**Exhibit 10.9**

 

**INSIGHT HEALTH SERVICES HOLDINGSCORP.**

**INSIGHT HEALTH SERVICES CORP.**

**INDEMNIFICATION AGREEMENT**

This INDEMNIFICATION AGREEMENT (this “Agreement”)is made as of August 1, 2007, by and among InSight Health Services HoldingsCorp., a Delaware corporation (“Holdings”), and InSight Health Services Corp, aDelaware corporation (“InSight,” and together with Holdings, the “Company”),and                       (the “Indemnitee”).

**RECITALS:**

**A.**            The Company recognizes thatcompetent and experienced persons are increasingly reluctant to serve or tocontinue to serve as directors or officers of corporations unless they areprotected by comprehensive liability insurance or indemnification, or both, dueto increased exposure to litigation costs and risks resulting from theirservice to such corporations, and due to the fact that the exposure frequentlybears no reasonable relationship to the compensation of such directors andofficers;

**B.**            The statutes and judicial decisionsregarding the duties of directors and officers are often difficult to apply,ambiguous, or conflicting, and therefore fail to provide such directors andofficers with adequate, reliable knowledge of legal risks to which they areexposed or information regarding the proper course of action to take;

**C.**            The Company and Indemnitee recognizethat plaintiffs often seek damages in such large amounts and the costs oflitigation may be so enormous (whether or not the case is meritorious), thatthe defense and/or settlement of such litigation is often beyond the personalresources of directors and officers;

**D.**            The Company believes that it isunfair for its directors and officers to assume the risk of huge judgments andother expenses which may occur in cases in which the director or officerreceived no personal profit and in cases where the director or officer was notculpable;

**E.**             The Company, after reasonableinvestigation, has determined that the liability insurance coverage presentlyavailable to the Company may be inadequate in certain circumstances to coverall possible exposure for which Indemnitee should be protected.  TheCompany believes that the interests of the Company and its stockholders wouldbest be served by a combination of such insurance and the indemnification bythe Company of the directors and officers of the Company;

**F.**             The certificates of incorporationof each of Holdings and InSight require that Holdings and InSight indemnifytheir directors and officers to the fullest extent permitted by the DelawareGeneral Corporation Law (the “DGCL”);

**G.**            Section 145 of the DGCL (“Section 145”),under which Holdings and InSight are organized, empowers Holdings and InSightto indemnify their officers, directors, employees and

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agents by agreement and to indemnify persons who serve, at the requestof Holdings or InSight, as the directors, officers, employees or agents ofother corporations or enterprises, and expressly provides that theindemnification provided by Section 145 is not exclusive;

 

**H.**            Section 102(b)(7) of the DGCL allowsa corporation to include in its certificate of incorporation a provisionlimiting or eliminating the personal liability of a director for monetarydamages in respect of claims by stockholders and corporations for breach ofcertain fiduciary duties, and Holdings and InSight have so provided in theirrespective certificates of incorporation that each director shall be exculpatedfrom such liability to the maximum extent permitted by law;

**I.**              The Board of Directors hasdetermined that contractual indemnification as set forth herein is not onlyreasonable and prudent but also promotes the best interests of the Company andits stockholders; and

**J.**             The Company desires and hasrequested Indemnitee to serve or continue to serve as a director or officer ofthe Company free from undue concern for unwarranted claims for damages arisingout of or related to such services to the Company.

The Company and Indemnitee, intending to be legallybound, hereby agree as follows:

**1.             INDEMNIFICATION.**

(a)           ThirdParty Proceedings.  The Company shallindemnify Indemnitee if Indemnitee was or is a party to or witness in or isthreatened to be made a party to or witness in any threatened, pending orcompleted action, suit or proceeding, whether civil, criminal, administrativeor investigative (other than an action by or in the right of the Company) byreason of the fact that Indemnitee is or was a director, officer, employee oragent of the Company, or any subsidiary of the Company, or by reason of thefact that Indemnitee is or was serving at the request of the Company as adirector, officer, employee or agent of another corporation, partnership, jointventure, trust or other enterprise, against expenses (including attorneys’fees), judgments, fines and amounts paid in settlement (if such settlement isapproved in advance by the Company, which approval shall not be unreasonablywithheld) actually and reasonably incurred by Indemnitee in connection withsuch action, suit or proceeding if Indemnitee acted in good faith and in amanner Indemnitee reasonably believed to be in or not opposed to the bestinterests of the Company and, with respect to any criminal action orproceeding, had no reasonable cause to believe Indemnitee’s conduct wasunlawful.  The termination of any actionor proceeding by judgment, order, settlement, conviction or upon a plea of nolocontendere or its equivalent, shall not, of itself, create a presumption that(i) Indemnitee did not act in good faith and in a manner which Indemniteereasonably believed to be in or not opposed to the best interests of theCompany, and (ii) with respect to any criminal action or proceeding, Indemniteehad reasonable cause to believe that Indemnitee’s conduct was unlawful.

(b)           ProceedingsBy or in the Right of the Company. The Company shall indemnify Indemnitee if Indemnitee was or is a partyto or witness in or is threatened to be made a party to or witness in anythreatened, pending or completed action or suit by or in the right of theCompany or any subsidiary of the Company to procure a judgment in its favor byreason of the

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fact that Indemnitee is or was a director, officer, employee or agentof the Company, or any subsidiary of the Company, or by reason of the fact thatIndemnitee is or was serving at the request of the Company as a director,officer, employee or agent of another corporation, partnership, joint venture,trust or other enterprise, against expenses (including attorneys’ fees)actually and reasonably incurred by Indemnitee in connection with the defenseor settlement of such action or suit if Indemnitee acted in good faith and in amanner Indemnitee reasonably believed to be in or not opposed to the bestinterests of the Company, except that no indemnification shall be made inrespect of any claim, issue or matter as to which Indemnitee shall have beenadjudged to be liable to the Company, or any subsidiary of the Company, unlessand only to the extent that the Court of Chancery of the State of Delaware orthe court in which such action or suit is or was pending shall determine uponapplication that, despite the adjudication of liability but in view of all thecircumstances of the case, Indemnitee is fairly and reasonably entitled toindemnity for expenses and then only to the extent that the court shall deemproper.

 

(c)           SuccessfulDefense.  To the extent Indemniteehas been successful on the merits or otherwise in defense of any action, suitor proceeding referred to in Section 1(a) or (b) hereof, Indemnitee shall beindemnified against expenses (including attorney fees) actually and reasonablyincurred by Indemnitee in connection therewith.

**2.             EXPENSES; INDEMNIFICATION PROCEDURE.**

(a)           Advancementof Expenses.  The Company shalladvance all expenses incurred by Indemnitee in connection with theinvestigation, defense, settlement or appeal of any civil or criminal action orproceeding referenced in Section 1(a) or (b) hereof (but not amounts actuallypaid in settlement of any such action or proceeding).  Indemnitee hereby undertakes to repay suchamounts advanced only if, and to the extent that, it shall ultimately bedetermined that Indemnitee is not entitled to be indemnified by the Company asauthorized hereby.  The advances to bemade hereunder shall be paid by the Company to Indemnitee within twenty (20)days following delivery of a written request therefor by Indemnitee to theCompany, accompanied by such supporting documentation as may be reasonablyrequested by the Company.

(b)           Notice/Cooperationby Indemnitee.  Indemnitee shall, asa condition precedent to his or her right to be indemnified under thisAgreement, give the Company notice in writing as soon as practicable of anyclaim made against Indemnitee for which indemnification will or could be soughtunder this Agreement.  In addition,Indemnitee shall give the Company such information and cooperation as it mayreasonably require and as shall be within Indemnitee’s power.

(c)           Procedure.  Any indemnification provided for in Section 1shall be made no later than forty-five (45) days after receipt of the writtenrequest of Indemnitee made following final disposition of the action orproceeding to which such indemnification relates.  If a claim by Indemnitee under thisAgreement, under any statute, or under any provision of the Company’sCertificate of Incorporation or Bylaws providing for indemnification, is notpaid in full by the Company within forty-five (45) days after a written requestfor payment thereof has first been

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received by the Company, Indemnitee may, but need not, at any timethereafter bring an action against the Company to recover the unpaid amount ofthe claim and, subject to Section 12 hereof, Indemnitee shall also be entitledto be paid for the expenses (including reasonable attorneys’ fees) of bringingsuch action.  It shall be a defense toany such action (other than an action brought to enforce a claim for expensesincurred in connection with any action or proceeding in advance of its finaldisposition) that Indemnitee has not met the standards of conduct which make itpermissible under applicable law for the Company to indemnify Indemnitee forthe amount claimed, but the burden of proving such defense shall be on theCompany, and Indemnitee shall be entitled to receive interim payments ofexpenses pursuant to Section 2(a) hereof unless and until such defense may befinally adjudicated by court order or judgment from which no further right ofappeal exists.  It is the parties’intention that if the Company contests Indemnitee’s right to indemnification,the question of Indemnitee’s right to indemnification shall be for the court todecide, and neither the failure of the Company (including its Board ofDirectors, any committee or subgroup of the Board of Directors, independentlegal counsel or its stockholders) to have made a determination thatindemnification of Indemnitee is proper in the circumstances because Indemniteehas met the applicable standard of conduct required by applicable law, nor anactual determination by the Company (including its Board of Directors, anycommittee or subgroup of the Board of Directors, independent legal counsel orits stockholders) that Indemnitee has not met such applicable standard ofconduct, shall create a presumption that Indemnitee has or has not met theapplicable standard of conduct.

