ex108.htm


    Exhibit
10.8

    Consulting
Agreement

    


    


    This
CONSULTING AGREEMENT ("Agreement") is made and entered into as of the 1st day of
January, 2009 (the “Effective Date”) by and between Merge Healthcare
Incorporated, a Delaware corporation ("Merge Healthcare"), and Merrick RIS LLC
("Merrick RIS").  Hereinafter, either party may be referred to
individually as a “Party” or, collectively, as the “Parties.”

     

    WHEREAS, Merrick RIS has a
significant investment in Merge Healthcare and is interested in providing
certain management consulting, advice and technical services to Merge Healthcare
in regards to Merge Healthcare’s business; and

     

    WHEREAS, Merge Healthcare
desires to procure certain management consulting, expertise and technical
services from Merrick RIS pursuant to the terms and conditions set forth
herein.

     

    NOW
THEREFORE, in consideration of the mutual benefits and promises contained
herein, the sufficiency of which is hereby acknowledged, the Parties hereto
agree as follows.

     

    
      	
              1.

            	
              Engagement.  Merge
      Healthcare hereby engages Merrick RIS as an independent consultant to
      provide management expertise and technical services and Merrick RIS hereby
      accepts such engagement.  Merrick RIS shall provide services
      that include but are not limited to investment relations, strategic
      planning, turn around management and various business relationship
      introductions.  The services provided hereunder are provided on
      a non-exclusive basis and shall be undertaken by Merrick RIS at the
      direction of the Chief Executive Officer of Merge
    Healthcare.

            


    

     

    
      	
               
      

            	
              2.

            	
              Services.  All
      services offered hereunder are provided on a non-exclusive basis and as
      needed.  In consideration for the services and in order to
      reserve the availability of such services, Merge Healthcare shall pay a
      quarterly fee to Merrick RIS as set forth
  herein.

            


    

     

    
      	
              3.

            	
              Term and
      Termination.

            


    

     

    
      	
               
      

            	
              a.

            	
              Term.  The
      term of this Agreement shall be twelve consecutive months running from the
      Effective Date hereof and shall terminate, unless otherwise terminated as
      provided hereunder, at the close of business on December 31,
      2009.  Upon expiration of the initial term of this Agreement,
      the Parties may extend the Agreement upon such written terms as the
      Parties may mutually agree.

            


    

     

    
      	
               
      

            	
              b.

            	
              Voluntary
      Termination.  Either Party may voluntarily terminate this
      Agreement upon ninety (90) days advance notice to the other
      Party.

            


    

     

    
      	
               
      

            	
              c.

            	
              Involuntary
      Termination.  This Agreement shall terminate immediately
      in the event of one Party giving written notice to the other Party
      of  breach of this Agreement and provided that the breaching
      Party in breach has had thirty (30) days following the date of such notice
      to cure and has failed to cure such breach as the Party giving notice
      reasonably determines.

            


    

     

    
      	
               
      

            	
              4.

            	
              Fees.  Merge
      Healthcare shall pay a flat rate fee to Merrick RIS for the services
      provided hereunder.  Such fee shall be in the amount of USD
      $100,000 for each ninety (90) day period of services.  During
      the term of this Agreement, such fee is due and payable in advance on the
      Effective Date, April 1st, July 1st and October 1st of
      2009.  Merge Healthcare agrees to reimburse Merrick RIS for the
      actual and reasonable business expenses incurred by Merrick RIS in
      connection with the performance of services on behalf of Merge Healthcare
      as required hereunder.  Such expenses shall be invoiced to Merge
      Healthcare on a monthly basis and shall be payable no later than the 15th
      day after receipt of such invoice.  Merrick RIS acknowledges and
      agrees that the reimbursement of any third party legal, financial or other
      professional fees and any material expenses incurred shall be subject to
      prior authorization of an appropriate officer of Merge
      Healthcare.  Merge Healthcare acknowledges and agrees that it
      has an obligation to ensure that its resources will be available to
      provide assistance to Merrick RIS with respect to the services provided
      hereunder.  The Parties further agree that Merge Healthcare may
      consider a discretionary performance fee which amount shall be at the sole
      option, control and discretion of Merge Healthcare management and with the
      approval of the Merge Healthcare Board of
  Directors.

