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EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
THIS
AGREEMENT is entered into effective as May __, 2008 by and
between
RadNet, Inc., a New York corporation ("RADNET NY"), and if the
proposal to
reincorporate the Company in Delaware is approved by the Company's
stockholders,
RadNet, Inc., a Delaware corporation ("RADNET DE") and
______________
("INDEMNITEE"). Both RadNet NY and RadNet DE are referred to herein
collectively
and individually as the "COMPANY."
WHEREAS,
it is essential to the Company to retain and attract as
directors
and officers the most capable persons available;
WHEREAS,
Indemnitee is a director and/or officer of the Company;
WHEREAS,
both the Company and Indemnitee recognize the increased risk of
litigation and other claims currently being asserted against
directors and
officers of corporations;
WHEREAS,
the Certificate of Incorporation and Bylaws of RadNet NY, and,
provided the proposed Certificate of Incorporation and Bylaws of
RadNet DE are
adopted by the Company's stockholders, the Certificate of
Incorporation and
Bylaws of RadNet DE require the Company to indemnify and advance
expenses to its
directors and officers to the fullest extent permitted under
applicable law, and
the Indemnitee has been serving and continues to serve as a
director and/or
officer of the Company in part in reliance on the Company's
Certificate of
Incorporation and Bylaws; and
WHEREAS,
in recognition of Indemnitee's need for (i) substantial
protection against personal liability based on Indemnitee's
reliance on the
aforesaid Certificate of Incorporation and Bylaws, (ii) specific
contractual
assurance that the protection promised by the Certificate of
Incorporation and
Bylaws will be available to Indemnitee (regardless of, among other
things, any
amendment to or revocation of the Certificate of Incorporation and
Bylaws or any
change in the composition of the Company's Board of Directors), and
(iii) an
inducement to provide effective services to the Company as a
director and/or
officer, the Company wishes to provide in this Agreement for the
indemnification
of and the advancing of expenses to Indemnitee to the fullest
extent (whether
partial or complete) permitted under applicable law and as set
forth in this
Agreement, and, to the extent insurance is maintained, to provide
for the
continued coverage of Indemnitee under the Company's directors' and
officers'
liability insurance policies.
NOW,
THEREFORE, in consideration of the above premises and of
Indemnitee
continuing to serve the Company directly or, at its request, with
another
enterprise, and intending to be legally bound hereby, the parties
agree as
follows:
1. CERTAIN
DEFINITIONS:
(a)
BOARD: the Board
of Directors of the Company.
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(b)
AFFILIATE: any
corporation or other person or entity that directly,
or indirectly through one or more intermediaries, controls or is
controlled by,
or is under common control with, the person specified.
(c)
CHANGE IN
CONTROL: shall be deemed to have occurred if (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of the
Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT")) (other than
a trustee or
other fiduciary holding securities under an employee benefit plan
of the Company
or a corporation owned directly or indirectly by the stockholders
of the Company
in substantially the same proportions as their ownership of stock
of the
Company, and other than any person holding shares of the Company on
the date
that the Company first registers its common stock under the
Exchange Act or any
transferee of such individual if such transferee is a spouse or
lineal
descendant of the transferee or a trust for the benefit of the
individual, his
spouse or lineal descendants), is or becomes the "beneficial owner"
(as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of
the Company representing 30% or more of the total voting power
represented by
the Company's then outstanding Voting Securities, or (ii) during
any period of
two consecutive years, individuals who at the beginning of such
period
constitute the Board and any new director whose election by the
Board or
nomination for election by the Company'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 of the Board, or (iii) the stockholders of the Company
approve a merger
or consolidation of the Company with any other corporation, other
than a merger
or consolidation that would result in the Voting Securities of the
Company
outstanding immediately prior thereto continuing to represent
(either by
remaining outstanding or by being converted into Voting Securities
of the
surviving entity) at least 80% of the total voting power
represented by the
Voting Securities of the Company or such surviving entity
outstanding
immediately after such merger or consolidation, or (iv) the
stockholders of the
Company approve a plan of complete liquidation of the Company or an
agreement
for the sale or disposition by the Company (in one transaction or a
series of
transactions) of all or substantially all of the Company's
assets.
(d)
EXPENSES: any
expense, liability, or loss, including attorneys'
fees, judgments, fines, ERISA excise taxes and penalties, amounts
paid or to be
paid in settlement, any interest, assessments, or other charges
imposed thereon,
any federal, state, local, or foreign taxes imposed as a result of
the actual or
deemed receipt of any payments under this Agreement, and all other
costs and
obligations, paid or incurred in connection with investigating,
defending, being
a witness in, participating in (including on appeal), or preparing
for any of
the foregoing in, any Proceeding relating to any Indemnifiable
Event.
(e)
INDEMNIFIABLE
EVENT: any event or occurrence that takes place either
prior to or after the execution of this Agreement, related to the
fact that
Indemnitee is or was a director or officer of the Company, or while
a director
or officer is or was serving at the request of the Company as a
director,
officer, employee, trustee, agent, or fiduciary of another foreign
or domestic
corporation, partnership, joint venture, employee benefit plan,
trust, or other
enterprise, or was a director, officer, employee, or agent of a
foreign or
domestic corporation that was a predecessor corporation of the
Company or of
another enterprise at the request of such predecessor corporation,
or related to
anything done or not done by Indemnitee in any such capacity,
whether or not the
basis of the Proceeding is alleged action in an official capacity
as a director,
officer, employee, or agent or in any other capacity while serving
as a
director, officer, employee, or agent of the Company, as described
above.
