EXHIBIT 10.24
REGISTRATION RIGHTS AGREEMENT
by and among
ALLIANCE IMAGING, INC.,
VIEWER HOLDINGS LLC
APOLLO INVESTMENT FUND III, L.P.
APOLLO OVERSEAS PARTNERS III, L.P. and
APOLLO (U.K.) PARTNERS III, L.P.
DATED AS OF NOVEMBER 2, 1999
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is
made and entered into as of November 2, 1999, by and among (i) Alliance
Imaging, Inc., a Delaware corporation (the "Issuer"), (ii) Viewer Holdings
LLC, a Delaware limited liability company ("Viewer LLC"), and (iii) Apollo
Investment Fund III, L.P., a Delaware limited partnership, Apollo Overseas
Partners III, L.P., a Delaware limited partnership and Apollo (U.K.) Partners
III, a Delaware limited partnership (collectively "Apollo").
This Agreement is made pursuant to that certain Agreement
and Plan of Merger, dated as of September 13, 1999, as amended, by and
between the Issuer and Viewer Acquisition Corporation (the "Merger
Agreement"). In order to induce the Investors to consummate the transactions
contemplated by the Merger Agreement, the Issuer has agreed to provide the
registration rights set forth in this Agreement.
In consideration of the mutual covenants and agreements
contained herein, the parties hereto agree as follows:
1. DEFINITIONS
As used in this Agreement, the following capitalized terms
shall have the following meanings:
AFFILIATE: With respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control
with such Person.
APOLLO HOLDER: Apollo and any of its Affiliates that hold
Registrable Securities that are permitted assigns hereunder and that agrees
in writing to be bound by the provisions of this Agreement, collectively.
BOARD: The Board of Directors of the Issuer.
COMMON STOCK: The Common Stock, par value $0.01 per share,
of the Issuer.
DEMAND-NOTICE: see Section 3(a) hereof.
DEMAND REGISTRATION: A registration pursuant to Section
3(a) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as
amended from time to time.
HOLDER: Any party hereto (other than the Issuer) and any
holder of Registrable Securities who are permitted assigns hereunder and
agrees in writing to be bound by the provisions of this Agreement.
INITIAL PUBLIC OFFERING: The first underwritten public
offering of the Issuer's Common Stock on a firm commitment basis pursuant to
an effective Registration Statement after the date hereof.
INVESTORS: Viewer LLC and any of its Affiliates which hold
Registrable Securities, collectively.
NASD: National Association of Securities Dealers, Inc.
PERSON: An individual, partnership, limited liability
company, joint venture, corporation, trust or unincorporated organization, a
government or any department, agency or political subdivision thereof or
other entity.
PIGGYBACK NOTICE: See Section 4(a) hereof.
PIGGYBACK REGISTRATION: A registration pursuant to Section
4 hereof.
PROSPECTUS: The prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement with
respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement and by all other amendments
and supplements to the prospectus, including post-effective amendments and
all material incorporated by reference in such prospectus.
REGISTRABLE SECURITIES: All shares of Common Stock (i)
owned by the Investors on the date hereof or hereafter, (ii) owned by the
Apollo Holders on the date hereof, and (iii) any securities of the Issuer
which may be issued or distributed with respect to, or in exchange or
substitution for, or conversion of, such Common Stock and such other
securities pursuant to a stock dividend, stock split or other distribution,
merger, consolidation, recapitalization or reclassification or otherwise;
PROVIDED, HOWEVER, that any Registrable Securities shall cease to be
Registrable Securities when (i) a Registration Statement with respect to the
sale of such Registrable Securities has been declared effective under the
Securities Act and such Registrable Securities have been disposed of in
accordance with the plan of distribution set forth in such Registration
Statement, or (ii) such Registrable Securities are distributed pursuant to
Rule 144 (or any similar provision then in force) under the Securities Act;
and PROVIDED, FURTHER, that any securities that have ceased to be Registrable
Securities cannot thereafter become Registrable Securities and any security
that is issued or distributed in respect of securities that have ceased to be
Registrable Securities is not a Registrable Security.
REGISTRATION: A Demand Registration or a Piggyback
Registration.
REGISTRATION EXPENSES: See Section 7 hereof.
REGISTRATION STATEMENT: Any registration statement of the
Issuer which covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such Registration Statement, including post-effective
amendments, all exhibits and all material incorporated by reference in such
Registration Statement.
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SEC: The Securities and Exchange Commission.
SECURITIES ACT: The Securities Act of 1933, as amended from
time to time.
UNDERWRITTEN REGISTRATION or UNDERWRITTEN OFFERING: A sale
of securities of the Issuer to an underwriter for reoffering to the public.
2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) REGISTRABLE SECURITIES. The securities entitled to the
benefits of this Agreement are the Registrable Securities.
(b) HOLDERS OF REGISTRABLE SECURITIES. A Person is deemed
to be a Holder of Registrable Securities whenever such Person owns
Registrable Securities or has the right to acquire such Registrable
Securities, whether or not such acquisition has actually been effected and
disregarding any legal restrictions upon the exercise of such right.
3. DEMAND REGISTRATION
(a) RIGHT TO DEMAND; DEMAND NOTICES.
(i) Subject to the provisions of this Section 3 at
any time and from time to time commencing 30 days after the date hereof, the
Investors may make a written request to the Issuer for registration under and
in accordance with the provisions of the Securities Act of all or part of the
Registrable Securities. Promptly upon receipt of any such request (but in no
event more than five business days thereafter), the Issuer will serve written
notice (the "Demand Notice") of such registration request to all Holders, and
the Issuer will include in such registration all Registrable Securities of
any Holder with respect to which the Issuer has received written requests for
inclusion therein within 10 business days after the Demand Notice has been
given to the applicable Holders. All requests made pursuant to this Section 3
will specify the aggregate amount of Registrable Securities to be registered
and will also specify the intended methods of disposition thereof.
(ii) Notwithstanding the foregoing clause (i), all
Apollo Holders shall only be entitled to participate in a registration
pursuant to this Section 3 (i) if such registration is the Initial Public
Offering, or (ii) if no Apollo Holder has participated in any registration
pursuant to this Agreement other than the Initial Public Offering.
(b) ISSUER'S RIGHT TO DEFER REGISTRATION. If the Issuer is
requested to effect a Demand Registration and the Issuer furnishes to the
Investors requesting such registration a copy of a resolution of the Board
certified by the secretary of the Issuer stating that in the good faith
judgment of the Board it would be materially adverse to the Issuer and its
securityholders for such registration statement to be filed on or before the
date such filing would otherwise be required hereunder, the Issuer shall have
the right to defer such filing for a period of not more than 90 days after
receipt of the request for such registration from such Investors. If the
Issuer shall so postpone the filing of a registration statement and if the
Investors within 30 days after receipt of the notice of postponement advise
the Issuer in writing that such Investors have
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determined to withdraw such request for registration, then such Demand
Registration shall be deemed to be withdrawn and such request shall be deemed
not to have been exercised for purposes of determining whether the Holders
included in such Demand Registration are required to pay their PRO RATA
portion of the Registration Expenses pursuant to Section 3(d) hereof.
(c) REGISTRATION STATEMENT FORM. Registrations under this
Section 3 shall be on such appropriate registration form of the SEC (i) as
shall be selected by the Issuer and as shall be reasonably acceptable to the
Investors and (ii) as shall permit the disposition of such Registrable
Securities in accordance with the intended method or methods of disposition
specified in the Investors' request for such registration. If, in connection
with any registration under this Section 3 which is proposed by the Issuer to
be on Form S-3 or any successor form to such Form, the managing underwriter,
if any, shall advise the Issuer in writing that in its opinion the use of
another permitted form is of material importance to the success of the
offering, then such registration shall be on such other permitted form.
(d) EXPENSES. The Issuer will pay all Registration Expenses
in connection with the first eight (8) Demand Registrations of Registrable
Securities pursuant to this Section 3 upon the written request of the
Investors. All expenses for any subsequent Demand Registrations of
Registrable Securities pursuant to this Section 3 shall be paid PRO RATA by
the Issuer and all other Persons (including the Holders) participating in
such Demand Registration on the basis of the relative number of shares of
Common Stock of each such Person included in such registration.
(e) EFFECTIVE REGISTRATION STATEMENT. The Issuer shall be
deemed to have effected a Demand Registration if (i) the Registration
Statement relating to such Demand Registration is declared effective by the
SEC; PROVIDED, HOWEVER, that no Demand Registration shall be deemed to have
been effected if (x) such registration, after it has become effective, is
interfered with by any stop order, injunction or other order or requirement
of the SEC or other governmental agency or court by reason of an act or
omission by the Issuer or (y) the conditions to closing specified in the
purchase agreement or underwriting agreement entered into in connection with
such registration are not satisfied because of an act or omission by the
Issuer (other than a failure of the Issuer or any of its representatives to
execute or deliver any closing certificate by reason of facts or
circumstances not within the control of the Issuer or such representatives)
or (ii) at any time after the Investors request a Demand Registration and
prior to the effectiveness of the Registration Statement, the preparation of
such Registration Statement is discontinued or such Registration Statement is
withdrawn or abandoned at the request of the Investors unless such Investors
have elected to pay and have paid to the Issuer in full the Registration
Expenses in connection with such Registration Statement.
(f) PRIORITY ON DEMAND REGISTRATIONS.
(i) If the Registration pursuant to this Section
3 involves an Underwritten Offering and the managing underwriter or agent of a
Demand Registration advises the Issuer that in its opinion the number of
securities requested to be included in such Demand Registration exceeds the
number which can be sold in the offering covered by such Demand Registration
without an adverse effect on the price, timing or distribution of the securities
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offered, the Issuer will include in such registration only the number of
securities that, in the opinion of such underwriter or agent, can be sold
without an adverse effect on the price, timing or distribution of the
securities offered, selected PRO RATA among the Holders which have requested
to be included in such Demand Registration based upon the Registrable
Securities owned by such Holders to the extent necessary to reduce the total
amount of securities to be included in such offering to the amount
recommended by such underwriters or agent. The Issuer and other holders of
securities of the Issuer may include such securities in such Registration if,
but only if, such underwriter or agent concludes that such inclusion will not
interfere with the successful marketing of all the Registrable Securities
requested to be included in such registration.
(ii) Notwithstanding the foregoing clause (i), (x)
if the registration is the Initial Public Offering, and Apollo Holders have
elected to participate in such offering, then the allocation of shares to be
included in the Demand Registration among Holders shall be made as if the
Apollo Holders owned twice the number of Registrable Securities they actually
owned, and (y) if the registration is not the Initial Public Offering and
Apollo Holders have included Registrable Securities in the registration, then
the allocation of shares to be included in the Demand Registration among
Holders shall result in the Registrable Securities of Apollo Holders being
included in the registration before any shares of Registrable Securities held
by any other Holders are included in such registration.
