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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D/A
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1 )*
---
FISCHER IMAGING CORPORATION
- --------------------------------------------------------------------------------
(Name of Issuer)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
- --------------------------------------------------------------------------------
(Title of Class of Securities)
337719 10 8
- --------------------------------------------------------------------------------
(CUSIP Number)
ROBERT E. HEALING CORPORATE COUNSEL, GENERAL ELECTRIC COMPANY
3135 Easton Turnpike, Fairfield, CT 06431
(203) 373-2243
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
April 14, 1999
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this schedule 13D, and is filing this
schedule because of ss.ss. 240.13d-1(3), 240.13d-1(f) or 240.13d-1(g), check the
following box. / /
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss. 240.13d-7 for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Potential persons who are to respond to the collection of information contained
in this form are not required to respond unless the form displays a currently
valid OMB control number.
SEC 1746 (2-98)
<PAGE>
CUSIP NO. 337719108
---------
1. Name Of Reporting Person
S.S. Or I.R.S. Identification No. Of Above Person
General Electric Company 14-0689340
2. Check The Appropriate Box If A Member Of A Group*
(a
----------------------------
(b
----------------------------
3. SEC Use Only
----------------------------
4. Source of Funds (See Instructions) OO
5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items
2(d) or 2(e) X
---
6. Citizenship or Place of Organization New York
--------
Number of 7. Sole Voting Power 506,667
Shares
Beneficially 8. Shared Voting Power
Owned by Each
Reporting 9. Sole Dispositive Power 506,667
Person With
10. Shared Dispositive Power
11. Aggregate Amount Beneficially Owned by Each Reporting Person 506,667
-------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
-----
13. Percent of Class Represented by Amount in Row (11) 6%
---
14. Type of Reporting Person (See Instructions) CO
--------------------------------------------------------------------------
--------------------------------------------------------------------------
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<PAGE>
Items 1 through 7 of the Schedule 13D filed June 30, 1995 by General
Electric Company with regard to its interest in Fischer Imaging Corporation are
hereby amended and restated in their entirety as follows:
ITEM 1. SECURITY AND ISSUER
This Statement relates to the Common Stock, $.01 par value per share (the
"Common Stock") of Fischer Imaging Corporation (the "Issuer"), which may be
acquired by Reporting Person upon conversion of the Issuer's Series D
Convertible Preferred Stock, par value $.01 per share (the "Series D
Preferred"). The principal executive offices of the Issuer are located at 12300
North Grant Street, Thornton, Colorado 80241.
ITEM 2. IDENTITY AND BACKGROUND
The Reporting Person is General Electric Company, a New York corporation
("GE"). GE is one of the largest and most diversified industrial corporations in
the world. GE has engaged in developing, manufacturing and marketing a wide
variety of products for the generation, transmission, distribution, control and
utilization of electricity since its incorporation in 1892. Over the years, GE
has developed or acquired new technologies and services that have broadened
considerably the scope of its activities.
GE's products include major appliances; lighting products; industrial
automation products; medical diagnostic imaging equipment; motors; electrical
distribution and control equipment; locomotives; power generation and delivery
products; nuclear power support services and fuel assemblies; commercial and
military aircraft jet engines; and engineered materials, such as plastics,
silicones and superabrasive industrial diamonds.
GE's services include product services; electrical product supply houses;
electrical apparatus installation, engineering, repair and rebuilding services;
and computer-related information services. Through its affiliate, the National
Broadcasting Company, Inc., GE delivers network television services, operates
television stations, and provides cable programming and distribution services.
Through another affiliate, General Electric Capital Services, Inc., GE offers a
broad array of financial and other services including consumer financing,
commercial and industrial financing, real estate financing, asset management and
leasing, mortgage services, consumer savings and insurance services, specialty
insurance and reinsurance, and satellite communications.
GE operates in more than 100 countries around the world, including 280
manufacturing plants in 26 different nations. GE's principal executive offices
are located at 3135 Easton Turnpike, Fairfield, CT 06431 (telephone (203)
373-2211).
The names, business address and principal occupations of each of Reporting
Person's executive officers and directors are set forth in Exhibit A attached
hereto, which is incorporated herein by this reference. All such persons are
citizens of the United States unless otherwise noted in Exhibit A.
During the last five years, none of the persons named in this Item 2 has
been convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors), except as described in Exhibit A.
<PAGE>
GE has not and, to the best of GE's knowledge, none of the directors and
executive officers of GE has been, during the last five years, a party to a
civil proceeding of a judicial or administrative body of competent jurisdiction
and as a result of such proceeding was or is subject to a judgment, decree, or
final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any violation
with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
On June 20, 1995, Reporting Person acquired 1,333,333 shares of the Series
D Preferred, which was convertible into 1,333,333 shares of Common Stock, and a
manufacturing and license agreement relating to certain medical equipment
presently manufactured by the Issuer, for an aggregate purchase price of
$10,000,000.
ITEM 4. PURPOSE OF TRANSACTION
The acquisition of Issuer's securities was for investment purposes and to
acquire rights under a license relating to certain medical equipment presently
manufactured by the Issuer. Based upon Reporting Person's continuing evaluation
of the Issuer's financial condition, operations, and prospects, and of other
business and investment opportunities, economic and market conditions, and
contractual obligations, Reporting Person reserves the right to change its
purpose with respect to its investment and take such actions as it deems
appropriate in light of the circumstances existing at the time. Reporting Person
may also sell all or a portion of its Series D Preferred, or the Common Stock
acquired on conversion of the Series D Preferred, in a private placement, public
sale, or by a put or surrender to the Issuer pursuant to the terms of the Series
D Preferred. Except as described above, none of the persons named in Item 2 has
any present plan or proposal that relates to or would result in any of the
actions described in clauses (a) through (j) of Item 4 of Schedule 13D.
ITEM 5. INTEREST IN SECURITIES OF ISSUER
Through its ownership of 506,667 shares of Series D Preferred, Reporting
Person has the right to acquire 506,667 shares of Common Stock, representing 6%
of the outstanding shares of such class of stock. To the best of Reporting
Person's knowledge, no other person named in Item 2 beneficially owns any other
shares of Issuer's Common Stock. Reporting Person has sole voting and investment
power as to the Series D Preferred and the shares of Common Stock issuable upon
conversion thereof. To the best of Reporting Person's knowledge, no person named
in Item 2 has effected any transactions in the Common Stock during the 60 days
prior to the date hereof.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS
a. Transfer Restriction and Standstill Agreement. Reporting Person and Issuer
---------------------------------------------
are parties to a Stock Purchase Agreement, filed as Exhibit B, as amended
by the Agreement dated March 24, 1999, filed as Exhibit E, pursuant to
which:
(i) Reporting Person and Issuer have agreed to eliminate any restrictions
on the transfer of the Issuer's securities held by the Reporting
Person.
<PAGE>
(ii) Reporting Person has agreed that until the earlier of 5 years from the
date of the Stock Purchase Agreement or the date upon which Reporting
Person owns less than 5% of the Common Stock, Reporting Person will
not, except under certain enumerated circumstances, acquire certain
assets of the Issuer, acquire more than 25% of the Common Stock, enter
into certain business combinations with the Issuer or solicit proxies
or advise anyone with respect to voting of the Issuer's securities.
b. Registration Rights Agreement. Reporting Person and Issuer are parties to a
------------------------------
Registration Rights Agreement pursuant to which Reporting Person has the
right to participate in any registration of Issuer's securities under the
Securities Act of 1933, as amended, and the right to demand up to two
additional such registrations, with all expenses of registration to be paid
by the Issuer. The registration rights expire after five years from the
date of the agreement.
c. Designations of Preferences and Rights.
---------------------------------------
(i) Pursuant to Issuer's Certificate of Designations, Powers, Preferences
and Rights of the Series D Preferred, as filed with the Delaware
Secretary of State and filed as Exhibit D (the "Certificate of
Designations"), Reporting Person, as holder of the Series D Preferred,
has certain dividend and liquidation preferences, the right to convert
the Series D Preferred into Common Stock, and the right, upon certain
defined default and change of control events, to put its Series D
Preferred to the Issuer for certain defined consideration or to
surrender its Series D Preferred for the right to exercise its rights
under a license agreement relating to certain medical equipment
presently manufactured by the Issuer. The terms of the Agreement
between Issuer and Reporting Person dated March 24, 1999 and filed as
Exhibit E, require Issuer to amend the Certificate of Designations.
The amendment will change the provisions relating to change of control
events.
(ii) Pursuant to an Agreement between Issuer and Reporting Person dated
March 24, 1999 and filed as Exhibit E, Issuer has agreed to amend the
Certificate of Designations to eliminate the rights previously granted
to the Holder of the Series D Preferred Stock , upon certain defined
events, to surrender its Series D Preferred for the right to exercise
its rights under a license agreement relating to certain medical
equipment presently manufactured by the Issuer.
d. Agreement as to Change of Control. Reporting Person and Issuer are parties
----------------------------------
to an Agreement dated March 24, 1999 and filed as Exhibit E pursuant to
which Reporting Person will have the right, under certain change of control
events, to the payment of cash or marketable securities with an aggregate
value of $7.50 for each of 826,666 shares surrendered to the Issuer
pursuant to such Agreement.
The foregoing summary of certain provisions of the named agreements is
qualified in its entirety by reference to the complete text of the agreements
<PAGE>
attached as exhibits to this Amendment and attached to the Schedule 13D filed
originally on June 30, 1995, all of which are hereby incorporated herein by this
reference.
ITEM 7. EXHIBITS
The following exhibits to this Schedule D have been previously filed:
Exhibit Description
- ------- -----------
B Stock Purchase Agreement dated as of June 20, 1995 between Fischer
Imaging Corporation and General Electric Company, Acting through its
GE Medical Systems Division (without Exhibits)
C Registration Rights Agreement dated as of June 20, 1995 between
Fischer Imaging Corporation and General Electric Company, Acting
through its GE Medial Systems Division
D Certificate of the Designations, Powers, Preferences and Rights of
the Series D Convertible Preferred Stock of Fischer Imaging
Corporation
The following exhibit to this Schedule D is filed herewith:
Exhibit Description
- ------- -----------
A Identity and Background of Directors and Executive Officers of
Reporting Person and Item 2(d) Information
E Agreement Dated as of March 24, 1999 between Fischer Imaging
Corporation and General Electric Company Acting through its GE
Medical Systems Division
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: April 23, 1999
GENERAL ELECTRIC COMPANY
By: Janet Bedol
----------------------------
Its: Associate Securities Counsel
<PAGE>
SCHEDULE 13D/A
AMENDMENT 1
EXHIBIT INDEX
EXHIBIT A Identity and Background of Directors and Executive Officers of
Reporting Persons and Item 2(d) Information
EXHIBIT E Agreement Dated as of March 24, 1999 between Fischer Imaging
Corporation and General Electric Company
<PAGE>
EXHIBIT A
GENERAL ELECTRIC COMPANY DIRECTORS
PRESENT PRESENT
NAME BUSINESS ADDRESS PRINCIPAL OCCUPATION
- ---- ---------------- --------------------
J.I.Cash, Jr Harvard Business School Professor of Business
Baker Library 187 Administration-Graduate
Soldiers Field School of Business
Boston, MA 02163 Administration, Harvard
University
S.S. Cathcart 222 Wisconsin Avenue Retired Chairman,
Suite 103 Illinois Tool Works
Lake Forest, IL 60045
D.D. Dammerman General Electric Company Vice Chairman of the Board and
3135 Easton Turnpike Executive Officer, General
Fairfield, CT 06431 Electric Company; Chairman
and Chief Executive Officer,
General Electric Capital
Services, Inc.
P. Fresco Fiat SpA Chairman of the Board,
via Nizza 250 Fiat SpA
10126 Torino, Italy
C.X. Gonzalez Kimberly-Clark de Mexico, Chairman of the Board
S.A. de C.V and Chief Executive
Jose Luis Lagrange 103, Officer,
Tercero Piso Kimberly-Clark de Mexico,
Colonia Los Morales S.A. de C.V.
Mexico, D.F. 11510, Mexico
A. Jung Avon Products, Inc. President and Chief
1345 Avenue of the Americas Operating Officer,
New York, NY 10105 Avon Products, Inc.
K.G. Langone Invemed Associates, Inc. Chairman, President and Chief
375 Park Avenue Executive Officer,
New York, NY 10152 Invemed Associates, Inc.
G.G. Michelson Federated Department Stores Former Member of the
151 West 34th Street Board of Directors,
New York, NY 10001 Federated Department
Stores
E. F. Murphy General Electric Company Vice Chairman of the
3135 Easton Turnpike Board and Executive
Fairfield, CT 06431 Officer, General Electric
Company
<PAGE>
GENERAL ELECTRIC COMPANY DIRECTORS (CONTINUED)
PRESENT PRESENT
NAME BUSINESS ADDRESS PRINCIPAL OCCUPATION
- ---- ---------------- --------------------
S. Nunn King & Spalding Partner, King & Spalding
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
J.D. Opie General Electric Company Vice Chairman of the
3135 Easton Turnpike Board and Executive
Fairfield, CT 06431 Officer, General Electric
Company
R.S. Penske Penske Corporation Chairman of the Board
13400 Outer Drive, West and President, Penske
Detroit, MI 48239-4001 Corporation
F.H.T. Rhodes Cornell University President Emeritus
3104 Snee Building Cornell University
Ithaca, NY 14853
A.C. Sigler Champion International Retired Chairman of the
Corporation Board and CEO
1 Champion Plaza and former Director,
Stamford, CT 06921 Champion International
Corporation
D.A. Warner III J. P. Morgan & Co., Inc. Chairman of the Board,
& Morgan Guaranty Trust Co. President, and Chief
60 Wall Street Executive Officer,
New York, NY 10260 J.P. Morgan & Co.
Incorporated and Morgan
Guaranty Trust Company
J.F. Welch, Jr. General Electric Company Chairman of the Board
3135 Easton Turnpike and Chief Executive
Fairfield, CT 06431 Officer, General Electric
Company
Citizenship
-----------
C. X. Gonzalez Mexico
P. Fresco Italy
Andrea Jung Canada
All Others U.S.A.
<PAGE>
GENERAL ELECTRIC COMPANY EXECUTIVE OFFICERS
PRESENT PRESENT
NAME BUSINESS ADDRESS PRINCIPAL OCCUPATION
- ---- ---------------- --------------------
J.F. Welch, Jr General Electric Company Chairman of the Board and
3135 Easton Turnpike Chief Executive Officer
Fairfield, CT 06431
P.D. Ameen General Electric Company Vice President and Comptroller
3135 Easton Turnpike
Fairfield, CT 06431
J.R. Bunt General Electric Company Vice President and Treasurer
3135 Easton Turnpike
Fairfield, CT 06431
D.L. Calhoun General Electric Company Senior Vice President -
Nela Park GE Lighting
Cleveland, OH 44122
W.J. Conaty General Electric Company Senior Vice President -
3135 Easton Turnpike Human Resources
Fairfield, CT 06431
D.M. Cote General Electric Company Senior Vice President -
3135 Easton Turnpike GE Appliances
Fairfield, CT 06431
D.D. Dammerman General Electric Company Vice Chairman of the Board and
3135 Easton Turnpike Executive Officer, General
Fairfield, CT 06431 Electric Company; Chairman
and Chief Executive Officer,
General Electric Capital
Services, Inc.
L.S. Edelheit General Electric Company Senior Vice President -
P. O. Box 8 Corporate Research
Schenectady, NY 12301 and Development
B.W. Heineman, Jr. General Electric Company Senior Vice President -
3135 Easton Turnpike General Counsel and Secretary
Fairfield, CT 06431
J.R. Immelt General Electric Company Senior Vice President -
P.O. Box 414 GE Medical Systems
Milwaukee, WI 53201
G.S. Malm General Electric Company Senior Vice President -
3135 Easton Turnpike Asia
Fairfield, CT 06431
<PAGE>
GENERAL ELECTRIC COMPANY EXECUTIVE OFFICERS (Continued)
PRESENT PRESENT
NAME BUSINESS ADDRESS PRINCIPAL OCCUPATION
- ---- ---------------- --------------------
W.J. McNerney, Jr. General Electric Company Senior Vice President -
1 Neumann Way GE Aircraft Engines
Cincinnati, OH 05215
E.F. Murphy General Electric Company Vice Chairman of the Board
3135 Easton Turnpike and Executive Officer
Fairfield, CT 06431
R.L. Nardelli General Electric Company Senior Vice President -
1 River Road GE Power Systems
Schenectady, NY 12345
R.W. Nelson General Electric Company Vice President -
3135 Easton Turnpike Corporate Financial Planning
Fairfield, CT 06431 and Analysis
J.D. Opie General Electric Company Vice Chairman of the Board
3135 Easton Turnpike and Executive Officer
Fairfield, CT 06431
G.M. Reiner General Electric Company Senior Vice President -
3135 Easton Turnpike Chief Information Officer
Fairfield, CT 06431
J.G. Rice General Electric Company Vice President -
2901 East Lake Road GE Transportation Systems
Erie, PA 16531
G.L. Rogers General Electric Company Senior Vice President -
1 Plastics Avenue GE Plastics
Pittsfield, MA 01201
K.S. Sherin General Electric Company Senior Vice President - Finance
3135 Easton Turnpike and Chief Financial Officer
Fairfield, CT 06431
L.G. Trotter General Electric Company Senior Vice President -
41 Woodford Avenue GE Industrial Systems
Plainville, CT 06062
Citizenship
-----------
G. S. Malm Sweden
All Others U.S.A.
<PAGE>
Item 2(d) Convictions Within the Past Five Years
Her Majesty's Inspectorate of Pollution v. IGE Medical Systems Limited
----------------------------------------------------------------------
(St. Albans Magistrates Court, St. Albans, Hertsfordshire, England, Case
No. 04/00320181)
In April, 1994, GE Medical Systems' U.K. subsidiary, IGE Medical Systems
Limited (IGEMS) discovered the loss of a radioactive barium source at the
Radlett, England facility. The lost source, used to calibrate nuclear camera
detectors, emits a very low level of radiation. IGEMS immediately reported the
loss as required by the U.K. Radioactive Substances Act. An ensuing
investigation, conducted in cooperation with government authorities, failed to
locate the source. On July 21, 1994, Her Majesty's Inspectorate of Pollution
(HMIP) charged IGEMS with violating the Radioactive Substances Act by failing to
comply with a condition of registration. The Act provides that a registrant like
IGEMS, which "does not comply with a limitation or condition subject to which
(it) is so registered ... shall be guilty of (a criminal) offense." Condition 7
of IGEMS' registration states that it "shall so far as is reasonably practicable
prevent ... loss of any registered source."
At the beginning of trial on February 24, 1995, IGEMS entered a guilty plea
and agreed to pay of fine of (pound)5,000 and assessed costs of (pound)5,754.
The prosecutor's presentation focused primarily on the 1991 change in internal
IGEMS procedures and, in particular, the source logging procedure. The
prosecutor complimented IGEMS' investigation and efforts to locate the source
and advised the court that IGEMS had no previous violations of the Radioactive
Substances Act. He also told the court that the Radlett plant had been
highlighted as an exemplary facility to HIMP inspectors as part of their
training. In mitigation, IGEMS emphasized the significant infrastructure and
expense undertaken by IGEMS to provide security for radiation sources and the
significant effort and expense incurred in attempting to locate the missing
source.
<PAGE>
EXHIBIT E
AGREEMENT
DATED AS OF MARCH 24, 1999
BETWEEN
FISCHER IMAGING CORPORATION
AND
GENERAL ELECTRIC COMPANY
ACTING THROUGH ITS GE MEDICAL SYSTEMS DIVISION
<PAGE>
TABLE OF CONTENTS
1. DEFINITIONS 15
2. SURRENDER OF PREFERRED STOCK AND OTHER AGREEMENTS 17
3. TRANSFER OF THE LICENSE AND TECHNICAL KNOW-HOW 18
4. AMENDMENT OF OTHER AGREEMENTS BETWEEN THE PARTIES 20
5. REGISTRATION OF THE SHARES 21
6. REPRESENTATIONS AND WARRANTIES OF FISCHER 21
7. REPRESENTATIONS AND WARRANTIES OF GEMS 23
8. FURTHER ASSURANCES 24
9. CONDITIONS TO THE OBLIGATIONS OF BOTH FISCHER AND GEMS 25
10. CONFIDENTIALITY 26
11. MISCELLANEOUS 27
<PAGE>
AGREEMENT
THIS AGREEMENT (this "Agreement"), dated as of March 24, 1999 (the
"Effective Date"), is between General Electric Company, a New York corporation
acting through its GE Medical Systems Division ("GEMS"), and Fischer Imaging
Corporation, a Delaware corporation ("Fischer" or the "Company," and with GEMS,
collectively, the "Parties").
WHEREAS, GEMS and Fischer believe that it is in their respective best
interests to enter into an agreement whereby GEMS agrees to surrender a portion
of its preferred stock and waive other rights as described herein in return for
Fischer's grant of certain rights as described herein; and
WHEREAS, Fischer desires to grant certain rights and provide certain
information as described herein to GEMS, and GEMS desires to surrender the stock
and waive certain rights described herein;
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants contained in this Agreement and for other valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Fischer and GEMS,
intending to be legally bound, hereby agree as follows:
1. DEFINITIONS
a) "Affiliate" shall mean a person controlling, controlled by or under
-----------
common control with another person.
b) "Certificate of Designations" shall mean Fischer's Certificate of
-----------------------------
Designations, Powers, Preferences and Rights of the Series D
Convertible Preferred Stock as filed with the Delaware Secretary of
State on or about June 15, 1995.
c) "Change of Control" shall mean any of the following transactions in
-------------------
which the acquiring, or controlling person upon the conclusion
thereof, is any one or more of Picker International, Inc., Siemens
Medical Systems, Toshiba America Medical Systems, Inc., Philips
Medical Systems or any Affiliate thereof; (i) a consolidation, merger
or other transaction or series of related transactions in which the
shareholders of Fischer shall receive cash, property or securities of
another corporation or entity in exchange for their shares of
Fischer's capital stock and, following the transaction, own less than
fifty percent of the combined voting power of all outstanding capital
stock or other securities of the surviving or resulting corporation or
entity, (ii) the acquisition of beneficial ownership (as such term is
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended) of or the right to acquire more than fifty percent of the
voting power of Fischer's outstanding voting securities (assuming
exercise of all then-exercisable, in-the-money outstanding options and
conversion of all then-convertible, in-the-money convertible
securities) or (iii) any transaction in which all or substantially all
of the assets of Fischer are sold.
<PAGE>
d) "Closing" shall mean the closing of this transaction on the Surrender
---------
Date.
e) "Escrow Agreement" shall mean the Escrow Agreement between Fischer and
------------------
GEMS dated June 20, 1995 pursuant to which Fischer has deposited the
Escrow Materials with GEMS as escrow agent.
f) "Escrow Materials" shall mean all that information required to be
------------------
deposited into escrow pursuant to Article 3 of the License Agreement.
g) "License" shall mean the license granted by the terms of the License
---------
Agreement upon the occurrence of a Special Surrender.
h) "License Agreement" shall mean the Manufacturing and License Agreement
-------------------
between Fischer and GEMS dated June 20, 1995.
i) "Licensed Proprietary Rights" shall have the meaning ascribed thereto
-----------------------------
in the License Agreement.
j) "OEM Agreement" shall mean the Purchase Agreement No. 800227 dated
---------------
August 29, 1994, between Fischer and GEMS, as amended.
k) "OEM Termination Date" shall mean the date that Fischer completes the
----------------------
manufacture and assembly of the last product to be manufactured by
Fischer for GEMS under the OEM Agreement (the time when such last
Product is ready for shipment).
l) "Product" or "Tilt-C" shall mean the cantilevered tilting x-ray table
---------------------
with isocentric C-arm supplied to GEMS by Fischer under the OEM
Agreement, as more fully described in the OEM Agreement, together with
any improvements to that device made, adopted, installed or
incorporated by Fischer prior to the OEM Termination Date.
m) "Registration Rights Agreement" shall mean the Registration Rights
-------------------------------
Agreement by and between GEMS and Fischer dated June 20, 1995.
n) "Related Agreements" shall mean the Registration Rights Agreement, the
--------------------
OEM Agreement, the Stock Purchase Agreement, the License Agreement,
and the Escrow Agreement.
o) "Series D Preferred Stock" shall mean Fischer's Series D Convertible
--------------------------
Preferred Stock par value $.01 per share.
p) "Stock Purchase Agreement" shall mean the Stock Purchase Agreement by
--------------------------
and between GEMS and Fischer dated June 20, 1995.
<PAGE>
q) "Surrender Date" shall mean April 14, 1999, provided that a closing
----------------
occurs hereunder and that this Agreement is not sooner terminated
pursuant to the termination provisions provided herein.
r) "Technical Information" shall have the meaning ascribed to it in the
-----------------------
License Agreement.
s) "Technical Know-How" shall have the meaning ascribed to it in the
--------------------
License Agreement.
t) "Trade Secrets" shall have the meaning ascribed to it in the License
---------------
Agreement.
2. SURRENDER OF PREFERRED STOCK AND OTHER AGREEMENTS
a) Surrender of the Shares. Subject to the terms and conditions set forth
------------------------
in this Agreement, on the Surrender Date (except as provided herein),
GEMS shall surrender to Fischer for cancellation 826,666 shares of its
Series D Preferred Stock (the "Surrendered Shares"), and Fischer shall
(i) grant to GEMS all rights which were to be granted under the
License Agreement on the Surrender Date, (ii) within 30 days after the
OEM Termination Date, provide to GEMS all tooling owned by Fischer
that is used exclusively in the manufacture and design of the Tilt-C
and (iii) transfer and convey to GEMS the Technical Information. GEMS
acknowledges that the majority of the tooling used in the manufacture
of the Tilt-C is also used in the manufacture of the Fischer Imager,
and as a consequence a relatively small portion of the tooling used in
the manufacture of the Tilt-C is described in clause (ii) of this
Section 2.1.
i) Fischer shall permit, at a date and time reasonably acceptable to
both parties, but in no event later than the OEM Termination
Date, GEMS to videotape and photograph the manufacturing and
assembly process used by Fischer in the production of the Tilt-C.
ii) Fischer shall permit, at a date and time reasonably acceptable to
both parties, and in no case later than the OEM Termination Date,
two employees of GEMS or GEMS third party manufacturer (the "GEMS
Observers") to observe the entire manufacturing process used by
Fischer in the production of the Tilt-C.
iii) In connection with the videotaping and observation rights in
Sections 2.1.1 and 2.1.2, GEMS shall be required to pay to
Fischer per diem consulting fees in amounts as set forth on
Exhibit D of the License Agreement, in an amount to compensate
Fischer for the time of one Fischer employee who shall supervise
the GEMS Observers and the GEMS personnel who conduct the
videotaping or photography under Section 2.1.1.
