SETTLEMENT AGREEMENT

        THIS SETTLEMENT AGREEMENT (the "Agreement") is entered into among Fischer Imaging Corporation ("Fischer"), a Delaware corporation, on the one hand, and Thermo Electron Corporation ("Thermo") and Trex Medical Corporation ("Trex"), each a Delaware corporation, on the other hand, effective as of the last date of signature below (the "Effective Date").

Recitals

1.

In 1992, Fischer sued Lorad Corporation for alleged infringement of United States Patent No. 5,078,142 (the "142 Patent") in the United States District Court for the District of Colorado in Civil Action No. 92-MK-619, and Lorad Corporation filed counterclaims for a declaratory judgment as well as other claims, which counterclaims (except for the claim for declaratory judgment) were separated from Civil Action No. 92-MK-619 into Civil Action No. 93-MK-1588, also pending in the United States District Court for the District of Colorado. The parent corporation of Trex later acquired Lorad Corporation, and the assets and business of Lorad were subsequently contributed to Trex and became an unincorporated division within Trex. In 1998, Fischer sued Trex for alleged infringement of United States Patent No. 5,735,264 (the "264 Patent") in the United States District Court for the District of Colorado in Civil Action 98-MK-772. Therein, Trex filed counterclaims for a declaratory judgment as well as for antitrust and other claims. The Court separated all counterclaims (except the claim for a declaratory judgment) asserted by Trex, and consolidated these claims with those pending in Civil Action No. 93-MK-1588 (such action, together with any and all counterclaims associated therewith, the "Trex/Fischer Antitrust Action"). The Court then consolidated Civil Action 92-MK-619 for all purposes with Civil Action 98-MK-772 (such action, together with any and all counterclaims associated therewith, the "Fischer/Trex Action").

2.

In 2000, Trex sold assets of its Lorad business ("Lorad") to Hologic, Inc. ("Hologic"), a Delaware corporation, pursuant to the Asset Purchase and Sale Agreement among Trex Medical Systems Corporation, Trex Medical Corporation, Thermotrex Corporation, Thermo Electron Corporation and Hologic, Inc. dated August 13, 2000 (the "Trex/Hologic Agreement"), which, under Article VI, contains indemnity provisions concerning litigation or potential litigation involving Fischer.

3.

In November 2001, Fischer sued Hologic for alleged infringement of the "264 Patent in the United States District Court for the District of Massachusetts, Civil Action No. 01-11943 WGY (such action, together with any and all counterclaims associated therewith, the "Fischer/Hologic Action").

4.

Fischer has also filed an action in Germany before the District Court of Duesseldorf for infringement of the German Part enumerated DE 692 31 238 T1 of European Patent No. 0 625 024, which action is styled Fischer Imaging Corporation, Denver, USA vs. MMS Medicor Medical Supplies GmbH, Kerpen, Germany, and Lorad, Inc., Danbury, USA, court file number 4 0 4199/01 (such action, together with any and all counterclaims associated therewith, the "German Action"), and Fischer has filed an action in France before the Tribunal de Grande Instance de Paris (Paris Court of First Instance) under No. RG 01/19791 for infringement of the French Part (such French translation having been submitted to the Institut National de la Proprit Industrielle, as indicated in the Bulletin Officiel de la Proprit Industrielle No. 49, dated December 8, 2000) of European Patent No. 0 625 024, which action is styled Fischer Imaging Corp. v. Hologic, Inc., Lorad, Inc., Hologic S. A., Stephanix S. A., and Trophy Radiologie S. A. (such action, together with any and all counterclaims associated therewith, the "French Action").

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5.

Hologic has filed a Nichtigkeitsklage (nullity complaint) before the Federal Patent Court in Munich, Germany, styled Hologic Inc., Bedford, USA vs Fischer Imaging Corporation, Inc. Denver, USA, court file No. 4 Ni 7/02 (EU), against the German Part enumerated DE 692 31 238 of European Patent No. 0 625 024 (such action, together with any and all counterclaims associated therewith, the "Hologic Opposition Action").

6.

The parties desire, inter alia, to settle the Fischer/Trex Action, the Trex/Fischer Antitrust Action, the Fischer/Hologic Action, the German Action, the French Action and the Hologic Opposition Action (collectively, the "Litigation"). In view of the foregoing, and without admitting the validity of any assertion, contention or defense made in the Litigation, the Parties have agreed to settle the Litigation on the terms set forth herein.

Agreement

        In consideration of the mutual promises, covenants, payments and releases contemplated herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Fischer on the one hand and Thermo and Trex on the other hereby agree as follows:

Article I
Definitions

1.01

"Actions and Claims" shall mean any and all actions, causes of action, suits, claims, rights, liabilities, demands, damages, losses, costs and expenses, of every kind and nature whatsoever, in law or in equity, negligent or intentional, known or unknown, fixed or contingent, accrued or not accrued, foreseen or unforeseen, matured or not matured.

1.02

"Affiliate" shall mean any entity that is controlled by, controls or is under common control with another entity. "Control" for these purposes shall mean (a) in the case of corporate entities, direct or indirect ownership of at least 50% of the stock or shares having the right to vote for the election of directors, and (b) in the case of non-corporate entities, direct or indirect ownership of at least 50% of the equity interest with the power to direct the management and policies of such entity.

1.03

"Fischer Parties" shall mean any or all of the Fischer Released Parties and the Fischer Third Party Releasees.

1.04

"Fischer Released Parties" shall mean any or all of (a) Fischer, (b) the current, former and future Affiliates of Fischer, (c) the successors and assigns of the entities and individuals described in clauses (a) and (b) of this Section 1.04, and (d) the officers, directors and employees of the entities and individuals described in clauses (a), (b) and (c) of this Section 1.04.

1.05

"Fischer Third Party Releasees" shall mean any or all of (a) the distributors, customers, agents, licensees and contract manufacturers of the Fischer Released Parties, (b) the current, former and future Affiliates of the entities and individuals described in clause (a) of this Section 1.05, (c) the successors and assigns of the entities and individuals described in clauses (a) and (b) of this Section 1.05, and (d) the officers, directors and employees of the entities and individuals described in clauses (a), (b) and (c) of this Section 1.05.

1.06

"Hologic Released Parties" shall mean any or all of (a) Hologic, (b) the distributors, customers, agents, licensees and contract manufacturers of Hologic, (c) the current, former and future Affiliates of the entities and persons described in clauses (a) and (b) of this Section 1.06, (c) the successors and assigns of the entities and individuals described in clauses (a), (b) and (c) of this Section 1.06, and (e) the officers, directors and employees of the entities and individuals described in clauses (a), (b), (c) and (d) of this Section 1.06.

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1.07

"Licensed Non-U.S. Patents" shall mean European Patent No. 0 625 024 and all Parts thereof, including but not limited to the German Part (enumerated DE 692 31 238) and the French Part (as described in paragraph 5 above), any other non-U.S. counterparts of the Licensed U.S. Patents, and any reissues, extensions, continuations, divisions, foreign counterparts or continuations in part thereof, and any other patent claiming priority to the applications resulting in the "142 Patent, the "264 Patent, United States Patent No. 5,240,011, United States Patent No. 5,415,169, United States Patent No. 5,803,912 or United States Patent No. 6,022,325.


 

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