(CIGNA)
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 each of the entities identified on
the signature pages hereto (each a "Holder" and collectively the "Holders").
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. Each of the Holders is the owner, as of the date hereof, of the
number of shares (including shares issuable upon the exercise of warrants
currently held by each such Holder) (the "Restricted Shares") of Common
Stock, $.01 par value per share (the "Stock"), set forth beneath its name on
the signature pages hereto.
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 Securities, Xxxxxxx X.
Xxxxxx 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 the Holders 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. Each Holder agrees that, at all times from
and after the date of this Agreement and through January 31, 1998, it shall
not, except as permitted in Section 2 hereof, take any of the following
actions, and it shall not cause its respective shareholders, officers,
directors, Subsidiaries and other Affiliates (as such terms are defined in
Section 3 below) to take any of the following actions in such Holder's name
or on such Holder's behalf, and shall cause its respective Subsidiaries and
Affiliates not to, in all instances whether directly or indirectly and
whether alone, jointly or collectively:
(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 any 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
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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. Notwithstanding anything in the foregoing to the
contrary, nothing herein shall prohibit any transfer of Restricted Shares by
any Holder to the Company;
(b) the sale by any Holder of not more than one percent (1%) of
such Holder's Restricted Shares during any calendar month, beginning with
January 1997; or
(c) the purchase of Stock by any Holder issuable upon exercise of
warrants currently held by such Holder.
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.
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4. GENERAL PROVISIONS.
4.1 REMEDIES.
(a) Each 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 any 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
any 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 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.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attn: Chief Financial Officer
Facsimile: 000-000-0000
If to a 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 each Holder, amend any Other Standstill Agreement or
Preexisting Standstill Agreement, as applicable, such that any
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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. Each 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
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,
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without limitation, reasonable attorney's fees, 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:_________________________________
CONNECTICUT GENERAL LIFE
INSURANCE COMPANY*
By: CIGNA Investments, Inc.
By:__________________________________
Its:_________________________________
No. of Shares:_______________________
Address for Notice:
_____________________________________
_____________________________________
_____________________________________
Attn:________________________________
Facsimile:___________________________
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CIGNA PROPERTY AND CASUALTY
INSURANCE COMPANY*
By: CIGNA Investments, Inc.
By:__________________________________
Its:_________________________________
No. of Shares:_______________________
Address for Notice:
_____________________________________
_____________________________________
_____________________________________
Attn:________________________________
Facsimile:___________________________
INSURANCE COMPANY OF
NORTH AMERICA*
By: CIGNA Investments, Inc.
By:__________________________________
Its:_________________________________
No. of Shares:_______________________
Address for Notice:
_____________________________________
_____________________________________
_____________________________________
Attn:________________________________
Facsimile:___________________________
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LIFE INSURANCE COMPANY
OF NORTH AMERICA*
By: CIGNA Investments, Inc.
By:__________________________________
Its:_________________________________
No. of Shares:_______________________
Address for Notice:
_____________________________________
_____________________________________
_____________________________________
Attn:________________________________
Facsimile:___________________________
___________________
* THIS ENTITY IS EITHER THE REGISTERED OWNER OF ONE OR MORE OF THE SECURITIES
PERTAINING HERETO OR IS A BENEFICIAL OWNER OF ONE OR MORE OF SUCH SECURITIES
OWNED BY AND REGISTERED IN THE NAME OF A NOMINEE FOR THAT ENTITY.
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