**Exhibit 10.23**

 

**AMENDEDAND RESTATED INDEMNIFICATION AGREEMENT**

 

THIS AMENDEDAND RESTATED INDEMNIFICATION AGREEMENT is made and entered into, effective asof                                            ,by and between INSIGHT HEALTH SERVICES CORP., a Delaware corporation (“INSIGHT”),and                                             (“INDEMNITEE”) (“Agreement”).

 

**RECITALS**

 

WHEREAS, it isessential for INSIGHT to retain and attract as directors and officers the mostcapable persons available;

 

WHEREAS,INDEMNITEE is a director or officer of INSIGHT;

 

WHEREAS, theCertificate of Incorporation of INSIGHT requires INSIGHT to indemnify itsdirectors and officers to the fullest extent permitted by law, and theINDEMNITEE has been serving and continues to serve as a director or officer ofINSIGHT, in part in reliance on the Certificate of Incorporation; and

 

WHEREAS, inrecognition of INDEMNITEE’s need for (i) substantial protection againstpersonal liability based on INDEMNITEE’s reliance on the Certificate of Incorporation,(ii) specific contractual assurance that the protection promised by theCertificate of Incorporation will be available to INDEMNITEE (regardless of,among other things, any amendment to the Certificate of Incorporation or anyamendment to or revocation of the Bylaws, or any change in the composition ofINSIGHT’s Board or any acquisition transaction relating to INSIGHT), and (iii) aninducement to continue to provide effective services to INSIGHT as a directoror officer thereof, INSIGHT wishes to provide for the indemnification ofINDEMNITEE and to advance expenses to INDEMNITEE to the fullest extentpermitted by law and as set forth in this Agreement, and, to the extentinsurance is maintained, to provide for the continued coverage of INDEMNITEE underINSIGHT’s directors’ and officers’ liability insurance policies.

 

NOW,THEREFORE, in consideration of the premises contained herein and of INDEMNITEE’scontinuing to serve INSIGHT directly or, while a director or officer ofINSIGHT, at its request, with another enterprise, and intending to be legallybound hereby, the parties hereto agree as follows:

 

# **ARTICLE IDEFINITIONS**

#  

## 1.01.                        (a) Affiliate:  any Person that,directly or indirectly through one or more intermediaries, controls or iscontrolled by, or is under common control with, the Person specified.

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### (a)  Board:  the Board of Directors of INSIGHT or theParent, as the case may be.

 

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### (b)  Bylaws:  the Bylaws of INSIGHT.

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### (c)  Change in Control:  the occurrence of any of the following:

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(i)  the consummation of any transaction (including, without limitation, any merger or consolidation) (A) prior to a Public Equity Offering by INSIGHT or the Parent, the result of which is that (1) the Parent shall fail to own directly100% of the outstanding capital stock of INSIGHT or (2) the Principals and their Related Parties become the “beneficial owner” (as such term is defined in Rule 13d-3 and Rule 13d-5 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of less than 50% of the Voting Securities of INSIGHT or the Parent, as the case may be (measured by voting power rather than the number of shares), or (B) after a Public Equity Offering of INSIGHT or the Parent (in either case, the issuer of the stock in the Public Equity Offering being the “IPO Issuer”), the result of which is that (1) if the IPO Issuer is the Parent, the Parent shall fail to own directly 100% of the outstanding capital stock of INSIGHT, (2) the Principals and their Related Parties fail to own beneficially (as defined above), directly or indirectly, at least 35% of the IPO Issuer, or (3) any “person” or “group” (as such terms are used in Section 13(d) and 14(d) of the Exchange Act), other than the Principals and their Related Parties, becomes the beneficial owner (as defined above), directly or indirectly, of a greater percentage of the voting power of the Voting Securities of INSIGHT or the Parent, as the case may be, calculated on a fully diluted basis, than the percentage beneficially owned by the Principals and their Related Parties;

 

(ii)  the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of INSIGHT and its Subsidiaries or the Parent and its Subsidiaries, in each case, taken as a whole, to any “person” (as the term is defined in Section 13(d)(3) of the Exchange Act) other than the Principals or Related Parties of the Principals;

 

(iii)  the first day on which a majority of the members of the Board of INSIGHT or the Parent are not Continuing Directors; or

 

(iv)  INSIGHT or the Parent is liquidated or dissolved or adopts a plan of liquidation or dissolution.

