EXHIBIT 10.23
REGISTRATION RIGHTS
AGREEMENT dated as of November __, 1997
(this "Agreement"), between ALLIANCE
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IMAGING, INC., a Delaware corporation
(the "Company") and NEWPORT INVESTMENT
LLC, a Delaware limited liability
company (the "Investor").
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WHEREAS, upon consummation of the transactions contemplated by the
Agreement and Plan of Merger dated as of July 23, 1997, as amended on August 13,
1997 and as it may hereafter be amended, supplemented or restated from time to
time (the "Recapitalization Merger Agreement"), the Investor will own shares of
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Common Stock, par value $.01 per share, of the Company (the "Shares");
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WHEREAS, pursuant to the Recapitalization Merger Agreement, the
Company has agreed to execute and deliver this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and the investment by the Investor pursuant to the
Recapitalization Merger Agreement, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows (capitalized terms used
herein and not defined herein have the meanings set forth in the
Recapitalization Merger Agreement):
1. DEFINITIONS. As used in this Agreement, the following terms shall have the
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following meanings:
"COMMISSION" shall mean the Securities and Exchange Commission or any
other Federal agency at the time administering the Securities Act.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934 or any
successor Federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect from time to time.
"HOLDER" shall mean a holder of Registrable Shares.
"MAJORITY OF HOLDERS" shall mean those Holders who hold in the
aggregate in excess of 50% of the Registrable Shares held by all of the Holders.
"MATERIAL TRANSACTION" shall mean any material transaction in which
the Company or any of its subsidiaries proposes to engage or is engaged,
including a purchase or sale of assets or securities, financing, merger,
consolidation, tender offer or any other transaction that would require
disclosure pursuant to the Exchange Act, and with respect to which the Board of
Directors of the Company reasonably has determined in good faith that compliance
with this Agreement may be reasonably expected to either materially interfere
with the Company's or such subsidiary's ability to consummate such transaction
in a timely fashion or require the Company to disclose material, non-public
information prior to such time as it would otherwise be required to be
disclosed.
"OTHER SHARES" shall mean at any time those Shares which do not
constitute Primary Shares or Registrable Shares.
"PERSON" shall be interpreted broadly and shall include, without
limitation, any individual, sole proprietorship, corporation, partnership,
limited liability company, joint venture, trust or other entity.
"PRIMARY SHARES" shall mean at any time the authorized but unissued
Shares or Shares held by the Company in its treasury.
"PROSPECTUS" shall mean the prospectus included in a Registration
Statement, including any prospectus subject to completion, and any such
prospectus as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Shares and, in
each case, by all other amendments and supplements to such prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"REGISTRABLE SHARES" shall mean all Shares received by the Investor in
connection with the Merger in the manner provided in the Recapitalization Merger
Agreement, which have not theretofore been sold to the public pursuant to a
registration statement under the Securities Act or pursuant to Rule 144.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company which covers any of the Registrable Shares, and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"REPRESENTATIVE" of a Person shall be construed broadly and shall
include such Person's partners, officers, directors, employees, agents, counsel,
accountants and other representatives.
"RULE 144" shall mean Rule 144 promulgated under the Securities Act or
any successor rule thereto or any complementary rule thereto (such as Rule
144A).
"SECURITIES ACT" shall mean the Securities Act of 1933 or any
successor Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
"TRANSFER" shall include any disposition of any Restricted Shares or
of any interest therein which would constitute a sale thereof within the meaning
of the Securities Act other than any such disposition pursuant to an effective
registration statement under the Securities Act and complying with all
applicable state securities and "blue sky" laws.
