ex10_2.htm


    
      

    

    Exhibit 10.2

    
      


      FORM
OF SUBSCRIPTION AGREEMENT

      


      This
subscription (this “Subscription”) is
dated November __, 2009, by and between the investor identified on the signature
page hereto (the “Investor”) and Merge
Healthcare Incorporated, a Delaware corporation (the “Company”), whereby
the parties agree as follows:

       

      
        	
                 
      

              	
                1.

              	
                Subscription.

              


      

      


      (a)
Investor agrees to buy and the Company agrees to sell and issue to Investor such
number of shares (the “Shares”) of the
Company’s common stock, $0.01 par value per share (the “Common Stock”), as
set forth on the signature page hereto, for an aggregate purchase price (the
“Purchase
Price”) equal to the product of (x) the aggregate number of Shares the
Investor has agreed to purchase and (y) the purchase price per Share set forth
on the signature page hereto.  The Purchase Price is set forth on the
signature page hereto.

       

      (b) The
Shares have been registered on a Registration Statement on Form S-3,
Registration No. 333-161691 (the “Registration
Statement”).  The Registration Statement has been declared
effective by the Securities and Exchange Commission (“SEC”) and is
effective on the date hereof.  A final prospectus supplement will be
delivered to the Investor as required by law.

       

      (c) The
completion of the purchase and sale of the Shares (the “Closing”) shall take
place at a place and time (the “Closing Date”) to be
specified by the Company and the placement agents (the “Placement Agents”)
party to the Placement Agency Agreement, dated November 12, 2009 (the “Agreement”), in
accordance with Rule 15c6-1 promulgated under the Securities Exchange Act of
1934, as amended (the “Exchange
Act”).  Upon satisfaction or waiver of all the conditions to
closing set forth in the Agreement, at the Closing, (i) the Investor shall pay
the Purchase Price by wire transfer of immediately available funds to the
account designated by the Company on Annex A attached
hereto, and (ii) the Company shall cause the Shares to be delivered to the
Investor with the delivery of the Shares to be made through the facilities of
The Depository Trust Company’s DWAC system in accordance with the instructions
set forth on the signature page attached hereto under the heading “DWAC
Instructions”.

       

      2.           
 Company
Representations and Warranties.  The Company represents and warrants
that: (a) it has full corporate power and authority to enter into this
Subscription and to perform all of its obligations hereunder; (b) this
Subscription has been duly authorized and executed by, and when delivered in
accordance with the terms hereof will constitute a valid and binding agreement
of, the Company enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights and remedies of creditors
generally or subject to general principles of equity; (c) the execution and
delivery of this Subscription and the consummation of the transactions
contemplated hereby do not conflict with or result in a breach of (i) the
Company’s Certificate of Incorporation or Bylaws, or (ii) any material agreement
to which the Company is a party or by which any of its property or assets is
bound; (d) the Shares when issued and paid for in accordance with the terms of
this Subscription will be duly authorized, validly issued, fully paid and
non-assessable; (e) the Registration Statement and any post-effective amendment
thereto, at the time it became effective, did not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; (f) the
prospectus contained in the Registration Statement, as amended and/or
supplemented, did not contain as of the effective date thereof, and as of the
date hereof does not contain, any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading; and (g)
all preemptive rights or rights of first refusal held by stockholders of the
Company and applicable to the transactions contemplated hereby have been duly
satisfied or waived in accordance with the terms of the agreements between the
Company and such stockholders conferring such rights.


      
        
           


        

        
          
          

          
            

          

        

        
           


        

      

       

      
        	
                 
      

              	
                3.

              	
                Investor
      Representations, Warranties and
    Acknowledgments. 

              


      

      


      (a) The
Investor represents and warrants that: (i) it has full right, power and
authority to enter into this Subscription and to perform all of its obligations
hereunder; (ii) this Subscription has been duly authorized and executed by the
Investor and, when delivered in accordance with the terms hereof, will
constitute a valid and binding agreement of the Investor enforceable against the
Investor in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights and remedies of creditors generally or subject to general
principles of equity; (iii) the execution and delivery of this Subscription and
the consummation of the transactions contemplated hereby do not conflict with or
result in a breach of (A) the Investor’s certificate of incorporation or by-laws
(or other governing documents), or (B) any material agreement or any law or
regulation to which the Investor is a party or by which any of its property or
assets is bound; (iv) it has had full access to the base prospectus included in
the Registration Statement, as amended and/or supplemented as of the date
hereof, and the Company’s periodic reports and other information incorporated by
reference therein, and was able to read, review, download and print such
materials; (v) in making its investment decision in this offering, the Investor
and its advisors, if any, have relied solely on the Company’s public filings
with the SEC; (vi) it is knowledgeable, sophisticated and experienced in making,
and is qualified to make, decisions with respect to investments in securities
representing an investment decision like that involved in the purchase of the
Shares; (vii) the Investor has had no position, office or other material
relationship within the past three years with the Company or persons known to it
to be affiliates of the Company; (viii), except as set forth below, the Investor
is not a, and it has no direct or indirect affiliation or association with any,
member of FINRA or an Associated Person (as such term is defined under the NASD
Membership and Registration Rules Section 1011) as of the date hereof; and (ix)
neither the Investor nor any group of Investors (as identified in a public
filing made with the SEC) of which the Investor is a part in connection with the
offering of the Shares, acquired, or obtained the right to acquire, 20% or more
of the Common Stock (or securities convertible into or exercisable for Common
Stock) or the voting power of the Company on a post-transaction
basis.

