EX-10.18



 





Exhibit 10.18



August 9, 2004




PERSONAL AND CONFIDENTIAL 



Steven T. Plochocki

17 Flagstone

Coto de Caza, CA 92679





		
	      Re: 	      Resignation Agreement





Dear Steve:



     This Letter Agreement (“Agreement”) sets forth the terms and conditions of
your resignation from InSight Health Services Corp. (“InSight” or “Company”)
and InSight Health Services Holdings Corp. (“IHSHC”) effective today, August 9,
2004. InSight appreciates your service to the Company and wishes you the best
in your future endeavors. InSight will pay your earned wages, thirty (30) days
wages in lieu of notice and any unused accrued vacation through today,
regardless of whether you sign this Agreement.



     In consideration of the mutual covenants and promises made in this
Agreement, you and InSight agree as follows:



     Resignation. You acknowledge that, effective August 9, 2004, you
voluntarily resigned from your employment, and any and all positions you held
with InSight, IHSHC and any of its respective subsidiary or affiliated entities
(collectively the “InSight Companies”), including your positions as a member of
the Board of Directors of InSight, IHSHC and each of the other InSight
Companies, and as of that date you relinquished any and all of your authorities
with each of those companies. A press release in the form of Exhibit A has
been issued with your consent by the Company.



     Separation Payments. In addition to payment for your earned salary
through August 9, 2004, thirty (30) days pay in lieu of notice and payment for
any unused accrued vacation, and in consideration for your signing this
Agreement, InSight agrees that, beginning on the Company’s first regular payday
after the Effective Date of this Agreement, it will pay you an amount equal to
your current regular monthly base salary, less applicable taxes and
withholdings, on a regular payroll basis, for a period of twenty-four (24)
months (“Separation Payments”). The Separation Payments will be sent to your
home address as set forth above on this Agreement.



     InSight 401(K) Plan Match. As further consideration for signing this
Agreement, the Company will make a discretionary match to the InSight 401(K)
Plan for the fiscal year ending June 30, 2004 and if permitted by the Plan,
InSight agrees that it will contribute an applicable match to your account.



     Compliance with Stock Option Agreements. In accordance with the Stock
Option Agreement (i) entered into between you and IHSHC, on June 29, 2001 (the
“June 29th Stock Option Agreement”), and (ii) entered into between you and
IHSHC, dated October 17, 2001 (the



 









 





Steven T. Plochocki

August 9, 2004

Page 2


“October 17th Stock Option Agreement” and together with the June 29th
Stock Option Agreement, the “Stock Option Agreements”), you agree to comply in
full with their terms. Additionally, you agree to comply with the terms of the
Third Amended and Restated Stockholders Agreement, dated October 10, 2002, by
and among IHSHC and the stockholders of IHSHC signatory thereto (the
“Stockholders Agreement” and with the Stock Option Agreements are collectively
referred to herein as the “Stock Agreements”).




     Benefits. As additional consideration for this Agreement, the Company
agrees to continue the employee benefits specified in this provision until the
first of the following occurs: (a) expiration of the twenty-four (24) month
period following the date of your resignation; or (b) until you are eligible
for employment benefits as the result of full-time employment with another
employer. The benefits you will receive during the applicable period are life
insurance, medical, health and accident, and disability plans or programs
covering you and any dependents under the same terms and conditions as if you
had not resigned, including any required co-payments. The Company’s agreement
to provide these benefits during the applicable period is contingent upon your
participation being permissible under the general terms and provisions of such
plans and programs and contingent upon the Company’s right to amend or
terminate any employee benefit plans which are applicable generally to the
Company’s employees. In the event of either of these contingencies, you will
cease to receive these benefits effective the date of the occurrence of the
contingency. However, in such an event, the Company agrees to arrange to
provide you with benefits substantially similar to those you were receiving at
the time of your resignation for the applicable period or its remainder.



     Release. In consideration of this Agreement, you hereby irrevocably and
unconditionally release, waive and forever discharge the Company, its direct
and indirect parents (including IHSHC), subsidiaries and affiliates, affiliated
persons, partnerships and corporations, successors and assigns, and all of
their past and present directors, members, partners, contractors, distributors,
officers, shareholders, consultants, agents, representatives, attorneys,
employees, employee benefit plans and plan fiduciaries (collectively, the
“Company Releasees”), individually and collectively, from any and all actions,
causes of action, claims, demands, damages, rights, remedies and liabilities of
whatsoever kind or character, in law or equity, suspected or unsuspected, known
or unknown, past or present, that you have ever had, may now have, or may later
assert against any of the Company Releasees, concerning, arising out of or
related to your employment by or the performance of any services to or on
behalf of any of the InSight Companies or the termination of that employment,
those services and your positions with the InSight Companies, from the
beginning of time to the Effective Date (hereinafter referred to as
“Executive’s Claims”), including without limitation: (i) any claims arising
out of or related to any federal, state and/or local labor or civil rights
laws, as amended, including, without limitation, the federal Civil Rights Acts
of 1866, 1871, 1964 and 1991 (including but not limited to Title VII), the Age
Discrimination in Employment Act of 1967, the National Labor Relations Act, the
Workers’ Adjustment and Retraining Notification Act, the Employee Retirement
Income Security Act of 1974, the Family and Medical Leave Act of 1993, the
Americans with Disabilities Act of 1990, the Fair Labor Standards Act of 1938,
the California Fair Employment and Housing Act, the California Industrial
Welfare Commission Wage Orders, and the