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(f)
INDEPENDENT
COUNSEL: the person or body appointed in connection with
Section 3.
(g)
PROCEEDING: any
threatened, pending, or completed action, suit, or
proceeding or any alternative dispute resolution mechanism
(including an action
by or in the right of the Company), or any inquiry, hearing, or
investigation,
whether conducted by the Company or any other party, that
Indemnitee in good
faith believes might lead to the institution of any such action,
suit, or
proceeding, whether civil, criminal, administrative, investigative,
or other.
(h)
REVIEWING PARTY:
the person or body appointed in accordance with
Section 3.
(i)
VOTING
SECURITIES: any securities of the Company that vote generally
in the election of directors.
2.
AGREEMENT TO INDEMNIFY.
(a)
GENERAL
AGREEMENT. In the event Indemnitee was, is, or becomes a
party to or witness or other participant in, or is threatened to be
made a party
to or witness or other participant in, a Proceeding by reason of
(or arising in
part out of) an Indemnifiable Event, the Company shall indemnify
Indemnitee from
and against any and all Expenses to the fullest extent permitted by
law, as the
same exists or may hereafter be amended or interpreted (but in the
case of any
such amendment or interpretation, only to the extent that such
amendment or
interpretation permits the Company to provide broader
indemnification rights
than were permitted prior thereto). The parties hereto intend that
this
Agreement shall provide for indemnification in excess of that
expressly
permitted by statute, including, without limitation, any
indemnification
provided by the Company's Certificate of Incorporation, its Bylaws,
vote of its
shareholders or disinterested directors, or applicable law.
(b)
INITIATION OF
PROCEEDING. Notwithstanding anything in this Agreement
to the contrary, Indemnitee shall not be entitled to
indemnification pursuant to
this Agreement in connection with any Proceeding initiated by
Indemnitee against
the Company or any director or officer of the Company unless (i)
the Company has
joined in or the Board has consented to the initiation of such
Proceeding; (ii)
the Proceeding is one to enforce indemnification rights under
Section 5; or
(iii) the Proceeding is instituted after a Change in Control (other
than a
Change in Control approved by a majority of the directors on the
Board who were
directors immediately prior to such Change in Control) and
Independent Counsel
has approved its initiation.
(c)
EXPENSE
ADVANCES. If so requested by Indemnitee, the Company shall
advance (within ten business days of such request) any and all
Expenses to
Indemnitee (an "EXPENSE ADVANCE"); provided that, (i) such an
Expense Advance
shall be made only upon delivery to the Company of an undertaking
by or on
behalf of the Indemnitee to repay the amount thereof if it is
ultimately
determined that Indemnitee is not entitled to be indemnified by the
Company, and
(ii) if and to the extent that the Reviewing Party determines that
Indemnitee
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would not be permitted to be so indemnified under applicable law,
the Company
shall be entitled to be reimbursed by Indemnitee (who hereby agrees
to reimburse
the Company) for all such amounts theretofore paid. If Indemnitee
has commenced
or commences legal proceedings in a court of competent jurisdiction
to secure a
determination that Indemnitee should be indemnified under
applicable law, as
provided in Section 4, any determination made by the Reviewing
Party that
Indemnitee would not be permitted to be indemnified under
applicable law shall
not be binding, and Indemnitee shall not be required to reimburse
the Company
for any Expense Advance until a final judicial determination is
made with
respect thereto (as to which all rights of appeal therefrom have
been exhausted
or have lapsed). Indemnitee's obligation to reimburse the Company
for Expense
Advances shall be unsecured and no interest shall be charged
thereon.
(d)
MANDATORY
INDEMNIFICATION. Notwithstanding any other provision of
this Agreement, to the extent that Indemnitee has been successful
on the merits
or otherwise in defense of any Proceeding relating in whole or in
part to an
Indemnifiable Event or in defense of any issue or matter therein,
Indemnitee
shall be indemnified against all Expenses incurred in connection
therewith.
(e)
PARTIAL
INDEMNIFICATION. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for
some or a
portion of Expenses, but not, however, for the total amount
thereof, the Company
shall nevertheless indemnify Indemnitee for the portion thereof to
which
Indemnitee is entitled.
(f)
PROHIBITED
INDEMNIFICATION. No indemnification pursuant to this
Agreement shall be paid by the Company on account of any Proceeding
in which
judgment is rendered against Indemnitee for an accounting of
profits made from
the purchase or sale by Indemnitee of securities of the Company
pursuant to the
provisions of Section 16(b) of the Exchange Act, or similar
provisions of any
federal, state, or local laws.
3.
REVIEWING PARTY. Prior to any Change in Control, the Reviewing
Party shall
be any appropriate person or body consisting of a member or members
of the Board
or any other person or body appointed by the Board who is not a
party to the
particular Proceeding with respect to which Indemnitee is
seeking
indemnification; after a Change in Control, the Independent Counsel
referred to
below shall become the Reviewing Party. With respect to all matters
arising
after a Change in Control (other than a Change in Control approved
by a majority
of the directors on the Board who were directors immediately prior
to such
Change in Control) concerning the rights of Indemnitee to indemnity
payments and
Expense Advances under this Agreement or any other agreement or
under applicable
law or the Company's Certificate of Incorporation or Bylaws now or
hereafter in
effect relating to indemnification for Indemnifiable Events, the
Company shall
seek legal advice only from Independent Counsel selected by
Indemnitee and
approved by the Company (which approval shall not be unreasonably
withheld), and
who has not otherwise performed services for the Company or the
Indemnitee
(other than in connection with indemnification
