EXHIBIT 10.12
2003 EXECUTIVE STOCK AGREEMENT
THIS EXECUTIVE STOCK AGREEMENT, dated as of July 23, 2003, is made by and
among TOWN SPORTS INTERNATIONAL, INC., a New York corporation (the "Company"),
XXXXX XXXXXXX (the "Executive"), BRUCKMANN, XXXXXX, XXXXXXXX & CO., L.P., a
Delaware limited partnership ("BRS"), FARALLON CAPITAL PARTNERS, L.P., a
California limited partnership ("FCP"), FARALLON CAPITAL INSTITUTIONAL PARTNERS,
L.P., a California limited partnership, RR CAPITAL PARTNERS, L.P., a Delaware
limited partnership, and FARALLON CAPITAL INSTITUTIONAL PARTNERS II, L.P., a
California limited partnership (together with FCP, FCIP and RRC, the "Farallon
Investors", and individually, a "Farallon Investor"). BRS and each Farallon
Investor is referred to herein as an "Investor" and collectively, as the
"Investors". Capitalized terms used herein but not otherwise defined shall have
the meanings assigned to such terms in Section 1.
WHEREAS, the Executive has entered into a 2003 Common Stock Option
Agreement, dated on or about the date hereof, with the Company (as amended,
restated or modified from time to time, the "Common Option Agreement") pursuant
to which the Company has granted the Executive Common Options to acquire certain
shares of Common Stock.
NOW THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties to this Agreement agree as follows:
1. Definitions. As used herein, the following terms shall have the
following meanings:
"Accredited Investor" has the meaning ascribed to such term in Regulation
D of the Securities Act, as amended.
"Board" means the Company's board of directors, as in effect from time to
time.
"Cause" means any of the following with respect to the Executive: (i) a
material breach of the Executive's covenants under this Agreement or any other
agreement with the Company or its Subsidiaries (including, without limitation,
this Agreement, the Common Option Agreement, the Shareholders Agreement and the
Registration Rights Agreement) not cured within 15 days after the receipt of
written notice of such breach from the Company; (ii) the commission by the
Executive of a felony, a crime involving moral turpitude or other act causing
material harm to the standing and reputation of the Company or any of its
Subsidiaries; (iii) the Executive's repeated and deliberate failure to comply
with the lawful and reasonable written directives of the Board; or (iv) theft or
embezzlement of a material amount of money or property of the Company or any of
its Subsidiaries, perpetration or participation in a fraud, on the Company or
any of its Subsidiaries.
"Certificate of Incorporation" means the Company's Certificate of
Incorporation as in effect on the date hereof, as the same may be amended,
restated or modified from time to time.
"Class A Common" means the Company's Class A Common Stock, par value $.01
per share.
"Common Option Shares" means any shares of Class A Common (or any other
securities) issued or issuable upon exercise of Common Options granted to the
Executive.
"Common Options" means, collectively, the options to purchase Common
Stock, if any, granted to the Executive pursuant to the Common Option Agreement.
"Common Stock" means collectively, the Class A Common, the Company's Class
B Common Stock, par value $.001 per share and any other class of Common Stock of
the Company, or if such outstanding Common Stock is hereafter changed into or
exchanged for different securities of the Company, such other securities.
"Executive Shares" means, collectively, (i) the Common Option Shares, and
any other shares of Common Stock hereafter acquired or received by the Executive
from the Company, and (ii) any shares of the Company's capital stock issued with
respect to shares of Common Stock set forth in clause (i) by way of merger,
consolidation, reclassification, stock split, reverse stock split, stock
dividend or other recapitalization. Executive Shares shall continue to be
Executive Shares in the hands of any holder other than such Executive
(including, without limitation, any Permitted Transferee of the Executive),
except for the Company, the Investor or any transferee in an underwritten public
offering registered under the Securities Act. Except as otherwise provided
herein, each such other holder of Executive Shares will succeed to all rights
and obligations attributable to the Executive as a holder of Executive Shares
hereunder.
"Fair Market Value" means, as of any date of determination, for each share
of Common Stock, the average of the closing per share prices of the sales of the
Common Stock on all securities exchanges on which the Common Stock may at the
time be listed, or, if there have been no sales on any such exchange on any day,
the average of the highest bid and lowest asked prices on all such exchanges at
the end of such day, or, if on any day the Common Stock is not so listed, the
average of the representative bid and asked per share prices quoted in the
NASDAQ National Market System as of 4:00 P.M., New York time, or, if on any day
the Common Stock is not quoted in the NASDAQ National Market System, the average
of the highest bid and lowest asked per share prices on such day in the domestic
over-the-counter market as reported by the NASDAQ National Quotation Bureau,
Incorporated, or any similar successor organization, in each such case averaged
over a period of 21 trading days consisting of the day as of which the Fair
Market Value is being determined and the 20 consecutive trading days prior to
such day. If at any time the Common Stock is not so listed on any securities
exchange or quoted in the NASDAQ National Market System or the domestic
over-the-counter market, the Fair Market Value will be the fair value of the
Common Stock as determined in good faith by the Board and set forth in a written
notice to the Executive; provided, if the Executive objects to such
determination in writing within 10 days of the receipt of such determination
from the Board, the Fair Market Value of each share of Common Stock shall be
determined by an accounting firm mutually selected by the Board and the
Executive; and the costs of such accounting firm shall be borne by the party
whose determination is farther from the determination of such accounting firm.
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"Initial Public Offering" means the sale of shares of Common Stock in an
underwritten initial public offering registered under the Securities Act where,
after such offering, the Common Stock sold in such offering is subject to being
traded on the NASDAQ National Market or a national securities exchange.
"Original Cost" means, (i) for each share of Common Stock acquired by the
Executive, the amount per share paid by the Executive to the Company as the
purchase price for such share of Common Stock, and (ii) for each Common Option
Share, the per share exercise price paid by the Executive to the Company upon
exercise of the Common Option pursuant to which such Common Option Share was
issued, in each case, adjusted for any merger, consolidation, reclassification,
stock split, reverse stock split, stock dividend or other recapitalization.
"Permitted Transferee" means, as to any Person, the "Permitted
Transferees" (as defined in the Shareholders Agreement) of such Person.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, or a government entity (or any
department, agency or political subdivision thereof.)
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of December 10, 1996, by and among the Company and certain shareholders
of the Company, as the same may be amended, restated or modified from time to
time.
"Sale of the Company" means the sale of the Company, in a single
transaction or a series of related transactions, to an Unaffiliated Third Party
pursuant to which such Unaffiliated Third Party acquires all of the outstanding
Common Stock (whether by merger, consolidation, recapitalization,
reorganization, purchase of the outstanding Common Stock or otherwise) or all or
substantially all of the consolidated assets of the Company.
"Securities Act" means the Securities Act of 1933, as amended.
"Shareholders Agreement" means the Amended and Restated Shareholders
Agreement, dated as of November 13, 1998, by and among the Company and certain
shareholders of the Company, as the same may be amended, restated or modified
from time to time.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company association or other business entity of
which (i) if a corporation or a limited liability company, a majority of the
total voting power of securities entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof, or (ii) if a partnership, association or other business entity, a
majority of the partnership or other similar ownership interest thereof is at
the time owned or controlled, directly or indirectly, by any Person or one or
more Subsidiaries of that Person or a combination thereof. For purposes hereof,
a Person or Persons shall be deemed to have a majority ownership interest in a
partnership, association or other business entity if such Person or Persons
shall be allocated a majority of partnership,
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association or other business entity gains or losses or shall be or control the
managing director or general partner of such partnership, association or other
business entity.
"Unaffiliated Third Party" means any Person who, immediately prior to the
contemplated transaction (i) does not own in excess of 5% of the Common Stock on
a fully diluted basis (a "5% Owner", (ii) is not controlling, controlled by or
under common control with any such 5% Owner and (iii) is not the spouse or
descendent (by birth or adoption) of any such 5% Owner or a trust for the
benefit of such 5% Owner and/or such other Persons.