(g) SELECTION OF UNDERWRITERS. If any offering pursuant to
a Demand Registration involves an Underwritten Offering, the Holders of a
majority of the Registrable Securities included in such Demand Registration
shall have the right to select the managing underwriter or underwriters to
administer the offering, which managing underwriters shall be a firm of
nationally recognized standing and reasonably satisfactory to the Issuer.
4. PIGGYBACK REGISTRATIONS
(a) PARTICIPATION.
(i) Subject to Sections 4(b) hereof, if at any time
after the date hereof the Issuer files a Registration Statement (other than a
registration on Form S-4 or S-8 or any successor form to such Forms or any
registration of securities as it relates to an offering and sale to management
of the Issuer pursuant to any employee stock plan or other employee benefit plan
arrangement) with respect to an offering that includes any shares of Common
Stock, then the Issuer shall give prompt notice (the "Initial Notice") to the
Investors and the Investors shall be entitled to include in such Registration
Statement the Registrable Securities held by them. If the Investors elect to
include any or all of their Registrable Securities in such Registration
Statement, then the Issuer shall give prompt notice (the "Piggyback Notice") to
each Holder (excluding the Investors) and each such Holder shall be entitled to
include in such Registration Statement the Registrable Securities held by it.
The Initial Notice and Piggyback Notice shall offer the Investors and the
Holders, respectively, the opportunity to register such number of shares of
Registrable Securities as each Investor and each Holder may request and shall
set forth (i) the anticipated filing date of such Registration Statement and
(ii) the number of shares of Common Stock that is proposed to be included in
such Registration Statement. The Issuer shall include in
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such Registration Statement such shares of Registrable Securities for which
it has received written requests to register such shares within 15 days after
the Initial Notice and 7 days after the Piggyback Notice has been given.
(ii) Notwithstanding the foregoing clause (i),
if the registration is the Initial Public Offering, and the Investor does not
elect to include Registrable Securities in such Registration Statement, then
the Apollo Holders may include Registrable Securities in such registration
provided that the managing underwriter or underwriters of such proposed
Initial Public Offering does not reasonably conclude that the inclusion of
such shares of Registrable Securities would have an adverse affect on the
price, timing or distribution of the securities offered in such offering.
Notwithstanding the foregoing clause (i), all Apollo Holders shall only be
entitled to participate in such registration (i) if such registration is the
Initial Public Offering, or (ii) if no Apollo Holder has participated in any
registration pursuant to this Agreement other than the Initial Public
Offering.
(b) UNDERWRITER'S CUTBACK.
(i) Notwithstanding the foregoing, if a
Registration pursuant to this Section 4 involves an Underwritten Offering and
the managing underwriter or underwriters of such proposed Underwritten
Offering advises the Issuer that in its opinion the total or kind of
securities which such Holders and any other persons or entities intend to
include in such offering would be reasonably likely to adversely affect the
price, timing or distribution of the securities offered in such offering,
then the Issuer shall include in such Registration (x) first, 100% of the
securities the Issuer, or the Person initiating such Registration (other than
a Registration initiated pursuant to Section 3), proposes to sell, and (y)
second, to the extent of the amount of securities which all Holders have
requested to be included in such Registration, which, in the opinion of the
managing underwriter or underwriters, can be sold without such adverse effect
referred to above, such amount to be allocated PRO RATA among all Holders
based upon the relative aggregate amount of Registrable Securities owned by
such Holders..
(ii) Notwithstanding the foregoing clause (i), (x)
if the registration is the Initial Public Offering, and Apollo Holders have
elected to participate in such offering, then the allocation of shares to be
included in the Piggyback Registration among Holders shall be made as if the
Apollo Holders owned twice the number of Registrable Securities they actually
owned, and (y) if the registration is not the Initial Public Offering and
Apollo Holders have included Registrable Securities in the registration, then
the allocation of shares to be included in the Piggyback Registration among
Holders shall result in the Registrable Securities of Apollo Holders being
included in the registration before any shares of Registrable Securities held
by any other Holders are included in such registration.
(c) EXPENSES. The Issuer will pay all Registration Expenses
in connection with each registration of Registrable Securities requested
pursuant to this Section 4.
(d) ISSUER CONTROL. The Issuer may decline to file a
Registration Statement after giving the Initial Notice or the Piggyback Notice,
or withdraw a Registration Statement after filing and after such Notices, but
prior to the effectiveness of the Registration Statement,
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provided that the Issuer shall promptly notify each Holder in writing of any
such action and provided further that the Issuer shall bear all reasonable
expenses incurred by such Holder or otherwise in connection with such
withdrawn Registration Statement.
(e) NO EFFECT ON DEMAND REGISTRATIONS. No registration
effected under this Section 4 shall be deemed to have been effected pursuant
to Section 3 hereof or shall relieve the Issuer of its obligation to effect
any registration upon request under Section 3 hereof.
5. HOLD-BACK AGREEMENTS
(a) RESTRICTIONS ON PUBLIC SALE BY HOLDER OF REGISTRABLE
SECURITIES. Each Holder whose Registrable Securities are covered by a
Registration Statement filed pursuant to Sections 3 or 4 hereof agrees, if
requested by the managing underwriters in an Underwritten Offering, not to
effect any public sale or distribution of securities of the Issuer the same
as or similar to those being registered, or any securities convertible into
or exchangeable or exercisable for such securities, in such Registration
Statement, including a sale pursuant to Rule 144 under the Securities Act
(except as part of such Underwritten Registration), during the 7-day period
prior to, and during the 90-day period (or such longer period of up to 180
days as may be required by such underwriter in connection with the Issuer's
Initial Public Offering) beginning on, the effective date of any Registration
Statement in which such Holders are participating (except as part of such
Registration) or the commencement of the public distribution of securities,
to the extent timely notified in writing by the Issuer or the managing
underwriters; provided, however, that the Apollo Holders agree not to effect
any public sale or distribution of such securities only in connection with
the Initial Public Offering (whether or not the Apollo Holders have
Registrable Securities included therein), during the 7-day period prior to,
and during the 90-day period beginning on the effective date of such
Registration Statement.
(b) RESTRICTIONS ON PUBLIC SALE BY THE ISSUER AND OTHERS.
The Issuer agrees not to effect any public sale or distribution of any
securities the same as or similar to those being registered by the Issuer, or
any securities convertible into or exchangeable or exercisable for such
securities, during the 7-day period prior to, and during the 90-day period
(or such longer period of up to 180 days as may be required by such
underwriter) beginning with, the effective date of a Registration Statement
filed under Sections 3 and 4 hereof or the commencement of the public
distribution of securities to the extent timely notified in writing by the
Investors or the managing underwriters (except as part of such registration,
if permitted, or pursuant to registrations on Forms S-4 or S-8 or any
successor form to such Forms or any registration of securities for offering
and sale to management of the Issuer pursuant to any employee stock plan or
other employee benefit plan arrangement). The Issuer agrees to use reasonable
efforts to obtain from each holder of its securities the same as or similar
to those being registered by the Issuer, or any securities convertible into
or exchangeable or exercisable for any of such securities, an agreement not
to effect any public sale or distribution of such securities (other than
securities purchased in a public offering) during such period, except as part
of any such registration if permitted.
(c) NO INCONSISTENT AGREEMENTS. Except with respect to the
registration rights described in Section 10 hereof, the Issuer will not enter
into any agreement with respect to its securities which is inconsistent with
the rights granted to the Holders by this Agreement.
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6. REGISTRATION PROCEDURES
In connection with the Issuer's Registration obligations
pursuant to Sections 3 and 4 hereof, the Issuer will use its reasonable
efforts to effect such Registration to permit the sale of such Registrable
Securities in accordance with the intended method or methods of distribution
thereof, and pursuant thereto the Issuer will as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement
or Registration Statements relating to the applicable Demand Registration or
Piggyback Registration including all exhibits and financial statements
required by the SEC to be filed therewith, and use its reasonable efforts to
cause such Registration Statement to become effective; PROVIDED, that the
Issuer will furnish copies of any amendments or supplements in the form filed
with respect to any Piggyback Registration, simultaneously with the filing of
such amendments or supplements;
(b) prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement as may be necessary
to keep the Registration Statement effective for a period of not less than
180 days (or such shorter period which will terminate when all Registrable
Securities covered by such Registration Statement have been sold or
withdrawn), or, if such Registration Statement relates to an Underwritten
Offering, such longer period as in the opinion of counsel for the
underwriters a Prospectus is required by law to be delivered in connection
with sales of Registrable Securities by an underwriter or dealer; cause the
Prospectus to be supplemented by any required Prospectus supplement, and as
so supplemented to be filed pursuant to Rule 424 under the Securities Act;
and comply with the provisions of the Securities Act, the Exchange Act, and
the rules and regulations promulgated thereunder with respect to the
disposition of all securities covered by such Registration Statement during
the applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration Statement
or supplement to the Prospectus;
(c) notify the selling Holders and the managing
underwriters, if any, and (if requested) confirm such advice in writing, as
soon as practicable after notice thereof is received by the Issuer (i) when
the Registration Statement or any amendment thereto has been filed or becomes
effective, the Prospectus or any amendment or supplement to the Prospectus
has been filed, and, to furnish such selling Holders and managing
underwriters with copies thereof, (ii) of any request by the SEC for
amendments or supplements to the Registration Statement or the Prospectus or
for additional information, (iii) of the issuance by the SEC of any stop
order suspending the effectiveness of the Registration Statement or any order
preventing or suspending the use of any preliminary Prospectus or Prospectus
or the initiation or threatening of any proceedings for such purposes, (iv)
if at any time the representations and warranties of the Issuer contemplated
by paragraph (m) below cease to be true and correct and (v) of the receipt by
the Issuer of any notification with respect to the suspension of the
qualification of the Registrable Securities for offering or sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose;
(d) promptly notify the selling Holders and the managing
underwriters, if any, at any time prior to nine months after the time of
issue of the Prospectus, when the Issuer becomes aware of the happening of
any event as a result of which the Prospectus included in
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such Registration Statement (as then in effect) contains any untrue statement
of a material fact or omits to state a material fact necessary to make the
statements therein (in the case of the Prospectus and any preliminary
Prospectus, in light of the circumstances under which they were made) when
such Prospectus was delivered not misleading or, if for any other reason it
shall be necessary during such time period to amend or supplement the
Prospectus in order to comply with the Securities Act and, in either case as
promptly as practicable thereafter, prepare and file with the SEC, and
furnish without charge to the selling Holders and the managing underwriters,
if any, a supplement or amendment to such Prospectus which will correct such
statement or omission or effect such compliance;
(e) make every reasonable effort to obtain the withdrawal
of any stop order or other order suspending the use of any preliminary
Prospectus or Prospectus or suspending any qualification of the Registrable
Securities;
(f) if requested by the managing underwriter or
underwriters or a Holder of Registrable Securities being sold in connection
with an Underwritten Offering, promptly incorporate in a Prospectus
supplement or post-effective amendment such information as the managing
underwriters and the Holders of a majority of the Registrable Securities
being sold agree should be included therein relating to the plan of
distribution with respect to such Registrable Securities, including, without
limitation, information with respect to the number of Registrable Securities
being sold to such underwriters, the purchase price being paid therefor by
such underwriters and with respect to any other terms of the Underwritten (or
best efforts underwritten) Offering of the Registrable Securities to be sold
in such offering; and make all required filings of such Prospectus supplement
or post-effective amendment as soon as notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment;
(g) furnish to each selling Holder and each managing
underwriter, without charge, one executed copy and as many conformed copies
as they may reasonably request, of the Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, all documents incorporated therein by reference and all exhibits
(including those incorporated by reference);
(h) deliver to each selling Holder and the underwriters, if
any, without charge, as many copies of the Prospectus (including each
preliminary Prospectus) and any amendment or supplement thereto as such
Persons may reasonably request (it being understood that the Issuer consents
to the use of the Prospectus or any amendment or supplement thereto by each
of the selling Holders and the underwriters, if any, in connection with the
offering and sale of the Registrable Securities covered by the Prospectus or
any amendment or supplement thereto) and such other documents as such selling
Holder may reasonably request in order to facilitate the disposition of the
Registrable Securities by such Holder;
(i) on or prior to the date on which the Registration
Statement is declared effective, use its reasonable efforts to register or
qualify, and cooperate with the selling Holders, the managing underwriter or
agent, if any, and their respective counsel in connection with the registration
or qualification of such Registrable Securities for offer and sale under the
securities or blue sky laws of each state and other jurisdiction of the United
States as any such seller,
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underwriter or agent reasonably requests in writing and do any and all other
acts or things reasonably necessary or advisable to keep such registration or
qualification in effect for so long as such Registration Statement remains in
effect and so as to permit the continuance of sales and dealings therein for
as long as may be necessary to complete the distribution of the Registrable
Securities covered by the Registration Statement; PROVIDED that the Issuer
will not be required to qualify generally to do business in any jurisdiction
where it in not then so qualified or to take any action which would subject
it to general service of process in any such jurisdiction where it is not
then so subject;
(j) cooperate with the selling Holders and the managing
underwriter or agent, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends; and enable such Registrable Securities
to be in such denominations and registered in such names as the managing
underwriters may request at least two business days prior to any sale of
Registrable Securities to the underwriters;
(k) use its reasonable efforts to cause the Registrable
Securities covered by the applicable Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the underwriters, if
any, to consummate the disposition of such Registrable Securities;
(l) not later than the effective date of the applicable
Registration, provide a CUSIP number for all Registrable Securities and
provide the applicable trustee or transfer agent with printed certificates
for the Registrable Securities which are in a form eligible for deposit with
The Depository Trust Company;
(m) make such representations and warranties to the Holders
of Registrable Securities being registered, and the underwriters or agents,
if any, in form, substance and scope as are customarily made by issuers in
primary underwritten public offerings;
(n) enter into such customary agreements (including an
underwriting agreement) and take all such other actions as the majority of
the Holders of any Registrable Securities being sold or the managing
underwriter or agent, if any, reasonably request in order to expedite or
facilitate the Registration and disposition of such Registrable Securities;
(o) obtain for delivery to the Holders of Registrable
Securities being registered and to the underwriter or agent an opinion or
opinions from counsel for the Issuer, upon consummation of the sale of such
Registrable Securities to the underwriters (the "Closing Date") in customary
form and in form, substance and scope reasonably satisfactory to such
Holders, underwriters or agents and their counsel;
(p) obtain for delivery to the Issuer and the underwriter
or agent, with copies to the Holders, a cold comfort letter from the Issuer's
independent public accountants in customary form and covering such matters of
the type customarily covered by cold comfort letters as the managing
underwriter or the Holders of a majority of the Registrable Securities
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being sold reasonably request, dated the effective date of the Registration
Statement and brought down to the Closing Date;
(q) cooperate with each seller of Registrable Securities
and each underwriter or agent participating in the disposition of such
Registrable Securities and their respective counsel in connection with any
filings required to be made with the NASD;
(r) make available for inspection by a representative of
the Holders of a majority of the Registrable Securities, any underwriter
participating in any disposition pursuant to such Registration, and any
attorney or accountant retained by such Holders or underwriter, all financial
and other records, pertinent corporate documents and properties of the
Issuer, and cause the Issuer's officers, directors and employees to supply
all information reasonably requested by any such representative, underwriter,
attorney or accountant in connection with such Registration; PROVIDED that
any records, information or documents that are designated by the Issuer in
writing as confidential shall be kept confidential by such Persons unless
disclosure of such records, information or documents is required by law;
(s) use its reasonable efforts to comply with all
applicable rules and regulations of the SEC and make generally available to
its security holders, as soon as reasonably practicable (but not more than
eighteen months) after the effective date of the Registration Statement, an
earnings statement satisfying the provisions of Section 11(a) of the
Securities Act and the rules and regulations promulgated thereunder;
(t) as promptly as practicable after filing with the SEC of
any document which is incorporated by reference into the Registration
Statement or the Prospectus, provide copies of such document to counsel for
the selling Holders and to the managing underwriters, if any;
(u) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such Registration
Statement from and after a date not later than the effective date of such
Registration Statement; and
(v) use its reasonable efforts to list (if such Registrable
Securities are not already listed) all Registrable Securities covered by such
Registration Statement on The New York Stock Exchange, the American Stock
Exchange or the Nasdaq National Market.
The Issuer may require each Holder of Registrable
Securities as to which any Registration is being effected to furnish to the
Issuer such information regarding the distribution of such securities and
such other information relating to such Holder and its ownership of
Registrable Securities as the Issuer may from time to time reasonably request
in writing. Each Holder agrees to furnish such information to the Issuer and
to cooperate with the Issuer as necessary to enable the Issuer to comply with
the provisions of this Agreement.
Each Holder agrees by acquisition of such Registrable
Securities that, upon receipt of any notice from the Issuer of the happening
of any event of the kind described in Section 6(d) hereof, such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to
11
such Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 6(d) hereof, or
until it is advised in writing by the Issuer that the use of the Prospectus
may be resumed, and has received copies of any additional or supplemental
filings which are incorporated by reference in the Prospectus, and, if so
directed by the Issuer, such Holder will deliver to the Issuer (at the
Issuer's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice.
7. REGISTRATION EXPENSES
All expenses incident to the Issuer's performance of or
compliance with this Agreement, including without limitation (i) all
registration and filing fees, and any other fees and expenses associated with
filings required to be made with any stock exchange, the SEC and the NASD
(including, if applicable, the fees and expenses of any "qualified
independent underwriter" and its counsel as may be required by the rules and
regulations of the NASD), (ii) all fees and expenses of compliance with state
securities or blue sky laws (including fees and disbursements of counsel for
the underwriters or selling Holders in connection with blue sky
qualifications of the Registrable Securities and determination of their
eligibility for investment under the laws of such jurisdictions as the
managing underwriters or the majority of the Holders of the Registrable
Securities being sold may designate), (iii) all printing and related
messenger and delivery expenses (including expenses of printing certificates
for the Registrable Securities in a form eligible for deposit with The
Depository Trust Company and of printing prospectuses), (iv) all fees and
disbursements of counsel for the Issuer and of all independent certified
public accountants of the Issuer (including the expenses of any special audit
and "cold comfort" letters required by or incident to such performance), (v)
Securities Act liability insurance if the Issuer so desires or the
underwriters so require, (vi) all fees and expenses incurred in connection
with the listing of the Registrable Securities on any securities exchange and
all rating agency fees, (vii) all reasonable fees and disbursements of one
counsel selected by the Holders of the Registrable Securities being
registered to represent such Holders in connection with such registration,
(viii) all fees and disbursements of underwriters customarily paid by the
issuers or sellers of securities, excluding underwriting discounts and
commissions and transfer taxes, if any, and fees and disbursements of counsel
to underwriters (other than such fees and disbursements incurred in
connection with any registration or qualification of Registrable Securities
under the securities or blue sky laws of any state), and (ix) fees and
expenses of other Persons retained by the Issuer (all such expenses being
herein called "Registration Expenses"), will be borne by the Issuer,
regardless of whether the Registration Statement becomes effective (except as
provided in Section 3(e) hereof). The Issuer will, in any event, pay its
internal expenses (including, without limitation, all salaries and expenses
of its officers and employees performing legal or accounting duties), the
expense of any audit and the fees and expenses of any Person, including
special experts, retained by the Issuer.
8. INDEMNIFICATION
(a) INDEMNIFICATION BY ISSUER. The Issuer agrees to indemnify
and hold harmless, to the full extent permitted by law, each Holder, its
officers, directors and employees and each Person who controls such Holder
(within the meaning of the Securities Act) against all
12
losses, claims, damages, liabilities and expenses caused by any untrue or
alleged untrue statement of a material fact contained in any Registration
Statement, Prospectus or preliminary Prospectus or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as
the same are caused by or contained in any information furnished in writing
to the Issuer by such Holder expressly for use therein; PROVIDED, HOWEVER,
that the Issuer shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or expense arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged
omission made in any such preliminary Prospectus if (i) such Holder failed to
deliver or cause to be delivered a copy of the Prospectus to the Person
asserting such loss, claim, damage, liability or expense after the Issuer had
furnished such Holder with a sufficient number of copies of the same and (ii)
the Prospectus completely corrected in a timely manner such untrue statement
or omission; and PROVIDED, FURTHER, that the Issuer shall not be liable in
any such case to the extent that any such loss, claim, damage, liability or
expense arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission in the Prospectus, if such untrue
statement or alleged untrue statement, omission or alleged omission is
completely corrected in an amendment or supplement to the Prospectus and the
Holder thereafter fails to deliver such Prospectus as so amended or
supplemented prior to or concurrently with the sale of the Registrable
Securities to the Person asserting such loss, claim, damage, liability or
expense after the Issuer had furnished such Holder with a sufficient number
of copies of the same. The Issuer will also indemnify underwriters, selling
brokers, dealer managers and similar securities industry professionals
participating in the distribution, their officers and directors and each
Person who controls such Persons (within the meaning of the Securities Act)
to the same extent as provided above with respect to the indemnification of
the Holders, if requested.
(b) INDEMNIFICATION BY SELLING HOLDER OF UNDERLYING
SECURITIES. In connection with each Registration, each selling Holder will
furnish to the Issuer in writing such information and affidavits as the
Issuer reasonably requests for use in connection with any Registration
Statement or Prospectus and agrees to indemnify and hold harmless, to the
full extent permitted by law, the Issuer, its directors and officers and each
Person who controls the Issuer (within the meaning of the Securities Act)
against any losses, claims, damages or liabilities and expenses resulting
from any untrue statement of a material fact or any omission of a material
fact required to be stated in the Registration Statement or Prospectus or
preliminary Prospectus or necessary to make the statements therein not
misleading, to the extent, but only to the extent, that such untrue statement
or omission is contained in any information or affidavit so furnished in
writing by such selling Holder to the Issuer specifically for inclusion in
such Registration Statement or Prospectus and has not been corrected in a
subsequent writing prior to or concurrently with the sale of the Registrable
Securities to the Person asserting such loss, claim, damage, liability or
expense. In no event shall the liability of any selling Holder hereunder be
greater in amount than the dollar amount of the proceeds received by such
Holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation. The Issuer shall be entitled to receive
indemnities from 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.
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(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person
entitled to indemnification hereunder will (i) give prompt (but in any event
within 30 days after such Person has actual knowledge of the facts
constituting the basis for indemnification) written notice to the
indemnifying party of any claim with respect to which it seeks
indemnification and (ii) permit such indemnifying party to assume the defense
of such claim with counsel reasonably satisfactory to the indemnified party;
PROVIDED, HOWEVER, that any delay or failure to so notify the indemnifying
party shall relieve the indemnifying party of its obligations hereunder only
to the extent, if at all, that it is prejudiced by reason of such delay or
failure; PROVIDED, FURTHER HOWEVER, that any Person entitled to
indemnification hereunder shall have the right to select and employ separate
counsel and to participate in the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such Person unless (a)
the indemnifying party has agreed in writing to pay such fees or expenses, or
(b) the indemnifying party shall have failed to assume the defense of such
claim within a reasonable time after receipt of notice of such claim from the
Person entitled to indemnification hereunder and employ counsel reasonably
satisfactory to such Person or (c) in the reasonable judgment of any such
Person, based upon advice of its counsel, a conflict of interest may exist
between such Person and the indemnifying party with respect to such claims
(in which case, if the Person notifies the indemnifying party in writing that
such Person elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to assume
the defense of such claim on behalf of such Person). If such defense is not
assumed by the indemnifying party, the indemnifying party will not be subject
to any liability for any settlement made without its consent (but such
consent will not be unreasonably withheld), PROVIDED that an indemnified
party shall not be required to consent to any settlement involving the
imposition of equitable remedies or involving the imposition of any material
obligations on such indemnified party other than financial obligations for
which such indemnified party will be indemnified hereunder. No indemnifying
party will be required to consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such indemnified party of a release from all
liability in respect to such claim or litigation. Whenever the indemnified
party or the indemnifying party receives a firm offer to settle a claim for
which indemnification is sought hereunder, it shall promptly notify the other
of such offer. If the indemnifying party refuses to accept such offer within
20 business days after receipt of such offer (or of notice thereof), such
claim shall continue to be contested and, if such claim is within the scope
of the indemnifying party's indemnity contained herein, the indemnified party
shall be indemnified pursuant to the terms hereof. If the indemnifying party
notifies the indemnified Party in writing that the indemnifying party desires
to accept such offer, but the indemnified party refuses to accept such offer
within 20 business days after receipt of such notice, the indemnified party
may continue to contest such claim and, in such event, the total maximum
liability of the indemnifying party to indemnify or otherwise reimburse the
indemnified party hereunder with respect to such claim shall be limited to
and shall not exceed the amount of such offer, plus reasonable out-of-pocket
costs and expenses (including reasonable attorneys' fees and disbursements)
to the date of notice that the indemnifying party desires to accept such
offer, PROVIDED that this sentence shall not apply to any settlement of any
claim involving the imposition of equitable remedies or to any settlement
imposing any material obligations on such indemnified party other than
financial obligations for which such indemnified party will be indemnified
hereunder. An indemnifying party who is not entitled to, or elects not to,
assume the
14
defense of a claim will not be obligated to pay the fees and expenses of more
than one counsel for all parties indemnified by such indemnifying party with
respect to such claim in any one jurisdiction, unless in the written opinion
of counsel to the indemnified party, reasonably satisfactory to the
indemnifying party, use of one counsel would be expected to give rise to a
conflict of interest between such indemnified party and any other of such
indemnified parties with respect to such claim, in which event the
indemnifying party shall be obligated to pay the fees and expenses of one
such additional counsel.
(d) OTHER INDEMNIFICATION. Indemnification similar to that
specified in this Section 8 (with appropriate modifications) shall be given
by the Issuer and each seller of Registrable Securities with respect to any
required registration or other qualification of securities under federal or
state law or regulation of governmental authority other than the Securities
Act.
(e) CONTRIBUTION. If for any reason the indemnification
provided for in the preceding clauses (a) and (b) is unavailable to an
indemnified party or insufficient to hold it harmless as contemplated by the
preceding clauses (a) and (b), then the indemnifying party shall contribute
to the amount paid or payable by the indemnified party as a result of such
loss, claim, damage or liability in such proportion as is appropriate to
reflect not only the relative benefits received by the indemnified party and
the indemnifying party, but also the relative fault of the indemnified party
and the indemnifying party, as well as any other relevant equitable
considerations, provided that no selling Holder shall be required to
contribute in an amount greater than the dollar amount of the proceeds
received by such selling Holder with respect to the sale of any securities.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
9. RULE 144
Following the Initial Public Offering, the Issuer covenants
that it will file the reports required to be filed by it under the Securities
Act and the Exchange Act and the rules and regulations adopted by the SEC
thereunder, and it will take such further action as any Holder may reasonably
request, all to the extent required from time to time to enable such Holder
to sell Registrable Securities without registration under the Securities Act
within the limitation of the exemption provided by (a) Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or (b) any
similar rule or regulation hereafter adopted by the SEC. Upon the request of
any Holder, the Issuer will deliver to such Holder a written statement as to
whether it has complied with such information and requirements.
Notwithstanding anything contained in this Section 9, the Issuer may
deregister under Section 12 of the Exchange Act if it is then permitted to do
so pursuant to the Exchange Act and the rules and regulations thereunder.
10. ADDITIONAL PARTIES
The Issuer may enter into various stockholder's and stock
option agreements on or subsequent to the date hereof with certain key
employees of the Issuer or one of its subsidiaries (the "Management
Investors") pursuant to which the Management Investors will agree to purchase
and/or will receive options to purchase shares of Common Stock. Such
agreements
15
may provide that in the event the Issuer registers shares of Common Stock
held by the Investors, the Management Investors have the right, subject to
certain conditions, to require the Issuer to register under the Securities
Act shares of Common Stock held by them. Each of the parties hereto
acknowledges the registration rights of the Management Investors and agrees
that the Issuer's obligations under this Agreement coincide with its
obligations to the Management Investors with respect to registration rights
and that the Management Investors, subject to certain limitations, shall be
treated as Holders under this Agreement.
11. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Person may participate in any Underwritten Registration
hereunder unless such Person (a) agrees to sell such Person's securities on
the basis provided in any underwriting arrangements approved by the Persons
entitled to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
Nothing in this Section 11 shall be construed to create any additional rights
regarding the Registration of Registrable Securities in any Person otherwise
than as set forth herein.
12. MISCELLANEOUS
(a) REMEDIES. Remedies for breach by the Issuer of its
obligations to register the Registrable Securities shall be as set forth
herein. Each Holder, in addition to being entitled to exercise all rights
provided herein or granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. The
Issuer agrees that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) AMENDMENTS AND WAIVERS. The provisions of this
Agreement, including the provisions of this sentence, may only be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may only be given if the Issuer has obtained the written
consent of the Holders of a majority of the outstanding Registrable
Securities, so long as such amendment, modification, supplement, waiver or
consent does not adversely affect the rights of Holders of Registrable
Securities hereunder unequally; PROVIDED, HOWEVER, that no amendments,
modifications, supplements, waivers or consents may be made to Sections
3(a)(ii), 3(f)(ii), 4(a)(ii), 4(b)(ii), 5 or 8(b) which is adverse to the
Apollo Holders without the consent of the Apollo Holders owning a majority of
the Registrable Securities owned by the Apollo Holders.
(c) NOTICES. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telex, telecopier, or air courier guaranteeing
overnight delivery:
(i) if to a Holder, at the most current address
given by such Holder to the Issuer in accordance with the provisions of this
Section 12(c), which address initially is, with respect to the Investors, ▇/▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and with respect
to the Apollo Holder c/o Apollo Management, L.P., 1301 Avenue of the
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇; and
(ii) if to the Issuer, initially at the address
set forth below and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 12(c): ▇/▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
All such notices and communications shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; 4 business days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged
by addressee, if by facsimile transmission; and on the next business day it
timely delivered to an air courier guaranteeing overnight delivery.
(d) SUCCESSORS AND ASSIGNS. This Agreement including,
without limitation, all registration rights in connection with the ownership
of all or a portion of the Registrable Securities pursuant to Sections 3 and
4 hereof, shall inure to the benefit of and be binding upon the successors
and assigns of each of the parties, including, without limitation, and
without the need for an express assignment subsequent Holders of Registrable
Securities, PROVIDED, HOWEVER, that an Apollo Holder may only assign its
rights hereunder to one of its Affiliate to whom Registrable Securities are
transferred.
(e) COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(f) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without
regard to the principles of conflicts of laws.
(h) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance,
is held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
(i) ENTIRE AGREEMENT. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Issuer herein.
This
17
Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matters.
(j) ADDITIONAL RIGHTS. If the Issuer at any time grants to
any other holder of Common Stock any rights to request the Issuer to effect
the Registration of any shares of Common Stock, or any "piggyback"
registration rights with respect to shares of Common Stock, on terms that are
more favorable to such holders than the terms set forth herein, then the
terms of this Agreement shall be deemed amended or supplemented to the extent
necessary to provide the Holders such more favorable rights and benefits.
(k) LIMITED LIABILITY OF PARTNERS. Notwithstanding any
provision hereof, none of the obligations of any Investor or Apollo Holder
under this Agreement shall be an obligation of any officer, director, member,
limited partner or general partner of such Investor or Apollo Holder or its
Affiliates. Any liability or obligation of any Investor or Apollo Holder
arising out of this Agreement shall be limited to and satisfied only out of
the assets of such Investor or Apollo Holder.
18
IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement as of the date first written above.
The Issuer: ALLIANCE IMAGING, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Secretary
Investor: VIEWER HOLDING LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
President and Chief Executive Officer
Apollo: APOLLO INVESTMENT FUND III, L.P.
a Delaware limited partnership
By: Apollo Advisors II, L.P.
By: Apollo Capital Management II, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
APOLLO OVERSEAS PARTNERS III, L.P.
a Delaware limited partnership
By: Apollo Advisors II, L.P.
By: Apollo Capital Management II, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
APOLLO (U.K.) PARTNERS III, L.P.
a Delaware limited partnership
By: Apollo Advisors II, L.P.
By: Apollo Capital Management II, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: