Attached files
file | filename |
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8-K - FORM 8-K - MERGE HEALTHCARE INC | c57832e8vk.htm |
EX-4.2 - EX-4.2 - MERGE HEALTHCARE INC | c57832exv4w2.htm |
EX-4.1 - EX-4.1 - MERGE HEALTHCARE INC | c57832exv4w1.htm |
EX-10.2 - EX-10.2 - MERGE HEALTHCARE INC | c57832exv10w2.htm |
EX-10.3 - EX-10.3 - MERGE HEALTHCARE INC | c57832exv10w3.htm |
EX-99.1 - EX-99.1 - MERGE HEALTHCARE INC | c57832exv99w1.htm |
EX-10.4 - EX-10.4 - MERGE HEALTHCARE INC | c57832exv10w4.htm |
EX-10.1 - EX-10.1 - MERGE HEALTHCARE INC | c57832exv10w1.htm |
Exhibit
3.1
CERTIFICATE OF DESIGNATIONS,
PREFERENCES AND RIGHTS
OF
SERIES A NON-VOTING PREFERRED STOCK,
OF
MERGE HEALTHCARE INCORPORATED
PREFERENCES AND RIGHTS
OF
SERIES A NON-VOTING PREFERRED STOCK,
OF
MERGE HEALTHCARE INCORPORATED
Pursuant to Section 151 of the General
Corporation Law of the State of Delaware
Corporation Law of the State of Delaware
MERGE HEALTHCARE INCORPORATED (the Corporation), a corporation organized and existing under
the General Corporation Law of the State of Delaware (the DGCL), in accordance with the
provisions of Section 151 thereof, DOES HEREBY CERTIFY THAT:
WHEREAS, in accordance with the provisions of Section 151 of the DGCL and pursuant to the
authority under Article Five of the Certificate of Incorporation of the Corporation (the
Certificate of Incorporation), the Board of Directors of the Corporation is authorized to issue
from time to time shares of the Corporations Preferred Stock, par value $0.01 per share
(Preferred Stock), in one or more series; and
WHEREAS, the Board of Directors has approved and adopted the following resolution (this
Certificate of Designations or this Certificate) creating Series A Preferred Stock (as defined
herein).
NOW THEREFORE, BE IT RESOLVED, that pursuant to the authority expressly vested in the Board of
Directors and in accordance with the provisions of the Certificate of Incorporation and the DGCL, a
series of Preferred Stock of the Corporation, par value $0.01 per share, be, and it hereby is,
created, and the designation and amount thereof and the voting powers, preferences and relative,
participating, optional and other special rights of the shares of such series and the
qualifications, limitations or restrictions thereof are as follows:
SECTION 1. NUMBER OF SHARES AND DESIGNATION. The series of preferred stock, par value
$0.01, created hereby shall be designated as the Series A Non-Voting Preferred Stock (herein
referred to as the Series A Preferred Stock) and the number of shares of such series shall be
50,000. Such number of shares may be increased or decreased by resolution of the Board of
Directors; provided, that no decrease shall reduce the number of shares of Series A Preferred Stock
to a number less than the number of shares then outstanding. Shares of Series A Preferred Stock
that are redeemed, purchased or otherwise acquired by the Corporation, shall revert to authorized
but unissued shares of Preferred Stock. The Series A Preferred Stock shall rank senior in right of
payment, including with respect to
dividends and upon the Liquidation of the Company, to the Common Stock of the Corporation, par
value $0.01 per share (the
Common Stock), the Series 3 Special Voting Preferred Stock, par value
$0.01 per share, and to all other classes or series of the Corporations capital stock outstanding
as of the date hereof or established after the date hereof.
SECTION 2. DIVIDENDS.
A. The holders of Series A Preferred Stock shall be entitled to receive, out of funds legally
available therefor, a cumulative compounding dividend at the rate per annum of 15.0% of the
Designated Price (as defined herein) per share of Series A Preferred Stock (as adjusted for stock
splits, combinations, reclassifications and the like). The Corporation, shall have the right, at
its sole discretion, to declare and pay any dividend accrued on the Series A Preferred Stock from
time to time out of funds legally available therefor. The Designated Price shall mean $1,000 per
share (as adjusted for stock splits, combinations, reclassifications and the like).
