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EXHIBIT 4.3
VOTING AGREEMENT, dated as of April 27, 2000, by and among The Sports Club
Company, Inc., a Delaware corporation, and D. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Talla").
PRELIMINARY STATEMENT
Talla currently owns Shares and may from time to time hereafter acquire
additional Shares. As a condition to the agreement by the Company to amend the
Rights Agreement to permit the acquisition of a limited number of additional
Shares by Talla, the Company has required Talla to agree, and Talla is willing
to agree, that he will vote any Shares owned by him in excess of the Threshold
Number in accordance with the requirements of section 2 of this agreement.
Accordingly, the parties hereto agree as follows.
1. DEFINITIONS.
a. "AFFILIATE" means, with respect to any person, any other person
that, directly or indirectly, controls, is controlled by or is under
common control with such person.
b. "BOARD OF DIRECTORS" means the Company's Board of Directors.
c. "COMPANY" means The Sports Club Company, Inc., a Delaware
corporation.
d. "NON-RESTRICTED SHARES" means all outstanding Shares other than the
Restricted Shares.
e. "RESTRICTED SHARES" means, as of any date, the Shares owned by Talla
on such date in excess of the Threshold Number.
f. "RIGHTS AGREEMENT" means the Rights Agreement, dated as of October
6, 1998, between the Company and American Stock Transfer & Trust
Company, as such agreement may be amended from time to time.
g. "SHARES" means shares of the Company's common stock, par value $.01
per share.
h. "MILLENNIUM VOTING AGREEMENT" means the Voting Agreement, dated as
of April 27, 2000, between the Company and Millennium Partners, LLC,
and its affiliates.
i. "TERMINATION DATE" means the earlier of: (i) the date on which the
Rights Agreement is terminated, (ii) the date on which Rights
Certificates (as such term is
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defined in the Rights Agreement) are distributed pursuant to the
Rights Agreement, and (iii) the date on which the parties hereto
enter into a written agreement to terminate this agreement.
j. "THRESHOLD NUMBER" means, as of any date, the greater of:
i. 4,964,890 Shares and
ii. a number of Shares equal to 28% of all Shares outstanding as
of such date.
2. VOTING RESTRICTIONS.
a. Talla agrees that, from the date hereof until the Termination Date,
he will, on each occasion at which the stockholders of the Company
are entitled to vote on any matter (whether at an annual or special
meeting or by written consent), vote all Restricted Shares in the
same proportions that all Non-restricted Shares that are voted in
connection with such matter are voted.
b. Anything in section 2(a) hereof to the contrary notwithstanding, the
restriction set forth in section 2(a) hereof shall not apply to the
extent specifically waived in writing by the Board of Directors.
c. If the Millennium Voting Agreement is amended or modified, or any
provision thereof is waived, the Company shall notify Talla promptly
of any such amendment, modification or waiver. If any such
amendment, modification or waiver reduces or eliminates the
restrictions contained in the Millennium Voting Agreement, Talla
shall automatically receive the benefit of such reduced or
eliminated restrictions and this agreement shall be appropriately
modified.
3. MISCELLANEOUS.
a. GOVERNING LAW. This agreement will be governed by and construed and
enforced in accordance with the internal laws of the State of
Delaware, without giving effect to the conflict of laws principles
thereof.
b. ENFORCEMENT.
i. Talla acknowledges and agrees that irreparable damage would
occur if any of the provisions of this agreement were not
performed
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in accordance with their specific terms or were otherwise
breached. Accordingly, the Company will be entitled to an
injunction or injunctions to prevent breaches of this
agreement by Talla and to enforce specifically its
provisions, this being in addition to any other remedy to
which the Company may be entitled at law or in equity.
ii. Each of Talla and the Company irrevocably agrees that any
legal action or proceeding against it with respect to this
agreement and any transaction contemplated by this agreement
may be brought in the courts of the State of Delaware or in
the United States District Court for the District of
Delaware, and by execution and delivery of this agreement
each of Talla and the Company irrevocably submits to the
jurisdiction of each such court.
c. ENTIRE AGREEMENT. This agreement constitutes the entire
understanding of the parties hereto with respect to the transactions
contemplated by it.
d. SEVERABILITY. If any provision of this agreement is held by a court
of competent jurisdiction to be unenforceable, the remaining
provisions shall remain in full force and effect. It is declared to
be the intention of the parties hereto that they would have executed
the remaining provisions without including any that may be declared
unenforceable.
e. HEADINGS. The headings in this agreement are solely for convenience
of reference and shall be given no effect in the construction or
interpretation of any provision of this agreement.
f. NOTICES. All notices and other communications hereunder shall be in
writing and shall be delivered personally against receipt thereof,
or trans mitted by facsimile (with a confirming copy sent by mail)
or by registered or certified mail (postage prepaid, return receipt
requested) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
if to the Company, to:
The Sports Club Company, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
1901 Avenue of the Stars
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
if to Talla, to:
D. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Resch, Polster, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Any notice shall be deemed to have been given on the date of receipt
if delivered personally or by overnight courier, the date of
transmission with confirmation back if transmitted by facsimile, or
the third day following posting if transmitted by mail.
g. SUCCESSORS AND ASSIGNS. This agreement shall bind and inure to the
benefit of the successors of the parties hereto. None of the parties
hereto may assign its rights or interests in or obligations under
this agreement without the prior written consent of the other
parties hereto.
h. THIRD PARTY BENEFICIARIES. No party not expressly a party hereto
shall have or acquire any rights or interests under this agreement,
whether as a third party beneficiary or otherwise, and none of the
parties hereto shall have any liability hereunder with respect to
any such other party
i. AMENDMENTS; WAIVERS. This agreement may not be amended, or any of
its provisions waived, except by a writing signed by each of the
parties hereto.
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j. COUNTERPARTS. This agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have cause this agreement to
be executed as of the date first written above.
THE SPORTS CLUB COMPANY, INC. D. ▇▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇ /s/ D.MichaelTalla
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Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇ D. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Co-Chief Executive Officer
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