Exhibit 10.18
REPAYMENT AND STOCK PLEDGE AGREEMENT
THIS REPAYMENT AND STOCK PLEDGE AGREEMENT dated as of November 27, 2000
is made and entered into by and between Alliance Imaging, Inc., a Delaware
corporation (the "Company") and Xxxxx X. Xxxxxxx (the "Pledgor").
RECITALS
A. The Company has entered into a Stock Subscription Agreement
dated as of November 27, 2000 with the Pledgor (the "Stock
Subscription Agreement") whereby the Company has agreed to
sell to Pledgor certain shares of common stock, par value
$0.01 per share, of the Company (the "Common Stock").
B. As part of the purchase price for the Common Stock, the
Pledgor is delivering to the Company the promissory note of
the Pledgor of even date herewith in the principal amount of
$299,992.83 (the "Note").
C. The Pledgor wishes to grant further security and assurance to
the Company in order to secure the payment of the Note and, to
that effect, to pledge to the Company a portion of the Common
Stock to be acquired pursuant to the Stock Subscription
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
1. PLEDGE.
(a) As security for the payment and performance of all obligations
of the Pledgor on the Note, including the payment of the principal of
and interest on the Note, and in order to secure the Pledgor's
obligations under this Agreement, the Pledgor hereby delivers, pledges
and assigns 5,360 shares of the Common Stock to the Company and creates
in the Company a security interest in the Pledged Securities (as
defined below). Upon repayment of $200,000 of the principal of the Note
with interest thereon, 3,573 shares of the Common Stock shall be
released from this Agreement and the Pledged Securities shall consist
of 1,787 shares of Common Stock.
(b) The "Pledged Securities" under this Agreement shall consist of
the 5,360 shares of Common Stock (or 1,787 shares of Common Stock, as
applicable) and all securities, certificates and instruments
representing or evidencing ownership of the Pledged Securities
hereunder, and all proceeds and products of any Pledged Securities
hereunder, including, without limitation, stock, cash, property or
other
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dividends, securities, rights and other property now or hereafter
at any time or from time to time received, receivable or otherwise
distributed or distributable in respect of or in exchange for any or
all of such Pledged Securities including proceeds delivered to the
Pledgee pursuant to Section 2 and any substituted or additional Pledged
Securities required to be supplied under the terms of this Agreement.
2. REPAYMENT. The Pledgor hereby agrees that at any time if the Pledgor
shall have received any cash payment or other distribution in respect of, or
upon transfer, sale or other disposition of, the Pledged Securities, then and in
each case until the Note is paid in full (including interest), the Pledgor shall
immediately deliver to the Company such amount (net of applicable income taxes
at the Pledgor's actual rate) in partial or full payment of the principal and
interest on the Note.
3. ADMINISTRATION OF PLEDGED SECURITIES. The following provisions shall
govern the administration of the Pledged Securities:
(a) So long as no Event of Default (as defined below) has occurred
and is continuing the Pledgor shall be entitled to act with respect to the
Pledged Securities in any manner not inconsistent with this Agreement, the
Stockholder's Agreement, by and among the Pledgor, the Company and Viewer
Holdings LLC, dated November 27, 2000 (the "Stockholder's Agreement"), the Stock
Subscription Agreement, the Note, or any document or instrument delivered or to
be delivered pursuant to or in connection with the Stock Subscription Agreement.
(b) The Pledgor shall immediately upon request by the Company and
in confirmation of the security interests hereby created, execute and deliver to
the Company such further instruments, deeds, transfers, assurances and
agreements, in form and substance as the Company shall request, including any
financing statement and amendments thereto, or any other documents, as required
under Delaware law and other applicable law to protect the security interests
created hereunder.
4. DEFAULTS. The occurrence of any one or more of the following events or
conditions shall constitute an "Event of Default" under this Agreement:
(a) The Pledgor fails to make any principal or interest payment
required pursuant to the Note within 30 days of the due date therefor.
(b) The Pledgor makes or has made or furnishes or has furnished,
any material written warranty, representation or statement to Company in
connection with this Agreement, the Note or the Stock Subscription Agreement
which is or was false or misleading when made or furnished.
(c) Any lien or encumbrance other than that created by this
Agreement or the Stockholder's Agreement is placed on, or any levy is made on
the Pledged Securities, or any portion thereof, or the Pledged Securities, or
any portion thereof, is seized or attached
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pursuant to legal process, and such lien, encumbrance, levy, seizure, or
attachment is not removed or released within thirty (30) days from the time
such lien or encumbrance was placed thereon or such levy, seizure or
attachment was effected.
(d) The Pledgor commences any bankruptcy, reorganization or
insolvency proceeding, or other proceeding under any federal, state or other law
for the relief of debtors.
(e) The Pledgor fails to obtain dismissal, within sixty (60) days
after commencement thereof, of any bankruptcy, insolvency, or reorganization
proceeding or other proceeding for relief under any bankruptcy law, including,
without limitation, the Federal Bankruptcy Code, or any law for the relief of
debtors, instituted against the Pledgor by one or more third parties, fails to
oppose actively such proceeding, or, in any such proceeding defaults or files an
answer admitting the material allegations upon which the proceeding was based,
or alleges its willingness to have an order for relief entered or its desire to
seek liquidation, reorganization or adjustment of its debts.
(f) Any receiver, trustee or custodian is appointed by a court of
competent jurisdiction to take possession of all or any substantial portion of
the assets of the Pledgor and such order is not vacated within sixty days of the
entry thereof.
(g) The Pledgor shall fail generally to pay her debts as such
debts become due.
(h) The Pledgor shall effect or there shall otherwise occur a
Transfer (as defined in the Stockholder's Agreement) not otherwise permitted
under the Stockholder's Agreement.
5. REMEDIES IN CASE OF AN EVENT OF DEFAULT.
(a) In case an Event of Default shall have occurred and be
continuing, the Company shall be entitled to vote the Pledged Securities and
shall have all of the remedies of a secured party under the Delaware Uniform
Commercial Code, and, without limiting the foregoing, shall have the right,
subject to any necessary regulatory approvals, to sell, assign and deliver the
whole or, from time to time, any part of the Pledged Securities, or any interest
in any part thereof, at any private sale or at public auction, with or without
demand of performance or other demand, advertisement or notice of the time or
place of sale or adjournment thereof or otherwise (except the Company shall give
10 days' notice to the Pledgor of the time and place of any sale pursuant to
this Section 5), for cash, and credit or for other property, for immediate or
future delivery, and for such price or prices and on such terms as the Company
shall, in its sole discretion, determine, the Pledgor hereby waiving and
releasing any and all right or equity of redemption whether before or after sale
hereunder. At any such sale the Company may bid for and purchase the whole or
any part of the Pledged Securities so sold free from any such right or equity of
redemption. The Company shall apply the proceeds of any such sale first to the
payment of all costs and expenses, including reasonable attorneys' fees,
incurred by
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the Company in enforcing its rights under this Agreement and then to the
payment of interest on and principal of the Note, with such payments to be
applied in the Company's sole discretion.
(b) The Pledgor recognizes that the Company may be unable to
effect a public sale of all or a part of the Pledged Securities by reason of
certain prohibitions contained in the Securities Act of 1933, as amended (the
"Act"), or in the rules and regulations promulgated thereunder, but may be
compelled to resort to one or more private sales to a restricted group of
purchasers who will be obliged to agree, among other things, to acquire the
Pledged Securities for their own account, for investment and not with a view to
the distribution or resale thereof. The Pledgor agrees that private sales so
made may be at prices and on other terms less favorable to the seller than if
the Pledged Securities were sold at public sale, and that the Company has no
obligation to delay the sale of the Pledged Securities for the period of time
necessary to permit the registration of the Pledged Securities for public sale
under the Act; provided, however, that no private sale shall be made of the
Pledged Securities to any Affiliate (as defined in the Stockholder's Agreement)
of the Company or Viewer Holdings LLC at a price per share of Common Stock less
than the lesser of (i) the then Market Price Per Share or (ii) the Initial Price
Per Share of such Common Stock (each as defined in the Stockholder's Agreement),
subject to adjustment to reflect any stock split, stock dividend, combination of
shares, merger or other adjustment to Common Stock. The Pledgor agrees that a
private sale or sales made under the foregoing circumstances shall be deemed to
have been made in a commercially reasonable manner.
(c) If any consent, approval or authorization of any state,
municipal or other governmental department, agency or authority should be
necessary to effectuate any sale or disposition by the Company pursuant to this
Section 5 of the Pledged Securities, or any partial disposition of the Pledged
Securities, the Pledgor will execute all such applications and other instruments
as may be required in connection with securing any such consent approval or
authorization, and will otherwise use his or her best efforts to secure the
same.
(d) Neither failure nor delay on the part of the Company to
exercise any right, remedy, power or privilege provided for herein or by statute
or at law or in equity shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right, remedy, power or privilege preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege.
6. PLEDGOR'S OBLIGATIONS NOT AFFECTED. The obligations of the Pledgor
under this Agreement shall remain in full force and effect without regard to,
and shall not be impaired or affected by: (a) any subordination, amendment or
modification of or addition or supplement to the Stock Subscription Agreement,
the Stockholder's Agreement or the Note, or any assignment or transfer of either
thereof; (b) any exercise or non-exercise by the Company of any right, remedy,
power or privilege under or in respect of this Agreement, the Stock Subscription
Agreement, the Stockholder's Agreement or the Note, or any waiver of any such
right, remedy, power or privilege; (c) any waiver, consent,
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extension, indulgence or other action or inaction in respect of this
Agreement, the Stock Subscription Agreement, the Stockholder's Agreement or
the Note, or any assignment or transfer of any thereof; or (d) any
bankruptcy, insolvency, reorganization, arrangement, readjustment,
composition, liquidation or the like, of the Company or its successors,
whether or not the Pledgor shall have notice or knowledge of any of the
foregoing.
7. TRANSFERS BY PLEDGOR. The Pledgor will not sell, assign, transfer or
otherwise dispose of, grant any option with respect to, or mortgage, pledge or
otherwise encumber the Pledged Securities or any interest therein, provided,
however, that this Section shall not prohibit the Pledgor from entering into the
Stockholder's Agreement.
8. ATTORNEY-IN-FACT. The Company or its successor is hereby appointed the
attorney-in-fact of the Pledgor for the purpose of carrying out the provisions
of this Agreement and taking any action and executing any instrument which the
Company reasonably may deem necessary or advisable to accomplish the purposes
hereof, including without limitation, the execution of the applications and
other instruments described in Section 5(c), which appointment as
attorney-in-fact is irrevocable as one coupled with an interest.
9. TERMINATION. Upon payment in full of principal of and interest on the
Note and upon the due performance of and compliance with all of the provisions
of the Note, this Agreement shall terminate, and the Pledgor shall be entitled
to the return of such of the Pledged Securities as has not theretofore been
sold, released pursuant to Section 5 or otherwise applied pursuant to the
provisions of this Agreement.
10. NOTICES. All notices or other communications required or permitted to
be given hereunder shall be delivered as provided in the Stockholder's
Agreement.
11. MISCELLANEOUS. The Company and its assigns shall have no obligation in
respect of the Pledged Securities, except to hold and dispose of the same in
accordance with the terms of this Agreement. This Agreement and any provisions
hereof may be amended, modified, waived, discharged or terminated only by an
instrument in writing signed by the party against which enforcement of the
amendment, modification, waiver, discharge or termination is sought. The
provisions of this Agreement shall be binding upon the successors and assigns of
the Pledgor. The captions in this Agreement are for convenience of reference
only and shall not define or limit the provisions hereof. This Agreement shall
be governed by and construed and enforced in accordance with the laws of the
State of Delaware, without regard to the conflicts of laws rules thereof. This
Agreement may be executed simultaneously in several counterparts, each of which
is an original, but all of which together shall constitute one instrument.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Repayment and
Stock Pledge Agreement to be executed and delivered on the date first above
written.
ALLIANCE IMAGING, INC.
a Delaware corporation
By:
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Its:
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PLEDGOR:
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
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