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Steven T. Plochocki

August 9, 2004

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California Labor Code and (ii) any and all other of Executive’s Claims
arising out of or related to any contract, any and all other federal, state or
local constitutions, statutes, rules or regulations, or under the laws of any
country or political subdivision, or under any common law right of any kind
whatsoever. Notwithstanding the foregoing, this Agreement shall not affect any
of your rights or obligations under (A) the Stock Agreements, (B) the InSight
401k Plan, (C) the Amended and Restated Indemnification Agreement executed by
you and the Company effective October 17, 2001 (“Indemnification Agreement”),
(D) the Consolidated Omnibus Budget Reconciliation Act (“Cobra”), or (E) the
terms of this Agreement.




          You and the Company hereby waive and relinquish all rights and benefits
afforded by California Civil Code Section 1542. You and the Company understand
and acknowledge the significance and consequences of this specific waiver of
Section 1542. California Civil Code section 1542 states as follows:





	 	 	 	A general release does not extend to claims which the
creditor does not know or suspect to exist in his
favor at the time of executing the release, which if
known by him must have materially affected his
settlement with the debtor.





          To the fullest extent permitted by law, you represent, warrant and agree
not to lodge or assist anyone else in lodging any formal or informal complaint
in court, with any federal, state or local agency or any other forum, in any
jurisdiction, arising out of or related to Executive’s Claims. You hereby
represent and warrant that you have not brought any complaint, claim, charge,
action or proceeding against any of the Company Releasees in any jurisdiction
or forum, nor assisted or encouraged any other person or persons in doing so.
You further represent and warrant that you have not in the past and will not in
the future assign any of Executive’s Claims to any person, corporation or other
entity.



          Your execution of this Agreement operates as a complete bar and defense
against any and all of Executive’s Claims against the Company and each of the
other Company Releasees. If you should hereafter make any of Executive’s
Claims in any charge, complaint, action, claim or proceeding against the
Company or any of the other Company Releasees, this Agreement may be raised as,
and shall constitute a complete bar to, any such charge, complaint, action,
claim or proceeding.



     Release by the Company. In consideration of this Agreement, the Company
on behalf of itself, its parent and subsidiary corporations (“Company
Releasors”) hereby irrevocably and unconditionally releases, waives and forever
discharges Plochocki, his spouse, family members, and heirs, (the “Plochocki
Releasees”) individually and collectively, from any and all actions, causes of
action, claims, demands, damages, rights, remedies and liabilities of
whatsoever kind or character, in law or equity, suspected or unsuspected, known
or unknown, past or present, that they have ever had, may now have, or may
later assert against the Plochocki Releasees, whether or not arising out of or
related to Plochocki’s employment by or the performance of any services to or
on behalf of the Company or the termination of that employment and those
services, from the beginning of time to the Effective Date (hereinafter
referred to as “Company’s Claims”),



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Steven T. Plochocki

August 9, 2004

Page 4


including without limitation, any and all other of Company’s Claims
arising out of or related to any contract, any and all federal, state or local
constitutions, statutes, rules or regulations, or under the laws of any country
or political subdivision, or under any common law right of any kind whatsoever,
including, without limitation, any of Company’s Claims for any kind of tortious
conduct, promissory or equitable estoppel, breach of the Company’s policies,
rules, regulations, handbooks or manuals, breach of express or implied contract
or covenants of good faith, breach of duty of loyalty or fiduciary duty.
Notwithstanding the foregoing, this Agreement shall not affect any of the
Company’s rights or obligations under (A) the Stock Agreements, (B) the InSight
401k Plan, (C) the Indemnification Agreement, (D) the Consolidated Omnibus
Budget Reconciliation Act (“COBRA”), or (E) the terms of this Agreement.




          Further, notwithstanding the foregoing, the Company’s Claims which are
being released herein shall not include any claims or causes of action that the
Company Releasors may have against Plochocki as of the Effective Date, which
may arise from or be related to (i) any acts or omissions undertaken by
Plochocki, or undertaken at his express direction, which constitute fraud,
theft or embezzlement against the Company, or any act that constitutes a felony
under the laws of the United States or any state; or (ii) any voluntary act
undertaken by Plochocki in knowing and willful violation of a specific written
Company directive or policy, which causes the Company material harm or subjects
it to material liability.



          To the fullest extent permitted by law, the Company agrees not to lodge or
assist anyone else in lodging any formal or informal complaint in court, with
any federal, state or local agency or any other forum, in any jurisdiction,
against Plochocki or any of the other Plochocki Releasees arising out of or
related to Company’s Claims. The Company hereby represents and warrants that
it has not brought any complaint, claim, charge, action or proceeding against
any of the Plochocki Releasees in any jurisdiction or forum, nor assisted or
encouraged any other person or persons in doing so. The Company further
represents and warrants that it has not in the past and will not in the future
assign any of Company’s Claims to any person, corporation or other entity.



          Execution of this Agreement by the Company operates as a complete bar and
defense against any and all of Company’s Claims against Plochocki or any of the
other Plochocki Releasees. If the Company should hereafter make any of
Company’s Claims in any charge, complaint, action, claim or proceeding against
Plochocki or any of the other Plochocki Releasees, this Agreement may be raised
as and shall constitute a complete bar to any such charge, complaint, action,
claim or proceeding and Plochocki and/or the other Plochocki Releasees shall be
entitled to and shall recover from the Company all costs incurred, including
reasonable attorneys’ fees, in defending against any such charge, complaint,
action, claim or proceeding.



     Continuing Obligations to Company. You understand and agree that you have
continuing obligations to the Company under Section V of the Executive
Employment Agreement executed by you and effective on June 29, 2001 (“Section
V”). You further understand and agree that should you breach any provisions
thereunder, the Company has the right to terminate any and all



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Steven T. Plochocki

August 9, 2004

Page 5


of its obligations under this Agreement effective immediately. This right
is in addition to any other rights or remedies to which the Company is entitled
for your breach of Section V. A copy of Section V is attached hereto as
Exhibit B for your ease of reference. Should you have a legitimate question as
to whether a particular prospective employment would be in breach of your
obligations under Section V, you may make an inquiry to the Company prior to
accepting such a position and if the Company determines that such potential
employment will not be a breach of Section V, it will so advise you and/or your
prospective employer in writing.




     Cooperation. After your resignation, you may be asked questions by the
Company, its accountants, financial advisors or attorneys relating to your
former duties, to which you agree to respond in a reasonably timely and
responsible manner by providing such information as may be within your
knowledge.



     Return of InSight Property; Expenses. As set forth in Section V, you
agree to immediately return all Company property and equipment in your
possession or under your control. You should immediately submit to InSight all
outstanding business expenses incurred on or before August 9, 2004, along with
supporting receipts for certain non-refundable airplane tickets and, if
applicable, hotel reservation expenses in connection with a pre-booked trip to
Ohio after that date, for reconciliation and payment in accordance with the
Company’s policies.



     Legal Representation. You and InSight each acknowledge that you have had
the opportunity to receive the advice of independent legal counsel prior to the
execution of this Agreement and the opportunity to receive an explanation from
legal counsel of the legal nature and effect of this Agreement, and you have
fully exercised that opportunity to the extent desired and you understand the
terms and provisions of this Agreement and its nature and effect. You further
represent that you are entering into this Agreement freely and voluntarily.



     No Admission of Liability. Nothing contained in this Agreement or the
fact that InSight has signed this Agreement shall be considered as admission of
any liability whatsoever by InSight. This Agreement may not be introduced in
any action or proceeding by anyone for any purpose except to evidence or to
enforce its terms.



     Confidentiality. As a material inducement to InSight to enter into this
Agreement and as an indivisible part of the consideration to be received for
entering into this Agreement and for the performance of obligations under this
Agreement by each party to this Agreement, you agree that you will not
disclose, disseminate, and/or publicize or cause or permit to be disclosed,
disseminated, and/or publicized, any of the specific terms of this Agreement,
any claims or allegations or the basis for any claims or allegations, which
were or could have been made against InSight and its divisions, affiliates,
parents (including IHSHC), subsidiaries, predecessor and successor
corporations, and the past and present directors, officers, management
committees, shareholders, agents, servants, employees, representatives,
administrators, partners, general partners, managing partners, limited
partners, benefit plan fiduciaries and administrators, assigns, heirs,
successors or predecessors in interest, adjustors, insurers, and attorneys,
which concern and are within the scope of this Agreement, directly or
indirectly, specifically or generally, to any person, corporation, association,
governmental agency, or other entity except: (a) to the



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Steven T. Plochocki

August 9, 2004

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extent necessary to report income to appropriate taxing authorities; (b)
in response to an order of a court of competent jurisdiction or a subpoena
issued under authority thereof; (c) in response to any subpoena issued by a
state or federal governmental agency; or (d) as otherwise required by law.




