Exhibit 10.1


 


SEPARATION AND RELEASE AGREEMENT


 


This
Separation and Release Agreement (the “Agreement”)
is made between (i) Steven L. Durnil (“Employee”)
and (ii) Fischer Imaging Corporation (the “Company”).  Employee and
the Company are referred to collectively as the “Parties” and individually as a “Party.”


 


RECITALS


 


WHEREAS,
due to the Company’s current financial state and its desire to retain and
incentivize Employee, the Company and Employee wish to redefine the employment
relationship between the Company and Employee and agree to a settlement with
respect to amounts that would be due to Employee under the Retention and
Severance Agreement dated June 29, 2005 between Employee and the Company
(the “Severance Agreement”);


 


WHEREAS,
Employee wishes to resign his employment with the Company effective December 2,
2005 and the Company and Employee intend to enter into an Independent
Contractor Agreement with the Company, effective as of December 2, 2005
(the “Independent Contractor Agreement”)


 


WHEREAS,
the Parties wish to resolve fully and finally any potential claims by Employee
against the Company and any other potential disputes between the Parties; and


 


WHEREAS,
in order to accomplish this end, the Parties are willing to enter into this
Agreement.


 


NOW THEREFORE,
in consideration of the mutual promises and undertakings contained herein, the
sufficiency of which is acknowledged by the Parties, the Parties to this
Agreement agree as follows:


 


TERMS


 


1.  Resignation and Effective Date.  Employee hereby resigns his employment
effective December 2, 2005 (the “Separation
Date”).  This Agreement shall
become effective (the “Effective Date”)
on the eighth day after Employee’s execution of this Agreement, provided that
Employee has not revoked Employee’s acceptance pursuant to Section 6.e.
below.  Employee acknowledges and agrees
all rights of Employee under the Severance Agreement are terminated as of the
Separation Date and that the payment made pursuant to Section 2.a. below
is in full satisfaction and settlement of all existing claims and entitlements
of Employee under the Severance Agreement.


 


2.  Separation Package.


 


a.             Separation
Pay.  As of the Effective Date, and
on the express condition that Employee has not rescinded this Agreement, the
Company will pay Employee a one-time lump sum payment of $102,003.59, less
applicable withholdings and deductions.


 





















 


These payments (less applicable taxes and other deductions) will be
mailed or direct deposited to the Employee.


 


b.             Medical &
Dental Benefits. The Employee shall not be entitled to medical or dental
benefits.


 


c.             Taxes.  If, for any reason, at any time, a claim is
made against the Company for any tax or withholding in connection with or
arising out of any payment made or consideration provided under this Section 2
of this Agreement, Employee shall respond to any such claim within thirty (30)
days of being notified by the Company, and Employee agrees to indemnify the
Company and hold it harmless against such claims, including, but not limited
to, taxes, attorneys’ fees, penalties and/or interest, which are or become due
from the Company.


 


3.  General Release.


 


a.             The Employee, for
himself, and for his affiliates, successors, heirs, subrogees, assigns,
principals, agents, partners, employees, associates, attorneys and
representatives voluntarily, knowingly and intentionally releases and
discharges (1) the Company and its predecessors, successors, parents,
subsidiaries, affiliates, and assigns, and (2) each of their respective
officers, directors, principals, shareholders, agents, attorneys, board
members, and employees from any and all claims, actions, liabilities, demands,
rights, damages, costs, expenses, and attorneys’ fees (including but not
limited to any claim of entitlement for attorneys’ fees under any contract,
statute, or rule of law allowing a prevailing party or plaintiff to
recover attorneys’ fees), of every kind and description from the beginning of
time through the Effective Date (the “Released
Claims”).


 


b.             The Released Claims
include but are not limited to those which arise out of, relate to, or are
based upon: (i) Employee’s employment with the Company or the separtion
thereof; (ii) statements, acts or omissions by the Company whether in its
individual or representative capacities, (iii) express or implied
agreements between the Parties (including, without limitation, (iv) any
stock option grant, agreement, or plan (except as provided herein), (v) the
Severance Agreement, (vi) all state and federal statutes, including but
not limited to claims based on race, sex, disability, age, or any other
characteristic of Employee under the Americans with Disabilities Act, the Older
Worker’s Benefit Protection Act, the Age Discrimination in Employment Act, the
Fair Labor Standards Act, the Equal Pay Act, Title VII of the Civil Rights Act
of 1964 (as amended), the Employee’s Retirement Income Security Act of 1974,
the Rehabilitation Act of 1973, and/or the Worker Adjustment and Retraining
Notification Act, (vii) any federal and state common law, and (viii) any
claim which was or could have been raised by Employee.


 


4.  Unknown Facts.  This Agreement includes claims of every
nature and kind, known or unknown, suspected or unsuspected.  Employee hereby acknowledges that Employee
may hereafter discover facts different from, or in addition to, those which
Employee now knows to be or believes to be true with respect to this Agreement,
and Employee agrees that this Agreement and the releases contained herein shall
be and remain effective in all respects, notwithstanding such different or
additional facts or the discovery thereof.


 


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5.  No Admission of Liability.  The Parties agree that nothing contained
herein, and no action taken by any party hereto with regard to this Agreement,
shall be construed as an admission by any party of liability or of any fact
that might give rise to liability for any purpose whatsoever.


 


6.  Representations and Warranties.  Employee represents and warrants as follows:


 


a.                                       He
has read this Agreement and agrees to the conditions and


 


obligations set forth in
it;


 


b.             He
has been advised to consult with an attorney prior to executing this Agreement
and voluntarily executes this Agreement after having had full opportunity to
consult with counsel and without being pressured or influenced by any statement
or representation of any person acting on behalf of the Company, including its
attorneys, officers, shareholders, directors, employees and agents;


 


c.             He
has had at least twenty-one days in which to consider the terms of this
Agreement.  In the event that Employee
executes this Agreement in less time, it is with the full understanding that he
had the full twenty-one days if he so desired and that he was not pressured by
the Company or any of its representatives or agents to take less time to
consider the Agreement.  In such event,
Employee expressly intends such execution to be a waiver of any right he had to
review the Agreement for a full twenty-one days;


 


d.             He
has no knowledge of the existence of any lawsuit, charge, or proceeding
initiated by him against the Company or any of its officers, directors, agents,
or employees arising out of or otherwise connected with any of the matters
herein released;


 


e.             He
has been informed and understands that (i) to the extent that this
Agreement waives or releases any claims he might have under the Age
Discrimination in Employment Act, he may rescind his waiver and release within
seven calendar days of his execution of this Agreement, and (ii) any such
rescission must be in writing and hand delivered to the Company addressed as
follows:


 


Fischer Imaging Corporation


Attn: Gail Schoettler

12300 North Grant Street


Denver, CO 80241


 


and


 


f.              He
has full and complete legal capacity to enter into this Agreement.


 


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7.  Severability.  If any provision of this Agreement is held
illegal, invalid, or unenforceable, such holding shall not affect any other
provisions hereof.  In the event any
provision is held illegal, invalid or unenforceable, such provision shall be
limited so as to effect the intent of the parties to the fullest extent
permitted by applicable law.  Any claim
by Employee against the Company shall not constitute a defense to enforcement
by the Company of this Agreement.


 


8.  Enforcement.  The Release contained herein does not release
any claims for enforcement of the terms, conditions or warranties contained in
this Agreement.  The Parties shall be
free to pursue any remedies available to them to enforce this Agreement subject
to Section 10.


 


9.  Entire Agreement.  With the exception only of the Independent
Contractor Agreement and the Employee Proprietary Information Agreement, dated June 8,
2004, between the Company and Employee, and as otherwise set forth herein, this
Agreement constitutes the entire agreement between the Parties.  This Agreement supersedes any and all prior
agreements (except those described in the first sentence of this Section) and
cannot be modified except in writing signed by all Parties.


 


10.  Venue, Applicable Law and Submission to
Jurisdiction.  This Agreement shall
be interpreted and construed in accordance with the laws of the State of
Colorado, without regard to its conflicts of law provisions.  Any disputes arising under this Agreement or
by any asserted breach of it, or from the employment relationship between the
Company and the Employee, shall be litigated in the state or federal courts in
Colorado.


 


11.  Counterparts.  This Agreement may be executed in
counterparts.


 


12.  Non-Disparagement.  Employee agrees not to make to any person any
statement that disparages the Company or reflects negatively upon the Company,
including, without limitation, statements regarding the Company’s financial
condition, business practices, employment practices, or its predecessors,
successors, parents, subsidiaries, officers, directors, employees, or
affiliates.  The Company agrees not to
make to any person any statement that disparages Employee or reflects
negatively on Employee.


 


13.  Assignment.  The Company may assign its rights under this
Agreement.  Employee cannot assign
Employee’s rights under this Agreement without the written consent of the
Company.  No other assignment is
permitted except by written permission of the Parties.


 


* * * * *


 


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IN
WITNESS WHEREOF, the Parties have executed this Agreement on the dates written
below.


 


 


	
  EMPLOYEE

  	
  FISCHER IMAGING
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Steven L.
  Durnil

  	
   

  	
  /s/ Gail
  Schoettler

  	
   

  
	
  Steven L. Durnil

  	
  Name: Gail
  Schoettler

  
	
   

  	
  Title: Chair of
  the Board

  
	
   

  	
   

  
	
   

  	
   

  
	
  December 14,
  2005

  	
   

  	
  December 14,
  2005

  	
   

  
	
  Date

  	
  Date