 

### (d)  Continuing Directors:  shall mean, as of the date of determination,any member of the Board of INSIGHT or the Parent, as the case may be, who (i) wasa member of such Board on the date of this Agreement; (ii) was nominatedfor election or elected to such Board with the approval of the majority of theContinuing Directors who were members of such Board at the time of suchnomination or election; or (iii) was nominated by one or more of thePrincipals and the Related Parties.

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### (e)  Expense:  includes attorneys’ fees and all other costs,expenses and obligations paid or incurred in connection with investigating,defending, being a witness in or participating in (including on appeal), orpreparing to defend, be a witness in or participate in any Proceeding relatingto any Indemnifiable Event.

 

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### (f)  Indemnifiable Event:  any event or occurrence that takes placeeither prior to or after the execution of this Agreement, related to the factthat INDEMNITEE is or was a director or officer of INSIGHT, or while a directoror officer, is or was serving at the request of INSIGHT 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 ofanything done or not done by INDEMNITEE in any such capacity.

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### (g)  Parent:  InSight Health Services Holdings Corp., aDelaware corporation and its successors.

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### (h)  Person:  any individual, corporation, limited orgeneral partnership, joint venture, association, joint-stock company, trust,unincorporated organization, limited liability company or government or anyagency or political subdivision thereof.

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### (i)  Principals:  J.W. Childs Associates, L.P., J.W. ChildsEquity Partners II, L.P., The Halifax Group, L.L.C.and Halifax Capital Partners, L.P. and their Affiliates.

###  

### (j)  PublicEquity Offering:  an offer and saleof capital stock of INSIGHT or the Parent pursuant to a registration statementthat has been declared effective by the Securities and Exchange Commissionpursuant to the Securities Act of 1933, as amended (other than a registrationstatement on Form S-8 or otherwise relating to equity securities issuableunder any employee benefit plan of INSIGHT).

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### (k)  RelatedParties:  shall mean:

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(i)  any controlling stockholder,partner, member, 80% (or more) owned Subsidiary, or immediate family member (inthe case of an individual) of any Principal; or

 

(ii)  any trust, corporation,partnership or other entity, the beneficiaries, stockholders, partners, owners orPersons beneficially holding an 80% (or more) controlling interest of whichconsist of any one or more Principals and/or such other Persons referred to inthe immediately preceding clause.

 

### (l)  Proceeding:  any threatened, pending or completed action, suitor proceeding, or any inquiry, hearing or investigation, whether conducted byINSIGHT or any other party, that INDEMNITEE in good faith believes might leadto the institution of any such action, suit or proceeding, whether civil,criminal, administrative, investigative or other.

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### (m)  ReviewingParty:  shall be any one of thefollowing:  (i) the stockholders ofINSIGHT, (ii) a quorum of the Board consisting of disinterested directors,or (iii) the special, independent counsel referred to in Section 2.02hereof.

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### (n)  Subsidiary:  shall mean with respect to any Person, anyPerson a majority of the equity ownership or Voting Securities of which is atthe time owned, directly or indirectly, by such Person and/or one or more itsother Subsidiaries; when used without reference to any particular Person,Subsidiary means a Subsidiary of INSIGHT.

 

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### (o)  VotingSecurities:  shall mean with respectto any Person, any securities which vote generally in the election ofdirectors, managers or trustees.