 

(d)           Noticeto Insurers.  If, at the time of thereceipt of a notice of a claim pursuant to Section 2(b) hereof, the Company hasdirector and officer liability insurance that may cover the claim in effect,the Company shall give prompt notice of the commencement of such proceeding tothe insurers in accordance with the procedures set forth in the respectivepolicies.  The Company shall thereaftertake all necessary or desirable action to cause such insurers to pay, on behalfof Indemnitee, all amounts payable as a result of such proceeding in accordancewith the terms of such policies in partial or complete satisfaction of theCompany’s obligations hereunder.

(e)           Selectionof Counsel.  In the event the Companyshall be obligated under Section 2(a) hereof to pay the expenses of anyproceeding against Indemnitee, the Company shall be entitled to assume thedefense of such proceeding, with counsel approved by Indemnitee, which approvalshall not be unreasonably withheld, upon the delivery to Indemnitee of writtennotice of its election so to do.  Afterdelivery of such notice, approval of such counsel by Indemnitee and theretention of such counsel by the Company, the Company will not be liable toIndemnitee under this Agreement for any fees of counsel subsequently incurredby Indemnitee with respect to the same proceeding, provided that (i) Indemniteeshall have the right to employ his or her own counsel in any such proceeding atIndemnitee’s expense; and (ii) if (A) the employment of counsel by Indemniteehas been previously authorized by the Company, (B) Indemnitee shall havereasonably concluded that there may be a conflict of interest between theCompany and Indemnitee in the conduct of any such defense or (C) the Companyshall not, in fact, have employed counsel to assume the defense of suchproceeding, then the fees and expenses of Indemnitee’s counsel shall be at theexpense of the Company.

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**3.             ADDITIONAL INDEMNIFICATION RIGHTS;NONEXCLUSIVITY.**

 

(a)           Scope.  Notwithstanding any other provision of thisAgreement, the Company hereby agrees to indemnify the Indemnitee to the fullestextent permitted by the Delaware General Corporation Law (other than Section145(f) thereof or any successor non-exclusivity provision), notwithstandingthat such indemnification is not specifically authorized by the other provisionsof this Agreement, the Company’s Certificate of Incorporation, the Company’sBylaws or by statute.  In the event ofany change, after the date of this Agreement, in any applicable law, statute orrule which expands the right of a Delaware corporation to indemnify a member ofits Board of Directors or an officer, such changes shall be, *ipso facto*, within the purview of Indemnitee’s rights andthe Company’s obligations, under this Agreement.  In the event of any change in any applicablelaw, statute or rule which narrows the right of a Delaware corporation toindemnify a member of its Board of Directors, such changes, to the extent nototherwise required by such law, statute or rule to be applied to this Agreementshall have no effect on this Agreement or the parties’ rights and obligationshereunder.

(b)           Nonexclusivity.  The indemnification provided by thisAgreement shall not be deemed exclusive of any rights to which Indemnitee maybe entitled under the Company’s Certificate of Incorporation, its Bylaws, anyagreement, any vote of stockholders or disinterested directors, the DelawareGeneral Corporation Law or otherwise, both as to action in Indemnitee’sofficial capacity and as to action in another capacity while holding suchoffice.  The indemnification providedunder this Agreement shall continue as to Indemnitee for any action taken ornot taken while serving in an indemnified capacity even though he or she mayhave ceased to serve in such capacity at the time of any action or othercovered proceeding.

**4.             PARTIAL INDEMNIFICATION.**   If Indemnitee is entitled under anyprovision of this Agreement to indemnification by the Company for some or aportion of the expenses (including attorneys’ fees), judgments, fines andamounts paid in settlement (if such settlement is approved in advance by theCompany, which approval shall not be unreasonably withheld) actually andreasonably incurred by Indemnitee in connection with an action, suit orproceeding described in Section 1(a), but not, however, for the total amountthereof, the Company shall nevertheless indemnify Indemnitee for the portion ofsuch expenses (including attorneys’ fees), judgments, fines and amounts paid insettlement to which Indemnitee is entitled.

**5.             MUTUAL ACKNOWLEDGMENT.** Both theCompany and Indemnitee acknowledge that in certain instances, Federal law orapplicable public policy may prohibit the Company from indemnifying itsdirectors and officers under this Agreement or otherwise.  Indemnitee understands and acknowledges thatthe Company has undertaken or may be required in the future to undertake withthe Securities and Exchange Commission to submit the question ofindemnification to a court in certain circumstances for a determination of theCompany’s right under public policy to indemnify Indemnitee.

**6.****             SEVERABILITY.**Nothing in this Agreement is intended to require or shall be construed asrequiring the Company to do or fail to do any act in violation of applicablelaw.  The Company’s inability, pursuantto court order, to perform its obligations under this Agreement shall notconstitute a breach of this Agreement. The provisions of this Agreement

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shall be severable as provided in this Section 6.  If this Agreement or any portion hereof shallbe invalidated on any ground by any court of competent jurisdiction, then theCompany shall nevertheless indemnify Indemnitee to the full extent permitted byany applicable portion of this Agreement that shall not have been invalidated,and the balance of this Agreement not so invalidated shall be enforceable inaccordance with its terms.

 

**7****.             EXCEPTIONS.**Any other provision herein to the contrary notwithstanding, the Company shallnot be obligated pursuant to the terms of this Agreement:

(a)           ExcludedActs.  To indemnify Indemnitee forany acts or omissions or transactions from which a director may not be relievedof liability under the Delaware General Corporation Law; or

(b)           ClaimsInitiated by Indemnitee.  Toindemnify or advance expenses to Indemnitee with respect to proceedings orclaims initiated or brought voluntarily by Indemnitee and not by way ofdefense, except with respect to proceedings brought to establish or enforce aright to indemnification under this Agreement or any other statute or law orotherwise as required under Section 145 of the Delaware General CorporationLaw, but such indemnification or advancement of expenses may be provided by theCompany in specific cases if the Board of Directors has approved the initiationor bringing of such suit; or

(c)           Lackof Good Faith.  To indemnify Indemniteefor any expenses incurred by Indemnitee with respect to any proceedinginstituted by Indemnitee to enforce or interpret this Agreement, to the extentthat a court of competent jurisdiction determines that the material assertionsmade by Indemnitee in such proceeding were not made in good faith or werefrivolous; or

(d)           InsuredClaims.  To indemnify Indemnitee forexpenses or liabilities of any type whatsoever (including, but not limited to,judgments, fines, Employee Retirement Income Security Act of 1974 excise taxesor penalties, and amounts paid in settlement) which have been paid directly toIndemnitee by an insurance carrier under a policy of directors’ and officers’liability insurance maintained by the Company or its affiliates; or

(e)           ClaimsUnder Section 16(b).  To indemnifyIndemnitee for expenses and the payment of profits arising from the purchaseand sale by Indemnitee of securities in violation of Section 16(b) of theSecurities Exchange Act of 1934, as amended, or any similar successor statute.

**8.             EFFECTIVENESS OF AGREEMENT.** To theextent that the indemnification permitted under the terms of certain provisionsof this Agreement exceeds the scope of the indemnification provided for in theDelaware General Corporation Law, such provisions shall not be effective unlessand until the Company’s Certificate of Incorporation authorizes such additionalrights of indemnification.  In all otherrespects, the balance of this Agreement shall be effective as of the date setforth on the first page hereof and may apply to acts or omissions of Indemniteewhich occurred prior to such date if Indemnitee was an officer, director,employee or other agent of the Company, or was serving at the request of theCompany as a director, officer,

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employee or agent of another corporation, partnership, joint venture,trust or other enterprise, at the time such act or omission occurred.

 

**9.             CONSTRUCTION OF CERTAIN PHRASES.**

(a)           Company.****** For purposes of this Agreement, references tothe “Company” shall include, in addition to the resulting corporation, anyconstituent corporation (including any constituent of a constituent) absorbedin a consolidation or merger which, if its separate existence had continued,would have had power and authority to indemnify its directors, officers,employees or agents, so that if Indemnitee is or was a director, officer,employee or agent of such constituent corporation, or is or was serving at therequest of such constituent corporation as a director, officer, employee oragent of another corporation, partnership, joint venture, trust or otherenterprise, Indemnitee shall stand in the same position under the provisions ofthis Agreement with respect to the resulting or surviving corporation asIndemnitee would have with respect to such constituent corporation if itsseparate existence had continued.