<PAGE>
b) Retained Shares. GEMS will retain 506,667 of its shares of Series D
----------------
Preferred Stock (the "Retained Shares") on the same terms as currently
apply to the Series D Preferred Stock under the Certificate of
Designations, the Registration Rights Agreement, and the Stock
Purchase Agreement, except as such terms are amended hereby.
i) At the Closing, Fischer shall cancel and retire the Surrendered
Shares.
ii) Fischer agrees that, as provided in Section 11 of the Certificate
of Designations, it will not reissue the Surrendered Shares to
any party, and that the Retained Shares shall remain the only
outstanding shares of the Series D Preferred Stock.
c) Change of Control.
------------------
i) If a Change of Control occurs or Fischer comes to an agreement
with a party to effect a Change of Control, prior to March 24,
2000, Fischer shall pay to GEMS upon the occurrence of such
Change of Control an amount in cash or marketable securities with
an aggregate value no less than $7.50 per Surrendered Share, less
the average closing price of a share of the Company's common
stock for the twenty trading days preceding the Effective Date
(the "Change of Control Payment").
3. TRANSFER OF THE LICENSE AND TECHNICAL KNOW-HOW
a) Review of the Escrow. In accordance with its duties under Article 3 of
---------------------
the License Agreement and the procedures set forth on Schedule 3.1.1.,
on or before April 14, 1999, GEMS and Fischer shall reasonably
cooperate to determine any deficiencies that may currently exist with
respect to the Escrow Materials and Fischer shall use its reasonable
best efforts to update and complete the deposit of information to the
escrow established under the Escrow Agreement and add any additional
information necessary so that the Escrow Materials will include all
current information necessary to enable GEMS to manufacture the
Product and all parts thereof and service tools and instruments
therefor, to their current design revision as of the Surrender Date.
Before transfer of the Technical Information in the Escrow Materials,
Fischer shall prepare an inventory of the Escrow and an engineer or
product manager of each of the Parties (together, the "Engineer
Representatives") shall meet and review the Escrow Materials in order
to determine that the Escrow Materials are materially complete.
i) The procedure for updating and determining the completeness of
the Escrow Materials will be as set forth on Schedule 3.1.1.
ii) For purposes of updating the Escrow Materials as contemplated in
this Agreement, the Parties hereby agree that the Escrow
Materials may be released to the custody of Fischer for the sole
purpose of updating the Escrow Materials in accordance with this
<PAGE>
Agreement. Fischer shall be required to maintain the Escrow
Materials in a secure, environmentally safe and confidential
manner. If this Agreement is terminated by either party in
accordance with Section 9.4., the Escrow Materials shall be
returned to the Escrow Agent for keeping pursuant to the Escrow
Agreement. The Parties hereby instruct the Escrow Agent to
deliver the Escrow Materials to Fischer for updating consistent
with this Agreement.
iii) Fischer understands and agrees that time spent by it, its
employees or its agents on the update of the Escrow Materials
shall not be reimbursable by GEMS, whether for costs incurred by
Fischer, or pursuant to the imposition of consulting or other
fees.
b) Production of all Information in Fischer's Possession. In accordance
------------------------------------------------------
with its obligation (provided in Section 4.1 and Exhibit C of the
License Agreement) to provide to GEMS, pursuant to a written request
by GEMS, all "other technical information relating to the Product
which may be required by Licensee to manufacture the Product and
parts," Fischer agrees, at any time prior to December 31, 2000, and
subject to Section 3.5., to provide to GEMS all such information in
its possession as of the Effective Date in whatever form, including
any existing electronic files containing Technical Information, and
drawings of tools necessary to manufacture the Product and parts. The
Parties agree that, to the extent information is required to be
delivered to GEMS under this Section 3.2, the failure to include such
information in the Escrow Materials (pursuant to Section 3.1 hereof
and Article 3 of the License Agreement) shall not constitute a breach
of this Agreement or the License Agreement, unless Fischer fails to
timely comply with a written request by GEMS or Fischer knowingly
withholds such information from GEMS. The Parties also agree that GEMS
is not responsible for costs associated with the collection of
information to the extent such information is required to be provided
to GEMS under the License Agreement.
c) Training. During the training provided for under Section 4.2 of the
---------
License Agreement, Fischer shall disclose and describe any unwritten
or undocumented processes, procedures, tools, or other special methods
used in the production of the Tilt-C to the extent any such processes,
procedures, tools or methods exist.
d) Engineering Support. The Engineering support provided for in Section
--------------------
4.3 of the License Agreement shall be provided, subject to the
reasonable availability of Fischer's personnel, when reasonably
requested by GEMS, and GEMS shall not be required to complete the
training contemplated in Section 4.2 before Fischer shall be obligated
to provide the engineering support required by Section 4.3.
Engineering support shall be provided by Fischer for a period of up to
sixteen man weeks, provided, however, that any engineering support in
excess of that contemplated by Section 4.3 of the License Agreement
shall be paid for by GEMS as provided in Section 4.5 of the License
Agreement.
<PAGE>
e) Unwritten or Undocumented Information. Notwithstanding anything to the
--------------------------------------
contrary in this Agreement, the Parties acknowledge and agree that
Fischer is not as a result of this Agreement or the License Agreement,
and shall not be, required to reduce to writing any unwritten
information, processes, procedures, tools, special methods or any
other matters related to the manufacture or production of the Tilt-C,
whether or not such information, processes, etc. constitute Technical
Information.
4. AMENDMENT OF OTHER AGREEMENTS BETWEEN THE PARTIES
a) OEM Agreement. The OEM Agreement shall continue according to its
--------------
terms, except that Fischer's duties concerning the provision of
documentation, replacement parts, Product repairs, service capability
and technical support under Sections 7(e), 9(b) 14(c) 15(h), 17(a) and
Attachment H (collectively, the "Continuing Obligations") shall
terminate at such time as GEMS has the ability to procure within GEMS'
system spare parts, service tools and instruments to effectively
service the Tilt-C; provided, however, that Fischer's duties with
respect to the Continuing Obligations shall terminate no later than
December 31, 2000; and provided further, that GEMS shall use its
reasonable efforts to cause Fischer's duties with respect to the
Continuing Obligations to terminate as soon as practicable after the
Closing.
b) License Agreement. On the occurrence of the Closing, the Parties agree
------------------
that the License Agreement is hereby amended to delete Sections 2.5
and 2.6 thereof.
c) Escrow Agreement. On the occurrence the Closing , the Parties agree
-----------------
that the Escrow Agreement is hereby amended to delete Section 6.3
thereof in its entirety and agree that the execution of this Agreement
shall constitute a written notice signed by both parties stating that
the Escrow Agreement shall be terminated and shall terminate the
Escrow Agreement as permitted by Section 4.1(c) thereof. Upon the
Closing, all materials deposited into Escrow will be the property of
GEMS, and all materials escrowed under the Escrow Agreement shall be
released to GEMS.
d) Stock Purchase Agreement. On the occurrence of the Closing, the
-------------------------
Parties agree that the Stock Purchase Agreement is hereby amended to
delete in its entirety Section 6.5 thereof.
e) Certificate of Designations.
----------------------------
i) On the occurrence of the Closing, the Parties agree that the
Certificate of Designations shall be hereby amended as follows:
a) The last sentence of paragraph (c) of Section 3 shall be
deleted in its entirety.
<PAGE>
b) The text of Section 5 shall be deleted in its entirety and
replaced with the placeholder "Intentionally Omitted".
c) The first portion of the definition of Change of Control
which currently reads "shall mean any of the following
transactions in which . . ." shall be amended to read as
follows: "shall mean any of the following transactions which
occurs on or before March 24, 2002 and in which . . .".
ii) For purposes of the Delaware General Corporation Law, this
Agreement constitutes a written consent of the holders of the
Series D Preferred Stock with respect to the matters contemplated
by Section 4.5.1. and approving the execution and delivery by
Fischer of an amendment to the Certificate of Designations for
the purposes of effecting the changes contemplated by Section
4.5.1.
f) Conflicting Terms. To the extent of any conflict between this
------------------
Agreement and any of the Related Agreements, the terms of this
Agreement shall be controlling.
5. REGISTRATION OF THE SHARES
a) Withdrawal of Request for Registration. On the occurrence of the
---------------------------------------
Closing, GEMS agrees that its submitted request for registration of
all Registrable Securities (as defined in the Registration Rights
Agreement) that would be issuable to GEMS should it elect to convert
all outstanding shares of the Series D Preferred Stock is hereby
withdrawn. Such withdrawn request shall not decrease the demand
registrations permitted under the Registration Rights Agreement and
GEMS shall continue to have two unused demand registrations. Further,
the deferral of registration instigated by Fischer as provided under
Section 2.1(c) of the Registration Rights Agreement shall not be
considered "used" under that Section. Fischer shall continue to have
the right to delay registration to the extent permitted under the
Registration Rights Agreement in the event GEMS makes a new
registration demand.
b) Registration Rights "Lock-Up". Notwithstanding the terms and
-----------------------------
provisions of the Registration Rights Agreement, GEMS agrees that it
will not deliver a request for registration under the Registration
Rights Agreement for 90 days following the Surrender Date.
c) Waiver. To the extent that this Section 5 constitutes a waiver of any
-------
term of the Registration Rights Agreement, GEMS, as holder of more
than 70% of the shares eligible for registration under the
Registration Rights Agreement, hereby provides written consent to such
waiver as required by Section 3.7 of that agreement.
<PAGE>
6. REPRESENTATIONS AND WARRANTIES OF FISCHER
a) Change of Control. As of the Effective Date, Fischer has not agreed
------------------
to, nor has it within the 90 days immediately preceding the Effective
Date engaged in any negotiations with respect to, any transactions
that would result in a Change of Control.
b) Other Agreements. As of the Effective Date, neither Fischer nor any
-----------------
party acting on behalf of Fischer has directly or indirectly (i)
engaged in any negotiations with any party with respect to a merger of
Fischer or the sale or purchase of more than 50% of the stock or
assets of Fischer or an investment in Fischer (for the purpose of this
Article 6, a "Transaction"), or (ii) come to any agreements or
understandings, whether formal or informal, written or oral, with
respect to a Transaction, except in connection with preliminary
discussions of a Transaction with a proposed price of no greater than
$3 per share of common stock and as to which financing has not been
secured. Notwithstanding the foregoing, GEMS acknowledges that Fischer
has engaged an investment banker to assist Fischer's board of
directors in evaluating its strategic alternatives, including the
evaluation and solicitation of indications of interest for one or more
transactions that may involve a sale of Fischer's stock or assets or
an investment in Fischer.
c) Complete Escrow. After the completion of those actions contemplated by
----------------
Section 3.1., the Technical Information that is included in the Escrow
Materials (will incorporate in all material respects all current
information necessary to enable GEMS to manufacture the Tilt-C and all
parts thereof and service tools and instruments therefor, to their
current design revision as of the Surrender Date. To the knowledge of
Fischer, the use of the Technical Information by GEMS will not
infringe or contravene any third party rights.
d) Intellectual Property Rights. Each of Fischer and its subsidiaries
-----------------------------
owns or possesses sufficient legal rights to license to GEMS the
Licensed Proprietary Rights. Neither Fischer nor any subsidiary has
received any communication alleging that the Company or any subsidiary
has violated, or by entering into this Agreement would violate any of
the patents, trademarks, servicemarks, tradenames, copyrights, trade
secrets, licenses, information and proprietary rights and processes of
any other person relating to the Product.
e) No Capital Impairment. The execution of this Agreement and the
----------------------
performance of the transactions and obligations contemplated hereby
will not cause any impairment of the capital of Fischer within the
meaning of Section 160 of the Delaware General Corporation Law and the
case law thereunder. Further, the capital of Fischer is not currently
impaired for purposes of the aforementioned Section. This Agreement
and the transactions and obligations contemplated hereby will not
result in a fraud or injury to the rights of the creditors or
shareholders of Fischer.
<PAGE>
f) Organization. Fischer is a corporation duly incorporated, validly
-------------
existing and in good standing under the laws of the State of Delaware.
Fischer has the corporate power to own its property and to carry on
its business as now being conducted.
g) Authorization; No Violation; Enforceability.
i) Fischer has full corporate power and authority to enter into and
perform this Agreement, and the execution and delivery by Fischer
of this Agreement and the performance of the obligations
hereunder and consummation of the transactions described herein,
have been duly authorized with respect to Fischer by the Board of
Directors of Fischer and all other necessary corporate action,
and no other corporate proceedings on the part of Fischer, its
stockholders (other than GEMS) or any subsidiary are necessary.
The execution and delivery of this Agreement, the performance by
Fischer of its obligations hereunder and the consummation by
Fischer of the transactions contemplated hereby will not: (i)
violate any provisions of the Certificate of Incorporation (other
than the Certificate of Designations, which is being amended
hereby) or Bylaws of Fischer or any subsidiary; (ii) violate any
provisions of, or result in the breach, modification or
termination of or constitute a default under, any provision of
any agreement, lease, franchise, license, indenture, permit,
mortgage, deed of trust, evidence of indebtedness or other
instrument to which Fischer or any subsidiary is a party or by
which Fischer or any subsidiary may be bound or effected other
than the Certificate of Designations and the Related Agreements,
which are being amended hereby; or (iii) violate any judgment,
ruling, order, writ, injunction, decree, statute, rule or
regulation applicable to Fischer, any subsidiary of Fischer or
any of their respective properties or assets.
ii) This Agreement has been duly executed and delivered by Fischer
and constitutes a valid and binding obligation of Fischer
enforceable against it in accordance with its terms, except to
the extent that such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent transfer, reorganization or
other laws affecting the enforcement of creditors' rights
generally or by general equitable principles.
h) Continuing Relations. Fischer represents and warrants that in all
---------------------
future dealings with GEMS with respect to the purchase and delivery of
spare parts, Fischer will not intentionally or willfully discriminate
against GEMS, or otherwise take any action in bad faith against GEMS
with respect to the provision of spare parts. The parties expressly
acknowledge and agree that the provisions of this Section 6.8. are not
intended to create any "most favored nation" status or any similar or
other preferential rights in favor of GEMS with respect to the
provision of spare parts or otherwise.