2. 83(b) Election. Within thirty (30) days after the Executive acquires
any Executive Shares from the Company, the Executive will make an effective
election with the Internal Revenue Service under Section 83(b) of the Code in
the form attached hereto as Exhibit A.
3. Repurchase of Shares.
(a) Repurchase Option. In the event of either (i) the Executive's
termination of employment with the Company for any reason or (ii) the change for
any reason in the Executive's employment from full-time status to part-time
status in which the Executive's work week for the Company is reduced to 30 hours
or less per week, as defined in accordance with the Company's benefit
eligibility criteria (the date on which such termination or change occurs, the
"Termination Date"), the Company and the Investors shall have an option (a
"Repurchase Option"), exercisable within 90 days following the Termination Date
(the "Expiration Date"), to purchase from the Executive and his or her Permitted
Transferees, if any, any of the Executive Shares held by the Executive at a
price per share as determined pursuant to Section 3(e) below. In connection with
such Repurchase Option, the Company shall provide written notice to the
Investors promptly after the Termination Date of (i) such Executive's
termination or change in employment status, (ii) the number of Executive Shares
subject to the Repurchase Option, and (iii) the purchase price for each such
Executive Share. Any Investor may transfer its rights under this Section 3 to
any of its Permitted Transferees.
(b) Repurchase by the Company. Within 45 days after the Termination Date,
the Company may exercise its Repurchase Option by delivery of written notice
(each, a "Repurchase Notice") to the holder or holders of Executive Shares. The
Repurchase Notice shall set forth the number of Executive Shares to be acquired
from such holder or holders of Executive Shares, and the aggregate consideration
to be paid for such Executive Shares. The number of Executive Shares to be
repurchased by the Company shall first be satisfied to the extent possible from
the Executive Shares held by the Executive at the time of delivery of the
Repurchase Notice. If the number of Executive Shares held by the Executive is
less than the total number of Executive Shares the Company has elected to
purchase, the Company shall purchase the remaining Executive Shares elected to
be purchased from the Permitted Transferee(s) of the Executive Shares, pro rata
according to the number of Executive Shares held by such Permitted Transferee(s)
on the Termination Date (determined as nearly as practicable to the nearest
share).
(c) Repurchase by the Investor. If for any reason the Company does not
elect to purchase all of the Executive Shares pursuant to the Repurchase Option,
then the Investors shall be entitled to exercise the Repurchase Option for all
or any portion of the number of
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Executive Shares the Company has not elected to purchase (the "Available
Shares"). Each of the Investors shall have a right to purchase a pro rata
portion of the Available Shares based on the total number of shares of Common
Stock then held by each Investor; provided, that if any Investor elects not to
purchase its pro rata portion of the Available Shares, the other Investor shall
have the right to purchase any such remaining Available Shares. As soon as
practicable after the Company has determined that there will be Available
Shares, but in any event within 45 days after the Termination Date, the Company
shall deliver a written notice to each holder of Executive Shares and the
Investors as to the number of Executive Shares being purchased from each such
holder by the Company and each Investor and the time and place of the closing of
the transaction (which in no event shall be after the 90th day following the
Termination Date) (the "Supplemental Repurchase Notice"). At the time the
Company delivers the Supplemental Repurchase Notice to each such holder of
Executive Shares, each Investor shall also receive written notice from the
Company setting forth the number of Available Shares it has elected to purchase,
the aggregate purchase price and the time and place of the closing of the
transaction. The Repurchase Option with respect to any Executive Shares not
repurchased on or prior to the Expiration Date shall terminate (provided
Executive complies with the provisions of this Section 3).
(d) Closing of Repurchase of Executive Shares. The purchase of Executive
Shares pursuant to this Section 3 will be closed at the Company's executive
offices at the time specified in the Supplemental Repurchase Notice. At the
closing, the purchaser or purchasers shall pay the purchase price in the manner
specified in Section 3(c) and the holder or holders of the Executive Shares
being so purchased shall deliver the certificate or certificates (or duly
executed affidavits of lost certificates in accordance with the Certificate of
Incorporation) representing any such Executive Shares to the purchaser or
purchasers or their nominees, accompanied by duly executed stock powers. Any
purchaser of Executive Shares under this Section 3 shall be entitled to receive
customary representations and warranties from such holder or holders of the
Executive Shares being so purchased regarding good title to such Executive
Shares, free and clear of any liens or encumbrances.
(e) Repurchase Option Purchase Price. In the event of either (i) the
Executive's termination of employment with the Company for any reason other than
for Cause or (ii) the change in the Executive's employment to part-time status
for any reason, the purchase price per share of the Executive Shares repurchased
pursuant to this Section 3 shall be the Fair Market Value thereof. In the event
of the Executive's termination of employment with the Company for Cause, the
purchase price per share of the Executive Shares repurchased pursuant to this
Section 3 shall be the lower of the Fair Market Value thereof and Original Cost
thereof. For purposes of this Section 3(e), Fair Market Value shall be
determined as of the Termination Date. The purchase price for the Executive
Shares repurchased pursuant to the Repurchase Option shall be paid by a transfer
of immediately available funds or certified check which shall be delivered to
the Executive at the closing of such purchase.
(f) Termination of Repurchase Option. All rights and obligations created
pursuant to this Section 3 shall be extinguished upon the earlier of (i) a Sale
of the Company or (ii) the consummation of an Initial Public Offering.
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4. Non-Compete; Nonsolicitation.
(a) Noncompetition.
(i) As an inducement to the Company to enter into this Agreement and
issue the Shares hereunder, the Executive agrees that, during (A) his/her period
of employment with the Company, and (B) in the event that Executive resigns or
Executive's employment is terminated by the Company for any reason, during the
period which the Company is paying the Executive severance compensation (which
shall be at a rate and an amount equal to the Executive's salary and health and
other insurance benefits received by the Executive immediately prior to the
Termination Date), such period not to exceed one year (the "Noncompete Period"),
he shall not directly or indirectly own, manage, control, participate in,
consult with, render services for, or in any manner engage in, any business
competing directly or indirectly with the business as now or hereafter conducted
by the Company or any of its Subsidiaries which are logical extensions of the
Company's current business, within any metropolitan area in which the Company or
any of its Subsidiaries engages or has definitive plans to engage in such
business; provided, that (x) the Executive shall not be precluded from
purchasing or holding publicly-traded securities of any such entity so long as
the Executive shall hold less than 2% of the outstanding units of any such class
of securities and has no active participation in the business of such entity and
(y) the Company shall have notified the Executive of its agreement to provide
such severance compensation (1) in the event of resignation, within five days
after the Termination Date, and (2) in the event of termination, on or before
the Termination Date). Notwithstanding anything contained herein to the
contrary, the Executive's agreement set forth in clause (B) above shall not
apply in the event that the Termination Date occurs after the fifth anniversary
of the date of this Agreement.
(ii) During the Noncompete Period, the Executive shall not directly
or indirectly through another entity (i) induce or attempt to induce any
employee of the Company or any of its Subsidiaries to leave the employ of the
Company or any of its Subsidiaries, or in any way interfere with the
relationship between the Company or any of its Subsidiaries and any employee
thereof, (ii) hire any person who was an employee of the Company or any of its
Subsidiaries at any time during Executive's employment period except for such
employees who have been terminated for at least six months or (iii) induce or
attempt to induce any customer, supplier, licensee, franchisor or other business
relation of the Company or any of its Subsidiaries to cease doing business with
such member, or in any way interfere with the relationship between any such
customer, supplier, licensee, franchisor or business relation, on the one hand,
and any member of the Company or any of its Subsidiaries, on the other hand.
(iii) The provisions of this Section 4(a) shall survive any
termination of this Agreement.
(iv) If, at the time of enforcement of this Section 4(a), a court of
competent jurisdiction shall hold that the duration, scope or area restrictions
stated herein are unreasonable under circumstances then existing, the parties
hereto agree that the maximum duration, scope or area reasonable under such
circumstances shall be substituted for the stated duration, scope or area and
that such court shall be allowed to revise the restrictions contained herein to
cover the maximum period, scope and area permitted by law.
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(b) Confidential Information. The Executive acknowledges that he may have
access to certain confidential, non-public and proprietary information (the
"Confidential Information"), concerning the Company and its Subsidiaries and
their respective officers, directors, shareholders, employees, agents and
representatives and agrees that: (i) unless pursuant to prior written consent by
the Company, the Executive shall not disclose any Confidential Information or
the provisions of this Agreement or knowledge of this Agreement's existence to
any Person for any purpose whatsoever unless compelled by court order or
subpoena; (ii) the Executive shall treat as confidential all Confidential
Information and shall take reasonable precautions to prevent unauthorized access
to the Confidential Information; (iii) the Executive shall not use the
Confidential Information in any way detrimental to the Company or any of its
Subsidiaries and shall use the Confidential Information for the exclusive
purpose of effecting his duties of employment with the Company; and (iv) the
Executive agrees that the Confidential Information obtained during his
employment with the Company shall remain the exclusive property of the Company
and its Subsidiaries, and the Executive shall promptly return to the Company all
material which incorporates, or is derived from, all such Confidential
Information immediately following the Termination Date. The Executive shall be
responsible for any breach of the terms of this Section 4(b) by any holder of
the Executive Shares. It is hereby agreed that Confidential Information does not
include information generally available and known to the public or obtained from
a source not bound by a confidentiality agreement with the Company.
(c) Inventions and Patents. The Executive hereby agrees that all
inventions, innovations or improvements in the method of conducting the business
(including improvements, ideas and discoveries, whether patentable or not) of
the Company or any of its Subsidiaries whether prior to the date hereof or
thereafter, in each case conceived or made by him in the course of his
employment with the Company, belong to the Company and its Subsidiaries, except
for such inventions, innovations and improvements that have become part of the
public domain and are not entitled to statutory or common law protection. The
Executive will promptly disclose such inventions, innovation or improvements to
the Board and perform all actions reasonably requested by the Board to establish
and confirm such ownership by the Company or any of its Subsidiaries.
5. Restrictions on Transfer.
(a) Shareholders Agreement. The Executive hereby acknowledges and
understands that the Executive is a party to the Shareholders Agreement which
governs and restricts the Executive's ability to transfer any Executive Shares
and other matters relating to the Executive as a shareholder of the Company.
(b) Legend. The certificates representing the Executive Shares will bear
the following legend (in addition to the legend set forth in Section 7 of the
Shareholders Agreement):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER AND REPURCHASE OPTIONS SET FORTH IN AN EXECUTIVE
STOCK AGREEMENT DATED AS OF _____________, 2003 BETWEEN THE ISSUER THEREOF
AND THE HOLDER HEREOF."
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6. Representations and Warranties of the Company. As a material inducement
to the Executive to enter into this Agreement and purchase the Shares, the
Company hereby represents and warrants to the Executive as follows:
(a) Organization. It is a corporation duly organized, validly existing and
in good standing under the laws of New York.
(b) Authorization. It has full corporate power and authority to execute
and deliver this Agreement and to perform its obligations hereunder and to
consummate the transactions contemplated hereby. This Agreement has been duly
executed and delivered by it and constitutes the valid and binding agreement of
it, enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency and other similar laws affecting the enforceability of
creditors' rights generally, general equitable principles and the discretion of
courts in granting equitable remedies.
(c) No Conflict. The execution, delivery and performance by it of this
Agreement, the performance by it of the transactions contemplated thereby and
the fulfillment by it of and compliance by it with the terms and conditions
hereof does not and will not, violate or conflict with any terms or provisions
of (i) its articles of incorporation, bylaws or other organizational documents,
(ii) any contract, deed, lease or other agreement to which it is a party or to
which any of its assets are subject or (iii) any judgment, decree, order,
statute, rule or regulation applicable to it or any of its assets, except for
such violations which could not reasonably be expected to materially impair or
delay its ability to consummate the transactions contemplated hereby. No
consent, approval, order or authorization of, or registration, declaration or
filing with, any government agency or public or regulatory unit, agency, body or
authority with respect to it is required in connection with its execution,
delivery or performance of this Agreement or the consummation of the
transactions contemplated hereby other than any of the foregoing, the failure of
which to receive or make, as the case may be, could not reasonably be expected
to materially impair or delay its ability to consummate the transactions
contemplated hereby.