     No Future Employment. You agree not to apply for a position as an
employee, consultant, vendor, or other position with the Company or with any of
the other Company Releasees.



     Non Disparagement. As a material inducement to InSight to enter into this
Agreement, you agree that you will not make any negative or disparaging
comments about InSight or IHSHC. InSight agrees that its senior management and
Board of Directors will not make any negative or disparaging comments about
you. Further, in response to any queries, Michael Cannizzaro will confirm that
you did not leave the Company in connection with any financial, ethical or
other impropriety.



     Other Agreements. Except for (i) Section V (as defined above), (ii) the
Stock Agreements (as defined above), (iii) the InSight 401k Plan, and the (iv)
Indemnification Agreement, the terms of this Agreement supercede any and all
other agreements, understandings, negotiations, or discussions, either oral or
in writing, express or implied, among you and the Company and IHSHC. For
avoidance of doubt, this Agreement shall have no affect on the 10 year term of
the 52,500 “Rollover Options” granted to you pursuant to the June 29th Stock
Option Agreement, which unless terminated earlier pursuant to the terms of that
agreement or the InSight Health Services Holdings Corp. 2001 Stock Option Plan,
shall expire on October 17, 2011.



     Successors. This Agreement is binding upon the Company and you and upon
the Company’s and your respective successors, assigns, heirs, executors,
administrators and legal representatives.



     Entire Agreement. This Agreement constitutes the full, complete, and
exclusive agreement between you and InSight with respect to the subject matter
discussed herein. This Agreement cannot be changed unless in writing, signed
by you, InSight, and IHSHC.



     Waiver. No waiver of any of the provisions of this Agreement shall be
deemed, or shall constitute, a waiver of any other provision, whether or not
similar. No waiver shall constitute a continuing waiver. No waiver shall be
binding unless executed in writing by the party charged with the waiver.



     Severability. In the event any provision of this Agreement shall be
determined to be unlawful, such provision shall be deemed to be severed from
this Agreement and every other provision of this Agreement shall remain in full
force and effect.



     Governing Law. This Agreement is made and entered into in the State of
California, and shall in all respects be interpreted, enforced, and governed
under the laws of said state.



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Steven T. Plochocki

August 9, 2004

Page 7



     Resolution of Disputes. Any controversy or claim arising out of or
relating to this Agreement, or any breach thereof, will be submitted to final
and binding arbitration in Orange County, California, before a mutually agreed
upon arbitrator from Judicial Arbitration and Mediation Services (JAMS), as the
exclusive remedy for such controversy or dispute. Judgment upon any award
rendered by the arbitrator may be entered in the Superior Court of the County
of Orange, State of California, which will have exclusive jurisdiction thereof.
The prevailing party in any proceeding brought to enforce the terms of this
Agreement will be entitled to recover from the other party all damages, costs
and expenses, including without limitation, attorneys’ and arbitrators’ fees,
incurred as a result of such action. In agreeing to this arbitration, you
understand and agree that you are waiving the right to a jury trial as to any
issue(s) subject to this Agreement. The decision of the arbitrator will be
bound by generally accepted legal principles, including but not limited to all
rules of law and legal principles concerning potential liability, burdens of
proof, and measure of damages found in all applicable California statutes and
administrative rules and codes, and all California case law. The parties agree
that this provision does not limit their right to seek injunctive relief in the
threat of imminent and irreparable harm as a result of breach of this
Agreement.



     Consideration Period. You have twenty-one (21) days from receipt to
consider this Agreement. InSight hereby advises you to consult with an
attorney before signing this Agreement.



     Revocation Period. For a period of seven (7) days following the signing
of this Agreement, you may revoke this Agreement. This Agreement does not
become effective or enforceable until the revocation period has expired without
you exercising your option to revoke (“Effective Date”).



     Please acknowledge your understanding and acceptance of this Agreement by
signing this Agreement below and returning it to me no later than 5:00 p.m. on
September 15, 2004.


	 	 	 	 	 
	 	Sincerely,

 	 
	 	/s/ Michael N. Cannizzaro
 	 
	 	Michael N. Cannizzaro 	 
	 	Chairman of the Board 

InSight Health Services Corp. and   

InSight Health Services Holdings Corp. 	 
	 




Enclosures



ACKNOWLEDGED AND AGREED:




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Steven T. Plochocki

August 9, 2004

Page 8


	 	 	 	 	 
	 	 	 
	Dated:      9-10, 2004. 	/s/ Steven T. Plochocki
 	 
	 	Steven T. Plochocki 	 
	 	 	 
	 





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