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# **ARTICLE IIINDEMNIFICATION**

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## 2.01.                        **Agreement to Indemnify****.**

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### (a)  In the event INDEMNITEE was, is orbecomes a party to or witness or other participant in, or is threatened to bemade a party to or witness or other participant in, a Proceeding by reason of(or arising in part out of) an Indemnifiable Event, INSIGHT shall indemnifyINDEMNITEE to the fullest extent permitted by law, as soon as practicable butin any event no later than thirty (30) days after written request is presentedto INSIGHT, against any and all Expenses, judgments, fines, penalties andamounts paid in settlement (including all interest, assessments and othercharges paid or payable in connection with or in respect of such Expenses,judgments, fines, penalties or amounts paid in settlement) of such Proceedingand any federal, state, local or foreign taxes imposed on INDEMNITEE as aresult of the actual or deemed receipt of any payments under thisAgreement.  INSIGHT shall select counselto defend INDEMNITEE (which defense counsel shall be reasonably satisfactory toINDEMNITEE).  Any written request forindemnification shall include sufficient documentation or informationreasonably available to INDEMNITEE to support INDEMNITEE’s claim forindemnification.  The president orsecretary or other appropriate officer of INSIGHT shall promptly, upon receiptof INDEMNITEE’s request for indemnification, advisethe Board in writing that INDEMNITEE has made such request.  Notwithstanding anything in this Agreement tothe contrary and except as provided in Section 2.03, INDEMNITEE shall notbe entitled to indemnification pursuant to this Agreement in connection withany Proceeding initiated by INDEMNITEE against INSIGHT or any director, officeror key employee of INSIGHT, unless INSIGHT has joined in or consented to theinitiation of such Proceeding.  If sorequested by INDEMNITEE, INSIGHT shall advance (within ten (10) businessdays of such request) any and all Expenses to INDEMNITEE (an “Expense Advance”);provided, however, that such Expenses shall be advanced only upon delivery toINSIGHT of an undertaking by or on behalf of INDEMNITEE to repay such amount ifit is ultimately determined that INDEMNITEE is not entitled to be indemnifiedby INSIGHT.  Further, no indemnificationshall be made for the accounting of profits made from the purchase or sale byINDEMNITEE of any securities of INSIGHT or the Parent within the meaning of Section 16(b) ofthe Exchange Act or similar provision of any state statutory or common law.

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### (b)  Notwithstanding the foregoing, (i) theobligations of INSIGHT under Section 2.01(a) shall be subject to thecondition that the Reviewing Party shall not have determined (in a writtenopinion, in any case in which the special, independent counsel referred to in Section 2.02hereof is involved) that INDEMNITEE would not be permitted to be indemnifiedunder applicable law, and (ii) the obligation of INSIGHT to make anExpense Advance pursuant to Section 2.01(a) shall be subject to thecondition that if, when and to the extent that the Reviewing Party determinesthat INDEMNITEE would not be permitted to be so indemnified under applicablelaw, INSIGHT shall be entitled to be reimbursed by INDEMNITEE (who herebyagrees to reimburse INSIGHT) for all such amounts theretofore paid; provided,however, that if INDEMNITEE has commenced legal proceedings in a court ofcompetent jurisdiction to

 

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### secure a determination that INDEMNITEE shouldbe indemnified under applicable law, any determination made by the ReviewingParty that INDEMNITEE would not be permitted to be indemnified under applicablelaw shall not be binding, and INDEMNITEE shall not be required to reimburseINSIGHT for any Expense Advance until a final judicial determination is madewith respect thereto (as to which all rights of appeal therefrom have beenexhausted or have lapsed).  INDEMNITEE’sobligation to reimburse INSIGHT for Expense Advances shall be unsecured and nointerest shall be charged thereon.  Ifthere has not been a Change in Control, the Reviewing Party shall be selectedby the INSIGHT Board, and if there has been such a Change in Control (otherthan a Change in Control which has been approved by a majority of the INSIGHTBoard who were directors immediately prior to such Change in Control), theReviewing Party shall be the special, independent counsel referred to in Section 2.02hereof.  If there has been nodetermination by the Reviewing Party within thirty (30) days after writtendemand is presented to INSIGHT by INDEMNITEE, or if the Reviewing Partydetermines that INDEMNITEE substantively would not be permitted to beindemnified in whole or in part under applicable law, INDEMNITEE shall have theright to commence litigation, after giving INSIGHT ten (10) days’ priorwritten notice thereof, in any court in the states of California or Delawarehaving subject matter jurisdiction thereof and in which venue is proper seekingan initial determination by the court or challenging any such determination bythe Reviewing Party or any aspect thereof, and INSIGHT hereby consents toservice of process and to appear in any such proceeding.  Any determination by the Reviewing Partyotherwise shall be conclusive and binding on INSIGHT and INDEMNITEE.

