EXHIBIT 99.1
STOCKHOLDER SUPPORT AGREEMENT
THIS STOCKHOLDER SUPPORT AGREEMENT dated as of September 13, 1999
(this "Agreement"), is entered into among Newport Investment LLC, a Delaware
limited liability company (the "Stockholder"), Viewer Holdings LLC, a Delaware
limited liability company ("Viewer") and Viewer Acquisition Corporation, a
Delaware corporation ("Newco"). Capitalized terms used and not otherwise
defined herein shall have the respective meanings assigned to them in the Merger
Agreement referred to below.
WHEREAS, concurrently with the execution of this Agreement, Newco and
Alliance Imaging, Inc., a Delaware corporation (the "Company") are entering into
an Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"), pursuant to which, upon the terms and subject to the conditions
thereof, Newco will be merged with and into the Company (the "Merger");
WHEREAS, as of the date hereof, the Stockholder owns of record and
beneficially 3,389,324 shares of common stock, par value $.01 per share ("Common
Stock") and 141,000 shares of Series F Preferred, of the Company (collectively
and together with any other voting or equity securities of the Company hereafter
acquired by the Stockholder beneficially or of record prior to the termination
of this Agreement, the "Shares"); and
WHEREAS, as a condition to the willingness of Newco to enter into the
Merger Agreement, Newco has requested that the Stockholder agree, and in order
to induce Newco to enter into the Merger Agreement, the Stockholder is willing,
to consent to the adoption of the Merger Agreement and the approval of the
Merger and to agree to certain other matters, all upon the terms and subject to
the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereby agree, severally and not jointly, as follows:
Section 1. Consent; Voting of Shares; Proxy; Termination of Existing
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Agreements.
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(a) After approval of the Merger Agreement and Merger by the Board,
the Stockholder, as the record and beneficial owner of its Shares, hereby
irrevocably (i) consents to and adopts, for all purposes of all approvals
required to be given by holders of Common Stock and Series F Preferred voting or
consenting as a separate class and voting or consenting as a single class with
all capital stock of the Company under the DGCL, the Certificate of Designation,
Powers, Preferences and rights of Series F Preferred Stock or otherwise, the
Merger Agreement and the Merger and the other transactions contemplated by the
Merger Agreement, and (ii) agrees that the Merger shall not be deemed a
liquidation for purposes of the Series F Preferred. During the term of this
Agreement, the Stockholder shall not revoke the consent and approvals given by
this Section 1(a). The Stockholder acknowledges receipt of and opportunity to
review a copy of the Merger Agreement.
(b) The Stockholder hereby agrees that at any meeting of the
stockholders of the Company, however called, and in any action by consent of the
stockholders of the Company in lieu of a meeting, the Stockholder will vote all
of its Shares (i) in favor of (A) the adoption of the Merger Agreement and
approval of the Merger
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and the other transactions contemplated by the Merger Agreement and hereby
consents to the adoption of the Merger Agreement and the approval of the Merger
and the other transactions contemplated by the Merger Agreement and (B) any
other matter necessary to the consummation of the transactions contemplated by
the Merger Agreement and (ii) against (X) any Alternative Transaction, (Y)
corporate action the consummation of which would frustrate the purposes or
impede, prevent, nullify or delay consummation of the transactions contemplated
by the Merger Agreement or (Z) any amendment to the Company's certificate of
incorporation or bylaws.
(c) From time to time and without additional consideration, the
Stockholder shall execute and deliver, or cause to be executed and delivered,
such proxies, consents and other similar instruments and shall take such further
actions as Viewer or Newco may reasonably request for the purpose of carrying
out and furthering the intent of this Agreement. The Stockholder shall use all
reasonable best efforts to assist and cooperate with the other parties to
consummate and make effective, in the most expeditious manner practicable, the
Merger and the other transactions contemplated by the Merger Agreement.
(d) On and after the Effective Time, the Stockholder hereby agrees to
enter into a termination agreement with the Company whereby all agreements
between the Stockholder or any of its Affiliates, on one hand, and the Company
or any of its Subsidiaries, on the other hand, shall be terminated, with no
force effect and the parties thereto shall have no further rights or obligations
thereunder, except for (i) rights to indemnification and exculpation set forth
in the agreements referred to in Schedule 6.2(h) of the Merger Agreement, and
(ii) agreements which would not be required to be disclosed by the Company in
any proxy statement filed with the Securities and Exchange Commission pursuant
to the Securities Exchange Act of 1934, if the Company were to file such a proxy
on the date of the Effective Time.