            


    

     

    
      	
              5.  

            	
              Confidential
      Information.  Due to the nature of the work performed
      hereunder, any information belonging to Merge Healthcare with which
      Merrick RIS may or has become familiar will be treated as confidential and
      may not be disclosed to third parties without the written consent
      of  Merge Healthcare, whether or not this Agreement is in
      effect. Merrick RIS agrees that it and all of it’s associates,
      representatives, employees, assignees or successors in interest, shall
      keep in strictest confidence all information relating to the products,
      methods of manufacture, marketing and sales plans, financial information,
      customer and supplier information, pricing information, trade secrets or
      secret processes (except information in the public domain) or the business
      or affairs of Merge Healthcare which may be acquired in connection with or
      as a result of this Agreement (the “Confidential
      Information”).  Without limiting the foregoing, any information,
      ideas, plans, designs, processes, material compositions, specifications,
      production techniques, procedures, equipment, marketing plans, proposals,
      financial information and customer information relating to the Company’s
      business or products which may be acquired by Merrick RIS in connection
      with or as a result of this Agreement shall be deemed “Confidential
      Information.”  During the term of this Agreement and at any time
      thereafter, without the prior written consent of Merge Healthcare, Merrick
      RIS will not publish, communicate, divulge, disclose or use any of such
      Confidential Information or any other information which has been
      designated as secret, confidential, proprietary and/or a trade secret, or
      which from the surrounding circumstances in good conscience ought to be
      treated as secret or confidential.  Upon termination of this
      Agreement, Merrick RIS will return to the Merge Healthcare all documents,
      graphic materials, designs, plans or other information furnished to
      Merrick RIS by Merge Healthcare prior to or during the term of this
      Agreement.  Merrick RIS’s obligations under this Section 5 shall
      survive termination of this
Agreement.

            


    

     

    
      	
              6.

            	
              Third Party
      Information.  Merrick RIS agrees and understands that the
      Merge Healthcare does not desire to receive the proprietary rights or
      trade secrets of third parties if not so authorized, and Merrick RIS
      agrees not to disclose any such proprietary rights or trade secrets to
      Merge Healthcare during the term of this Agreement.  In
      addition, Merrick RIS acknowledges that the Merge Healthcare has received
      and will in the future receive from third parties confidential or
      proprietary information (“Third Party Information”) subject to a duty on
      Merge Healthcare’s part to maintain the confidentiality of such
      information and use it only for certain limited
      purposes.  Merrick RIS agrees to hold Third Party Information in
      confidence and not to disclose to anyone (other than Merrick RIS personnel
      who need to know such information in connection with their work performed
      hereunder) or to use, except in connection with Merrick RIS’s work for
      Merge Healthcare, Third Party Information unless expressly authorized in
      writing by an officer of the
Company.

            


    

     

    
      	
              7.

            	
              No Conflicting
      Obligations.  Merrick RIS represents and warrants that it
      is not bound by or subject to any contractual or other obligation that
      would be violated its execution or performance of this
      Agreement.

            


    

     

    
      	
              8.

            	
              Non-Interference With
      Business.  The Parties agree that neither Party shall
      solicit or induce any employee, independent contractor or customer of the
      other Party to terminate or breach an employment, contractual or other
      relationship during the term of this Agreement and for a period of one (1)
      year immediately following termination of this
  Agreement.

            


    

     

    
      	
              9.

            	
              Indemnification.  Each
      Party shall indemnify, defend and hold harmless the other Party from and
      against all claims and actions, and all expenses incidental to such claims
      or actions, based upon or arising out of damage to property or injuries to
      persons or other tortuous acts caused or contributed to by the
      indemnifying Party or anyone acting under such Party’s direction or
      control or in such Party’s behalf in the course of its performance under
      this Agreement, provided such indemnification and hold harmless agreement
      shall not be applicable to any liability based on the sole negligence of
      the indemnified Party.