      


      

        
          

        

      

      (If no
exceptions, write “none.” If left blank, response will be deemed to be
“none.”)

      


      (b) The
Investor also represents and warrants that, other than the transactions
contemplated hereunder, the Investor has not directly or indirectly, nor has any
person acting on behalf of or pursuant to any understanding with the Investor,
executed any transactions in securities of the Company, including “short sales”
as defined in Rule 200 of Regulation SHO under the Exchange Act (“Short Sales”), during
the period commencing from the time that the Investor first became aware of the
proposed transactions contemplated hereunder until the date hereof (the “Discussion
Time”).  The Investor has maintained the confidentiality of all
disclosures made to it in connection with this transaction (including the
existence and terms of this transaction).

      


      4.            
Investor Covenant
Regarding Short Sales and Confidentiality.  The Investor
covenants that neither it nor any affiliates acting on its behalf or pursuant to
any understanding with it will execute any transactions in securities of the
Company, including Short Sales, during the period after the Discussion Time and
ending at the time that the transactions contemplated by this Subscription are
first publicly announced through a press release and/or Form 8-K.  The
Investor covenants that until such time as the transactions contemplated by this
Subscription are publicly disclosed by the Company through a press release
and/or Form 8-K, the Investor will maintain the confidentiality of all
disclosures made to it in connection with this transaction (including the
existence and terms of this transaction).


      
        
           


        

        
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                5.

              	
                Miscellaneous.

              


      

      


      (a) This
Subscription constitutes the entire understanding and agreement between the
parties with respect to its subject matter, and there are no agreements or
understandings with respect to the subject matter hereof which are not contained
in this Subscription.  This Subscription may be modified only in writing
signed by the parties hereto.

      


      (b) This
Subscription may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument and shall become effective
when counterparts have been signed by each party and delivered to the other
parties hereto, it being understood that all parties need not sign the same
counterpart.  Execution may be made by delivery by facsimile.

      


      (c) The
provisions of this Subscription are severable and, in the event that any court
or officials of any regulatory agency of competent jurisdiction shall determine
that any one or more of the provisions or part of the provisions contained in
this Subscription shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision or part of a provision of this Subscription
and this Subscription shall be reformed and construed as if such invalid or
illegal or unenforceable provision, or part of such provision, had never been
contained herein, so that such provisions would be valid, legal and enforceable
to the maximum extent possible, so long as such construction does not materially
adversely effect the economic rights of either party hereto.

      


      (d) All
communications hereunder, except as may be otherwise specifically provided
herein, shall be in writing and shall be mailed, hand delivered, sent by a
recognized overnight courier service such as Federal Express, or sent via
facsimile and confirmed by letter, to the party to whom it is addressed at the
following addresses or such other address as such party may advise the other in
writing:

      


      To the
Company:  as set forth on the signature page hereto.

      


      To the
Investor:  as set forth on the signature page hereto.

      


      All
notices hereunder shall be effective upon receipt by the party to which it is
addressed.

      


      (e) This
Subscription shall be governed by and interpreted in accordance with the laws of
the State of Illinois for contracts to be wholly performed in such state and
without giving effect to the principles thereof regarding the conflict of
laws.  To the extent determined by such court, the prevailing party shall
reimburse the other party for any reasonable legal fees and disbursements
incurred in enforcement of or protection of any of its rights under this
Subscription.


      
        
           


        

        
          -3-

          
            

          

        

        
           


        

      


      If the
foregoing correctly sets forth our agreement, please confirm this by signing and
returning to us the duplicate copy of this Subscription.

       

      
        	 
      	
                MERGE
      HEALTHCARE INCORPORATED

              
	 
      	 
      	 
      
	 
      	
                By:

              	 
      
	 
      	 
      	
                Name:

              
	
                 

                Number of
      Shares:____________________________

                Purchase Price per
      Share: $_____________________  

                Aggregate Purchase
      Price: $____________________

              	 
      	
                Title:

                 

                Address for Notice:

                 

                Merge
      Healthcare Incorporated

                6737
      West Washington Street, Suite 2250

                Milwaukee,
      Wisconsin 53214-5650

                Facsimile:
      (312) 984-7700

                Attention:
      Chief Executive Officer

              
	 
      	 
      	 
      
	
                INVESTOR:
      _________________________________

              	 
      	 
      
	 
      	 
      	 
      
	
                By:  ________________________________________

              	 
      	 
      
	
                       Name:

              	 
      	 
      
	
                       Title:

              	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	
                DWAC Instructions:

                 

              	 
      	 
      
	
                Name
      of DTC Participant (broker-dealer at which the account or accounts to be
      credited with the Shares are maintained):

              	 
      	 
      
	 
      	 
      	 
      
	
                DTC
      Participant Number:

              	 
      	 
      
	 
      	 
      	 
      
	
                Name
      of Account at DTC Participant being credited with the
    Shares:

              	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	
                 

              
	
                Account
      Number at DTC Participant being credited with the Shares:

              	 
      	 
      
	 
      	 
      	
                 

              
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	
                 

              
	 
      	 
      	 
      
	 
      	 
      	
                 

              


      

      

        
          
             


          

          
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      Annex
A

      


      Merge Healthcare
Incorporated Wire Instructions

      


       

      Silicon
Valley Bank

       

      3003
Tasman Drive

       

      Santa
Clara, CA 95054

       

      For Credit
to:

       

      Merge Healthcare
Incorporated

       

      Account
Number: 

       

      ABA
Number: