SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant to Section to Section 13 or 15(d) of
The Securities Act of 1934
Date of Report
(Date of earliest event reported): March 24, 1999
FISCHER IMAGING CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 36-2756787
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION
NUMBER)
12300 N. GRANT STREET 80241
DENVER, COLORADO (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE
OFFICES)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (303) 452-6800
Item 5. Other Events. By an agreement effective March 24, 1999 General Electric
Company, a New York corporation acting through its GE Medical Systems Division
("GEMS"), surrendered 826,666 shares, or 62%, of its Series D Preferred Stock in
Fischer Imaging Corporation ("Fischer") in exchange for a non-exclusive right to
manufacture the Tilt-C System, which Fischer has manufactured for GEMS since
1994. This represents a renegotiation of Fischer's previous arrangement with
GEMS whereby GEMS would receive the Tile C rights under certain circumstances in
exchange for 100% of its Series D Preferred Stock. In addition to other terms,
the agreement amends certain terms of Fischer's Series D Preferred Stock in the
event of a change of control transaction. First, if a change of control
transaction occurs or Fischer comes to an agreement to effect a change of
control transaction prior to March 24, 2000, then GEMS will be entitled to $7.50
per share less the average closing price of a share of Fischer common stock for
the twenty trading days preceding March 24, 1999, on each of the 826,666 shares
surrendered pursuant to the agreement. Second, as to the remaining 506,667
outstanding shares of Series D Preferred Stock, change of control rights will
expire on March 24, 2002. For these purposes, a change of control transaction
generally includes any transaction involving a transfer of more than 50% of the
combined voting power of Fischer's capital stock or a sale by Fischer of all or
substantially all of its assets to any one or more of Picker International,
Inc., Siemens Medical Systems, Toshiba America Medical Systems, Inc., or Philips
Medical Systems, or any affiliate thereof.
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Except for modifications to the change of control rights, Fischer's rights
and obligations with respect of the remaining 506,667 shares of Series D
Preferred Stock held by GEMS remain unchanged. Holders of Fischer's Series D
Preferred Stock are entitled to (i) receive dividends prior and in preference to
any declaration or payment of any dividend, other than a dividend provided as a
result of a split or subdivision of the common stock, on any junior security,
(ii) convert into an equal number of shares of Fischer common stock, subject to
certain adjustments, and (iii) a liquidation preference of $7.50 per share, plus
any declared but unpaid dividends, upon the happening of certain events,
including a change of control. The Series D Preferred Stock is not entitled to
vote on any matters submitted to the stockholders except regarding protective
provisions and as otherwise required by law. GEMS also has registration rights
covering the common stock obtainable on conversion of the Series D Preferred
Stock.
Pursuant to the agreement, Fischer will have continuing manufacturing,
licensing, and training obligations with respect to the Tilt C System.
Item 7. Exhibits. Documents filed as part of this report:
Exhibit Description of Exhibit
Number
10.1 Agreement dated as of March 24, 1999 between Fischer Imaging
Corporation and General Electric Company acting through its GE
Medical Systems Division.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Fischer Imaging Corporation
Date: April 16, 1999 By: /s/ Morgan W. Nields
---------------------------------
Morgan W. Nields
Chairman of the Board of Directors
Chief Executive Officer
Director
AGREEMENT
DATED AS OF MARCH 24, 1999
BETWEEN
FISCHER IMAGING CORPORATION
AND
GENERAL ELECTRIC COMPANY
ACTING THROUGH ITS GE MEDICAL SYSTEMS DIVISION
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TABLE OF CONTENTS
1. DEFINITIONS 3
2. SURRENDER OF PREFERRED STOCK AND OTHER AGREEMENTS 5
3. TRANSFER OF THE LICENSE AND TECHNICAL KNOW-HOW 6
4. AMENDMENT OF OTHER AGREEMENTS BETWEEN THE PARTIES 8
5. REGISTRATION OF THE SHARES 9
6. REPRESENTATIONS AND WARRANTIES OF FISCHER 10
7. REPRESENTATIONS AND WARRANTIES OF GEMS 12
8. FURTHER ASSURANCES 12
9. CONDITIONS TO THE OBLIGATIONS OF BOTH FISCHER AND GEMS 13
10. CONFIDENTIALITY 14
11. MISCELLANEOUS 15
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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
1.1. "AFFILIATE" shall mean a person controlling, controlled by or under
common control with another person.
1.2. "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.
1.3. "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.
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1.4. "CLOSING" shall mean the closing of this transaction on the Surrender
Date.
1.5. "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.
1.6. "ESCROW MATERIALS" shall mean all that information required to be
deposited into escrow pursuant to Article 3 of the License Agreement.
1.7. "LICENSE" shall mean the license granted by the terms of the License
Agreement upon the occurrence of a Special Surrender.
1.8. "LICENSE AGREEMENT" shall mean the Manufacturing and License Agreement
between Fischer and GEMS dated June 20, 1995.
1.9. "LICENSED PROPRIETARY RIGHTS" shall have the meaning ascribed thereto
in the License Agreement.
1.10. "OEM AGREEMENT" shall mean the Purchase Agreement No. 800227 dated
August 29, 1994, between Fischer and GEMS, as amended.
1.11. "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).
1.12. "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.
1.13. "REGISTRATION RIGHTS AGREEMENT" shall mean the Registration Rights
Agreement by and between GEMS and Fischer dated June 20, 1995.
1.14. "RELATED AGREEMENTS" shall mean the Registration Rights Agreement,
the OEM Agreement, the Stock Purchase Agreement, the License
Agreement, and the Escrow Agreement.
1.15. "SERIES D PREFERRED STOCK" shall mean Fischer's Series D Convertible
Preferred Stock par value $.01 per share.
1.16. "STOCK PURCHASE AGREEMENT" shall mean the Stock Purchase Agreement by
and between GEMS and Fischer dated June 20, 1995.
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1.17. "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.
1.18. "TECHNICAL INFORMATION" shall have the meaning ascribed to it in the
License Agreement.
1.19. "TECHNICAL KNOW-HOW" shall have the meaning ascribed to it in the
License Agreement.
1.20. "TRADE SECRETS" shall have the meaning ascribed to it in the License
Agreement.
2. SURRENDER OF PREFERRED STOCK AND OTHER AGREEMENTS
2.1. 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.
2.1.1. 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.
2.1.2. 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.
2.1.3. 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.
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2.2. 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.
2.2.1. At the Closing, Fischer shall cancel and retire the
Surrendered Shares.
2.2.2. 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.
2.3. CHANGE OF CONTROL.
2.3.1. 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
3.1. 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.
3.1.1. The procedure for updating and determining the completeness
of the Escrow Materials will be as set forth on Schedule
3.1.1.
3.1.2. 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
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Escrow Materials in accordance with this 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.
3.1.3. 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.
3.2. 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.
3.3. 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.
3.4. 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.
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3.5. 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
4.1. 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.
4.2. 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.
4.3. 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.
4.4. 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.
4.5. CERTIFICATE OF DESIGNATIONS.
4.5.1. On the occurrence of the Closing, the Parties agree that the
Certificate of Designations shall be hereby amended as
follows:
4.5.1.1. The last sentence of paragraph (c) of Section 3
shall be deleted in its entirety.
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4.5.1.2. The text of Section 5 shall be deleted in its
entirety and replaced with the placeholder
"Intentionally Omitted".
4.5.1.3. 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 . . .".
4.5.2. 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.
4.6. 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
5.1. 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.
5.2. 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.
5.3. 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.
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6. REPRESENTATIONS AND WARRANTIES OF FISCHER
6.1. 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.
6.2. 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.
6.3. 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.
6.4. 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.
6.5. 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.
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6.6. 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.
6.7. AUTHORIZATION; NO VIOLATION; ENFORCEABILITY.
6.7.1. 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.
6.7.2. 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.
6.8. 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.
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7. REPRESENTATIONS AND WARRANTIES OF GEMS
7.1. 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.
7.2. 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
8.1. 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.
8.2. 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.
8.3. 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.
8.4. 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
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obligations under the OEM Agreement, including, but not limited to
improvements made in relation to safety or effectiveness issues,
latent defects, or obsolescence issues.
8.5. 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.
8.5.1. 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:
9.1. 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.
9.2. ADDITIONAL CONDITIONS TO THE OBLIGATIONS OF FISCHER.
9.2.1. 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.
9.2.2. 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.
9.3. ADDITIONAL CONDITIONS TO THE OBLIGATIONS OF GEMS.
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9.3.1. GEMS' Engineer Representative shall have reviewed the
updated Escrow Materials and shall have determined in its
sole and absolute discretion that the Escrow Materials, as
updated, constitute substantially all of the information
required to be provided under the License Agreement;
9.3.2. 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;
9.3.3. 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.
9.4. TERMINATION. This Agreement may be terminated and this Transaction
abandoned:
9.4.1. 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;
9.4.2. 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
9.4.3. by mutual consent of the Parties.
9.5. 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.
9.6. 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
10.1. 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
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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 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
11.1. 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.
11.2. 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
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1801 California Street, Suite 4100
Denver, CO 80202
Attn: Richard Russo
Telecopy: (303) 296-5310
11.3. 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]
11.4. 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.
11.5. 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.
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11.6. 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.
11.7. 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.
11.8. 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.
11.9. 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.
11.10. 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]
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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
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SCHEDULE 3.1.1.
<TABLE>
<CAPTION>
TASK PARTIES INVOLVED EXPECTED TIME OF COMPLETION
<S> <C> <C>
1. Review existing Escrow Engineer Representatives within four business days of the
Materials and create a Effective Date
high level Table of 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 Fischer Within 7 business days of the
in 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 Effective date
Transaction
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>
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