B. Unless all dividends on the Series A Preferred Stock shall have been paid, no dividends,
whether in cash or property, with respect to stock ranking junior to the Series A Preferred Stock
shall be paid or declared, nor shall any distribution be made on the Common Stock, or on any other
stock of the Corporation ranking junior to the Series A Preferred Stock as to dividends, nor shall
any Common Stock or any other stock of the Corporation ranking junior to the Series A Preferred
Stock as to dividends be purchased, redeemed or otherwise acquired for value by the Corporation.
The foregoing provisions of this Section 2.B shall not apply to a dividend payable in Common Stock
or the issuance of Common Stock in exchange for or through the application of the proceeds of a
sale of Common Stock.
C. Except as otherwise provided herein, if at any time the Corporation pays less than the
total amount of dividends then accrued with respect to the Series A Preferred Stock, such payment
shall be distributed pro rata among the holders thereof based upon the aggregate amount of the
dividend then accrued with respect to the shares of Series A Preferred Stock held by each such
holder.
SECTION 3. LIQUIDATION AND LIQUIDATION PREFERENCE. A Liquidation shall be deemed to
be occasioned by, or to include the liquidation, dissolution or winding up of the Corporation. In
the event of a Liquidation, either voluntary or involuntary, the holders of the Series A Preferred
Stock shall be entitled to receive in cash, out of the assets of the Corporation legally available
therefor, the Liquidation Preference specified for each share of Series A Preferred Stock then held
by them before any payment shall be made or any assets distributed to the holders of Common Stock.
Liquidation Preference shall mean, with respect to a share of Series A Preferred Stock, the
Designated Price per share plus unpaid dividends, plus, if the Liquidation occurs prior to the
second anniversary of the original issue date with respect to a share of Series A Preferred Stock
(the Original Issue Date), the Minimum Dividend Guarantee. The Minimum Dividend Guarantee is
excess of the dividend amount each holder of Series A Preferred Stock would have received had the
Liquidation occurred two years following the Original Issue Date and the dividend cumulated through
the date of Liquidation, the Corporate Redemption Date or the Investor Redemption Date, as
applicable. If, upon the Liquidation, the assets to be distributed among the holders of the Series
A Preferred Stock are insufficient to permit the payment to such holders of the full Liquidation
Preference for their shares, then the entire assets of the Corporation legally available for
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distribution shall be distributed with equal priority and pro rata among the holders of the Series
A Preferred Stock. The amount deemed paid or distributed to the holders of the Series A Preferred
Stock shall be the amount of cash paid to such holders by the Corporation.
SECTION 4. REMAINING ASSETS. After the payment to the holders of Series A Preferred
Stock of the full preferential amounts specified above, no further payments shall be made to the
holders of Series A Preferred Stock by reason thereof and any remaining assets of the Corporation
shall be distributed with equal priority and pro rata among the holders of Common Stock.
SECTION 5. VOTING. Except as otherwise required by law and Section 6 below, the
holders of Series A Preferred Stock shall have no right to vote such shares on any matter.
SECTION 6. INCURRENCE OF ADDITIONAL DEBT; AMENDMENTS AND CHANGES.
A. At any time that any shares of Series A Preferred Stock are outstanding, the Certificate of
Incorporation shall not be amended, directly or indirectly, by merger, consolidation or otherwise,
which would alter or change the powers, preferences or special rights of the Series A Preferred
Stock so as to affect them adversely generally vis-à-vis the holders of other classes or series of
stock of the Corporation without the affirmative vote of the holders of a majority of the
outstanding shares of Series A Preferred Stock, voting separately as a class.
B. At any time that any shares of Series A Preferred Stock are outstanding, The Corporation
may not issue Indebtedness without the affirmative vote of the holders of at least fifty-five (55%)
of the outstanding shares of Series A Preferred Stock, voting separately as a class, other than (i)
up to $200 million of high yield debt to be issued in connection with the Corporations acquisition
of AMICAS, Inc. (and any refinancings thereof up to $200 million) and (ii) Indebtedness incurred in
the ordinary course of the operation of the Corporations business, including revolving lines of
credit, sale-leaseback arrangements, deferred purchase price for goods and services, capital leases
and forgivable loans from governmental entities for retention or relocation incentives.
