EXHIBIT 10.14
EXECUTIVE STOCK AGREEMENT
EXECUTIVE STOCK AGREEMENT, dated as of December 10, 1996, by and among
TOWN SPORTS INTERNATIONAL, INC., a New York corporation (the "Company"), XXXXXX
XXXXXXXX (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 owns (a) such number of shares of Class A Common
designated on Schedule I as "Retained Shares" (collectively, the "Retained
Shares") after giving effect to the Merger pursuant to the terms of the Merger
Agreement and (b) has agreed to acquire (i) such number of shares of Class A
Common designated on Schedule I as "Acquired Shares" (the "Acquired Shares", and
together with the Retained Shares, the "Shares"), and (ii) to the extent set
forth on Schedule I, shares of Series B Preferred (the "Acquired Preferred
Shares"), pursuant to the terms hereof.
WHEREAS, the Executive has entered into (i) a Common Stock Option
Agreement, dated as of 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 certain Common Options and (ii) a
Preferred Stock Option Agreement, dated as of the date hereof, with the Company
(as amended, restated or modified from time to time, the "Preferred Option
Agreement") pursuant to which the Company has granted the Executive certain
Preferred Options.
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.
"Achieved Equity Value" means, as of any date of determination, (a) the
Actual EBITDA for the four consecutive fiscal quarter period ending on the
fiscal quarter ending immediately prior to such date multiplied by 5.5 minus (b)
the sum of (i) all outstanding Indebtedness of the Company and its Subsidiaries,
less cash and cash equivalents held by the Company and its Subsidiaries, as of
such date, (ii) the aggregate Liquidation Value of all Preferred Stock (plus all
accrued and unpaid dividends thereon) outstanding as of such date, and (iii)
aggregate Preferred Option Value for all Series B Option Shares outstanding as
of such date.
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"Actual EBITDA" means the Consolidated EBITDA of the Company and its
Subsidiaries for any particular four fiscal quarter period, derived from the
Company's consolidated financial statements for such four fiscal quarter period
certified by the Company's chief financial officer.
"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 Preferred 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 after giving effect of the merger and other
transactions contemplated by the Merger Agreement.
"Class A Common" means the Company's Class A Common Stock, par value $.01
per share.
"Common Executive Shares" means, collectively, (i) the Shares, 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. Common Executive Shares
shall continue to be Common 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 Common Executive Shares
will succeed to all rights and obligations attributable to the Executive as a
holder of Common Executive Shares hereunder.
"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.
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"Consolidated EBITDA" means, for any period, (a) the sum of (1) the net
income of the Company and its Subsidiaries for such period taken as a single
accounting period determined in conformity with GAAP, (ii) provisions for cash
taxes based on income, (iii) total interest expense, (iv) amortization or
write-off of deferred financing costs to the extent included in net income, (v)
depreciation expense, (vi) amortization expense, (vii) deferred rent expenses,
(viii) without duplication, all other non-cash charges included in determining
net income for such period, (ix) losses on sales of assets (excluding sales in
the ordinary course of business) and other extraordinary or nonrecurring losses,
minus (b) the amount for such period of gains on sales of assets (excluding
sales in the ordinary course of business) and other extraordinary or
nonrecurring gains, all as determined on a consolidated basis in accordance with
GAAP.
"Executive Shares" means, collectively, (i) the Common Executive Shares
and (ii) the Preferred Executive Shares.
"Fair Market Value" means, as of any date of determination, (i) 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 Achieved Equity Value
divided by all shares of Common Stock outstanding on a fully diluted basis as
determined in good faith by the Board and set forth in a written notice to the
Executive and (ii) for each share of Series B Preferred, the Liquidation Value
thereof (plus accrued and unpaid dividends thereon) and (iii) for each Series B
Option Share issuable upon exercise of the Preferred Options, the Preferred
Option Value thereof; provided, that with respect to the determination described
in clause (i), 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.
"Indebtedness" means all indebtedness of the Company or any of its
Subsidiaries determined on a consolidated basis including, without limitation
(i) all obligations for borrowed money or evidenced by bonds, debentures, notes,
letters of credit or other similar instruments, (ii) obligations as lessee under
capital leases, (iii) obligations to pay the deferred purchase price of property
or services, except accounts payable arising in the ordinary course of business
and (iv) all indebtedness of other Persons guaranteed or otherwise supported by
the Company or any of its Subsidiaries to the extend classified as debt in
accordance with GAAP, it being understood that all obligations with respect to
any items listed in clauses (i) through (iv) above include,
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without limitation, obligations for interest, principal, prepayment penalties,
premiums, fees, expenses, indemnities and breakage or similar charges.
"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.
"Liquidation Value" means, with respect to any share of Preferred Stock,
the Liquidation Value thereof as determined in accordance with the Company's
Certificate of Incorporation, as in effect from time to time.
"Merger" means the merger of TSI Merger Sub, Inc. with and into the
Company pursuant to the terms and conditions of the Merger Agreement.
"Merger Agreement" means the Agreement and Plan of Merger, dated as of
November 8, 1996, by and among TSI Merger Sub, Inc., the Company, certain
shareholders and option holders of the Company listed on the signature pages
thereto, as the same may be amended, restated or modified from time to time.
"Original Cost" means, (i) for each Retained Share, $1.00 per share, (ii)
for each other share of Common Stock acquired by the Executive, including any
Acquired Share, the amounts per share paid by the Executive to the Company as
the purchase price for such share of Common Stock, and (iii) 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.)
"Preferred Executive Shares" means, collectively, the Acquired Preferred
Shares and the Preferred Option Shares.
"Preferred Option Shares" means any shares of Series B Preferred (or any
other securities) issued or issuable upon exercise of Preferred Options granted
to the Executive.
"Preferred Option Value" means, for any Series B Options Share, the
Liquidation Value (as defined in the Certificate of Incorporation) of such
Series B Option Share plus the aggregate special accrual thereon less the
aggregate exercise price then in effect payable for such Series B Option Shares.
"Preferred Options" means, collectively the options to purchase Series B
Preferred, if any, granted to the Executive pursuant to the Preferred Option
Agreement.
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"Preferred Stock" means, collectively, the Series B Preferred, the
Company's Series A Preferred Stock, par value $1.00 per share, and any other
class or series of the Company's preferred stock, or if such outstanding
Preferred Stock is hereafter changed into or exchanged for different securities
of the Company, such other securities.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of December 10, 1996, by and among the Company, the Executive and
certain shareholders of the Company, as the same may be amended, restated or
modified from time to time.
"Restricted Shares" means the number of Common Executive Shares designated
as "Restricted Shares" on Schedule I.
"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 Shareholders Agreement, dated as of
December 10, 1996, by and among the Company, the Executive and certain
shareholders of the Company, as the same may be amended, restated or modified
from time to time.
"Series B Option Shares" means the shares of the Company's Series B
Preferred Stock, par value $1.00 per share, issuable but not actually issued
upon exercise of the Preferred Options and the options to purchase such shares
pursuant to certain Preferred Stock Option Agreements, dated as of the date
hereof, by and between the Company and certain other employees of the Company,
as amended, restated or modified from time to time.
"Series B Preferred" means the Company's Series B Preferred Stock, par
value $1.00 per share, having the rights and privileges set forth in the
Company's Certificate of Incorporation or if such outstanding Series B Preferred
is hereafter changed or exchanged for different securities of the Company, such
other securities.
"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, 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.
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"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. AUTHORIZATION AND CLOSING.
(a) Authorization. The Company shall authorize the issuance and/or sale to
the Executive of the Shares and the Acquired Preferred Shares. The Acquired
Preferred Shares shall have the terms and conditions set forth on Exhibit A
hereto.
(b) Purchase and Sale. Subject to the terms and conditions of this
Agreement, at the Closing the Executive agrees to purchase from the Company, and
the Company agrees to sell to the Executive, (i) the Acquired Shares at a price
of $1.00 per share and (ii) the Acquired Preferred Shares at a price of $35.00
per share, if any, free and clear of any liens, for an aggregate purchase price
of $50,651.00 (the "Purchase Price").
(c) 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.
(d) Closing. The issuance and delivery of the Shares and the Acquired
Preferred Shares, if any, to the Executive and all other transactions
contemplated hereby shall occur at the same time and place as the closing of the
Merger as set forth in the Merger Agreement (such time and date, the "Closing
Date"). On the Closing Date, (i) the Executive shall pay for the Acquired Shares
and the Acquired Preferred Shares, if any, in immediately available funds or
such other form of payment acceptable to the Company acceptable to the Company
and shall deliver to the Company the stock certificates required pursuant to the
terms of the Merger Agreement and (ii) the Company will issue and deliver
certificates for the Shares and the Acquired Preferred Shares, if any to the
Executive.
