Exhibit 10.2


 


CONFIDENTIAL


 





 


AGREEMENT


 


This Agreement is made as of the 23rd day
of January 2006 (the “Effective Date”), between Eastman Kodak Company,
having its principal office at 343 State St., Rochester, N.Y. 14650 (“Kodak”)
and Fischer Imaging Corporation, having its principal office at 12300 North
Grant St., Denver, Co. 80241 (“Fischer”). 
Fischer and Kodak desire to enter into this Agreement, by which Fischer
desires to develop worldwide external service capabilities, both for service
delivery and parts supply, for their Mammotest and SenoScan product lines  (the “Product” or “Products”).Having an
alternative service provider who can satisfy the needs of Fischer’s customers
is important to Fischer as it is considering exiting it’s service business.
Therefore, Fischer desires to enable Kodak’s service organization to provide
these services and Kodak is willing to provide these services as described
herein pursuant to the terms and conditions described herein.


 


TERM.  This Agreement shall be effective on the date
hereof and shall continue in effect for a period of 5 years (60 months) unless
terminated earlier in accordance with this Agreement.


 


Terms and Conditions of Agreement


 


1.              FISCHER
RESPONSIBILITIES


 


A.
Training


 


	
  i.

  	
   

  	
  Fischer will provide
  Kodak with 12 training classes, 6 for each of the Products. Upon reasonable
  prior notice to Fischer, Kodak may elect to have one of each of the classes
  held in Europe.

  
	
   

  	
   

  	
   

  
	
  ii.

  	
   

  	
  The training schedule,
  including program duration, is set forth in Schedule I.

  
	
   

  	
   

  	
   

  
	
  iii.

  	
   

  	
  Each class shall be
  limited to 6 Kodak employees.

  
	
   

  	
   

  	
   

  
	
  iv.

  	
   

  	
  Each class will cover
  either the Mammotest or the SenoScan products.

  
	
   

  	
   

  	
   

  
	
  v.

  	
   

  	
  Each Kodak technician
  attending the class will be trained on, the theory of operation for the
  applicable Product, and the detailed repair and maintenance requirements for
  each Product.

  
	
   

  	
   

  	
   

  
	
  vi.

  	
   

  	
  Fischer will be
  responsible for all of Fischer’s costs associated with or arising from its
  provision of the training classes. Moreover, Fischer will provide all of the
  training facilities, training equipment and trainers to support these
  classes.

  
	
   

  	
   

  	
   

  
	
  vii.

  	
   

  	
  Fischer recognizes that
  Kodak will incur various out of pocket expenses related to this training, and
  as an incentive for Kodak to participate in the training, will reimburse
  Kodak a flat fee of seventy five thousand dollars ($75,000) on the Effective
  Date.

  
	
   

  	
   

  	
   

  
	
  viii.

  	
   

  	
  Training and technical
  service manuals furnished to Kodak will be at least as complete and
  comprehensive as those furnished to Fischer’s technical service personnel,
  and at a minimum must include theory of operation (including software),
  electrical and mechanical schematics, preventive maintenance procedures and
  schedules, replacement part lists, and troubleshooting documentation.

  



 


B. Technical Support


 


Fischer will provide
three units of Mammotest and three units of SenoScan equipment to Kodak, free
of charge. These units will become Kodak property upon receipt. Schedule II
sets forth the shipping schedule 


 


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and delivery
location.  The units provided to Kodak
will conform to the latest build configuration and will be shipped to the
locations listed on Schedule II. 
Hologic has consented to Fischer’s execution of this Agreement and to
the delivery of the six units to Kodak, each of which shall be used only for
Kodak’s internal training and support purposes and which may not be sold,
transferred or otherwise disposed of in whole or in part to a third party.


 


C.  Communications


 


Fischer shall (a) prepare
communications to the public and to the Fischer customer base, describing Kodak’s
role as an authorized service provider, and (b) provide Kodak with an
opportunity to review and approve the communications package prior to its
distribution or publication. Upon execution of this Agreement and the
Intellectual Property License Agreement (the “License Agreement”), Fischer will
distribute the Kodak approved communications to Fischer’s Customer base.


 


The communications
package shall include:


 


	
  i.

  	
   

  	
  Letters to each Fischer
  customer, supplier and vendor, explaining Kodak’s role as an authorized
  service provider. The letters to Fischer’s customers shall inform the
  customers that (i) Kodak will be contacting them with the opportunity
  for them to enter into a service agreement directly with Kodak, and if they
  wish to have Kodak provide service support, they will have to sign a separate
  agreement with Kodak which will set forth the specific terms and conditions
  of Kodak’s services; and (ii) if they choose to enter into the service
  agreement with Kodak, they will be released from their obligations under any
  existing Fischer Service contract without any penalty to the customer.

  
	
   

  	
   

  	
   

  
	
  ii.

  	
   

  	
  A press release, which
  shall explain Kodak’s role as an authorized service provider.

  



 


D.   Customer Base


 


Fischer shall provide
Kodak with a list of its customer base and each customer’s primary point of
contact for contracting and purchasing issues. 
Fischer warrants and represents that it has the right to provide Kodak
with such customer specific information.  
Fischer shall indemnify, defend and hold Kodak harmless from any claim
arising from or relating to an alleged breach by Fischer of any confidentiality
obligations between Fischer and its customer.


 


Fischer agrees that Kodak
may send a communication to the individuals/entities identified by Fischer and
offer them the opportunity to sign a Kodak service contract.


 


E.   
Cost/Miscellaneous Expenses Assistance


 


Kodak will encounter out
of pocket expenses, (relating to, among other things, parts labeling and
transfer cost, accounting expense, implementation expenses) in order to
implement this agreement.  As an
incentive for Kodak to provide the services referenced herein, on the effective
date, Fischer shall pay Kodak sixty thousand dollars ($60,000) to cover these
out of pocket expenses.


 


Fischer
Representations


 


F.  In addition to any other representations
contained herein,  Fischer represents
that it is not aware of any significant issues with the service performance of
the Products.  Any significant
issues with the service performance of the products which have been disclosed
to Kodak are set forth in Schedule V hereto. Fischer shall indemnify and
hold Kodak harmless from any claims and / or damages resulting or arising from
the breach of this representation.


 


 2.  INTELLECTUAL PROPERTY


 


Any and all obligations
that Kodak undertakes in this agreement shall be contingent upon the execution
of the License Agreement a copy of which is attached hereto as Schedule IV.   If no such agreement is executed, this
agreement shall be deemed null and void and of no effect.


 


Fischer shall defend,
indemnify, and hold Kodak, its Affiliates, and their respective agents,
officers, 


 


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employees, directors, and
shareholders harmless from and against any and all costs, liabilities,
penalties, losses, and reasonable attorneys’ fees and costs (collectively,
“Losses”) occurring on or after the Effective Date, arising from Fischer’s
breach of the parties’ License Agreement of even date herewith, and from any
infringement of Intellectual Property or violation of other third party rights
in the course of Kodak providing Services hereunder to the extent such
infringement or violation is attributable to the use of unmodified Hologic IP
as authorized under the License Agreement in such performance of Services.


 


3.  SUB-CONTRACTING RELATIONSHIP


 


Kodak will not be in a
position to support customers on the Effective Date of this Agreement. Training
of Kodak technicians and hiring of additional resources is estimated to take at
least ninety (90) days. Therefore, during the first ninety (90) days after the
Effective Date, Fischer will provide labor, on a sub-contracted basis, and
parts to Kodak, as requested by Kodak. The 90 days support period may be
reduced to a shorter timeframe, upon written agreement of both parties. If the
time period is reduced the minimums listed below will be prorated. Both parties
agree that any Field Engineering hours and/or travel hours provided by Kodak in
any timeframe listed below will be deducted from the minimum direct and travel
hours for the period involved.


 


i.                 Kodak will pay Fischer for labor
requested and approved by Kodak in writing at a rate of two hundred and fifty
dollars ($250) per hour, but in no event for less than the monthly minimum
hours described below. That hourly rate includes direct labor and travel hours
that are provided to Kodak customers as documented on Kodak approved and signed
call reports. Kodak approved overtime hours provided by Fischer personnel will
be billed at 1.5 times the above referenced hourly rate.


 


a.               Every 30-calendar days, Fischer will
provide Kodak with a summary invoice of the labor provided to Kodak
customers.   The invoice will be audited
by Kodak, and to the extent the invoice includes hours in addition to the
minimum hours set forth below, such additional hours they will be added to the
minimum amount set forth below and will be paid to Fischer as described below.
Regardless of the hours invoiced, Kodak will authorize and will pay within 5
calendar days after receipt of the summary invoice the minimum number of
service hours described below, and any additional approved hours.  All Kodak approved labor hours provided by Fischer
to Kodak in excess of the minimums set forth below will be billed at a rate of
one hundred and fifty dollars ($150) per hour, or 1.5 times that amount for
overtime hours, if applicable.


 


 i.              On the 35th
calendar day after the Effective Date, regardless of the number of hours
actually invoiced, Kodak will pay to Fischer for a minimum of 775 direct labor
and travel hours, provided Fischer has submitted a summary invoice of any labor
provided by Fischer to Kodak customers, as requested and approved by
Kodak.  Kodak must receive the summary
invoice at least 5 calendar days prior to the payment authorization date.


 


ii.               On the 70th
calendar day after the Effective Date, regardless of the number of hours
actually invoiced, Kodak will pay to Fischer for a minimum of 625 direct labor
and travel hours, provided Fischer has submitted a summary invoice of any labor
provided by Fischer to Kodak customers, as requested and approved by
Kodak.  Kodak must receive the summary
invoice at least 5 calendar days prior to the payment authorization date.   On the 105th business day after
the Effective Date, regardless of the number of hours actually invoiced, Kodak
will pay to Fischer for a minimum of 375 labor hours, provided Fischer has
submitted a summary invoice of any labor provided by Fischer to Kodak customers,
as requested and approved by Kodak. 
Kodak must receive the summary invoice at least 5 calendar days prior to
the payment authorization date.


 


b.               Fischer will provide Kodak with any
and all parts, free of charge, needed to provide support to Kodak’s customers,
during this 90 day period.


 


c.               On the Effective
Date of this Agreement Kodak will invoice Customers who receive time &
material service, parts and consumable sales.


 


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i.                  Kodak is
responsible for putting place administrative procedures necessary to enable
effective training of Fischer personnel to enable them to comply with Kodak
terms and conditions to support Kodak invoicing.


 


4.  REPLACEMENT PARTS


 


In order to provide
Fischer’s customers with an alternative parts supplier, Fischer has requested that Kodak offer replacement
parts to customers that own Fischer Mammotest and SenoScan equipment. At the
end of the 90 day period described in Section 3, in order to enable Kodak
to provide this parts service, Fischer shall transfer their remaining service
parts inventory to Kodak at no additional cost to Kodak, except that SenoScan
detectors will be provided to Kodak at fair market value as set forth in Schedule III..
All parts provided will be free of all liens and encumbrances and Fischer will
indemnify, defend and hold Kodak harmless from any and all claims arising from
or relating to the parts, regardless of the nature of the claim, or the party
bringing the claim.  All parts provided
by Fischer to Kodak will be in new or equivalent to new condition and are
subject to inspection before being accepted. 
Attached hereto as Schedule III is an outline of the parts
inventory to be transferred to Kodak and the anticipated transfer quantities.
Kodak will setup these parts in its system, and either use them to provide
service to users of the Products or offer them for sale to the customers, at
prices to be determined by Kodak. 
Fischer agrees to provide the balance of the spare parts inventory to
Kodak by 03/31/06 date.


 


Kodak
agrees, to the extent Kodak determines that it is commercially reasonable, or
as otherwise limited herein, to continue to offer replacement parts to the
users of the Products, even after the free inventory referenced above is
depleted:


 


(a) As long as the parts remain available from
suppliers and the business remains economically viable as solely determined by
Kodak, and provided further that


 


(b) Kodak retains the right to declare
product end of life and end of parts availability at its discretion without
incurring any liability to Fischer or to Fischer’s customers.


 


5.KODAK RESPONSIBILITIES


 


Kodak will not assume any existing Fischer
contracts.   Kodak will act as an
authorized service provider from whom Fischer’s customers can purchase service
contracts as specifically set forth in an agreement between Kodak and the
customer.  Additionally, Kodak will act
as a distributor of replacement parts for the parts referenced in Schedule III,
in accordance with the obligations, restrictions and limitations set forth in Section 4
above.


 


6.TRADEMARKS


 


Fischer is not authorized
to use or license others to use the Kodak Marks and has no rights of any kind
whatsoever with respect to the Kodak Marks.


 


7.INDEMNITY


 


Fischer will indemnify, defend and hold Kodak harmless
from any and all claims by any other party resulting directly or indirectly
from Fischer’s equipment, acts, omissions, misrepresentations, or negligence,
regardless of the form of action or arising from or relating to the Products or
any Service of those Products by Fischer or Kodak.


 


Except for those matters
for which Kodak must indemnify Fischer under subparagraph 5 below, Fischer will
maintain all liability for any intellectual property infringement claims
relating to the provision of services or the sale, distribution, use or
purchase of any parts associated therewith. 
Fischer shall indemnify, defend and 


 


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hold Kodak harmless for
any such claims.


 


Fischer shall retain all
responsibility and liability for and indemnify, defend and hold Kodak harmless
from any claims, which relate to:


 


1.               Any matter
involving the Fischer employees who provide assistance on behalf of Fischer
during the 90 calendar day transition period, or any services rendered by these
employees, except to the extent directly attributable to Kodak’s instructions;


 


2.               Any breach of a
Fischer service contract by Fischer;


 


3.               Any claims relating
to the sale or delivery of parts by Fischer (which includes any failure to sell
or deliver those parts), or by Kodak, to the extent such claims against Kodak
relate to defects in the parts sold or delivered by Kodak which were originally
provided to Kodak by Fischer; and/or;


 


4.               Any disputes
between Fischer’s and it’s vendors, suppliers and/or customers.


 


5.               Kodak shall defend,
indemnify, and hold Fischer, its Affiliates, and licensors (including Hologic),
and their respective agents, officers, employees, directors, and shareholders
harmless from and against any and all Losses from claims arising from Kodak’s
Revisions and redesigns of Equipment or Parts made or commissioned by Kodak,
and for injury or death of any person or persons, including employees of Kodak
or its Affiliates, or for any breach of contract by Kodak, or for loss of or
damage to any property arising out of or in any way relating to performance of
Services by Kodak or its Affiliates or their use of the Hologic IP under this
Agreement, whether or not arising in tort or occasioned by the negligence of
Kodak or its Affiliates.


 


8.  CONFIDENTIAL INFORMATION


 


a.     Any
information relating to Services or Equipment (as defined in the License
Agreement) that is provided to Kodak hereunder in documented form, including
but not limited to Licensed Software and Parts Drawings, shall be treated as
confidential information of Hologic (“Hologic Confidential Information “) under
this Agreement.  Except as expressly
permitted herein, Kodak shall not disclose, provide or otherwise make available
any item of the Hologic Confidential Information, in whole or in part, to any
third party.  Kodak shall use all
reasonable efforts and exert a reasonable degree of care to protect the Hologic
Confidential Information, and shall provide such information only to employees,
agents and contractors of Kodak and its Affiliates on a need-to-know basis who
have entered into agreements to protect confidential information received in
the course of work for Kodak or its Affiliates on terms at least as protective
as the provisions of this Section. Any breach of the provisions of this Section by
Kodak’s or its Affiliates’ employees, agents, or contractors, shall be deemed
to be a breach by Kodak itself.  Kodak
agrees to protect the Hologic Confidential Information with the same standard
of care and procedures, but in no event less than a reasonable standard of
care, which it uses to protect its own trade secrets and proprietary
information of similar nature.


 


b.     The
obligations of Kodak and its Affiliates under this Section 8 with regard
to the Hologic Confidential Information shall remain in effect for so long as
the Hologic Confidential Information remains confidential. Notwithstanding the
foregoing, Kodak and its Affiliates shall have no obligation hereunder with
respect to any information which Kodak can demonstrate:


 


i.             is
publicly disclosed and generally available through no wrongful act of Kodak,
Fischer or its Affiliates;


 


ii.            is
rightfully received from a third party without restriction and without breach
of this Agreement or the License Agreement;


 


iii.           was
already known to Kodak or its Affiliates without obligation of confidentiality
prior to its disclosure by Fischer; or


 


iv.           is
independently developed by personnel of Kodak or its Affiliates without access
to, or reliance on, Hologic Confidential Information, and without breach of the
License Agreement.


 


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Upon termination of the
License Agreement, Kodak shall destroy or return to Fischer or Hologic the
Licensed Software and Parts Drawings provided hereunder and any other Hologic
Confidential Information provided to Kodak hereunder that is identified or
labeled as the confidential or proprietary information of Hologic then in Kodak’s
or its Affiliates’ possession or under their control, and certify such
destruction or complete return to Fischer.


 


9.  GOVERNING LAW AND JURISDICTION


 


This Agreement shall be
governed by and construed in accordance with the substantive laws of the State
of New York as applied to agreements entered into between two residents of the
State of New York, without regard to its conflict of laws principles.  The parties submit to the nonexclusive
personal jurisdiction of, and waive any objection against, the United States
District Court for the Western District of New York, and the state courts of the
State of New York in Monroe County, New York.


 


10.  DISPUTES


 


10.1 In the event that a dispute arises between Kodak
and Fischer, which cannot be resolved in the normal course, the following
dispute resolution procedures shall be followed: if a dispute arises,
then:  (a) within ten (10) business
days of a written request by either party, Fischer’s and Kodak’s primary point
of contact shall meet and resolve the issue; if these parties cannot resolve
the issue within ten (10) business days of the meeting; then (b) the
issue shall be submitted to Fischer’s designated CIO and Kodak’s Account
Manager; if these parties cannot resolve the issue within fifteen (15) business
days of submission to them; then (c) the issue shall be submitted for
resolution to Fischer’s designated senior executive and Kodak’s designated
senior executive.


 


10.2 Any claim,
controversy, or dispute arising out of or relating to this Agreement and any
other claim, controversy, or dispute between the parties shall be submitted to
final and binding arbitration as the sole and exclusive remedy.  Any demand for arbitration shall be filed
with the American Arbitration Association (“AAA”) office located nearest to
Kodak’s principal offices.  All
arbitration proceedings will be governed by the AAA commercial arbitration rules in
effect on the date the demand for arbitration is filed and shall be conducted
before a sole arbitrator selected in accordance with the AAA commercial
arbitration rules.  The arbitrator shall
apply New York law without regard to conflicts of laws principles.  Kodak and Fischer agree, prior to any
arbitration proceeding, that each party may request discovery from the other
party in the form of document production and depositions.


 


11. NOTICES


 


All notices in
connection with this Agreement must be in writing and, if not personally
delivered, be sent by first class mail or commercial courier service.  Notices will be effective on the day when
delivered, addressed to the other party at the address shown below.  Facsimile notices must be accompanied by
notice by mail or commercial courier. 
Either party may from time to time change the address to which notices
to it are to be sent by giving notice of such change to the other party.


 


	
  If to Kodak: 

  	
  If to Fischer:

  
	
   

  	
  Eastman Kodak Company

  	
   

  	
  Fischer Imaging
  Corporation

  
	
   

  	
  343 State Street

  	
   

  	
  12300 North Grant
  Street

  
	
   

  	
  Rochester, NY
  14650-1127

  	
   

  	
  Denver, Colorado 80241

  
	
   

  	
  Attn: Health Group
  Contracts

  	
   

  	
  Attn: Steven L. Durnil

  
	
   

  	
  Fax: 585-724-4400

  	
   

  	
  Fax: 303-252-4256

  
					



 


12. FORCE MAJEURE


 


Except for payments of
outstanding balances when due, neither party will be liable for any damages or
penalties for delay in performance when such delay is due to the elements, acts
of God, acts of civil or military authority, fires or floods, epidemics,
quarantine restrictions, war or riots, acts of terrorism, or other
circumstances outside the reasonable control of the affected party.  If the performance of this Agreement by
either party is prevented by reason of a Force Majeure event, the party whose
performance is affected, upon giving prompt written notice to the other party,
will be excused from such performance to the extent impacted by the Force
Majeure event, provided however, that the affected party takes all reasonable
steps to avoid or remove the causes of nonperformance and continues performance
with dispatch whenever the causes are removed.


 


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13. WAIVER


 


Failure by either party
to enforce any term or condition of this Agreement will not be deemed a waiver
of future enforcement of that or any other term or condition.


 


14. SEVERABILITY


 


If any term of this
Agreement is held invalid or unenforceable for any reason, the remainder of the
provisions will continue in effect as if this Agreement had been executed with the
invalid portion eliminated.


 


15. HEADINGS


 


The various headings in
this Agreement are inserted for convenience only and shall not affect the
meaning or interpretation of this Agreement or any section or provision
hereof.


 


16. BINDING EFFECT


 


Neither party may bind
the other party to any legal obligations in connection with this
Agreement.  This Agreement will be
binding upon, and inure to the benefit of, each of the parties and their
respective successors and assigns.  This
Agreement may not be construed as conferring upon any person who is not a party
any rights or remedies.


 


17. ASSIGNMENT


 


The Fischer may not
assign this Agreement without the prior written consent of Kodak, which consent
will not be unreasonably withheld, and any attempted assignment without the
prior written consent of Kodak will be void.


 


18. CONFLICTS IN
DOCUMENTATION


 


In the event of a
conflict in any documentation in this Agreement, the following order of
precedence shall govern:  (i) subsequent,
mutually agreed upon Amendments; (ii) this Agreement; (iii) Appendices;
and (iv) purchase orders accepted under this Agreement.


 


19. COUNTERPARTS AND
FACSIMILES


 


This Agreement may be
executed in one or more counterparts, each of which will be deemed to be an
original.  Facsimile signatures
constitute original signatures for purposes of the execution of this Agreement.


 


20. ENTIRE AGREEMENT


 


This Agreement, the
License Agreement, and the nondisclosure agreement are the entire agreement of
the parties and supersede all prior agreements and understandings, whether
written or oral, with respect to the subject matter of this Agreement.  This Agreement can be modified only by a
written amendment executed by authorized representatives of Fischer and Kodak.


 


IN WITNESS WHEREOF, and
intending to be legally bound, Eastman Kodak Company and   Fischer Imaging Corp. have executed this
Agreement as of the day and year first above written.


 


	
  Eastman
  Kodak Company

  	
  Fischer Imaging Corp.

  
	
   

  	
   

  
	
  By: 

  	
      /s/ Kevin Hobert

  	
   

  	
  By: 

  	
    /s/ Steven Durnil

  	
   

  
	
   

  	
   

  
	
  Name: 

  	
      Kevin Hobert

  	
   

  	
  Name: 

  	
     Steven Durnil

  	
   

  
	
   

  	
  (Type or Print)

  	
   

  	
  (Type or Print)

  
	
   

  	
   

  
	
  Title: 

  	
         President of the Health Group

  	
   

  	
  Title: 

  	
        President and CEO

  	
   

  
	
   

  	
   

  
	
   

  	
  (Type or Print)

  	
   

  	
  (Type or Print)

  
													



 


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