Indebtedness shall mean (a) all indebtedness (including principal, interest, fees and charges)
for borrowed money; (b) any other indebtedness which is evidenced by a promissory note, bond,
debenture or similar instrument; (c) any obligation under or in respect of outstanding letters of
credit, acceptances and similar obligations created for the account of the Corporation; (d) all
indebtedness, liabilities, and obligations secured by any lien on any property owned by the
Corporation even though the Corporation has not assumed or has not otherwise become liable for the
payment of any such indebtedness, liabilities or obligations
secured by such lien; and (f) any guarantee of third party obligations for borrowed money, of
more than $100,000 in the aggregate.
SECTION 7. REDEMPTION.
A. At any time the Corporation may, by a written notice, specify a date not less than twenty
(20) days nor more than forty (40) days after the date of such written notice (the Corporation
Redemption Date) upon which the Corporation shall, to the extent it may lawfully do so, redeem all
or a specified percentage of the then-outstanding Series A Preferred
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Stock by paying in cash a sum
equal to the Liquidation Preference per share of Series A Preferred Stock (the Redemption Price),
plus, if the Corporation Redemption Date occurs prior to the second anniversary of the Original
Issue Date, the Minimum Dividend Guarantee. Any redemption effected pursuant to this Section 7.A
shall be made on a pro rata basis among the holders of the Series A Preferred Stock in proportion
to the number of shares of Series A Preferred then held by them. The amount deemed paid or
distributed to the holders of the Series A Preferred Stock upon any redemption shall be the amount
of cash paid to such holders by the Corporation.
B. In the event of a Change of Control, the Company shall provide each holder of the then
outstanding Series A Preferred Stock written notice of the Change of Control no earlier than twenty
(20) days prior to the effective date of the Change of Control. Upon receipt of notice of the
Change of Control from the Company, each holder of the then outstanding Series A Preferred Stock
may by written notice to the Corporation, delivered to the Corporation no later than ten (10) days
prior to the effective date of the Change of Control, specify a date not less twenty (20) days nor
more than forty (40) days following delivery of such written notice (the Investor Redemption
Date), upon which the Corporation shall, to the extent it may lawfully do so, redeem all of such
holders then-outstanding Series A Preferred Stock by paying in cash a sum per share equal to the
Redemption Price, plus, if the Investor Redemption Date occurs prior to the second anniversary of
the Original Issue Date, the Minimum Dividend Guarantee. Any redemption effected pursuant to this
Section 7.B shall be made on a pro rata basis among the holders of the Series A Preferred Stock
electing to redeem their shares of Series A Preferred Stock in proportion to the number of shares
of Series A Preferred Stock then held by such holders to the extent Corporation does not have
sufficient assets to make full payment to all holders of the outstanding Series A Preferred
electing redemption. The amount deemed paid to the holders of the Series A Preferred Stock upon
any redemption shall be the cash paid to such holders by the Corporation or the acquiring Person.
A Change of Control shall mean the occurrence of a sale of all of the capital stock of the
Corporation (including by merger or consolidation or other similar transaction subsequent to board
approval) or a sale of all or substantially all of the assets of the Corporation to a Person or
Persons in a transaction or series of transactions that include a subsequent distribution of all
the proceeds to the holders of Common Stock. Person shall mean any individual, company,
partnership, limited liability company, joint venture, association, joint stock company, trust,
unincorporated organization, government or agency or political subdivision thereof or any other
entity, and for purposes of this Section 7.B, Person shall include any syndicate or group that
would be deemed to be a Person under Section 13(d)(3) of the Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder (the Exchange Act). For purposes of this
definition, control (including controlled by and under common control with) means the
possession, directly or indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of securities, partnership or other
ownership interests, by contract or otherwise.