Section 2. Transfer of Shares. The Stockholder agrees that it shall
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not take any action to, directly or indirectly, (i) offer to sell, sell, assign,
transfer (including by merger or otherwise by operation of law), pledge,
encumber or otherwise dispose of any of its respective Shares, in any case, (ii)
deposit any of its respective Shares into a voting trust or enter into a voting
agreement or arrangement with respect to any such Shares or grant any proxy or
power of attorney with respect thereto, or (iii) enter into any contract, option
or other arrangement or undertaking with respect to the direct or indirect sale,
assignment, transfer (including by merger or otherwise by operation of law) or
other disposition of or transfer of any interest in or the voting of any of its
respective Shares or any other securities of the Company.
Section 3. No Solicitation. The Stockholder agrees that neither it
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nor any of its Affiliates, nor any officer, director, employee, partner or
member of the Stockholder or its Affiliates and that it shall direct and use its
reasonable efforts to cause its and its Affiliates' agents and representatives
(including investment bankers, attorneys or accountants) (i) to cease any
discussions or negotiations with any parties other than Newco, Viewer and their
Affiliates and representatives with respect to an Alternative Transaction, and
(ii) not to, directly or indirectly, encourage, solicit, initiate, enter into or
conduct discussions or negotiations with or provide any non-public information
to any person or group (other than Newco, Viewer and their Affiliates and
representatives) concerning any Alternative Transaction.
Section 4. Termination. This Agreement and the representations,
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warranties and covenants contained herein, shall terminate upon the earlier to
occur of (i) the Effective Time or (ii) any termination of the Merger Agreement
in accordance with the terms thereof; provided that no such termination shall
relieve any party of liability for a breach hereof prior to termination.
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Section 5. Representations. The Stockholder represents and warrants
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to Viewer and Newco as follows:
(a) The Stockholder is the sole record and beneficial owner of, and
has good title to, all of the Shares set forth beneath its name on the signature
pages hereto, and there exist no restrictions on transfer, options, proxies,
voting agreements, voting trusts or liens affecting said Shares, except as
imposed by law. The Stockholder has the power to vote, dispose of and otherwise
transfer its Shares without the approval, consent or other action of any Person
(other than a general partner acting in such capacity).
(b) The execution and delivery of this Agreement by the Stockholder
does not, and the performance by the Stockholder of its obligations hereunder
will not, constitute a violation of, conflict with, result in a default (or an
event which, with notice or lapse of time or both, would result in a default)
under, or result in the creation of any lien on any of its Shares under, (i) any
contract commitment, agreement, understanding, arrangement or restriction of any
kind to which the Stockholder is a party or by which the Stockholder or its
Shares are bound, (ii) any judgment, writ, decree, order or ruling affecting the
Stockholder or its Shares, or (iii) the organizational documents of the
Stockholder to the extent the Stockholder is not an individual.
(c) The Stockholder has full power and authority to execute, deliver
and perform this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by the Stockholder and no other actions on the part of the
Stockholder are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by the Stockholder and, assuming due authorization,
execution and delivery by Viewer, constitutes a valid and binding agreement of
the Stockholder, enforceable against the Stockholder in accordance with its
terms, except to the extent that enforceability may be limited by applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting the
enforcement of creditor's rights generally and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
(d) Other than as contemplated in the Merger Agreement, the
Stockholder has not entered into nor will it enter into any contract, agreement,
arrangement or understanding with any Person which will result in the obligation
of Newco, Viewer or the Company to pay any finder's fee, brokerage commission or
similar payment in connection with the transactions contemplated hereby.
Section 6. Waiver of Dissenter's and Appraisal Rights. The
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Stockholder agrees that it will not exercise any rights to dissent from the
Merger or request appraisal of its respective Shares pursuant to Section 262 of
the DGCL or any other similar provisions of law in connection with the Merger.
Section 7. Specific Performance. The parties hereto agree that
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irreparable damage would occur in the event any provision of this Agreement were
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
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Section 8. Miscellaneous.
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(a) This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, both written and oral, between the parties
with respect thereto. This Agreement may not be amended, modified or rescinded
except by an instrument in writing signed by each of the parties hereto.
(b) If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law, or public policy, all
other conditions and provisions of this Agreement shall nevertheless remain in
full force and effect. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by
applicable law in a mutually acceptable manner in order that the terms of this
Agreement remain as originally contemplated to the fullest extent possible.
(c) This Agreement shall be governed by and construed in accordance
with the internal laws of the State of Delaware without regard to the principles
of conflicts of law thereof.
(d) This Agreement may be executed in counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same instrument. This Agreement shall be binding upon the Stockholder upon
the execution of this Agreement by such Stockholder.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Stockholder
Support Agreement to be signed by its respective duly authorized signatory as of
the date first written above.
Date:________________ NEWPORT INVESTMENT LLC
a Delaware limited liability company
By:_______________________________
Name:
Title:
Shares of Common Stock: 3,389,324
Shares of Series F Preferred: 141,000
VIEWER HOLDINGS LLC
a Delaware limited liability company
By:_______________________________
Name:
Title:
VIEWER ACQUISITION CORPORATION
a Delaware corporation
By:_______________________________
Name:
Title:
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