(d) Capitalization. The Common Options have been validly authorized and
issued.
7. Representations and Warranties of the Executive. As an inducement to
the Company to enter into this Agreement and issue the Shares, the Executive
hereby represents and warrants to the Company as follows:
(a) Capacity and Power. The Executive has full capacity, power and
authority to execute and deliver this Agreement, to perform his or her
obligations under this Agreement and to consummate the transactions contemplated
hereby. This Agreement has been duly executed and delivered by the Executive and
constitutes a valid and binding agreement, enforceable against him or her in
accordance with its terms, subject to applicable bankruptcy, insolvency and
other similar laws affecting the enforceability of creditors' rights generally,
general equitable principles and the discretion of courts in granting equitable
remedies.
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(b) No Conflict. The execution, delivery and performance by the Executive
of this Agreement and the transactions contemplated hereby and the fulfillment
by him or her of and compliance by him or her with the terms and conditions of
this Agreement do not and will not, violate or conflict with any terms or
provisions of (i) any contract, deed, lease or other agreement to which he or
she is a party or to which any of his or her assets are subject or (ii) any
judgment, decree, order, statute, rule or regulation applicable to, him or her
or any of his or her assets, except for such violations which could not
reasonably be expected to materially impair or delay his or her ability to
consummate the transactions contemplated hereby. No consent, approval, order or
authorization of, or registration, declaration or filing with, any government
agency or public or regulatory unit, agency, body or authority with respect to
him or her is required in connection with his or her execution, delivery or
performance of this Agreement or the consummation of the transactions
contemplated hereby other than any of the foregoing, the failure of which to
receive or make, as the case may be, could not reasonably be expected to
materially impair or delay his or her ability to consummate the transactions
contemplated hereby.
(c) Investment. The Executive (i) understands that the Executive Shares
have not been, and will not be, registered under the Securities Act, or under
any state securities laws, and are being offered and sold in reliance upon
federal and state exemptions for transactions not involving any public offering,
(ii) will acquire the Executive Shares solely for his or her own account for
investment purposes, and not with a view to the distribution thereof, (iii) is a
sophisticated investor with knowledge and experience in business and financial
matters, (iv) has received certain information concerning the Company and has
had the opportunity to obtain additional information as desired in order to
evaluate the merits and the risks inherent in holding the Executive Shares, (v)
is able to bear the economic risk and lack of liquidity inherent in holding the
Executive Shares, and (vi) is an Accredited Investor.
8. Miscellaneous.
(a) Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(b) Entire Agreement. Except as otherwise expressly set forth herein, this
Agreement, the Shareholders Agreement, the Common Option Agreement, and the
Registration Rights Agreement embody the complete agreement and understanding
among the parties hereto with respect to the subject matter hereof and supersede
and preempt any prior understandings, agreements or representations by or among
the parties, written or oral, which may have related to the subject matter
hereof in any way.
(c) Successors and Assigns. This Agreement shall bind and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and permitted assigns. No party may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior written
approval of the other.
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(d) Counterparts. This Agreement may be executed in separate counterparts
each of which shall be an original and all of which taken together shall
constitute one and the same agreement.
(e) Remedies. The Company and the Executive each acknowledges that the
Executive Shares are unique and recognizes and affirms that in the event of a
breach of this Agreement by the Company or the Executive, money damages may be
inadequate and the Executive, or the Company, as the case may be, may have no
adequate remedy at law. Accordingly, the Company and the Executive each agrees
that the Executive, or the Company, as the case may be, shall have the right, in
addition to any other rights and remedies existing in its favor at law or in
equity, to enforce its rights and the obligations of the Company or the
Executive (as the case may be) hereunder not only by an action or actions for
damages but also by an action or actions for specific performance, injunctive
and/or other equitable relief (without posting of bond or other security).