C. At least twenty (20) but no more than forty (40) days prior to the Corporation Redemption
Date or Investor Redemption Date, as applicable, written notice shall be delivered to each holder
of record of the Series A Preferred Stock at the address last shown on the records of the
Corporation, notifying such holder of: (i) the redemption to be effected, (ii) the number of shares
to be redeemed from such holder, (iii) the Corporation Redemption Date or Investor
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Redemption Date, as applicable, (iv) the Redemption Price and the amount of the Minimum Dividend Guarantee, as
applicable, (v) the place at which payment may be obtained and (vi) calling upon such holder to
surrender to the Corporation, in the manner and at the place designated, his, her or its
certificate or certificates representing the shares to be redeemed (the Redemption Notice).
Except as provided in Section 7.D on or after the Corporation Redemption Date or Investor
Redemption Date, as applicable, each holder of Series A Preferred Stock shall surrender to the
Corporation the certificate or certificates representing such shares, in the manner and at the
place designated in the Redemption Notice, and thereupon the Redemption Price of such shares shall
be payable to the Person whose name appears on such certificate or certificates as the owner
thereof and each surrendered certificate shall be cancelled.
D. From and after the Corporation Redemption Date or Investor Redemption Date, as applicable,
unless there shall have been a default in payment of the Redemption Price, all rights of the
holders of shares of Series A Preferred Stock designated for redemption in the Redemption Notice
(except the right to receive the Redemption Price without interest upon surrender of their
certificate or certificates) shall cease with respect to the shares to be redeemed, and such shares
shall not thereafter be transferred on the books of the Corporation or be deemed to be outstanding
for any purpose whatsoever. If the funds of the Corporation legally available for redemption of
shares of Series A Preferred Stock on the Corporation Redemption Date or Investor Redemption Date,
as applicable, are insufficient to redeem the total number of shares of Series A Preferred Stock
outstanding on such date, those funds which are legally available will be used to redeem the
maximum possible number of such shares ratably among the holders of such shares to be redeemed
based upon their holdings of Series A Preferred Stock. The shares of Series A Preferred Stock not
redeemed shall remain outstanding and entitled to all the rights, preferences and privileges
provided in this Certificate. In the event less than all the shares represented by any such
certificate are redeemed, a new certificate shall be issued representing the unredeemed shares. At
any time (and, as applicable, from time to time) thereafter when additional funds of the
Corporation are legally available for the redemption of shares of Series A Preferred Stock, such
funds will immediately be used to redeem the balance of the shares which the Corporation has become
obliged to redeem on the Corporation Redemption Date or Investor Redemption Date, as applicable but
which it has not redeemed. Any redemption effected pursuant to this Section 7.D shall be made on a
pro rata basis among the holders of the Series A Preferred Stock in proportion to the number of
shares of Series A Preferred Stock then held by such holders.
SECTION 8. MISCELLANEOUS.
A. Whenever in this Certificate notices or other communications are required to be made,
delivered or otherwise given to holders of Series A Preferred Stock, the notice shall be delivered
either personally or by mail, by or at the direction of the Secretary, to each holder of record.
If mailed, such notice shall be deemed effective when deposited in the United States of America
mail, addressed to each stockholder at his or her address as it appears on the stock record books
of the Corporation, with postage thereon prepaid.
B. The headings of the various subdivisions hereof are for convenience of reference only and
shall not affect the interpretation of any of the provisions hereof.
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C. Any of the rights, powers, preferences and other terms of the Series A Preferred Stock set
forth herein may be waived on behalf of all holders of Series A Preferred Stock by the affirmative
written consent or vote of the holders of more than 50% the shares of Series A Preferred Stock then
outstanding.
D. If any right, preference or limitation of the Series A Preferred Stock set forth herein (as
such resolution may be amended from time to time) is invalid, unlawful or incapable of being
enforced by reason of any rule or law or public policy, all other rights, preferences and
limitations set forth in this Certificate of Designations (as so amended) which can be given effect
without the invalid, unlawful or unenforceable right, preference or limitation shall, nevertheless,
remain in full force and effect, and no right, preference or limitation herein set forth shall be
deemed dependent upon any other such right, preference or limitation unless so expressed herein.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, Merge Healthcare Incorporated has caused this Certificate to be executed
by its duly authorized officer, as of this ___ day of April, 2010.
MERGE HEALTHCARE INCORPORATED |
||||
By: | ||||
Name: | Ann Mayberry-French | |||
Title: | General Counsel | |||
Merge Healthcare Incorporated Certificate of Designations
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