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2. DEMAND REGISTRATION. If the Company shall be requested by any Holder to
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effect the registration under the Securities Act of Registrable Shares, then the
Company shall, within 10 days of such request, deliver a written notice of such
proposed registration to all holders of outstanding Registrable Shares and shall
offer to include in such proposed registration any Registrable Shares requested
to be included in such proposed registration by the Holders of Registrable
Shares who or which shall respond in writing to the Company's notice within 15
days after delivery thereof. The Company shall promptly thereafter effect such
registration under the Securities Act of the Registrable Shares which the
Company has been so requested to register; provided, however, that the Company
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shall not be obligated to effect any registration under the Securities Act
except in accordance with the following provisions:
(a) the Company shall not be obligated to use its best efforts to file
and cause to become effective (A) more than three Registration Statements
initiated pursuant to Section 2(a); provided that if the Holders were unable to
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sell at least 90% of the Registrable Shares requested to be included in the last
registration pursuant to Section 2(a) as a result of an underwriter's cutback,
then additional registrations shall be added to this Section 2(b)(i) until the
foregoing condition is satisfied, or (B) any Registration Statement during any
period in which any other registration statement (other than on Form S-4 or Form
S-8 promulgated under the Securities Act or any successor forms thereto)
pursuant to which Primary Shares are to be or were sold has been filed and not
withdrawn or has been declared effective within the prior 90 days;
(b) the Company may delay the filing or effectiveness of any
Registration Statement for a period of up to 90 days after the date of a request
for registration pursuant to Section 2(a) if at the time of such request the
Company is engaged in a Material Transaction; and
(i) with respect to any registration pursuant to Section 2(a), the
Company may include in such registration any Primary Shares; provided, however,
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that if the
managing underwriter advises the Company that the inclusion of all
Registrable Shares, Primary Shares and Other Shares proposed to be
included in such registration would interfere with the successful
marketing (including pricing) of all such securities, then the
number of Registrable Shares, Primary Shares and Other Shares
proposed to be included in such registration shall be included in
the following order:
(A) first, the Registrable Shares;
(B) second, the Primary Shares; and
(C) third, the Other Shares.
(ii) A requested registration under this Section 2 may be rescinded
prior to such registration being declared effective by the Commission by written
notice to the Company from the Investor and such rescinded registration shall
not count as a registration initiated pursuant to this Section 2 for purposes of
subclause (A) of clause (i) of subsection (b) above.
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3. PIGGYBACK REGISTRATION. If the Company at any time proposes for any reason
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to register Primary Shares or Other Shares under the Securities Act (other than
on Form S-4 or Form S-8 promulgated under the Securities Act or any successor
forms thereto), it shall promptly give written notice to each Holder of its
intention so to register the Primary Shares or Other Shares and, upon the
written request, given within 20 days after delivery of any such notice by the
Company, of any such Holder (a "Participating Holder") to include in such
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registration Registrable Shares (which request shall specify the number of
Registrable Shares proposed to be included in such registration), the Company
shall use its best efforts to cause all such Registrable Shares to be included
in such registration on the same terms and conditions as the securities
otherwise being sold in such registration; provided, however, that if the
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managing underwriter advises the Company that the inclusion of all Registrable
Shares or Other Shares proposed to be included in such registration would
interfere with the successful marketing (including pricing) of Primary Shares
proposed to be registered by the Company, then the number of Primary Shares and
Registrable Shares proposed to be included in such registration shall be
included in the following order:
(a) first, the Primary Shares;
(b) second, the Registrable Shares, pro rata based upon the number of
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Registrable Shares held by each Participating Holder at the time of such
registration; and
(c) third, the Other Shares which are proposed to be registered.
4. HOLDBACK AGREEMENT.
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(a) If the Company at any time shall register Shares under the
Securities Act in an underwritten offering pursuant to any registration so long
as a Majority of Holders agree in writing that this holdback provision applies
to such registration, the Holders and the holders of Other Shares shall not
sell, make any short sale of, grant any option for the purchase of, or otherwise
dispose of any Shares (other than those Registrable Shares included in such
registration pursuant to Section 2 or 3) without the prior written consent of
the managing underwriters for a period as shall be determined by the managing
underwriters, which period cannot begin more than 10 days prior to the
effectiveness of such Registration Statement and cannot last more than 180 days
after the effective date of such Registration Statement.
