Exhibit 10.4


 


INDEPENDENT CONTRACTOR AGREEMENT


 


THIS
INDEPENDENT CONTRACTOR AGREEMENT (“Agreement”) is made and entered into as of
the 2nd day of December, 2005 (“Effective
Date”), by and between Fischer Imaging Corporation, a Delaware corporation (the
“Company”), and David Kirwan (“Independent Contractor”).


 


WITNESSETH:


 


WHEREAS,
the Company wishes to engage Independent Contractor as a consultant and
Independent Contractor wishes to accept such engagement upon the terms and
conditions hereinafter provided.


 


NOW,
THEREFORE, in consideration of the mutual covenants and
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by the parties hereto,
it is hereby agreed as follows:


 


1.             Engagement; Independent Contractor.  Company hereby engages Independent Contractor
as a consultant and Independent Contractor hereby accepts such engagement.  Independent Contractor acknowledges and
agrees that he is acting as an independent contractor and not as an employee of
the Company.  The manner of and means by
which Independent Contractor executes and performs his obligations hereunder
are to be determined by Independent Contractor in his reasonable discretion.


 


2.             Representations and
Warranties.  Independent Contractor represents, warrants,
and acknowledges as follows:


 


(a)           The Company only retains the right to
direct the results achieved by Independent Contractor.  The Company does not retain the right to
control the manner and means by which these results are to be accomplished, nor
will the Company establish a quality standard for Independent Contractor.


 


(b)           Independent Contractor shall determine
when, where, and how he is to perform Services under this Agreement.  There shall be no set hours during which
Independent Contractor must work.  There
shall be no requirement that Services be performed upon the premises of the
Company.  The Company retains no right of
control in these areas.


 


(c)           The Company will neither provide nor
require training for Independent Contractor.


 


(d)           Independent Contractor will remain
directly responsible for the Services performed and will ensure that the work
meets the specifications set forth by the Company.


 


(e)           Independent Contractor shall be paid in
accordance with Section 5 below.


 





















 


3.             Effective Date and Term.  This Agreement shall be effective as of the
Effective Date and shall continue in force thereafter until March 31,
2006, unless (i) extended for an additional period by the parties’ mutual
written agreement, and/or (ii) earlier terminated pursuant to Section 7.


 


4.             Services.  Independent Contractor shall provide the
consulting services described on Schedule A (“Services”) at the
direction of and in consultation with the Company. Independent Contractor
agrees to faithfully, promptly and to the best of his ability perform such
Services.  The parties expect that the
performance of the Services will require at least forty (40) hours per week.
Independent Contractor agrees to provide the Company from time to time with
reports, when requested and in the form requested by the Company, updating the
Company as to the status of matters being handled by the Independent
Contractors.


 


5.             Compensation.


 


(a)           Consulting
Fees.  Company shall pay Independent
Contractor a consulting fee for the Services as set forth on Schedule B.


 


(b)           Payment.  The Company shall pay consulting fees to
Independent Contractor two weeks in advance of Services performed.  Independent Contractor shall provide the
Company with a written monthly invoice setting forth the consulting fees, with
a written description of the work performed.


 


(c)           Taxes.  No income tax or payroll tax of any kind
shall be withheld or paid by the Company on behalf of Independent Contractor
for any payment under this Agreement, except as may be required by law for
payments to independent contractors.  Independent Contractor shall be responsible for all
taxes and similar payments arising out of any activities contemplated by this
Agreement, including without limitation, federal, state, and local income tax,
social security tax (FICA), self employment taxes, unemployment insurance
taxes, and all other taxes, fees, and withholdings.  Independent Contractor
acknowledges that he is solely responsible for the payment of such taxes, and
Independent Contractor agrees to indemnify and hold Company harmless from and
against any and all liability resulting from Independent Contractor’s failure
to pay such taxes.


 


6.             Benefits.  Independent Contractor is not an employee of
the Company and, therefore, shall not be entitled to any benefits, coverages,
or privileges, including, without limitation, social security, unemployment
compensation insurance, workers’ compensation insurance, medical benefits,
vacation pay, or pension payments made available to employees of the Company.


 


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7.             Insurance Coverages. 
Independent Contractor solely shall be responsible for all of his own
insurance and shall at all times maintain such types and amounts of insurance coverage
as is acceptable or required by the Company.  No workers’ compensation insurance or unemployment compensation
insurance will be obtained by the Company on behalf of Independent
Contractor.  Independent Contractor
solely shall be responsible for obtaining unemployment compensation insurance
and workers’ compensation insurance for Independent Contractor, and Independent
Contractor solely shall be responsible for complying with all applicable
workers’ compensation and unemployment compensation laws.


 


8.             Termination.


 


(a)           The
Company or Independent Contractor may terminate this Agreement upon twenty (20)
days prior written notice to the other party.


 


(b)           The
Company may terminate this Agreement immediately upon written notice to
Independent Contractor if Independent Contractor is in breach of this
Agreement.


 


9.             Confidential Information.  Independent Contractor acknowledges that he
possesses and in the course of his engagement with the Company and performance
of Services hereunder, will learn additional information regarding the Company,
its business and properties that is of
special and unique value to the Company, its business, trade secrets,
technology, operations, books and records and any other matters that are not
commonly known and which are proprietary to the Company and its affiliates
(collectively, the “Confidential Information”). Independent Contractor agrees
to use the Confidential Information only for purposes of this Agreement, and
that all other uses or disclosures of the Confidential Information are strictly
prohibited.  Upon termination of his
engagement hereunder, or at any time upon request of the Company, Independent
Contractor shall surrender to the Company all papers, documents, writings and
other property produced by him or coming into his possession by or through his
engagement hereunder and relating to Confidential Information. Independent
Contractor agrees that all such materials will at all times remain the property
of the Company.  The agreements in this Section 9
shall survive the termination of this Agreement for a period of two (2) years.


 


10.           Company Policies/ Compliance with Law.  Independent Contractor agrees to comply
with the written policies of the Company and applicable law in the performance
of the Services.  The Company shall
promptly notify Independent Contractor of any modifications to its policies.


 


11.           Indemnification.  The Company shall indemnify, defend and hold
harmless Independent Contractor for, from and against any claims, damages,
costs, liabilities and demands resulting from Independent Contractor’s
performance of the Services (whether arising out of strict liability or
otherwise) to the full extent permitted by, and in the manner permissible
under, the laws of the State of Delaware. 
The foregoing indemnity provision shall survive the expiration or any
earlier termination of this Agreement. 
The Company will use its best efforts to maintain directors’ and
officers’ liability insurance for the benefit of Independent Contractor.


 


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12.           Enforcement.  The parties hereto agree that money damages
would be an inadequate remedy for any breach by Independent Contractor of Section 9.  Therefore, in the event of a breach or
threatened breach of Section 9 of this Agreement, the Company will be
entitled to injunctive relief, in addition to other rights and remedies
existing in its favor at law or in equity in order to enforce, or prevent any
violations of, the provisions hereof (without posting a bond or other
security).


 


13.           Notices.  Any notice provided pursuant to this
Agreement or applicable law must be in writing and must be delivered to the
recipient by certified or registered mail, a nationally recognized overnight
courier, or personal delivery to the address below indicated:


 


If to Independent
Contractor:


 


David
Kirwan


2771
Castle Butte Dr.


Castle
Rock, CO 80119


Tel:  (303) 681-0825


 


If to the Company:  
                                                                                    Fischer
Imaging Corporation


12300
North Grant Street


Denver,
Colorado  80241


Attn:  Gail Schoettler


 


Tel:  (303) 452-6800


Fax:  (303) 252-4256


 


14.           Counterparts.  This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.


 


15.           Miscellaneous.  Neither party may assign its rights or
obligations under this Agreement.  This
instrument is the sole and entire agreement between the parties as to the
subject matter hereof and supersedes all prior oral or written arrangements or
agreements.  None of the terms or
provisions of this Agreement may be altered, amended, modified, or discharged
except by an agreement in writing executed after the date of this Agreement by
the parties hereto.  The waiver of any
breach or default under any terms of this Agreement shall not be construed to
be the waiver of a subsequent breach or default under this Agreement.


 


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16.           Governing Law.  This Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado.


 


IN WITNESS WHEREOF, each of the parties
hereto has executed this Agreement as of the date and year first above written.


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  	
  FISCHER IMAGING
  CORPORATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gail
  Schoettler

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gail Schoettler

  
	
   

  	
   

  	
  Title:

  	
  Chair of the
  Board of Directors

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CONSULTANT:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  /s/ David Kirwan

  	
   

  
	
   

  	
   

  	
  Name:

  	
  David Kirwan

  
						



 


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SCHEDULE A


 


SERVICES


 


Independent
Contractor shall serve as Vice President and Chief Financial Officer of the Company and shall perform the
duties and obligations of such office and such other tasks and duties as are
reasonably requested from time to time by the Board of Directors.


 


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SCHEDULE B


 


COMPENSATION


 


Independent
Contractor shall be paid a fixed weekly fee of $5,200.


 


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