3. VESTING.
(a) Normal Vesting. All Shares which are not Restricted Shares are fully
vested as of the date hereof. Restricted Shares are subject to the vesting
provisions contained in this Section 3 and none of the Restricted Shares are
vested as of the date hereof. So long as the Executive shall have been employed
by the Company through each of the dates set forth below (each, a "Vesting
Date"), a percentage of the total Restricted Shares set forth opposite such
Vesting Date shall vest in such Executive as of such Vesting Date (such
Restricted Shares which have so vested, the "Vested Shares", and any Restricted
Shares which have not so vested, the "Unvested Shares"):
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Cumulative
Percentage
Vesting Date of Restricted Shares
------------ --------------------
December 10, 1997 20%
December 10, 1998 40%
December 10, 1999 60%
December 10, 2000 80%
December 10, 2001 100%
(b) Accelerated Vesting. Notwithstanding anything contained in this
Section 3 to the contrary, if the Executive has been employed by the Company
from the date hereof through the earlier of (i) the date of consummation of a
Sale of the Company or (ii) the consummation of an Initial Public Offering, the
portion of any Restricted Shares which are Unvested Shares as of such date shall
be deemed to be immediately vested and exercisable.
4. REPURCHASE OF SHARES
(a) Repurchase Option. In the event of the Executive's termination of
employment with the Company for any reason (the date on which such termination
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 4(e) below;
provided, any such repurchase of Executive Shares shall be allocated ratably
between the Common Executive Shares and Preferred Executive Shares such that for
each Common Executive Share so repurchased, a number of Preferred Executive
Shares equal to the total number of Preferred Shares held by the Executive
divided by the total number of Common Executive Shares held by the Executive
shall be purchased, in each case determined as of the Termination Date. 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, (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 4 to any of its Permitted
Transferees. Any Unvested Shares not repurchased hereunder prior to the
Expiration Date shall immediately become Vested Shares (provided Executive
complies with all provisions of this Section 4).
(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
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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 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 4).
(d) Closing of Repurchase of Executive Shares. The purchase of Executive
Shares pursuant to this Section 4 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 4(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 4 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 the Executive's
termination of employment with the Company for any reason other than for Cause,
the purchase price per share of the Executive Shares repurchased pursuant to
this Section 4 shall be the Fair Market Value thereof, except that the purchase
price per share of Common Executive Shares which are Unvested Shares shall be
the Original Cost thereof. In the event of the Executive's termination of
employment with the Company for Cause, the purchase price per share of (i) the
Common Executive Shares repurchased pursuant to this Section 4 shall be the
lower of the Fair Market Value thereof and Original Cost thereof and (ii) the
Preferred Executive Shares shall be the Fair Market Value thereof. For purposes
of this Section 4(e), Fair Market Value shall be determined as of the
Termination Date. The purchase price for the Executive Shares repurchased
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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 4 shall be extinguished upon the earlier of (i) a Sale
of the Company or (ii) the consummation of an Initial Public Offering.
5. 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 5(a) shall survive any termination of
this Agreement.
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(iv) If, at the time of enforcement of this Section 5(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.
(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 5(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.
6. 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.
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(b) Legend. The certificates representing the Shares and the Acquired
Preferred 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 DECEMBER 10, 1996 BETWEEN THE ISSUER THEREOF
AND [NAME OF EXECUTIVE]."
7. 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 Shares have been validly authorized, issued and
are fully paid and nonassessable. The Common Options and the Preferred Options
have been validly authorized and issued.
11
8. 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.
(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 neither the Shares nor
the Acquired Preferred Shares, if any, 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) is acquiring the Shares and
the Acquired Preferred Shares, if any, 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 Shares and the
Acquired Preferred Shares, if any, (v) is able to bear the economic risk and
lack of liquidity inherent in holding the Shares and the Acquired Preferred
Shares, if any, and (vi) is an Accredited Investor.
9. 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,
12
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, the
Preferred 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.
(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, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxxxxx
Facsimile No.: (000) 000-0000
13
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: Xxxxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
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: Xxxxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
With a copy to (which shall not constitute notice to
BRS):
Xxxxxxxx & Xxxxx
Citicorp 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.
14
(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 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.
* * * * *
15
IN WITNESS WHEREOF, the parties have executed this Executive Stock
Agreement on the date first above written.
TOWN SPORTS INTERNATIONAL, INC.
By: /s/ X. X. Xxxx
-----------------------------------------------
Name: X.X. Xxxx
Title: CFO
BRUCKMANN, XXXXXX, XXXXXXXX & CO., L.P.
By: BRS Partners, Limited Partnership
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title:
FARALLON CAPITAL PARTNERS, L.P.
By: Farallon Partners, L.L.C.
Its: General Partner
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: /s/ 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: /s/ 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: /s/ Xxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Member
EXECUTIVE
/s/ Xxxxxx Xxxxxxxx
---------------------------------------------------
Name: Xxxxxx Xxxxxxxx
Address:
