EXHIBIT 10.7
INDEMNIFICATION AGREEMENT
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This Indemnification Agreement ("Agreement"), effective as of the ____ day
of ________________, 1996, by and between InSight Health Services Corp., a
Delaware corporation (the "Corporation"), and the undersigned director or
officer of the Corporation (the "Indemnitee").
W I T N E S S E T H:
WHEREAS, the Indemnitee is either a member of the board of directors of the
Corporation (the "Board of Directors"), or an officer of the Corporation, or
both, and in such capacity or capacities is performing a valuable service for
the Corporation; and
WHEREAS, the Certificate of Incorporation and Bylaws of the Corporation
require the Corporation to indemnify and advance expenses to its directors,
officers, employees and agents to the fullest extent permitted by law, and the
Indemnitee is willing to serve, continue to serve, and take on additional
service for or on behalf of the Corporation in reliance on the indemnification
provided therein and herein; and
WHEREAS, it is intended that the Indemnitee shall be paid promptly by the
Corporation all amounts necessary to effectuate in full the indemnity provided
herein.
NOW, THEREFORE, in consideration of the premises and the covenants in this
Agreement, and intending to be legally bound hereby, the parties hereto agree as
follows:
1. Certain Definitions.
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a. "Affiliate" shall mean any person that, directly or indirectly
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through one or more intermediaries, controls, is controlled by, or is under
common control with, the person specified.
b. "Change in Control" shall be deemed to have occurred if:
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(1) Any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act), other than a trustee or other fiduciary
holding securities under an employee benefit plan of the Corporation
or an entity owned directly or indirectly by or for the benefit of the
stockholders of the Corporation in substantially the same proportions
as their ownership of stock of the Corporation, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Corporation representing
twenty percent (20%) or more of the total voting power represented by
the Corporation's then outstanding voting securities, excluding,
however, ownership of voting securities by The General Electric
Company, the Estate of Cal Kovens, Roz Kovens, or their Affiliates and
excluding ownership of voting securities by persons whose acquisitions
thereof have been approved by at least two-thirds (2/3) of the
Corporation's directors who hold office when such ownership first
exceeded such twenty percent (20%) threshold; or
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(2) During any period of two (2) consecutive years, individuals
who at the beginning of such period constitute the Board of Directors
and any new director whose election by the Board of Directors or
nomination for election by the Corporation's stockholders was approved
by a vote of at least two-thirds (2/3) of the directors then still in
office who either were directors at the beginning of the period or
whose election or nomination for election was previously so approved,
cease for any reason to constitute a majority thereof; or
(3) The stockholders of the Corporation approve a merger or
consolidation of the Corporation with any other corporation, other
than a merger or consolidation which would result in the voting
securities of the Corporation outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least
fifty-five percent (55%) of the total voting power represented by the
voting securities of the Corporation or such surviving entity
outstanding immediately after such merger or consolidation, excluding,
however, the transactions contemplated by that certain Agreement and
Plan of Merger by and among the Corporation, American Health Services
Corp., AHSC Acquisition Company, Maxum Health Corp., and MXHC
Acquisition Company dated as of February 26, 1996, or the stockholders
of the Corporation approve a plan of complete liquidation of the
Corporation or an agreement for the sale or disposition by the
Corporation of all or substantially all of the Corporation's assets.
c. "Disinterested Director" shall mean a director of the Corporation
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who is not or was not a party to the Proceeding in respect of which
indemnification is being sought by the Indemnitee.
d. "Exchange Act" shall mean the Securities Exchange Act of 1934, as
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amended.
e. "Expenses" shall include all direct and indirect costs
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(including, without limitation, attorneys' fees, retainers, court costs,
transcripts, fees of experts, witness fees, travel expenses, duplicating
costs, printing and binding costs, telephone charges, postage, delivery
service fees, all other disbursements or out-of-pocket expenses and
reasonable compensation for time spent by the Indemnitee for which the
Indemnitee is otherwise not compensated by the Corporation) actually and
reasonably incurred in connection with a Proceeding relating to any
Indemnifiable Event or establishing or enforcing a right to indemnification
under this Agreement, applicable law or otherwise, provided, however, that
"Expenses" shall not include any Liabilities.
f. "Final Adverse Determination" shall mean that a determination
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that the Indemnitee is not entitled to indemnification shall have been made
pursuant to Section 7 hereof and either (i) a final adjudication in a court
of competent jurisdiction pursuant to Section 9.a. hereof shall have denied
the Indemnitee's right to indemnification hereunder, or (ii) the Indemnitee
shall have failed to file a complaint in a court of competent jurisdiction
pursuant to Section 9.a. for a period of one hundred twenty (120) days
after the determination made pursuant to Section 7 hereof.
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g. "Indemnifiable Event" shall mean any event or occurrence that
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takes place either prior to or after the execution of this Agreement,
related to the fact that the Indemnitee is or was a director or officer of
the Corporation, or while a director or officer, is or was serving at the
request of the Corporation as a director, officer, employee, trustee, agent
or fiduciary of another corporation, partnership, joint venture, employee
benefit plan, trust or other enterprise or by reason of anything done or
not done by the Indemnitee in any such capacity.
h. "Indemnification Period" shall mean the period of time during
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which the Indemnitee shall continue to serve as a director or officer of
the Corporation, and thereafter so long as the Indemnitee shall be subject
to any possible Proceeding arising out of an Indemnifiable Event.
i. "Independent Legal Counsel" shall mean a law firm or a member of
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a law firm selected by the Corporation and approved by the Indemnitee
(which approval shall not be unreasonably withheld) or, if there has been a
Change in Control, selected by the Indemnitee and approved by the
Corporation (which approval shall not be unreasonably withheld) and that
neither is presently nor in the past five (5) years has been retained to
represent: (i) the Corporation or any of its subsidiaries or affiliates, or
the Indemnitee or any corporation as to which the Indemnitee was or is a
director, officer, employee or agent, or any subsidiary or affiliate of
such a corporation, in any material matter, or (ii) any other party to the
Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term "Independent Legal Counsel" shall
not include any person, who under the applicable standards of professional
conduct then prevailing, would have a conflict of interest in representing
either the Corporation or the Indemnitee in an action to determine the
Indemnitee's right to indemnification under this Agreement.
j. "Liabilities" shall mean liabilities of any type whatsoever
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including, but not limited to, any judgments, fines, ERISA excise taxes and
penalties, penalties and amounts paid in settlement (including all interest
assessments and other charges paid or payable in connection with or in
respect of such judgments, fines, penalties or amounts paid in settlement)
or any Proceeding.
k. "Proceeding" shall mean any threatened, pending or completed
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action, claim, suit, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing or any other proceeding whether
civil, criminal, administrative or investigative, including any appeal
therefrom.
l. "Reviewing Party" shall mean the persons selected to review the
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Indemnitee's requests pursuant to Section 7.b. hereof.
2. Services by the Indemnitee. The Indemnitee agrees to serve as a
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director or officer of the Corporation, or both, so long as he or she is duly
appointed or elected and qualified in accordance with the applicable provisions
of the Certificate of Incorporation and Bylaws of the Corporation or any
subsidiary of the Corporation and until such time as he or she resigns or fails
to stand for election or is removed from his or her position. The Indemnitee
may at any time and for
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any reason resign or be removed from such position (subject to any other
contractual obligation or other obligation imposed by operation of law), in
which event the Corporation shall have no obligation under this Agreement to
continue the Indemnitee in any such position.
3. Indemnification.
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a. Proceedings Brought by Third Parties. In the event the
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Indemnitee was, is or becomes a party to or witness or other participant
in, a Proceeding, other than a Proceeding brought by or in the right of the
Corporation, by reason of (or arising in part out of) an Indemnifiable
Event, the Corporation shall indemnify the Indemnitee against Expenses and
Liabilities actually and reasonably incurred by the Indemnitee or on his or
her behalf in connection with such Proceeding, including the costs of any
investigation, defense, settlement or appeal, to the fullest extent
permitted by applicable law, the Certificate of Incorporation or the Bylaws
of the Corporation in effect on the date hereof or as such law, Certificate
of Incorporation or Bylaws may from time to time be amended (but, in the
case of any such amendment, only to the extent such amendment permits the
Corporation to provide broader indemnification rights than the law, the
Certificate of Incorporation or the Bylaws permitted the Corporation to
provide before such amendment).
b. Proceedings Brought By or in the Right of the Corporation. In
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the event the Indemnitee was, is or becomes a party to or witness or other
participant in, a Proceeding brought by or in the right of the Corporation
by reason of (or arising in part out of) an Indemnifiable Event, the
Corporation shall indemnify the Indemnitee against Expenses and Liabilities
actually and reasonably incurred in connection with such Proceeding by the
Indemnitee or on his or her behalf in connection with such Proceeding,
including the costs of any investigation, defense, settlement or appeal,
unless the Reviewing Party reasonably determines that the Indemnitee would
be precluded from indemnification under applicable law.
c. Proceedings Brought by the Indemnitee. Notwithstanding anything
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in this Agreement to the contrary and except as provided in Section 9, the
Indemnitee shall not be entitled to indemnification pursuant to this
Agreement in connection with any Proceeding or claim connected with a
Proceeding, including a cross-claim or counter-claim (a "Claim"), initiated
by the Indemnitee against the Corporation or any director, officer or key
employee of the Corporation, unless the Corporation has joined in or
consented to the initiation of such Proceeding or Claim.
d. Limitations on Indemnification. No indemnification shall be made
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with respect to any claim, issue or matter if the Indemnitee was finally
adjudged to be liable to the Corporation by a court of competent
jurisdiction due to his or her gross negligence or willful misconduct
unless and to the extent that a Delaware Court of Chancery or the court in
which the action was heard determines that the Indemnitee is entitled to
indemnification for such amounts as the court deems proper. Further, no
indemnification shall be made for the accounting of profits made from the
purchase or sale by the Indemnitee of securities of the Corporation within
the meaning of Section 16(b) of the Exchange Act, or similar provisions of
any state statutory or common law. In addition to, and not as a limitation
of,
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the foregoing, the rights of indemnification of Indemnitee provided under
this Agreement shall include those rights set forth in Sections 4, 8, 9 and
13 below.
e. Contractual Right. The right to indemnification provided in the
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Bylaws shall be presumed to have been relied upon by the Indemnitee in
serving or continuing to serve the Corporation and shall be enforceable as
a contract right.
f. Payment. The Indemnitee shall be paid promptly by the
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Corporation all amounts necessary to effectuate the foregoing indemnity.
4. Advance of Expenses. All reasonable Expenses incurred by or on behalf
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of the Indemnitee shall be advanced from time to time by the Corporation to him
within thirty (30) days after the Corporation's receipt of a written request for
an advance of Expenses, whether prior to or after final disposition of a
Proceeding (except to the extent that there has been a Final Adverse
Determination that the Indemnitee is not entitled to be indemnified for such
Expenses), including without limitation any Proceeding brought by or in the
right of the Corporation. The written request for an advancement of any and all
Expenses under this paragraph shall contain reasonable detail of the Expenses
incurred by Indemnitee. If required by law at the time of such advance, the
Indemnitee hereby agrees to repay the amounts advanced if it is ultimately
determined that the Indemnitee is not entitled to be indemnified pursuant to the
terms of this Agreement.
5. Limitations. The foregoing indemnity and advancement of Expenses
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shall apply only to the extent that the Indemnitee has not been indemnified and
reimbursed pursuant to such insurance as the Corporation may maintain for the
Indemnitee's benefit, or otherwise; provided, however, that notwithstanding the
availability of such other indemnification and reimbursement, the Indemnitee may
claim indemnification and advancement of Expenses pursuant to this Agreement by
assigning to the Corporation, at its request, the Indemnitee's claims under such
insurance to the extent the Indemnitee has been paid by the Corporation.
6. Insurance and Funding. The Corporation may purchase and maintain
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insurance to protect itself or the Indemnitee against any Expenses and
Liabilities in connection with any Proceeding to the fullest extent permitted by
applicable laws. The Corporation may create a trust fund, grant an interest or
use other means (including, without limitation, a letter of credit) to ensure
the payment of such amounts as may be necessary to effect indemnification or
advancement of Expenses as provided in this Agreement.
7. Procedure for Determination of Entitlement to Indemnification.
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a. Whenever the Indemnitee believes that he or she is entitled to
indemnification pursuant to this Agreement, the Indemnitee shall submit a
written request for indemnification to the Corporation. Any request for
indemnification shall include sufficient documentation or information
reasonably available to Indemnitee to support his claim for
indemnification. The Indemnitee shall submit the claim for indemnification
within a reasonable time, not to exceed five (5) years after any judgment,
order, settlement, dismissal, arbitration award, conviction, acceptance of
a plea of nolo contendere or its equivalent, final termination or other
disposition or partial disposition of any Proceeding, whichever is the
later date for
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which the Indemnitee requests indemnification. The President or the
Secretary or other appropriate officer shall, promptly upon receipt of the
Indemnitee's request for indemnification, advise the Board of Directors in
writing that Indemnitee has made such request. Determination of
Indemnitee's entitlement to indemnification shall be made not later than
sixty (60) days after the Corporation's receipt of his or her written
request for such indemnification; if no determination has been made in such
60-day period, the Corporation shall be deemed to have approved the
request.
b. The Indemnitee shall be entitled to select the Reviewing Party to
hearing the Indemnitee's request for indemnification, which selection shall
be included in the written request for indemnification required in Section
7.a. The Reviewing Party shall be any one of the following:
(1) The stockholders of the Corporation;
(2) A quorum of the Board of Directors consisting of
Disinterested Directors;
(3) Independent Legal Counsel, who shall make the determination
in a written opinion; or
(4) A panel of three arbitrators, one selected by the
Corporation, another by the Indemnitee and the third by the first two
arbitrators selected. If for any reason three arbitrators are not
selected within thirty (30) days after the appointment of the first
arbitrator, then selection of additional arbitrators shall be made by
the American Arbitration Association. If any arbitrator resigns or is
unable to serve in such capacity for any reason, the American
Arbitration Association shall select such arbitrator's replacement.
The arbitration shall be conducted pursuant to the commercial
arbitration rules of the American Arbitration Association now in
effect.
If the Indemnitee fails to designate a Reviewing Party, his or her
claim shall be determined by an appropriate court of the State of Delaware.
c. Upon making a request for indemnification, the Indemnitee shall
be presumed to be entitled to indemnification under this Agreement and the
Corporation shall have the burden of proof to overcome that presumption in
reaching any contrary determination. The termination of any Proceeding by
judgment, order, settlement, arbitration award or conviction, or upon a
plea of nolo contendere or its equivalent shall not affect this presumption
or, except as provided in Section 3 or 5 hereof, establish a presumption
with regard to any factual matter relevant to determining the Indemnitee's
rights to indemnification hereunder.
8. Fees and Expenses of Independent Legal Counsel. The Corporation
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agrees to pay the reasonable fees and expenses of Independent Legal Counsel or a
panel of three arbitrators should such Independent Legal Counsel or such panel
of arbitrators be retained to make a determination of the Indemnitee's
entitlement to indemnification pursuant to Section 7 of this Agreement, and to
fully indemnify such Independent Legal Counsel or arbitrators against any and
all expenses and
INDEMNIFICATION AGREEMENT Page 6
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losses incurred by any of them arising out of or relating to this Agreement or
their engagement pursuant hereto.
9. Remedies of the Indemnitee.
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a. In the event that (i) a determination pursuant to Section 7
hereof is made that the Indemnitee is not entitled to indemnification; (ii)
advances of Expenses are not made pursuant to this Agreement; (iii) payment
has not been timely made following a determination of entitled to
indemnification pursuant to this Agreement; or (iv) the Indemnitee
otherwise seeks enforcement of this Agreement, Indemnitee shall be entitled
to a final adjudication in any court of competent jurisdiction of his
rights. The Corporation shall not oppose Indemnitee's right to seek any
such adjudication. In any such proceeding the Indemnitee shall be presumed
to be entitled to indemnification under this Agreement and the Corporation
shall have the burden of proof to overcome that presumption.
b. In the event that a determination that the Indemnitee is not
entitled to indemnification, in whole or in part, has been made pursuant to
Section 7 hereof, the decision in the judicial proceeding provided in
Section 9.a. shall be made de novo and the Indemnitee shall not be
prejudiced by reason of a determination that he is not entitled to
indemnification.
c. If a determination that the Indemnitee is entitled to
indemnification has been made pursuant to Section 7 hereof or otherwise
pursuant to the terms of this Agreement, the Corporation shall be bound by
such determination in the absence of (i) a misrepresentation of a material
fact by the Indemnitee or (ii) a specific finding (which has become final)
by a court of competent jurisdiction that all or any part of such
indemnification is expressly prohibited by Delaware law.
d. In any court proceeding pursuant to this Section 9, the
Corporation shall be precluded from asserting that the procedures and
presumptions of this Agreement are not valid, binding and enforceable. The
Corporation shall stipulate in any such court that the Corporation is bound
by all the provisions of this Agreement and is precluded from making any
assertion to the contrary.
e. Expenses reasonably incurred by Indemnitee in connection with his
request for indemnification under this Agreement, seeking enforcement of
this Agreement or to recover damages for breach of this Agreement shall be
borne by the Corporation.
10. Modification, Waiver, Termination and Cancellation. No supplement,
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modification, termination, cancellation or amendment of this Agreement shall be
binding unless executed in writing by both of the parties hereto. No waiver of
any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provisions hereof (whether or not similar), nor shall such
waiver constitute a continuing waiver.
11. Notice by the Indemnitee and Defense of Claim. The Indemnitee shall
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promptly notify the Corporation in writing upon being served with any summons,
citation, subpoena,
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complaint, indictment, information or other document relating to any matter,
whether civil, criminal, administrative or investigative, but the omission so to
notify the Corporation will not relieve it from any liability which it may have
to Indemnitee if such omission does not prejudice the Corporation's rights. If
such omission does prejudice the Corporation's rights, the Corporation will be
relieved from liability only to the extent of such prejudice; nor will such
omission relieve the Corporation from any liability which it may have to
Indemnitee otherwise than under this Agreement. With respect to any Proceeding
as to which the Indemnitee notifies the Corporation of the commencement thereof:
a. The Corporation will be entitled to participate therein at its
own expense; and
b. The Corporation jointly with any other indemnifying party
similarly notified will be entitled to assume the defense thereof, with
counsel reasonably satisfactory to the Indemnitee; provided, however, that
the Corporation shall not be entitled to assume the defense of any
Proceeding if there has been a Change of Control or if the Indemnitee shall
have reasonably concluded that there may be a conflict of interest between
the Corporation and the Indemnitee with respect to such Proceeding. After
notice from the Corporation to the Indemnitee of its election to assume the
defense thereof, the Corporation will not be liable to the Indemnitee under
this Agreement for any Expenses subsequently incurred by the Indemnitee in
connection with the defense thereof, other (i) than reasonable costs of (A)
investigation, (B) travel, meals or accommodation, (C) copying and
transmitting documents, or (D) other activities, in each case if undertaken
at the request of the Corporation to further the defense, or to comply with
any lawful order of a court, relating to such Proceeding, or (ii) as
otherwise provided below. The Indemnitee shall have the right to employ his
or her own counsel in such Proceeding but the fees and expenses of such
counsel incurred after notice from the Corporation of its assumption of the
defense thereof shall be at the expense of the Indemnitee unless:
(1) The employment of counsel by the Indemnitee has been
authorized by the Corporation; or
(2) The Indemnitee shall have reasonably concluded that counsel
engaged by the Corporation may not adequately represent the
Indemnitee; or
(3) The Corporation shall not in fact have employed counsel to
assume the defense in such Proceeding or shall not in fact have
assumed such defense and be acting in connection therewith with
reasonable diligence;
in each of which cases the fees and expenses of such counsel shall be at
the expense of the Corporation.
c. The Corporation shall not settle any Proceeding in any manner
which would impose any penalty or limitation on the Indemnitee without the
Indemnitee's written consent; provided, however, that the Indemnitee will
not unreasonably withhold his or her consent to any proposed settlement.
12. Notices. All notices, requests, demands and other communications
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hereunder shall be in writing and shall be deemed to have been duly given if (i)
delivered by hand and receipted for by the party to whom said notice other
communication shall have been directed, or (ii) mailed by
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certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed, or (iii) sent by an overnight courier
service for priority delivery with a national reputation such as Federal
Express, on the first business day after the date on which it is accepted by
such courier service:
a. If to the Indemnitee, to:
___________________________________
___________________________________
___________________________________
___________________________________
b. If to the Corporation, to:
InSight Health Services Corp.
4440 Von Karman Avenue, Suite 320
Newport Beach, California 92660
Attn: President
or to such other address as may have been furnished to the Indemnitee by the
Corporation or the Corporation by the Indemnitee, as the case may be, in
accordance with this Section 12.
13. Nonexclusivity. The rights of the Indemnitee hereunder shall not be
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deemed exclusive of any other rights to which the Indemnitee may now or in the
future be entitled under the Delaware General Corporation Law, the Corporation's
Certificate of Incorporation or Bylaws, or any agreements, vote of stockholders,
resolution of the Board of Directors or otherwise.
14. Binding Effect, Duration and Scope of Agreement. This Agreement shall
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be binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors and assigns (including any direct or
indirect successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business or assets of the Corporation), spouses, heirs
and personal and legal representatives. This Agreement shall continue in effect
during the Indemnification Period, regardless of whether Indemnitee continues to
serve as a director or officer.
15. Severability. If any provision or provisions of this Agreement (or
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any portion thereof) shall be held to be invalid, illegal or unenforceable for
any reason whatsoever;
a. The validity, legality and enforceability of the remaining
provisions of this Agreement shall not in any way be affected or impaired
thereby; and
b. To the fullest extent legally possible, the provisions of this
Agreement shall be construed so as to give effect to the intent of any
provision held invalid, illegal or unenforceable.
16. Governing Law and Interpretation of Agreement. This Agreement shall
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be governed by and construed and enforced in accordance with the laws of the
State of Delaware, as applied to contracts between Delaware residents entered
into and to be performed entirely within Delaware. If the laws of the State of
Delaware are hereafter amended to permit the Corporation to provide
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broader indemnification rights than said laws permitted the Corporation to
provide prior to such amendment, the rights of indemnification and advancement
of expenses conferred by this Agreement shall automatically be broadened to the
fullest extent permitted by the laws of the State of Delaware, as so amended.
17. Consent to Jurisdiction. The Corporation and the Indemnitee each
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irrevocably consent to the jurisdiction of the courts of the State of Delaware
for all purposes in connection with any action or proceeding which arises out of
or relates to this Agreement.
18. Entire Agreement. This Agreement represents the entire agreement
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between the parties hereto, and there are no other agreements, contracts or
understandings between the parties hereto with respect to the subject matter of
this Agreement, except as specifically referred to herein or as provided in
Section 13 hereof.
19. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute one and the same Agreement.
Dated as of the _____ day of _______________, 1996.
INSIGHT HEALTH SERVICES CORP.
By:________________________________
Title:_____________________________
INDEMNITEE
___________________________________
[NAME]
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