be construed to
confer upon or give to any person other than Parent any rights or remedies under
or by reason of this commitment or to confer upon or give to any person any
rights or remedies against any person other than the undersigned under or by
reason of this commitment; provided, however, that the
Company (but for the avoidance of doubt, not its shareholders directly) shall be
an express third party beneficiary of this letter and this letter shall inure to
the benefit of the Company (it being understood that the Company (but for the
avoidance of doubt, not its shareholders directly) shall have the right to
enforce Buyer’s obligations hereunder directly against Buyer). Buyer hereby
irrevocably waives, to the fullest extent permitted by applicable law, any and
all defenses to the enforceability of the Company’s status and rights as a third
party beneficiary hereunder; provided, however, that such
waiver shall not in any manner limit, impair or otherwise affect Buyer’s
defenses to the enforceability of its commitments and obligations hereunder.
Neither the rights nor the obligations of the Company, Buyer or Parent under
this letter agreement may be assigned, in whole or in part, directly or
indirectly, by operation of law or otherwise, without the prior written consent
of the Company, Buyer and Parent. Notwithstanding the foregoing, the obligations
of Buyer under this letter agreement may be assigned by Buyer to one or more of
its affiliates and/or partners that agree to assume Buyer’s obligations
hereunder, provided that Buyer shall remain obligated to perform all of its
obligations hereunder.
Buyer
hereby represents and warrants to Parent, for the benefit of Parent and the
Company, that (a) it has all requisite power and authority to execute, deliver
and perform this letter; (b) the execution, delivery and performance of this
letter by Buyer has been duly and validly authorized and approved by all
necessary action, and no other proceedings or actions on the part of Buyer are
necessary therefor; (c) this letter has been duly and validly executed and
delivered by Buyer and constitutes a valid and legally binding obligation of
Buyer, enforceable against Buyer in accordance with its terms; (d) the
execution, delivery and performance by Buyer of this letter does not and will
not (i) violate the organizational documents of Buyer, (ii) violate any
applicable law or judgment, order or decree of any governmental authority or
(iii) result in any violation of, or default (with or without notice or lapse of
time, or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to the loss of any benefit under, any contract
to which Buyer is a party; and (e) Buyer has the financial capacity to pay and
perform its obligations under this letter.
This
letter, and all claims and causes of action arising out of, based upon, or
related to this letter or the negotiation, execution or performance hereof,
shall be governed by, and construed, interpreted and enforced in accordance
with, the Laws of the State of Delaware, without regard to choice or conflict of
law principles that would result in the application of any Laws other than the
Laws of the State of Delaware. Each of the parties hereto irrevocably submits to
the exclusive jurisdiction of the Court of Chancery of the State of Delaware and
to the jurisdiction of the United States District Court for the District of
Delaware for the purpose of any action arising out of or relating to this
letter, and each of the parties hereto irrevocably agrees that all claims in
respect to such action may be heard and determined exclusively in the Court of
Chancery of the State of Delaware or any federal court sitting in the State of
Delaware. Each of the parties hereto agrees that a final judgment in
any action shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Each of
the parties hereto irrevocably consents to the service of any summons and
complaint and any other process in any other action relating to this letter, on
behalf of itself or its property, by the personal delivery of copies of such
process to such party in accordance with the notice provisions set forth
below. Nothing in this letter shall affect the right of any party
hereto to serve legal process in any other manner permitted by law.
Date]
[Date]
Page
All
notices, requests, claims, demands and other communications hereunder shall be
given and shall be deemed to have been duly received (a) upon receipt by hand
delivery, (b) upon receipt after dispatch by registered or certified mail,
postage prepaid, (c) on the next business day if transmitted by national
overnight courier with confirmation of delivery, or (d) upon confirmation of
delivery if transmitted by facsimile, addressed to each party hereto as set
forth below:
If to
Buyer, to it at:
with a
copy to:
[Insert
name/address]
If to
either Parent or Merger Sub, to it at:
Merge
Healthcare Incorporated
6737 West
Washington St., Suite 2250
Milwaukee,
WI 53214
Phone:
(414) 977-4200
Facsimile
No.: (414) 977-4202
Attention: Justin
C. Dearborn
If to the
Company, to it at:
AMICAS,
Inc.20 Guest Street, Suite 400
Boston,
MA 02135
Facsimile
No.: (617) 779-7879
Attn: President
and Chief Executive Officer and Chief Financial Officer
with a
copy to:
Mintz
Levin Cohn Ferris Glovsky and Popeo, P.C.
One
Financial Center
Boston,
MA 02111
Facsimile:
(617) 542-2241
Attention: John
R. Pomerance, Esq.
EACH OF
BUYER AND PARENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS LETTER, THE MERGER AGREEMENT, OR
THE ACTIONS OF BUYER OR MERGE IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE
AND ENFORCEMENT HEREOF OR THEREOF.
[Remainder
of page intentionally left blank]
[Date]
Page of
If this
letter is agreeable to you, please so indicate by signing in the space indicated
below.
Very
truly yours,
John A.
Canning
Accepted
and Agreed by:
MERGE
HEALTHCARE INCORPORATED
By:
______________________________________
Name:
Its:
[Date]
Page
EXHIBIT
A
|
Term
|
Proposal
|
|
Gross
Capital Raised
|
Up
to $50 Million
|
|
Total
Fees and Expenses
|
2%
commitment fee paid to each investor
|
|
Preferred
Stock Per Share Purchase Price
|
$1.00
|
|
Preferred
Share Redemption
|
Redeemable
by Issuer at any time (subject to minimum dividend
guarantee)
|
|
Investor
Preferred Shares Redemption Rights
|
Change
of Control
|
|
Preferred
Share Dividend
|
Only
declared upon redemption; to accrue at 15% per annum
|
|
Minimum
Dividend Guarantee on Redemption
|
2
years
|
|
Common
Stock Included
|
9,000,000
shares (to be allocated among investors based upon their investment in
relation to the gross capital raised)
|
|
Common
Stock Restriction
|
1
year lockup upon issuance of common shares (unless Change of
Control)
|
|
Other
|
Right
of Co-Sale (Tag-Along)
|
|
Preferred
Stock is non-voting
|
[Date]
Page
EXHIBIT
B WIRE TRANSFER INSTRUCTIONS