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## 2.02.                        **Change in Control****.** INSIGHT agrees that if there is a Change in Control of INSIGHT (otherthan a Change in Control which has been approved by a majority of the Board whowere directors immediately prior to such Change in Control), then with respectto all matters thereafter arising concerning the rights of INDEMNITEE toindemnity payments and Expense Advances under this Agreement or any otheragreement or under applicable law or INSIGHT’s Certificate of Incorporation orBylaws now or hereafter in effect relating to indemnification for IndemnifiableEvents, INSIGHT shall seek legal advice only from special, independent counselselected by INDEMNITEE and approved by INSIGHT (which approval shall not beunreasonably withheld).  Such special,independent counsel shall not have otherwise performed services for INSIGHT orINDEMNITEE (other than in connection with such matters) within the last five (5) years.  Such special, independent counsel shall notinclude any person who, under the applicable standards of professional conductthen prevailing, would have a conflict of interest in representing eitherINSIGHT or INDEMNITEE in an action to determine INDEMNITEE’s rights under thisAgreement.  Such counsel, among otherthings, shall render its written opinion to INSIGHT and INDEMNITEE as towhether and to what extent INDEMNITEE would be permitted to be indemnifiedunder applicable law.  INSIGHT agrees topay the reasonable fees of the special, independent counsel referred to aboveand to indemnify fully such counsel against any and all expenses (includingattorneys’ fees), claims, liabilities and damages arising out of or relating tothis Agreement or the engagement of special, independent counsel pursuanthereto.

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## 2.03.                        **Indemnification for ExpensesIncurred in Enforcing this Agreement****. **INSIGHT shall indemnifyINDEMNITEE against any and all Expenses (including attorneys’ fees) and, ifrequested by INDEMNITEE, shall (within ten (10) business days of suchrequest) advance such expenses to INDEMNITEE, which are incurred by INDEMNITEEin connection with any claim asserted against or action brought by INDEMNITEEfor (i) indemnification or

 

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## advance payment for Expenses by INSIGHT underthis Agreement or any other agreement, or relating to indemnification forIndemnifiable Events and/or (ii) recovery under any directors’ andofficers’ liability insurance policies maintained by INSIGHT, regardless ofwhether INDEMNITEE ultimately is determined to be entitled to such indemnification,advance expense payment or insurance recovery, as the case may be.  Expenses shall be advanced, however, onlyupon delivery to INSIGHT of an undertaking by or on behalf of INDEMNITEE torepay such amount if it is ultimately determined that INDEMNITEE is notentitled to be indemnified by INSIGHT.

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## 2.04.                        **Partial Indemnity****.** If INDEMNITEE is entitled under any provision of this Agreement toindemnification by INSIGHT for some or a portion of the Expenses, judgments,fines, penalties and amounts paid in settlement of a Proceeding but not,however, for all of the total amount thereof, INSIGHT shall neverthelessindemnify INDEMNITEE for the portion thereof to which INDEMNITEE isentitled.  Moreover, notwithstanding anyother provision of this Agreement, to the extent that INDEMNITEE has beensuccessful on the merits or otherwise in defense of any or all Proceedingsrelating in whole or in part to an Indemnifiable Event or in defense of anyissue or matter therein, including dismissal without prejudice, INDEMNITEEshall be indemnified against all Expenses incurred in connection therewith.