(b)           OtherEnterprise, etc.  For purposes ofthis Agreement, references to “other enterprises” shall include employeebenefit plans; references to “fines” shall include any excise taxes assessed onIndemnitee with respect to any employee benefit plan; and references to “servingat the request of the Company” shall include any service as a director,officer, employee or agent of the Company which imposes duties on, or involvesservices by, such director, officer, employee or agent with respect to anemployee benefit plan, its participants or beneficiaries.

**10.          COUNTERPARTS.** This Agreement may beexecuted in two (2) or more counterparts, each of which shall constitute anoriginal.

**11.          SUCCESSORS AND ASSIGNS.** This Agreementshall be binding upon the Company and its successors and assigns, including any direct or indirect successor bypurchase, merger, consolidation or otherwise to all or substantially all of thebusiness and/or assets of the Company, and shall inure to the benefit ofIndemnitee and Indemnitee’s estate, heirs, legal representatives andassigns.  The Company shall require and cause any successor (whether direct orindirect by purchase, merger, consolidation or otherwise) to all, substantiallyall or a substantial part of the business or assets of the Company, by writtenagreement in form and substance reasonably satisfactory to Indemnitee,expressly to assume and agree to perform this Agreement in the same manner andto the same extent that the Company would be required to perform if no suchsuccession had taken place.

**12.          ATTORNEYS’ FEES.**  In the event that any action is instituted byIndemnitee under this Agreement to enforce or interpret any of the termshereof, Indemnitee shall be entitled to be paid all court costs and expenses,including reasonable attorneys’ fees, incurred by Indemnitee with respect tosuch action, except to the extent that, as a part of such action, the court ofcompetent jurisdiction determines that the material assertions made byIndemnitee as a basis for such action were not made in good faith or werefrivolous.  In the event of an actioninstituted by or in the name of the Company under this Agreement or to enforceor interpret any of the terms of this Agreement, Indemnitee shall be entitledto be paid all court costs and expenses, including reasonable attorneys’ fees,incurred by Indemnitee in defense of such action 

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(including with respect to Indemnitee’s counterclaims and cross claimsmade in such action), except to the extent that, as a part of such action, thecourt determines that Indemnitee’s material defenses to such action were madein bad faith or were frivolous.

 

**13.       NOTICES.**  Allnotices and other communications provided for or permitted hereunder shall be madein writing by hand-delivery, first-class mail (registered or certified, returnreceipt requested), facsimile, or air courier guaranteeing overnight delivery:

(i)                    if to the Indemnitee, at the address set forth onthe signature page of this Agreement, or as subsequently modified by writtennotice; and

(ii)                 if to Holdings and InSight:

InSight Health Services HoldingsCorp.

InSight Health Services Corp.

26250 Enterprise Court

Suite 100

Lake Forest, CA 92630

Facsimile: (949) 462-3703

Attention: General Counsel

 

With a copy to:

 

 

Facsimile:

Attention:

All such notices andcommunications shall be deemed to have been duly given: at the time deliveredby hand, if personally delivered; five (5) business days after being depositedin the mail, postage prepaid, if mailed; when receipt acknowledged, if byfacsimile; and on the next business day, if timely delivered to an air courierguaranteeing overnight delivery.

**14.          CONSENT TO JURISDICTION.**  The Company and Indemnitee each herebyirrevocably consent to the jurisdiction of the courts of the State of Delawarefor all purposes in connection with any action or proceeding which arises outof or relates to this Agreement and agree that any action instituted under thisAgreement shall be brought only in the state courts of the State of Delaware.

**15.          CHOICE OF LAW.**  This Agreement shall be governed by and itsprovisions construed in accordance with the laws of the State of Delaware asapplied to contracts between Delaware residents entered into and to beperformed entirely within Delaware.

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IN WITNESS WHEREOF, theparties hereto have executed this Agreement as of the date first above written.

 
|                          | INSIGHT HEALTH SERVICES HOLDINGS  CORP. |
|--------------------------|-----------------------------------------|
|                     |                                    |
|                     |                                    |
|                     | By:                                     |   |   |
|                     |                                    | Name: |
|                     |                                    | Title: |
|                     |                                    |   |
|                     | INSIGHT HEALTH SERVICES CORP.           |
|                     |                                    |   |
|                     |                                    |   |
|                     | By:                                     |   |   |
|                     |                                    | Name: |
|                     |                                    | Title: |
|                     |                                    |   |
|                     |                                    |   |
| AGREED TO AND  ACCEPTED: |                                    |   |
| INDEMNITEE:              |                                    |   |
|                     |                                    |   |
|                     |                                    |   |   |
| Name:                    |                                    |   |
| Address:                 |                                    |   |
|                          |                                         |  |  |  |  |

 

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