(b) If the Company at any time pursuant to Sections 2 or 3 of this
Agreement shall register Registrable Shares under the Securities Act for sale to
the public pursuant to an underwritten offering, the Company shall not, without
the prior written consent of the managing underwriters, effect any public sale
or distribution of securities similar to those being registered, or any
securities convertible into or exercisable or exchangeable for such securities,
for such period as shall be determined by the managing underwriters, which
period shall not begin more than 10 days prior to the effectiveness of the
Registration Statement pursuant to which such public offering shall be made and
shall not last more than 180 days after the closing of sale of Shares pursuant
to such Registration Statement.
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5. PREPARATION AND FILING. If and whenever the Company is under an obligation
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pursuant to the provisions of this Agreement to use its best efforts to effect
the registration of any Registrable Shares, the Company shall, as expeditiously
as practicable:
(a) file a Registration Statement that registers such Registrable Shares
and use its best efforts to cause such Registration Statement to become and
remain effective for a period of 90 days or until all of such Registrable Shares
have been disposed of (if earlier);
(b) furnish, at least five business days before filing a Registration
Statement that registers such Registrable Shares, a Prospectus relating thereto
and any amendments or supplements relating to such Registration Statement or
Prospectus, to one counsel selected by a Majority of Holders (the "Holders'
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Counsel"),
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copies of all such documents proposed to be filed (it being understood that such
five-business-day period need not apply to successive drafts of the same
document proposed to be filed so long as such successive drafts are supplied to
such counsel in advance of the proposed filing by a period of time that is
customary and reasonable under the circumstances);
(c) prepare and file with the Commission such amendments and supplements
to such Registration Statement and the Prospectus used in connection therewith
as may be necessary to keep such Registration Statement effective for at least a
period of 90 days or until all of such Registrable Shares have been disposed of
(if earlier) and to comply with the provisions of the Securities Act with
respect to the sale or other disposition of such Registrable Shares;
(d) notify the Holders' Counsel promptly in writing (i) of any comments
by the Commission with respect to such Registration Statement or Prospectus, or
any request by the Commission for the amending or supplementing thereof or for
additional information with respect thereto, (ii) of the issuance by the
Commission of any stop order suspending the effectiveness of such Registration
Statement or Prospectus or any amendment or supplement thereto or the initiation
of any proceedings for that purpose and (iii) of the receipt by the Company of
any notification with respect to the suspension of the qualification of such
Registrable Shares for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purposes;
(e) use its best efforts to register or qualify such Registrable Shares
under such other securities or blue sky laws of such jurisdictions as any seller
of Registrable Shares reasonably requests and do any and all other acts and
things which may be reasonably necessary or advisable to enable such seller of
Registrable Shares to consummate the disposition in such jurisdictions of the
Registrable Shares owned by such seller; provided, however, that the Company
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will not be required to qualify generally to do business, subject itself to
general taxation or consent to general service of process in any jurisdiction
where it would not otherwise be required so to do but for this clause (e);
(f) furnish to each seller of such Registrable Shares such number of
copies of a summary Prospectus or other Prospectus, including a preliminary
Prospectus, in conformity with the requirements of the Securities Act, and such
other documents as such seller of Registrable
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Shares may reasonably request in order to facilitate the public sale or other
disposition of such Registrable Shares;
(g) use its best efforts to cause such Registrable Shares to be
registered with or approved by such other governmental agencies or authorities
as may be necessary by virtue of the business and operations of the Company to
enable the seller or sellers thereof to consummate the disposition of such
Registrable Shares;
(h) notify on a timely basis each seller of such Registrable Shares at
any time when a Prospectus relating to such Registrable Shares is required to be
delivered under the Securities Act within the appropriate period mentioned in
clause (i) of this Section 5 of the happening of any event as a result of which
the Prospectus included in such Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing and, at the request
of such seller, prepare and furnish to such seller a reasonable number of copies
of a supplement to or an amendment of such Prospectus as may be necessary so
that, as thereafter delivered to the offerees of such Shares, such Prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
(i) make available for inspection by any seller of such Registrable
Shares, any underwriter participating in any disposition pursuant to such
Registration Statement and any attorney, accountant or other agent retained by
any such seller or underwriter (collectively, the "Inspectors"), all pertinent
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financial and other records, pertinent corporate documents and properties of the
Company (collectively, the "Records"), as shall be reasonably necessary to
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enable them to exercise their due diligence responsibility, and cause the
Company's officers, directors and employees to supply all information (together
with the Records, the "Information") reasonably requested by any such
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Inspector in connection with such Registration Statement (and any of the
Information which the Company determines in good faith to be confidential, and
of which determination the Inspectors are so notified, shall not be disclosed by
the Inspectors unless (i) the disclosure of such Information is necessary to
avoid or correct a misstatement or omission in the Registration Statement, (ii)
the release of such Information is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction, (iii) such Information has been made
generally available to the public, and (iv) the seller of Registrable Shares
agrees that it will, upon learning that disclosure of such Information is sought
in a court of competent jurisdiction, give notice to the Company and allow the
Company, at the Company's expense, to undertake appropriate action to prevent
disclosure of the Information deemed confidential);
(j) use its best efforts to obtain from its independent certified public
accountants a "cold comfort" letter in customary form and covering such matters
of the type customarily covered by cold comfort letters;
(k) use its best efforts to obtain, from its counsel, an opinion or
opinions in customary form (which shall also be addressed to the Holders selling
Registrable Shares in such registration);
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(l) provide a transfer agent and registrar (which may be the same entity
and which may be the Company) for such Registrable Shares;
(m) issue to any underwriter to which any seller of Registrable Shares
may sell Shares in such offering certificates evidencing such Registrable
Shares;
(n) list such Registrable Shares on any national securities exchange on
which any Shares are listed or, if the Shares are not listed on a national
securities exchange, use its best efforts to qualify such Registrable Shares for
inclusion on the automated quotation system of the National Association of
Securities Dealers, Inc. (the "NASD"), National Market System ("NMS"), or such
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other national securities exchange as the holders of a majority of such
Registrable Shares shall request included in such registration;
(o) otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission, and make available to its securityholders, as
soon as reasonably practicable, earnings statements which need not be audited
covering a period of twelve months beginning within three months after the
effective date of the Registration Statement, which earnings statements shall
satisfy the provisions of Section 11(a) of the Securities Act; and
(p) use its best efforts to take all other steps necessary to effect the
registration of such Registrable Shares contemplated hereby.
6. EXPENSES. All expenses incurred by the Company in complying with Section 5,
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including, without limitation, all registration and filing fees (including all
expenses incident to filing with the NASD), fees and expenses of complying with
securities and blue sky laws, printing expenses, fees and expenses of the
Company's counsel and accountants and fees and expenses of one special legal
counsel to the Holders selected by the Majority of Holders, shall be paid by the
Company; provided, however, that all underwriting discounts and selling
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commissions applicable to the Registrable Shares shall not be borne by the
Company but shall be borne by the seller or sellers thereof, in proportion to
the number of Registrable Shares sold by such seller or sellers.
7. INDEMNIFICATION.
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(a) In connection with any registration of any Registrable Shares under
the Securities Act pursuant to this Agreement, the Company shall indemnify and
hold harmless the seller of such Registrable Shares, each underwriter, broker or
any other Person acting on behalf of such seller, each other Person, if any, who
controls any of the foregoing Persons within the meaning of the Securities Act
and each Representative of any of the foregoing Persons, against any losses,
claims, damages or liabilities, joint or several, to which any of the foregoing
Persons may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement under which such
Registrable Shares were registered, any preliminary Prospectus or final
Prospectus contained therein, any amendment or supplement thereto or any
document incident to registration or qualification of any Registrable Shares, or
arise out of or are based upon the
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omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading or,
with respect to any Prospectus, necessary to make the statements therein in
light of the circumstances under which they were made not misleading, or any
violation by the Company of the Securities Act or state securities or blue sky
laws applicable to the Company and relating to action or inaction required of
the Company in connection with such registration or qualification under such
state securities or blue sky laws, and the Company shall promptly reimburse such
seller, such underwriter, such broker, such controlling Person or such
Representatives for any legal or other expenses incurred by any of them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company shall not be
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liable to any such Person to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in said Registration Statement,
preliminary Prospectus, amendment, supplement or document incident to
registration or qualification of any Registrable Shares in reliance upon and in
conformity with written information furnished to the Company through an
instrument duly executed by such Person, or a Person duly acting on their
behalf, specifically for use in the preparation thereof; provided further,
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however, that the foregoing indemnity agreement is subject to the condition
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that, insofar as it relates to any untrue statement, allegedly untrue statement,
omission or alleged omission made in any preliminary Prospectus but eliminated
or remedied in the final Prospectus (filed pursuant to Rule 424 of the
Securities Act), such indemnity agreement shall not inure to the benefit of any
indemnified party from whom the Person asserting any loss, claim, damage,
liability or expense purchased the Registrable Shares which are the subject
thereof, if a copy of such final Prospectus had been timely made available to
such indemnified Person and such final Prospectus was not delivered to such
Person with or prior to the written confirmation of the sale of such Registrable
Shares to such Person.
(b) In connection with any registration of Registrable Shares under the
Securities Act pursuant to this Agreement, each seller of Registrable Shares
shall indemnify and hold harmless (in the same manner and to the same extent as
set forth in the paragraph (a) of this Section 7) the Company, each underwriter
or broker involved in such offering, each other seller of Registrable Shares
under such Registration Statement, each Person who controls any of the foregoing
Persons within the meaning of the Securities Act and any Representative of the
foregoing Persons with respect to any statement or omission from such
Registration Statement, any preliminary Prospectus or final Prospectus contained
therein, any amendment or supplement thereto or any document incident to
registration or qualification of any Registrable Shares, if such statement or
omission was made in reliance upon and in conformity with written information
furnished to the Company or such underwriter through an instrument duly executed
by such seller or a Person duly acting on their behalf specifically for use in
connection with the preparation of such Registration Statement, preliminary
Prospectus, final Prospectus, amendment or supplement; provided, however, that
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the maximum amount of liability in respect of such indemnification shall be
limited, in the case of each seller of Registrable Shares, to an amount equal to
the net proceeds actually received by such seller from the sale of Registrable
Shares effected pursuant to such registration.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in the preceding
paragraphs of this Section 7, such
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indemnified party will, if a claim in respect thereof is made against an
indemnifying party, give written notice to the latter of the commencement of
such action (provided that an indemnified party's failure to give such notice in
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a timely manner shall only relieve the indemnification obligations of an
indemnifying party to the extent such indemnifying party is prejudiced by such
failure). In case any such action is brought against an indemnified party, the
indemnifying party will be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similarly notified to the
extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be responsible for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof; provided, however, that if any indemnified party shall have reasonably
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concluded that there may be one or more legal or equitable defenses available to
such indemnified party which are in addition to or conflict with those available
to the indemnifying party, or that such claim or litigation involves or could
have an effect upon matters beyond the scope of the indemnity agreement provided
in this Section 7, the indemnifying party shall not have the right to assume the
defense of such action on behalf of such indemnified party and such indemnifying
party shall reimburse such indemnified party and any Person controlling such
indemnified party for that portion of the fees and expenses of any one lead
counsel (plus appropriate special and local counsel) retained by the indemnified
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party which are reasonably related to the matters covered by the indemnity
agreement provided in this Section 7.
(d) If the indemnification provided for in this Section 7 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, claim, damage or liability referred to herein, then the
indemnifying party, in lieu of indemnifying such indemnified party hereunder,
shall contribute to the amounts paid or payable by such indemnified party as a
result of such loss, claim, damage or liability in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other hand in connection with the
statements or omissions which resulted in such loss, claim, damage or liability
as well as any other relevant equitable considerations; provided, however, that
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the maximum amount of liability in respect of such contribution shall be
limited, in the case of each seller of Registrable Shares, to an amount equal to
the net proceeds actually received by such seller from the sale of Registrable
Shares effected pursuant to such registration. The relative fault of the
indemnifying party and of the indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) The indemnification and contribution provided for under this
Agreement will remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified party and will survive the transfer of
Shares.