(f) Notices. All notices, demands, or other communications to be given or
delivered under or by reason of the provision of this Agreement will be in
writing and will be deemed given when delivered personally, mailed by certified
or registered mail, return receipt requested, postage prepaid, or sent via
nationally recognized overnight courier, or sent via facsimile to the recipient.
Such notices, demands and other communications will be sent to the address
indicated below:
If to the Executive:
The address for the Executive listed on the signature page
hereto.
If to the Company, to:
Town Sports International, Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxxxxx
Facsimile No.: (000) 000-0000
With copies to (which shall not constitute notice to the
Company):
Bruckmann, Xxxxxx, Xxxxxxxx & Co., Inc.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx
Facsimile No.: (000)000-0000
Xxxxxxxx & Xxxxx LLP
Citigroup Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
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Facsimile No.: (000) 000-0000
If to BRS:
x/x Xxxxxxxxx, Xxxxxx, Xxxxxxxx & Co., Inc.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx
Facsimile No.: (000)000-0000
With a copy to (which shall not constitute notice to BRS):
Xxxxxxxx & Xxxxx LLP
Citigroup Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
If to any Farallon Investor:
x/x Xxxxxxxx Xxxxxxx Xxxxxxxxxx, X.X.X.
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxx
Facsimile No.: (000) 000-0000
With a copy to (which shall not constitute notice to any
Farallon Investor):
Richards, Spears, Xxxxx & Orbe
One Chase Xxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Facsimile No.: (000) 000-0000
or such other address or to the attention of such other Person as the recipient
party shall have specified by prior written notice to the sending party.
(g) Governing Law. All questions concerning the construction, validity and
interpretation of this Agreement shall be governed by and construed in
accordance with the domestic laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule (whether of the
State of New York or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of New York.
(h) Amendment and Waiver. The provisions of this Agreement may be amended
and waived only with the prior written consent of the parties. No waiver by
either
11
party of any default, misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to extend to any prior or
subsequent default, misrepresentation, or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence.
(i) Waiver of Jury Trial. Each of the parties hereto waives any right it
may have to trial by jury in respect of any claim, demand, action or cause of
action based on, or arising out of, under or in connection with this Agreement,
or any course of conduct, course of dealing, verbal or written statement or
action of any party hereto.
(j) Time of the Essence; Computation of Time. Time is of the essence for
each and every provision of this Agreement. Whenever the last day for the
exercise of any privilege or the discharge of any duty hereunder shall fall upon
a Saturday, Sunday, or any date on which banks in New York, New York are
authorized to be closed, the party having such privilege or duty may exercise
such privilege or discharge such duty on the next succeeding day which is a
regular business day.
(k) Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
* * * * *
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IN WITNESS WHEREOF, the parties have executed this Executive Stock
Agreement on the date first above written.
TOWN SPORTS INTERNATIONAL, INC.
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Chief Financial Officer
BRUCKMANN, XXXXXX, XXXXXXXX & CO., L.P.
By: BRS Partners, Limited Partnership
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxxx
Name:
Title:
FARALLON CAPITAL PARTNERS, L.P.
By: Farallon Partners, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Authorized Co-signatory
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Managing Member
FARALLON CAPITAL INSTITUTIONAL PARTNERS, L.P.
By: Farallon Partners, L.L.C.
Its: General Partner
By: /c/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Authorized Co-signatory
By: /c/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Managing Member
RR CAPITAL PARTNERS, L.P.
By: Farallon Partners, L.L.C.
Its: General Partner
By: /c/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Authorized Co-signatory
By: /c/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Managing Member
FARALLON CAPITAL INSTITUTIONAL PARTNERS II, L.P.
By: Farallon Partners, L.L.C.
Its: General Partner
By: /c/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Authorized Co-signatory
By: /c/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Managing Member
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EXECUTIVE
/c/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Address:
15
