Exhibit 10.1


 


INTELLECTUAL
PROPERTY LICENSE AGREEMENT


MammoTest and SenoScan
Equipment Service


 


This License Agreement (“License Agreement”) is
entered into and made effective on this 23rd day of January, 2006
(the “Effective Date”), by and between:


 


Fischer
Imaging Corp., a Delaware corporation, having a principle
place of business at 12300 North Grant Street, Denver, Colorado 80241 (“Fischer”),
and


 


Eastman
Kodak Company, a New Jersey corporation, having a principle
place of business at 343 State Street, Rochester, New York 14650 (“Kodak”).


 


WHEREAS, Fischer provides warranty and maintenance
services with respect to certain mammography Equipment, as defined in Section
1.4 herein, that has been manufactured and marketed by Fischer;


 


WHEREAS, concurrently with the execution of this
License Agreement, Kodak and Fischer have entered into a separate Services
Agreement under which Fischer has agreed to provide to Kodak certain licenses,
deliverables, training and assistance to enable Kodak to Service, as defined in
Section 1.15 herein, the Equipment under new service agreements that Kodak
intends to offer to current owners of the Equipment; and


 


WHEREAS, Service of the Equipment will require the use
of Intellectual Property that Fischer sold and assigned to Hologic Inc. (“Hologic”)
in an agreement, under which a right was granted or reserved to Fischer to
grant sub-licenses under such Intellectual Property for the purpose of
providing such Services; and


 


WHEREAS, Fischer desires to grant to Kodak, and Kodak
desires to receive from Fischer, a license to such Intellectual Property for
purposes of providing such Services in accordance with the terms and condition
of this License Agreement.


 


NOW THEREFORE, in consideration of the mutual promises
herein set forth, the parties agree as follows:


 


1.                                  DEFINITIONS


 


1.1           “Affiliate” means any company or
other legal entity that is directly or indirectly controlled by another company
or other legal entity. Control means the ability to direct the policy or
operations of an entity, directly or indirectly, and shall be presumed in the
case of the possession of more than fifty percent (50%) of the voting stock of
the controlled entity or the possession of the maximum ownership permitted by
operation of local laws or regulations governing such entity.


 


1.2           “Consumables” means disposable
materials or Parts that are used with the Equipment once during the course of a
procedure and discarded thereafter


 





















 


1.3           “Deliverables” means the items,
materials and information identified in Exhibit B attached hereto and made part
hereof.


 


1.4           “Equipment” means all mammography
equipment that was sold or distributed by Fischer under the brand names “MammoTest”
and “SenoScan” prior to September 29, 2005, or that was/is sold or distributed
by Fischer thereafter with the written approval of Hologic.


 


1.5           “Hologic IP” means the Intellectual
Property relating to the Equipment and Licensed Software that was sold and
assigned by Fischer to Hologic under the Hologic IP Agreement, including
modifications and additions thereto made by Fischer as permitted by and in
accordance with the Hologic IP Agreement after closing of the Hologic IP
Agreement.  The Hologic IP includes, but
is not limited to the Patents identified in Exhibit A attached hereto and made
a part hereof and the Deliverables identified in Exhibit B.  The Hologic IP shall not include any
modifications and additions made by Hologic to the Intellectual Property
relating to the Equipment and Licensed Software.


 


1.6           “Hologic IP Agreement” means the
agreement(s) between Fischer and Hologic dated June 22, 2005, under which
Fischer sold and assigned to Hologic the Hologic IP, including the right to
manufacture, use, distribute and service the Equipment and Licensed Software,
and under which, Fischer retained or was granted a license and right to grant
sub-licenses to use the Hologic IP to perform Services for the Equipment.


 


1.7           “Intellectual Property” or “IP” means
intellectual property rights including Patents, mask rights, copyrights,
proprietary know-how, trademarks and trade names.


 


1.8           “Licensed Software” means software
used for service or operation of the Equipment in object code form and source
code form, and related documentation.


 


1.9           “Licensed Territory,” means all
countries throughout the world, but excluding Mexico.


 


1.10         “Manuals” means manuals that are used
or provided by Fischer in connection with installation, service or operation of
the Equipment, and related documentation.


 


1.11         “Parts” means spare parts for the
Equipment, including purchased Parts and Parts that are custom made for the
Equipment (“Custom Parts”).  Parts
include, but are not limited to, Consumables and the Parts listed under Parts
Information in Exhibit B with the Custom Parts identified separately


 


1.12         “Patent” means all forms of proprietary
right granted by the U.S. or any foreign government with respect to a design or
invention, including patents, patent applications and certificates of addition,
utility models and enforceable patent applications, as well as divisions, reissues,
continuations, renewals and extensions of the foregoing.


 


1.13         “Permitted Upgrades” mean (i) any
Upgrade, the provision of which does not result, directly or indirectly, in any
remuneration or payment to Fischer, Kodak or any Affiliate of Kodak, (ii) any
Upgrade which Kodak reasonably determines to be necessary to ensure the safe
operation of any Equipment in accordance with applicable health and safety
standards, (iii)


 


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any Upgrade which corrects any identified bugs in the
Licensed Software, provided that any such software bug fix merely corrects a
problem and does not provide additional functionality or significant feature
enhancements to such Equipment, (iv) any Upgrade which improves serviceability
or service diagnostics of Licensed Software, provided that any such Upgrade
does not provide any new operational functionality or significant feature
enhancements to such Equipment, (v) with respect to Fischer’s MammoTest product
line, the sale and installation of replacement cameras and other spare parts
comprising Fischer’s MammoTest products that are primarily designed to improve
the image quality, cost effectiveness and/or reliability of such products which
may result from Fischer’s sustaining engineering activities after the date
hereof but which do not result from any product development activities
performed by Fischer after September 29, 2005, (vi) with respect to Fischer’s
SenoScan product line, the sale or transfer of any spare parts which may result
from Fischer’s sustaining engineering activities after the date hereof but
which do not result from any product development activities performed by
Fischer after September 29, 2005, (vii) with respect to the Fischer’s SenoScan
product line, until June 30, 2006, any Upgrades which are required to be
performed by Fischer to the SenoScan Upgrade Contract as set forth on Schedule
2.10(j) of the Hologic IP Agreement as such contracts were in effect on June
22, 2005, (viii) with respect to Fischer’s SenoScan product line, the sale and
installation to any of Fischer’s installed customer base existing as of
September 29, 2005 of the Senoview (the Fischer Imaging workstation) or Cedara
radiologist review workstations on any SenoScan products sold prior to September
29, 2005, and (ix) any other upgrade expressly consented to in writing by
Hologic, which consent may be granted or denied in Hologic’s sole and absolute
discretion.


 


1.14         “Revision(s)” means any alteration to
the Licensed Software that improves serviceability and diagnostics of Licensed
Software or corrects an imperfection or deficiency or bug in the Licensed
Software, provided such alteration does not add any new operational
functionality or significant feature enhancement to the Licensed Software, and
any alteration to the Manuals to the extent necessary to reflect Revisions to
the Licensed Software or authorized changes to the Equipment made in the course
of performing Services under this Agreement. 
Revisions shall specifically exclude any Upgrade other than Permitted
Upgrades.


 


1.15         “Service(s)” means repair and
maintenance of the Equipment and Licensed Software.  Such Services shall include testing,
diagnosing, and repairing defects or malfunctions in such installed Equipment,
making the Equipment conform with its specifications and regulatory
requirements, or as needed if Kodak reasonably determines that Services are
necessary to ensure the safe operation of the Equipment in whole or in part in
accordance with applicable health and safety standards.  Services also include correcting any
identified bugs or defects in the Licensed Software.  Services shall specifically exclude the right
to perform any Upgrades other than Permitted Upgrades.


 


1.16         “Transfer Date” means the date, which
is three (3) calendar months following the Effective Date hereof.


 


1.17         “Transition Period” means the three (3)
month period between the Effective Date and the Transfer Date.


 


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1.18         “Upgrade” means any alteration,
upgrade, improvement, modification, adaptation or feature enhancement to any
Equipment or the Licensed Software.


 


2.                                  LICENSE RIGHTS


 


2.1                                 Grant.  Fischer hereby grants to Kodak and its
Affiliates a royalty free, paid-up license under the Hologic IP (without the
right to grant sub-licenses thereunder) only to the extent necessary to perform
Services on Equipment in the Licensed Territory.  This license includes and is limited to:


 


(a)           the right to
perform Services on the Equipment;


 


(b)           the right to
use and operate the Equipment;


 


(c)           the right to
use, copy, and make Revisions to the Licensed Software, and to install and
distribute the Licensed Software and the Revisions made thereto for use on the
Equipment in the course of performing Services;


 


(d)           the right to
use, copy, and make Revisions to the Manuals and to distribute those Manuals
intended for customers, and the Revisions made thereto for use in the operation
and Servicing of the Equipment;


 


(e)           the right to
make, have made use, sell and distribute Parts and Consumables,


 


(f)            the right
to provide service training to end customers that have purchased Equipment
directly or indirectly from Fisher, and


 


(g)           the right to
perform Permitted Upgrades.


 


Except as expressly provided in this License
Agreement, neither Kodak nor its Affiliates may modify, translate, reverse
engineer, decompile, disassemble, re-engineer or create derivative works based
on the Licensed Software nor may Kodak or its Affiliates use any item of
Hologic Confidential Information as defined in Section 4.1, to perform any
product development activities.


 


2.2           Sub-License. Kodak and Fischer
each hereby acknowledges that (i) this License Agreement constitutes a
sub-license by Fischer entered into pursuant to Section 5A of the Hologic IP
Agreement; and (ii) the license granted to Kodak hereunder is a sublicense
expressly limited to and by the express terms of the license granted by Hologic
to Fischer pursuant to Section 5A.1(a)(iii) and (iv) of the Hologic IP
Agreement and does not grant to Kodak any rights other than those set forth in
Section 5A.1(a)(iii) and (iv) of the Hologic IP Agreement unless otherwise
expressly set forth herein.


 


2.3           Service Contract Renewals.  Fischer hereby agrees that it will not
attempt to renew the service contract of any current customer of Fischer who
receives Service from Kodak


 


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after the date of this Agreement
unless such customer has first refused to enter into a new Service contract
with Kodak.  With respect to any of
Fischer’s Service customers that do not enter into a new Service contract with
Kodak, Fischer retains the right to continue to Service such customers, or to
contract out the Service obligations to another party.  For so long as Fischer continues to perform
Services or to have warranty or maintenance obligations with respect to the
Equipment, Fischer retains for itself the right and license to use and exercise
the Hologic IP to Service the Equipment concurrently with Kodak.  Nothing herein limits or restricts Hologic’s
own right to use, exercise, transfer, license, or further sublicense the
Hologic IP; including, without limitation, the right to provide service, with
respect to the Equipment, to any customer of Fischer, Kodak or any other party.


 


2.4                                 Restrictions
and Limitations.


 


(a)           Kodak and its Affiliates shall not remove, alter or obscure any
copyright, trademark or other proprietary notice or marking on or within the
Equipment, Licensed Software or Manuals.


 


(b)           All rights and licenses not expressly
set forth in this License Agreement are reserved by Fischer and Hologic.  Kodak and its Affiliates shall use the
Hologic IP only as expressly permitted herein in order to perform the Services.


 


(c)           Fischer reserves all of its rights
and licenses to the Hologic IP within Mexico. 
All references in this License Agreement to the license granted to Kodak
and its Affiliates exclude the right to use or exercise the Hologic IP in
Mexico, or to provide Services on Equipment installed in Mexico.


 


2.5                                 No
Implied Licenses.  Nothing in this
License Agreement shall be construed as granting Kodak or its Affiliates, or
any customer of Kodak, any right or license under any Intellectual Property
right of Fischer or Hologic by implication, estoppel or otherwise, except as
expressly set forth in this License Agreement. 
Hologic retains sole and exclusive ownership of the Hologic IP.


 


2.6                                 Records
& Audits.  Kodak shall, and shall
cause its Affiliates to, keep and maintain complete and accurate records
relating to the performance of Services hereunder in sufficient detail to
enable Fischer and/or Hologic to confirm their compliance with the scope and
restrictions of the license rights granted under this Section 2.  Such records shall include, but not be
limited to copies of all correspondence with Fisher incorporating Hologic
Confidential Information or relating to the transfer of Hologic Confidential
Information.  Kodak and its Affiliates
also shall maintain a record of all third parties to whom Kodak provides
Hologic Confidential Information, and a copy of the
confidentiality agreement with each such third party covering such
disclosure.  Each such record shall be
maintained by Kodak and its Affiliates for a period of three (3) after its
creation.  Such records of Kodak and its
Affiliates may be audited from time to time, but not more than once in each
calendar year, by an independent certified public accountant appointed by
Fisher or Hologic and reasonably acceptable to Kodak, to the extent necessary
to verify such compliance.  All such audits
shall be conducted following reasonable prior written notice and the auditors
shall comply with normal safety and security


 


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procedures of Kodak and its
Affiliates, and shall agree in writing to treat all information furnished by
Kodak and its Affiliate in the course of such audit as confidential to Kodak
and its Affiliates.  Such inspection
shall be undertaken at the expense of the party requesting the audit.


 


3.                                  DELIVERY


 


3.1           Promptly upon execution of this
License Agreement by both parties, Fischer shall deliver to Kodak the
Deliverables identified in Exhibit B to the extent not previously provided to
Kodak.


 


4.                                  CONFIDENTIALITY


 


4.1                                 Any
information relating to Services or Equipment 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 License 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
4.1 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.


 


4.2                                 The
obligations of Kodak and its Affiliates under this Section 4 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:


 


(a)           is publicly disclosed and generally
available through no wrongful act of Kodak, Fischer or its Affiliates;


 


(b)           is
rightfully received from a third party without restriction and without breach
of this License Agreement;


 


(c)           was already
known to Kodak or its Affiliates without obligation of confidentiality prior to
its disclosure by Fischer hereunder; or


 


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


 


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4.3           Upon termination of this 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.


 


5.                                  WARRANTIES AND INDEMNIFICATION


 


5.1           Hologic IP.  Fischer represents and warrants that it
entered into the Hologic IP Agreement with Hologic, and that Fischer has the
right under that agreement or has subsequently secured the right to grant to
Kodak the licenses and rights granted under this License Agreement subject to
the limitations and restrictions set forth herein.  Fischer represents and warrants that Hologic
has consented to its entry into this Agreement and to the delivery of the six
complete Equipment 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.


 


5.2           Each party represents and warrants to
the other that it has the authority and rights necessary to enter into this
License Agreement and to grant the licenses and rights and perform the
obligations contemplated herein.


 


5.3           EXCEPT AS EXPRESSLY STATED IN SECTION
5.1 AND 5.2, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY HEREUNDER.  EACH PARTY DISCLAIMS ALL OTHER EXPRESS AND
IMPLIED WARRANTIES, INCLUDING THE WARRANTIES OF ACCURACY, COMPLETENESS OR
EFFICACY OF THE HOLOGIC IP, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR
PURPOSE.


 


5.4           Fischer shall defend, indemnify, and
hold Kodak, its Affiliates, and their respective agents, officers, 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 this License Agreement, 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 this
License Agreement in such performance of Services.


 


5.5           Fischer shall defend, indemnify, and
hold Kodak, its affiliates, and their respective agents, officers, employees,
directors, and shareholders harmless from and against any and all Losses
arising from any claim by Hologic that Fischer has breached the license terms
under the Hologic IP Agreement, and any breach of Fischer’s representations and
warranties made to Kodak in this License Agreement.


 


5.6           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 breach of
this License Agreement or based on intellectual property infringement to the
extent attributable to


 


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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 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.


 


5.7           Kodak agrees that its breach of any
restrictions or limitations in Section 2 herein or its breach of its
obligations of confidentiality under Section 4.1 herein could cause irreparable
harm to Fischer and/or Hologic, that Fischer and Hologic’s remedies at law in
the event of such breach may be inadequate, and that, accordingly, in the event
of such breach, a restraining order or injunction or both may be issued against
Kodak and/or any of the subsidiaries, in addition to any other rights and
remedies that are available to Fischer and Hologic. 




6.                                  TERM


 


6.1           Term.  This License Agreement shall commence on the
Effective Date first above written and shall continue until terminated in
accordance with Section 6.2.


 


6.2           Termination.  This License Agreement shall expire on its
own terms at such time when Kodak is no longer party to or bound under any
Service contracts for the Equipment. 
Either party may terminate this License Agreement and any other
agreement entered into between the parties, in the event of a material breach
by the other of this License Agreement or of any other agreement between the
parties hereto, which material breach remains uncured for a period of thirty
(30) days following receipt of notice of breach.  Licenses granted hereunder shall not survive
termination of this License Agreement. 
Fischer may terminate this License Agreement immediately by written
notice to Kodak in the event of Kodak’s gross negligence or intentional
misconduct under this License Agreement. 
Hologic shall be a third party beneficiary entitled to enforce Kodak’s
compliance with this License Agreement, and Hologic shall have the right to
terminate this Agreement (i) upon notice to Kodak in the event of a material
breach by Kodak of this License Agreement, which material breach remains
uncured for a period of thirty (30) days following receipt of notice of breach
whether such notice of breach was delivered by Fischer or Hologic, and (ii)
immediately upon written notice to Kodak in the event of Kodak’s gross
negligence or intentional misconduct under this License Agreement.


 


6.3           Consequence of Termination.  Upon expiration or termination of this
License Agreement, the right to use the Hologic IP hereunder shall immediately
terminate, and Kodak shall deliver to Hologic or destroy the Hologic IP
provided to Kodak hereunder that comprise Hologic Confidential Information, and
shall notify Fischer in writing of such destruction.




7.                                  GENERAL


 


7.1           Notices. Notices, statements
and other communication required or permitted under this License Agreement
shall be given in writing and delivered by hand, by receipted


 


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overnight courier service or by
United States Postal Service, certified or registered mail, postage prepaid,
return receipt requested, or by facsimile to the following addresses:


 


	
   

  	
  If to Fischer, to:

  	
   

  	
  Fischer Imaging Corporation

  
	
   

  	
   

  	
   

  	
  12300 North Grant Street

  
	
   

  	
   

  	
   

  	
  Denver, Colorado 80241

  
	
   

  	
   

  	
   

  	
  Attn: Steven L. Durnil

  
	
   

  	
   

  	
   

  	
  Fax No.: 303-252-4256

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  with a copy to:

  	
   

  	
  Davis Graham &
  Stubbs LLP

  
	
   

  	
   

  	
   

  	
  1550 17th
  Street, Suite 500

  
	
   

  	
   

  	
   

  	
  Denver, Colorado 80202

  
	
   

  	
   

  	
   

  	
  Attn: Ronald R. Levine, II, Esq.

  
	
   

  	
   

  	
   

  	
  Fax No.: 303-893-1379

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  with a copy to:

  	
   

  	
  Hologic, Inc.

  
	
   

  	
   

  	
   

  	
  35
  Crosby Drive

  
	
   

  	
   

  	
   

  	
  Bedford,
  MA 01730-1401

  
	
   

  	
   

  	
   

  	
  Attn:
  Robert Cascella

  
	
   

  	
   

  	
   

  	
  Fax
  No.: 781-276-0580

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  with a copy to:

  	
   

  	
  Brown
  Rudnick Berlack Israels LLP

  
	
   

  	
   

  	
   

  	
  One
  Financial Center

  
	
   

  	
   

  	
   

  	
  Boston,
  MA 02111

  
	
   

  	
   

  	
   

  	
  Attn:
  Philip J. Flink, Esq.

  
	
   

  	
   

  	
   

  	
  Fax
  No.: 617-526-5000

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  If to Kodak, to:

  	
   

  	
  Eastman Kodak Company

  
	
   

  	
   

  	
   

  	
  343 State Street

  
	
   

  	
   

  	
   

  	
  Rochester, New York
  14650-0211

  
	
   

  	
   

  	
   

  	
  Attn: Director,
  Corporate Commercial Affairs

  
	
   

  	
   

  	
   

  	
  Fax No.: 585-724-9563

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  with a copy to:

  	
   

  	
  Eastman Kodak Company

  
	
   

  	
   

  	
   

  	
  4915 Hallstead Way

  
	
   

  	
   

  	
   

  	
  Tampa, Fl 33647

  
	
   

  	
   

  	
   

  	
  Attn: Director,
  Multi-Vendor Equipment Services

  
	
   

  	
   

  	
   

  	
  Fax No.:
  813-910-8263

  



 


7.2           Governing Law.  This License
Agreement shall be governed by and interpreted in accordance with the laws of
the State of Colorado without giving effect to its conflicts of law principles.


 


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7.3           Amendment.  No amendment or
modification of the terms of this License Agreement shall be binding on either
party unless reduced to writing and signed by an authorized officer of the
party to be bound.


 


7.4           Waiver.  No failure or delay
on the part of a party in exercising any right hereunder will operate as a
waiver of, or impair, any such right. No single or partial exercise of any such
right will preclude any other or further exercise thereof or the exercise of
any other right. No waiver of any such right will be deemed a waiver of any
other right hereunder.


 


7.5           Independent Contractors.  The parties hereto are independent
contractors, and not joint ventures or partners.  Neither party is authorized to make any
representation or warranty on behalf of the other, or to purport to be an agent
of the other, or to attempt to bind the other to any contract, liability or
other obligation.


 


7.6           Entire Agreement.  This License
Agreement, the Services Agreement of even date herewith, and the nondisclosure
agreement between the parties constitute the entire agreement between the
parties hereto respecting the subject matter hereof, and supersede and
terminate all prior understandings respecting the subject matter hereof,
whether written or oral.  This License
Agreement may be amended by an instrument in writing executed by both parties
hereto, subject to Hologic’s prior approval which shall not be unreasonably
withheld.


 


7.7           Attorneys’ Fees.  In the event that
any action or proceeding is brought by either party for the enforcement or
interpretation of this License Agreement, the prevailing party in such action
or proceeding shall be entitled to recover from the non-prevailing party, in
addition to any other remedy obtained, the prevailing party’s reasonable
attorneys’ fees and costs incurred in connection therewith.


 


7.8           Assignment.  Neither
party may assign this License Agreement, in whole or in part, without
the prior written approval of the other, except that Kodak may assign this
License Agreement without approval to a third party that acquires substantially
the entire business of Kodak to which this License Agreement relates.  To the extent Kodak is authorized to assign
all or a portion of this License Agreement, it shall remain responsible under
this License Agreement for the acts and omissions of its assignees.


 


7.9           Counterparts and Facsimiles.  This License 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 License Agreement.


 


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IN
WITNESS WHEREOF, the parties have entered into this License
Agreement as of the Effective Date.


 


	
  Understood and agreed:

  	
  Understood and agreed:

  
	
   

  	
   

  
	
  FISCHER IMAGING CORP.

  	
  EASTMAN KODAK COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Steven Durnil

  	
   

  	
  By:

  	
  /s/ Kevin Hobert

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  President and CEO

  	
   

  	
  Title:

  	
  President of the Health Group

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Approved and Accepted:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  HOLOGIC, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Robert Cascella

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Its:

  	
  President and COO

  	
   

  	
   

  	
   

  
							



 


11





















 


Kodak / Fischer License Agreement


Dated January 23, 2006


 


EXHIBIT A


 


HOLOGIC PATENTS


 


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Kodak / Fischer License Agreement


Dated January 23, 2006


 


EXHIBIT B


 


Deliverables


 


Parts
Information: a list
of the Parts; service history of the Parts; Parts failure data; current
inventory; identity of suppliers of purchased Parts; and current prices for
purchased Parts.


 


Parts Drawings: design and manufacturing
drawings  of the Parts, including
manufacturing design specifications and tolerances; and any tools and molds in
Fischer’s possession for making the Parts.


 


Licensed
Software: copies of  the
latest release of any software, in source code and executable versions, that is used for service or operation of the
Equipment, including databases and related technical documentation.


 


Manuals:
copies of  Service
manuals (including wiring diagrams and theory guides), installation manuals and
user manuals for the Equipment in electronic and hardcopy form.


 


Vendor lists, customer lists


 


All of the above constitute Hologic Confidential Information


 


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