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## 2.05.                        **Defense to Indemnification,Burden of Proof and Presumptions****.**  It shall be adefense to any action brought by INDEMNITEE against INSIGHT to enforce thisAgreement (other than an action brought to enforce a claim for Expensesincurred in defending a Proceeding in advance of its final disposition wherethe required undertaking has been tendered to INSIGHT) that INDEMNITEE has notmet the standard of conduct that makes it permissible under the DelawareGeneral Corporation Law for INSIGHT to indemnify INDEMNITEE for the amountclaimed.  In connection with anydetermination by the Reviewing Party or otherwise as to whether INDEMNITEE isentitled to be indemnified hereunder, the burden of proving such right toindemnification shall be on INDEMNITEE. Neither the failure of INSIGHT (including the INSIGHT Board, specialindependent counsel or its stockholders) to have made a determination prior tothe commencement of such action by INDEMNITEE that indemnification ofINDEMNITEE is proper under the circumstances because he or she has met theapplicable standard of conduct set forth in the Delaware General CorporationLaw, nor an actual determination by INSIGHT (including the INSIGHT Board,special, independent counsel or its stockholders) that INDEMNITEE has not metsuch applicable standard of conduct, shall be a defense to the action or createa presumption that INDEMNITEE has not met the applicable standard of conduct.  For purposes of this Agreement, thetermination of any Proceeding by judgment, order, settlement (whether with orwithout court approval) or conviction, or upon a plea of nolo contendere, orits equivalent, shall not create a presumption that INDEMNITEE did not meet anyparticular standard of conduct or have any particular belief or that a courthas determined that indemnification is not permitted by applicable law.

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## 2.06.                        **Non-exclusivity****.** The rights of INDEMNITEE hereunder shall be in addition to any otherrights INDEMNITEE may have under INSIGHT’s Certificate of Incorporation orBylaws or the Delaware General Corporation Law or otherwise.  To the extent that a change in the DelawareGeneral Corporation Law (whether by statute or judicial decision) permits greaterindemnification by agreement than would be afforded currently under INSIGHT’sCertificate of

 

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## Incorporation and Bylaws and this Agreement,it is the intent of the parties hereto that INDEMNITEE shall enjoy by thisAgreement the greater benefits so afforded by such change.

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# **ARTICLE IIIGENERAL PROVISIONS**

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## 3.01.                        **Liability Insurance****.** To the extent INSIGHT maintains an insurance policy or policiesproviding directors’ and officers’ liability insurance, INDEMNITEE shall becovered by such policy or policies, in accordance with its or their terms, tothe maximum extent of the coverage available for any director or officer.

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## 3.02.                        **Period of Limitations****.** No legal action shall be brought and no cause of action shall beasserted by or on behalf of INSIGHT or any Affiliate of INSIGHT againstINDEMNITEE, INDEMNITEE’s spouse, heirs, executors or personal or legalrepresentatives after the expiration of two (2) years from the date ofaccrual of such cause of action, or such longer period as may be required bystate law under the circumstances, and any claim or cause of action of INSIGHTor its Affiliates shall be extinguished and deemed released unless asserted bythe timely filing of a legal action within such period; provided, however, thatif any shorter period of limitations is otherwise applicable to any such causeof action, such shorter period shall govern.

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## 3.03.                        **Amendment of this Agreement****.** No supplement, modification or amendment of this Agreement shall bebinding unless executed in writing by both of the parties hereto.  No waiver of any of the provisions of thisAgreement shall be deemed or shall constitute a waiver of any other provisionshereof (whether or not similar), nor shall such waiver constitute a continuingwaiver.  Except asspecifically provided herein, no failure to exercise or any delay in exercisingany right or remedy hereunder shall constitute a waiver thereof.

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## 3.04.                        **Subrogation****.** In the event of payment under this Agreement, INSIGHT shall be subrogatedto the extent of such payment to all of the rights of recovery of INDEMNITEE,who shall execute all papers required and shall do everything that may benecessary to secure such rights, including the execution of such documentsnecessary to enable INSIGHT effectively to bring suit to enforce such rights.

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## 3.05.                        **No Duplication of Payments****.** INSIGHT shall not be liable under this Agreement to make any payment inconnection with any claim made against INDEMNITEE to the extent INDEMNITEE hasotherwise actually received payment (under any insurance policy, Certificate ofIncorporation, Bylaws or otherwise) of the amounts otherwise indemnifiablehereunder.

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## 3.06.                        **Settlement of Claims****.** INSIGHT shall not be liable to indemnify INDEMNITEE under this Agreementfor any amounts paid in settlement of any action or claim effectedwithout INSIGHT’s written consent. INSIGHT shall not settle any action or claim in any manner which wouldimpose any penalty or limitation on INDEMNITEE without INDEMNITEE’s writtenconsent.  Neither INSIGHT nor INDEMNITEEwill unreasonably withhold their consent to any proposed settlement.  INSIGHT shall not be liable to indemnifyINDEMNITEE under this Agreement with regard to any judicial award if INSIGHTwas not given a reasonable and timely opportunity, at its expense, toparticipate in the defense of such action.

 

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## 3.07.                        **Binding Effect****.** This Agreement shall be binding upon and inure to the benefit of and beenforceable by the parties hereto and their respective successors, assigns(including any direct or indirect successor by purchase, merger, consolidationor otherwise to all or substantially all of the business and/or assets ofINSIGHT), spouses, heirs and personal and legal representatives.  INSIGHT shall require and cause any successor(whether directly or indirectly by purchase, merger, consolidation orotherwise) to all, substantially all or a substantial part of the businessand/or assets of INSIGHT, by written agreement in form and substancesatisfactory to INDEMNITEE, expressly to assume and agree to perform thisAgreement in the same manner and to the same extent that INSIGHT would berequired to perform if no such succession had taken place.  This Agreement shall continue in effectregardless of whether INDEMNITEE continues to serve as a director or officer ofINSIGHT or of any other enterprise at INSIGHT’s request.

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## 3.08.                        **Severability****.** The provisions of this Agreement shall be severable in the event thatany of the provisions hereof (including any provision within a single section,paragraph or sentence) is held by a court of competent jurisdiction to beinvalid, void or otherwise unenforceable, and the remaining provisions shallremain enforceable to the fullest extent permitted by law.  Furthermore, to the fullest extent possible,the provisions of this Agreement (including, without limitation, each portionof this Agreement containing any provision held to be invalid, void or otherwiseunenforceable, that is not itself invalid, void orunenforceable) shall be construed so as to give effect to the intent manifestedby the provision held invalid, illegal or unenforceable.

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## 3.09.                        **Governing Law****. **ThisAgreement shall be governed by and construed and enforced in accordance with thelaws of the state of Delaware applicable to contracts made and to be performedin such state without giving effect to the principles of conflicts of laws.

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## 3.10.                        **Counterparts****.** This Agreement may be executed in one or more counterparts, each ofwhich shall be deemed an original, but all of which together shall constituteone and the same instrument.

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## 3.11.                        **Notices****.** All notices, demands and other communications required or permittedhereunder shall be made in writing and shall be deemed to have been duly givenif delivered by hand, against receipt, or mailed, postage prepaid, certified orregistered mail, return receipt requested, or deposited with a reputableovernight courier with all charges prepaid, and addressed to INSIGHT at:

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InSight Health Services Corp.

26250 Enterprise Court, Suite 100

Lake Forest, California 92630-8405

Attention: General Counsel

Fax: (949) 462-3703

 

andto INDEMNITEE at:

 

Street Address

City, State, Zip

 

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## Notice of change ofaddress shall be effective only when done in accordance with this Section.  All notices complying with this Section shallbe deemed to have been received on the date of delivery if personallydelivered, one (1) day after deposit with an overnight courier, or on thefourth business day after mailing.

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## IN WITNESS WHEREOF,the parties hereto have executed and delivered this Agreement as of the dayfirst above written.

 

 
|   | “INSIGHT”           |
|--------|-------------------------------|
|   | INSIGHT HEALTH SERVICES CORP. |
|   |                          |
|   | By:                           |   |   |
|   |                          |   |
|   |                          |
|   | “INDEMNITEE”        |
|   |                          |
|   |                          |   |
|   | [name]                        |

 

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