8. UNDERWRITING AGREEMENT.
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(a) Notwithstanding the provisions of Sections 5 and 7, to the extent
that Holders and/or Holders selling Registrable Shares in a proposed
registration shall enter into an
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underwriting or similar agreement, which agreement contains provisions covering
one or more issues addressed in such Sections of this Agreement, the provisions
contained in such Sections of this Agreement addressing such issue or issues
shall be of no force or effect with respect to such registration, but this
provision shall not apply to the Company if the Company is not a party to the
underwriting or similar agreement.
(b) If any registration pursuant to Section 2 is requested to be an
underwritten offering, the Company shall negotiate in good faith to enter into a
reasonable and customary underwriting agreement with the underwriters thereof.
The Company shall be entitled to receive indemnities from lead institutions,
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, to the same extent as provided
above with respect to information so furnished in writing by such Persons
specifically for inclusion in any Prospectus or Registration Statement and to
the extent customary given their role in such distribution.
(c) No Holder may participate in any registration hereunder that is
underwritten unless such holder agrees to (i) sell such Holder's Registrable
Shares proposed to be included therein on the basis provided in any underwriting
arrangements acceptable to the Company and the Majority of Holders and (ii) as
expeditiously as possible, notify the Company of the occurrence of any event
concerning such Holder as a result of which the Prospectus relating to such
registration contains an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
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9. SUSPENSION. Anything contained in this Agreement to the contrary
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notwithstanding, the Company may (not more than once with respect to each
registration), by notice in writing to each Holder to which a Prospectus
relates, require such Holder to suspend, for up to 90 days (the "Suspension
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Period"), the use of any Prospectus included in a Registration Statement filed
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under Section 2 or 3 if a Material Transaction exists that would require an
amendment to such Registration Statement or supplement to such Prospectus
(including any such amendment or supplement made through incorporation by
reference to a report filed under Section 13 of the Exchange Act). The period
during which such Prospectus must remain effective shall be extended by a period
equal to the Suspension Period. The Company may (but shall not be obligated to)
withdraw the effectiveness of any Registration Statement subject to this
provision.
10. INFORMATION BY HOLDER. Each holder of Registrable Shares to be included in
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any registration shall furnish to the Company and the managing underwriter such
written information regarding such holder and the distribution proposed by such
holder as the Company or the managing underwriter may reasonably request in
writing and as shall be reasonably required in connection with any registration,
qualification or compliance referred to in this Agreement.
11. EXCHANGE ACT COMPLIANCE. From and after the date that a Registration
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Statement in respect of Registrable Shares is declared effective by the
Commission, the Company shall comply with all of the reporting requirements of
the Exchange Act (whether or not it shall be required to do so) and shall comply
with all other public information reporting requirements of the Commission which
are conditions to the availability of Rule 144 for the sale of the Registrable
Shares. The Company shall cooperate with each holder of Registrable Shares in
supplying such information as may be necessary for such holder to complete and
file any information reporting forms presently or hereafter required by the
Commission as a condition to the availability of Rule 144.
12. NO CONFLICT OF RIGHTS. The Company represents and warrants to the Holders
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that the registration rights granted to the Holders hereby do not conflict with
any other registration rights granted by the Company. The Company shall not,
after the date hereof, grant any registration rights which conflict with or
impair, or have any priority over, the registration rights granted hereby. In
any underwritten public offering, the managing underwriter shall be a nationally
recognized investment banking firm selected by the Company, and reasonably
acceptable to a Majority of Holders if the Holders would have the right (prior
to giving effect to any cutbacks) to include Registrable Shares in such public
offering.
13. TERMINATION. This Agreement shall terminate and be of no further force or
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effect when there shall not be any Registrable Shares, provided that Sections 6
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and 7 shall survive the termination of this Agreement.
14. SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to the
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benefit of the Company and the Holders and, subject to Section 15, their
respective successors and assigns.
