AMENDED AND RESTATED STANDSTILL AGREEMENT
This Amended and Restated Standstill Agreement (the "Agreement") is
entered into as of December 31, 1996, between Alliance Imaging, Inc., a
Delaware corporation (the "Company"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the "Holder").
RECITALS
A. As of the date of this Agreement, the Company and the holders of
the Company's issue of 7.50% Senior Subordinated Debentures due 2005 and
Series A 6.0% Cumulative Preferred Stock (together, the "Securities") are
completing transactions whereby the Securities are being repurchased by the
Company for cash (the "Refinancing Transaction").
B. The Holder is the owner, as of the date hereof, of 267,139 shares
(the "Restricted Shares") of Common Stock, $.01 par value per share (the
"Stock"), which represent approximately 2.45% of the issued and outstanding
Stock as of the date hereof.
C. The parties acknowledge and agree that the Company and its
subsidiaries, as of the date hereof and after giving effect to previous
restructuring transactions and the Refinancing Transaction, will have the
right to certain valuable federal and state net operating loss tax
carryforwards (collectively, the "NOL").
D. The parties desire to enter into this Agreement in order to set
forth their agreement concerning certain restrictions on the purchase, sale
or transfer of the Restricted Shares and other shares of Stock, in order to
minimize the potential that a purchase, sale or transfer would result in a
limitation on the use or otherwise affect adversely the value of the NOL.
E. Concurrently with the execution of this Agreement, the Company is
offering to enter into those certain Amended and Restated Standstill
Agreements with the previous holders of the Company's Senior Notes due 2003,
the previous holders of the Securities and DLJ Capital Corporation (the
"Other Standstill Agreements"). This Agreement amends, restates and
supersedes in its entirety that certain Standstill Agreement between the
Company and Holder dated as of December 31, 1994, and, to the extent that the
parties to the Other Standstill Agreements elect to enter into their
respective Amended and Restated Standstill Agreements, then such Amended and
Restated Standstill Agreements shall likewise amend, restate and supersede in
their entirety the preexisting Standstill Agreements between the Company and
the applicable counterparties dated as of December 31, 1994 (the "Preexisting
Standstill Agreements").
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, receipt of which hereby is acknowledged, the parties
hereby agree as follows:
1. STANDSTILL PROVISIONS. The Holder agrees that, at all times from
and after the date of this Agreement and through January 31, 1998, he shall
not, except as permitted in Section 2 hereof, take any of the following
actions, whether directly or indirectly:
(a) acquire, agree to acquire, offer to acquire or own or
otherwise hold any Stock of the Company or any other Voting Stock (as defined
below) of the Company, excluding only the continued holding of the Restricted
Shares; or
(b) sell or otherwise transfer, agree to sell or otherwise
transfer or offer to sell or otherwise transfer any of the Restricted Shares
or other shares of Voting Stock.
2. PERMITTED TRANSFERS. Notwithstanding the provisions of Section 1,
this Agreement does not prohibit the following:
(a) a transfer of Restricted Shares by the Holder to any Person in
connection with (i) a sale of all or substantially all of the assets of the
Company and its subsidiaries to a Person which is not an Affiliate of the
Company or (ii) a reorganization, merger, consolidation or other transaction
or transactions (whether or not the Company is a party thereto and
specifically including, without limitation, open market purchases of
securities) as a result of which any person or entity or "group" of persons
and/or entities becomes the "beneficial owner" (as those terms are defined in
and construed by judicial authority under Rule 13d-3 promulgated under the
Exchange Act, as that Rule may be amended from time to time) of Stock and/or
options, warrants or other rights to acquire Stock and/or securities
convertible into or exchangeable or exercisable for Stock, representing in
the aggregate greater than 50% of the ordinary voting power of the Company in
the election of directors (any such event described in clauses (i) and (ii)
of this Section 2 being a "Change of Control"), provided that such transfer
is effective no earlier than the consummation date of such Change of Control;
PROVIDED, HOWEVER, that prior to such transfer becoming effective or any
agreement or commitment for such transfer being made or becoming effective,
the Holder shall give written notice to the Company, in order to provide the
Company with the opportunity to analyze the effects of the proposed transfer
on the NOL and to discuss the same with the Holder, and such proposed
transfer shall not become effective earlier than ten (10) business days
following the date that such written notice is delivered;
(b) the purchase of Stock pursuant to the exercise of options
granted to Holder pursuant to the Company's 1991 Stock Option Plan, or any
other stock option plan approved by the Company's Board of Directors; or
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(c) the sale of not more than 25,000 shares of Stock (as such
Stock is presently constituted, such number to be proportionately adjusted in
the event of any stock split, combination or similar event) in any calendar
quarter.
3. CERTAIN DEFINITIONS. For purposes of this Agreement:
(a) "Affiliate" shall have the meaning given to such term in Rule
12b-2 under the Exchange Act.
(b) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, including the rules and regulations thereunder.
(c) "Person" shall mean any individual, partnership, firm,
corporation or other entity, as well as any entity or group deemed to be a
"person" under Section 13(d)(3) of the Exchange Act.
(d) "Subsidiary" shall mean, with respect to any Person, a
corporation or other entity of which such Person owns, directly or
indirectly, securities that entitle such Person to elect a majority of the
board of directors or other individuals or Persons performing similar
management functions for such corporation or other entity.
(e) "Voting Stock" shall mean the Stock and any other securities
of the Company which are entitled to vote generally in the election of
directors of the Company and the term "Voting Stock" shall also mean all
other securities which are convertible into, exchangeable for or exercisable
for such Stock or other voting securities.
4. GENERAL PROVISIONS.
4.1 REMEDIES.
(a) The Holder acknowledges that damages would be an inadequate
remedy for its breach of any of the provisions of this Agreement, and that
his breach of this Agreement will result in immeasurable and irreparable harm
to the Company. Therefore, the Company shall be entitled to seek and obtain
temporary, preliminary and permanent injunctive relief from any court of
competent jurisdiction restraining the Holder from committing or continuing
any breach of any provision of this Agreement.
(b) In addition to the remedy described in paragraph (a) of this
Section 4.1, the Company shall be entitled to seek and obtain all other
rights and remedies to which it is entitled under applicable law by reason of
the Holder's breach of any provision of this Agreement.
4.2 NOTICES. Any written notice required or permitted by this
Agreement shall be given personally, by telegraph, facsimile or telex or by
registered, certified or express mail, return receipt requested, postage
prepaid, to the address for such party specified below or to such other
address as the party may from time to time
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advise the other parties, and shall be deemed given and received upon
personal delivery (in the case of personal deliveries), upon confirmation by
answerback or other electronic verification (in the case of transmissions by
telegraph, facsimile or telex) or upon the delivery date indicated on the
return receipt (in the case of notices sent by mail):
If to the Company: Alliance Imaging, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
If to the Holder: To the address or number for the Holder indicated
on the signature page hereto.
4.3 AMENDMENTS AND TERMINATION; ENTIRE AGREEMENT. This Agreement
may be amended or terminated only by a writing executed by the parties. This
Agreement constitutes the entire agreement of the parties relating to the
subject matter hereof and supersedes all prior oral and written
understandings and agreements relating to such subject matter.
4.4 AMENDMENT OF OTHER STANDSTILL AGREEMENTS. The Company will
not, without the consent of the Holder, amend any Other Standstill Agreement
or Preexisting Standstill Agreement, as applicable, such that any provision
therein which is substantially identical to a provision contained herein is
made more favorable to the other party or parties thereto, unless the Company
also offers concurrently to amend this Agreement in a like manner.
4.5 SUCCESSORS AND ASSIGNS. No party shall be entitled to assign
any of its rights or obligations hereunder. Subject to the foregoing, this
Agreement shall be binding upon and shall inure to the benefit of the parties
and their respective successors and assigns.
4.6 LEGEND; FURTHER ASSURANCES. The Holder authorizes the Company
to place an appropriate legend on the certificate(s) representing the
Restricted Shares to reflect the restrictions contained in this Agreement.
Each party shall perform any further acts and execute and deliver any further
documents that may be reasonably necessary or advisable to carry out the
provisions of this Agreement.
4.7 PROVISIONS SUBJECT TO APPLICABLE LAW. All provisions of this
Agreement shall be applicable only to the extent that they do not violate any
applicable law, and are intended to be limited to the extent necessary so
that they will not render this Agreement invalid, illegal or unenforceable
under any applicable law. If any provision of this Agreement or any
application thereof shall be held to be invalid, illegal or unenforceable,
the validity, legality and enforceability of other provisions of this
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Agreement or of any other application of such provision shall in no way be
affected thereby.
4.8 WAIVER OF RIGHTS. No party shall be deemed to have waived any
right or remedy that it has under this Agreement unless this Agreement
expressly provides a period of time within which such right or remedy must be
exercised and such period has expired, or unless such party has expressly
waived the same in writing. The waiver by a party of a right or remedy
hereunder shall not be deemed to be a waiver of any other right or remedy or
of any subsequent right or remedy of the same kind.
4.9 COUNTERPARTS; NUMBER. This Agreement may be executed in two
or more counterparts, and by each party on a separate counterpart, each of
which shall be deemed an original, but all of which taken together shall
constitute but one and the same instrument. Where appropriate to the context
of this Agreement, use of the singular shall be deemed also to refer to the
plural and use of the plural shall be deemed also to refer to the singular.
4.10 GOVERNING LAWS; EXPENSES RESULTING FROM LITIGATION. This
Agreement shall be governed by, and construed and enforced in accordance
with, the internal laws of the State of New York, without giving effect to
the conflict of laws principles thereof. The unsuccessful party to any
action or proceeding hereunder involving the enforcement or interpretation of
this Agreement shall pay to the successful party all costs and expenses,
including, without limitation, reasonable attorney's fees,
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incurred therein by the successful party, all of which shall be included in
and as a part of the award or judgment rendered in such proceeding or action.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
ALLIANCE IMAGING, INC.
By______________________________
Its ____________________________
________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Address for Notice:
________________________________
________________________________
________________________________
Attn:___________________________
Facsimile:______________________
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