            


    

     

    
      	
              10.

            	
              Independent
      Contractor.  It is expressly understood and agreed that
      the relationship of Merrick RIS to Merge Healthcare, as relates to the
      performance duties under this Agreement, shall be that of an independent
      contractor and not of a partner, agent or employee.  During the
      term of this Agreement and while performing its obligations hereunder,
      Merrick RIS shall not be, in any way, a legal representative or agent of
      Merge Healthcare, and shall not have the right or authority to assume or
      create any obligation or make any representations of any kind, express or
      implied, on behalf of Merge Healthcare or to bind Merge Healthcare in any
      respect whatsoever.

            


    

     

    
      	
              11.

            	
              Entire
      Agreement.  Any notices required or permitted under this
      Agreement shall be in writing and signed by or on behalf of the party
      giving the notice, and may be delivered personally or by certified
      mail.  If mailed, such notice shall be addressed to the
      principal office or residence of the addressee as stated herein or as
      otherwise designated in writing by the addressee.  Such notice
      shall be effective when delivered personally or, if mailed, upon
      receipt.

            


    

     

    
      	
              12.

            	
              Notice.  Any
      notices required or permitted under this Agreement shall be in writing and
      signed by or on behalf of the Party giving the notice, and may be
      delivered personally or by certified mail.  If mailed, such
      notice shall be addressed to the principal office as set forth
      below.  Such notice shall be effective when delivered personally
      or, if mailed, upon receipt.

            


    

     

    Notice to
Merge Healthcare:      Chief Executive
Officer

    Merge Healthcare
Incorporated

    6737 W. Washington Street

    Milwaukee,
Wisconsin  53214

    With a copy to:  General
Counsel, at the same address

    


    Notice to
Merrick RIS
LLC:        Chairman

    Merrick RIS LLC

    233 North Michigan, Suite
2330

    Chicago,
Illinois  60601

    


    
      	
              13.

            	
              Non-Assign
      ability.  This Agreement shall not be assignable by
      either Party, in whole or in part, without the prior written consent of
      the other Party.

            


    

     

    
      	
              14.

            	
              Governing
      Law.  This Agreement shall be construed and interpreted
      in accordance with the laws of the United States and the State of
      Wisconsin, exclusive of its conflicts of laws
  provisions.

            


    

     

    
      	
              15.

            	
              Severability;
      Survival; Waiver.  The provisions of this Agreement are
      several, and in the event that any provision or portion of this Agreement
      is declared illegal or unenforceable, the remainder of the Agreement shall
      be effective and binding on the parties.  The rights and
      obligations pursuant to Section 5 shall survive and continue after any
      expiration or termination of this Agreement.  No waiver of any
      breach of any of the covenants, agreements or provisions herein contained
      shall be construed as a waiver of any subsequent breach of the same or any
      other covenant or provision.

            


    

     

    
      	
              16.

            	
              Entire Agreement;
      Modification in Writing.  This Agreement contains the
      entire and only agreement between the Parties hereto, and supersedes any
      and all prior agreements, arrangements, communications or representations
      whether oral or written.  This Agreement may not be amended,
      altered, modified or changed except by written instrument signed by duly
      authorized representatives of each
Party.

            


    

     

    IN
WITNESS WHEREOF, the parties have executed this Agreement effective as of the
date and year first above written.

     

    
      
        	
                MERGE
      HEALTHCARE INCORPORATED

              	 
      	
                MERRICK
      RIS LLC

              
	 
      	 
      	 
      
	
                By:

              	
                /s/  Justin
      C. Dearborn

              	 
      	
                By:

              	
                /s/  Jeffrey
      Bennett

              
	 
      	 
      	 
      
	
                Its:

              	
                Chief
      Executive Officer

              	 
      	
                Its:

              	
                Managing
      Director

              
	 
      	 
      	 
      
	
                Date:

              	
                December
      30, 2008

              	 
      	
                Date:

              	
                December
      30, 2008