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15. ASSIGNMENT. Each Holder may assign its rights hereunder to any purchaser
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from such Holder of Registrable Shares; provided, however, that such purchaser
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shall, as a condition to the effectiveness of such assignment, be required to
execute a counterpart to this Agreement agreeing to be treated as a Holder
hereunder, whereupon such purchaser shall have the benefits of, and shall be
subject to the restrictions contained in, this Agreement as a Holder.
16. ENTIRE AGREEMENT. This Agreement contains the entire agreement among the
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parties with respect to the subject matter hereof and supersedes all prior
arrangements or understandings with respect hereto.
17. NOTICES. All notices, requests, consents and other communications hereunder
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to any party shall be deemed to be sufficient if contained in a written
instrument and shall be deemed to have been duly given when delivered to a party
by personal delivery, telecopy, overnight courier or mail as follows (or at such
other address for a party as shall be specified by like notice):
If to the Company, to
Alliance Imaging, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
If to the Investor, to
Newport Investment LLC
c/o Apollo Management, L.P.
1301 Avenue of the America, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
▇'▇▇▇▇▇▇▇▇ Graev & Karabell, LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
All such notices, requests, consents and other communications shall be deemed to
have been delivered (a) in the case of personal delivery, telex, telegram or
telecopy, on the date of such delivery, (b) in the, case of overnight courier,
on the next business day, and (c) in the case of mailing, on the fifth business
day following such mailing.
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18. MODIFICATIONS; AMENDMENTS; WAIVERS. The terms and provisions of this
----------------------------------
Agreement may not be modified or amended, except pursuant to a writing signed by
the Company and a Majority of Holders; provided, however, that (A) any such
-------- -------
amendment, modification, or waiver that would adversely affect the rights
hereunder of any Holder without similarly affecting the rights hereunder of all
Holders shall not be effective as to such Holder without its prior written
consent.
19. HEADINGS. The headings of the various sections of this Agreement have been
--------
inserted for convenience of reference only and shall not be deemed to be a part
of this Agreement.
20. SEVERABILITY. It is the desire and intent of the parties that the
------------provisions of this Agreement be enforced to the fullest extent
permissible under the law and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any provision of this Agreement
would be held in any jurisdiction to be invalid, prohibited or unenforceable for
any reason, such provision, as to such jurisdiction, shall be ineffective,
without invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
Notwithstanding the foregoing, if such provision could be more narrowly drawn so
as not to be invalid, prohibited or unenforceable in such jurisdiction, it
shall, as to such jurisdiction, be so narrowly drawn, without invalidating the
remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
21. GOVERNING LAW; ETC. All questions concerning the construction,
------------------
interpretation and validity of this Agreement shall be governed by and construed
and enforced in accordance with the domestic laws of the State of New York,
without giving effect to any choice or conflict of law provision or rule
(whether in the State of New York or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of New
York. In furtherance of the foregoing, the internal law of the State of New York
will control the interpretation and construction of this Agreement, even if
under such jurisdiction's choice of law or conflict of law analysis, the
substantive law of some other jurisdiction would ordinarily apply.
22. COUNTERPARTS; VALIDITY. This Agreement may be executed in any number of
----------------------
counterparts, each of which shall be an original, but all of which taken
together shall constitute one and the same agreement, and telecopied signatures
shall be effective. The failure of any Person holding Registrable Shares to
execute this Agreement shall not render this Agreement invalid as between the
Company and any other Person holding Registrable Shares.
23. ENTIRE AGREEMENT This Agreement and the other documents, certificates,
----------------
instruments, writings and agreements referred to herein or delivered pursuant
hereto contain the entire understanding of the parties with respect to the
subject matter hereof and supersede in their entirety any and all prior
agreements and understandings between any of the parties hereto, all of which
are hereby terminated in their entirety and of no further force or effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
ALLIANCE IMAGING, INC.
By: __________________________________
Name:
Title:
NEWPORT INVESTMENT LLC
By: __________________________________
Name:
Title:
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