<PAGE>
7. REPRESENTATIONS AND WARRANTIES OF GEMS
a) Organization. GEMS is a corporation duly incorporated, validly
-------------
existing and in good standing under the laws of the State of New York.
GEMS has the corporate power to own its property and to carry on its
business as now being conducted.
b) Authorization; Enforceability. GEMS has the requisite corporate power
------------------------------
to enter into this Agreement and to carry out its obligations
hereunder. This Agreement has been duly authorized, executed and
delivered by GEMS and constitutes a valid and binding obligation of
GEMS, enforceable against it in accordance with its terms, except to
the extent that such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent transfer, reorganization or other
laws affecting the enforcement of creditors' rights generally or by
general equitable principles.
8. FURTHER ASSURANCES
a) Cooperation. Fischer and GEMS shall reasonably cooperate with each
------------
other in connection with the transactions contemplated hereby and
Fischer shall sign such further documentation (consistent with the
License Agreement and this Agreement), as may be reasonably agreeable
to Fischer and necessary to effect the transactions contemplated by
this Agreement and the License Agreement. Fischer shall not be
required to sign any documentation inconsistent with the Related
Agreements and this Agreement.
b) Irreparable Harm. Provided that a Closing occurs hereafter, Fischer
-----------------
acknowledges and agrees that any breach of this Agreement would cause
immediate and irreparable injury to GEMS and monetary damages would be
difficult if not impossible to ascertain. Fischer agrees that, after
the Surrender Date, should Fischer violate any of its covenants of
this Agreement, GEMS shall be entitled to seek and obtain immediate,
preliminary and permanent injunctive relief to enjoin further and
future violations of this Agreement and require Fischer's cooperation
in the transfer of any Technical Information, Technical Know-How,
Trade Secrets or copyrights provided for under the License Agreement.
Nothing contained herein shall affect the right of GEMS to seek and
obtain monetary damages in addition to such equitable relief.
c) Product Changes. Fischer will continue its practice of sending copies
----------------
of Product Change Requests (PCR's) and Product Change Orders (PCO's)
to GEMS for all product changes related to the Product until the OEM
Termination Date. Further, prior to the OEM Termination Date, Fischer
shall continue to send PCR's and PCO's to GEMS for changes made to the
Product related to obsolescence issues.
d) Product Improvements. Fischer shall provide to GEMS any Technical
---------------------
Information related to any improvement in the design of the Product
made prior to the OEM Termination Date and required to be made in
order to fulfill Fischer's obligations under the OEM Agreement,
including, but not limited to improvements made in relation to safety
or effectiveness issues, latent defects, or obsolescence issues.
<PAGE>
e) Continuing Consulting Support. On an ongoing and continuing basis, and
------------------------------
in addition to Fischer's other training and support obligations,
Fischer shall supply technical support services to GEMS in relation to
the design, manufacture, test, assembly, quality, inspection, service,
disposal or use of the Product. Such services will be provided at the
expense of GEMS, and shall not require more than three hours of
consulting time per week. Fisher's duty to provide consulting services
shall expire on December 31, 2000. The rates for the consulting
services shall be as set forth on Exhibit D of the License Agreement,
with the per diem rate being divided by 8 to determine the hourly rate
and with all consulting services being billed in hourly increments.
i) Responses to inquiries or requests for information made by GEMS
shall be acknowledged as received by Fischer within 48 hours of
the inquiry or request. Fischer shall then have five days (or
such additional time as is reasonable in light of the information
requested) to respond to the inquiry or request from Fischer with
the answer or requested information.
9. CONDITIONS TO THE OBLIGATIONS OF BOTH FISCHER AND GEMS
The respective obligations of Fischer and GEMS to effect the transactions
contemplated hereby (for the purpose of this Article 9, this "Transaction")
are subject to fulfillment at or prior to the date of the Closing of the
following conditions:
a) No order, stay, decree or injunction prohibiting or restricting or
enjoining this Transaction shall have been entered, issued or
promulgated by any court or governmental agency having jurisdiction.
GEMS and Fischer agree to use their commercially reasonable efforts to
avoid or terminate any of same.
b) Additional Conditions to the Obligations of Fischer.
----------------------------------------------------
i) GEMS shall have performed in all material respects all
obligations required to be performed by it under this Agreement
at or prior to the Surrender Date.
ii) the representations of GEMS set forth in this Agreement shall be
true and correct in all material respects as of the date of this
Agreement and as of the Closing Date as though made on and as of
the Surrender Date.
c) Additional Conditions to the Obligations of GEMS.
-------------------------------------------------
i) GEMS' Engineer Representative shall have reviewed the updated
Escrow Materials and shall have determined in its sole and
<PAGE>
absolute discretion that the Escrow Materials, as updated,
constitute substantially all of the information required to be
provided under the License Agreement;
ii) Fischer shall have performed in all material respects all
obligations required to be performed by it under this Agreement
at or prior to the Surrender Date;
iii) the representations and warranties of Fischer set
forth in this Agreement shall be true and correct in
all material respects as of the Effective Date and,
as of the Closing as though made on and as of the
Closing, other than the representations and
warranties of Section 6.1 and 6.2 that are made
solely as of the Effective Date.
d) Termination. This Agreement may be terminated and this Transaction
------------
abandoned:
i) By Fischer if the conditions to the obligations of Fischer set
forth in Section 9.2. are commercially impracticable and
incapable of cure prior to April 20, 1999, and such matter has
not been waived by Fischer;
ii) by GEMS if the conditions to the obligations of GEMS set forth in
Section 9.3 are commercially impracticable and incapable of cure
prior to April 20, 1999 and such matter has not been waived by
GEMS; or
iii) by mutual consent of the Parties.
e) In the event that any condition occurs after the Effective Date but
prior to the Surrender Date that causes any of the representations or
warranties of either party to be inaccurate in any respect, such party
shall promptly notify the other party of such inaccuracy. The other
party's sole and exclusive remedy with respect to such inaccuracy
shall be to elect not to consummate this Transaction.
f) Upon the termination of this Agreement in accordance with its terms,
(a) this Agreement shall forthwith become null and void except as set
forth in Sections 3.1.2. and 10.1 which provisions shall survive such
termination, without any liability or obligation on the part of GEMS
or Fischer (other than pursuant to the foregoing specified
provisions), and (b) the Related Agreements shall remain in full force
and effect in accordance with their terms.
10. CONFIDENTIALITY
a) This Agreement has been prepared and executed on the express condition
that, except as otherwise required by applicable law, neither Fischer
nor GEMS will make any public announcement of its existence or
contents. The Parties agree that under no circumstances will either of
them make any announcement, press release, statement, or make public
in any other fashion the terms and existence of this Agreement;
provided however, that Fischer may make filings with the Securities
<PAGE>
and Exchange Commission regarding this transaction required by the
Securities Act of 1933, as amended, or the Securities Exchange Act of
1934, as amended, or the rules and regulations promulgated under each
of those acts substantially in the form attached hereto as Exhibit A;
and provided further that Fischer shall be entitled to immediately
publish a press release in the form attached hereto as Exhibit A.
11. MISCELLANEOUS
a) No Effect. The execution of this Agreement shall not have any effect
----------
on, nor is it intended to modify any applicable court order binding on
the Parties under the currently pending litigation between the
Parties.
b) Notices. Any notices pursuant to this Agreement and the Related
--------
Agreements shall be in writing and shall be deemed to have been duly
given if delivered personally, mailed by certified mail (return
receipt requested) or sent by telecopier to the Parties at the
following addresses or at such other addresses as shall be specified
by the Parties by like notice:
IF TO FISCHER:
Fischer Imaging Corporation
12300 North Grant Street
Thornton, CO 80241
Attn: Chief Executive Officer
Telecopy: (303) 252-4256
WITH A COPY TO:
Davis, Graham & Stubbs, LLP
370 17th Street, Suite 4700
Denver, CO 80202
Attn: Paul Hilton
Telecopy: (303) 893-1379
IF TO GEMS:
General Electric Company
GE Medical Systems Division
3000 North Grandview Blvd.
Waukesha, Wisconsin 53188
Attn: General Counsel
Telecopy: (414) 544-3573
WITH A COPY TO:
Gibson, Dunn & Crutcher LLP
1801 California Street, Suite 4100
Denver, CO 80202
Attn: Richard Russo
Telecopy: (303) 296-5310
<PAGE>
c) Product Related Communications. Any communications related to the
technology transfer pursuant to this Agreement and the License
Agreement shall be directed to the following persons, or such other
persons as may be specified by the parties from time to time:
IF TO FISCHER:
Newton Logan
Fischer Imaging Corporation
12300 North Grant Street
Denver, Colorado 80241
(303) 450-4349
FAX: (303) 254-2525
email: [email protected]
IF TO GEMS:
Nat M. Zettel
General Electric Company
P.O. Box 414 W-711
Milwaukee, Wisconsin 53201
(414) 548-4870
FAX: (414) 548-2032
email: [email protected]
d) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUCTED IN
--------------
ACCORDANCE WITH, THE LAWS OF THE STATE OF COLORADO REGARDLESS OF THE
LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF
CONFLICTS OF LAWS THEREOF.
e) Counterparts; Facsimile Transmission of Signatures. This Agreement may
---------------------------------------------------
be executed in any number of counterparts and by different parties
hereto in separate counterparts, and delivered by means of facsimile
transmission or otherwise, each of which when so executed and
delivered shall be deemed to be an original and all of which when
taken together shall constitute but one and the same agreement. If any
party hereto elects to execute and deliver a counterpart signature
page by means of facsimile transmission, it shall deliver an original
of such counterpart to each of the other parties hereto within ten
days of the date hereof, but in no event will the failure to do so
affect in any way the validity of the facsimile signature of its
delivery.
<PAGE>
f) Assignment. This Agreement and all of the provisions hereto shall be
-----------
binding upon and inure to the benefit of, and be enforceable by, the
Parties hereto and their respective successors and permitted assigns,
but neither this Agreement nor any of the rights, interests or
obligations set forth herein shall be assigned by any Party hereto
without the prior written consent of the other Parties hereto and any
purported assignment without such consent shall be void.
g) Severability. If any provision of this Agreement shall be held to be
-------------
illegal, invalid or unenforceable under any applicable law, then such
contravention or invalidity shall not invalidate the entire Agreement.
Such provision shall be deemed to be modified to the extent necessary
to render it legal, valid and enforceable, and if no such modification
shall render it legal, valid and enforceable, then this Agreement
shall be construed as if not containing the provision held to be
invalid, and the rights and obligations of the Parties shall be
construed and enforced accordingly.
h) Titles and Subtitles. The titles and subtitles used in this Agreement
---------------------
are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
i) Entire Agreement. This Agreement, the Registration Rights Agreement,
-----------------
as hereby amended, the OEM Agreement, as hereby and previously
amended, the Escrow Agreement, as hereby amended, the License
Agreement, as hereby amended, and the Stock Purchase Agreement, as
hereby amended, contain all of the terms and the understandings of the
Parties hereto with respect to the subject matter hereof and thereof.
Provided, however, that to the extent that this Agreement is in
conflict with the terms of any of the Related Agreements, the terms of
this Agreement shall supersede the terms of the Related Agreement
which conflict, and the conflicting terms in the Related Agreement
shall be null and void to the extent they conflict with the terms
herein.
j) Expenses. If any action at law or in equity is necessary to enforce or
---------
interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees, costs, and necessary
disbursements in addition to any other relief to which such party may
be entitled.
[THIS PAGE INTENTIONALLY SEPARATED]
<PAGE>
IN WITNESS WHEREOF, Fischer and GEMS have caused this Agreement to be
executed as of the date first written above.
FISCHER:
FISCHER IMAGING CORPORATION
By: /s/ Morgan W. Nields
---------------------------------------
Name: Morgan W. Nields
Title: Chairman and Chief Executive Officer
GEMS:
GENERAL ELECTRIC COMPANY, acting
through its GE MEDICAL SYSTEMS DIVISION
By: /s/ J. Keith Morgan
---------------------------------------
Name: J. Keith Morgan
Title: Vice President
<PAGE>
SCHEDULE 3.1.1.
<TABLE>
<CAPTION>
TASK PARTIES INVOLVED EXPECTED TIME OF COMPLETION
---- ---------------- ---------------------------
<S> <C> <C>
1. Review existing Escrow Materials
Engineer Representatives within four
business days of the and create a high
level Table of Effective Date Contents
and identify deficiencies.
2. Identify additional necessary Engineer Representatives within four business days of the
documents or items that exist, but Effective Date
were not included in the original
deposit of Escrow Materials, update
Table of Contents based on this
activity.
3. Assemble materials identified in Fischer Within 7 business days of the
Items 1 and 2. Effective Date
4. Inspect/ audit the materials GEMS
within 9 business days of the against
the Table of Contents; Effective Date
identify and document any deficiencies
5. Take possession of the Escrow GEMS
within 12 business days of the
Materials, and close this Transaction
Effective date
6. Deliver list of deficiencies to GEMS within 5 business days of taking
Fischer possession of the Escrow Materials
7. Prepare and Deliver materials
Fischer within 7 business days of
receipt of required to eliminate
deficiencies the list referred to in
Item 6
</TABLE>
