EXHIBIT 10.3
TOWN SPORTS INTERNATIONAL, INC.
RESTRUCTURING AGREEMENT
This RESTRUCTURING AGREEMENT (this "Agreement") is made as of
February 4, 2004, by and among Town Sports International, Inc., a New York
corporation (the "Company"), Town Sports International Holdings, Inc., a
Delaware corporation ("Holdings"), BRUCKMANN, XXXXXX, XXXXXXXX & CO., L.P., a
Delaware limited partnership ("BRS"), the individuals and entities listed on the
BRS Affiliate Signature Pages hereto (the "BRS Affiliates" and, collectively
with BRS, the "BRS Investors", and individually with BRS, each a "BRS
Investor"), FARALLON CAPITAL PARTNERS, L.P., a California limited partnership
("FCP"), FARALLON CAPITAL INSTITUTIONAL PARTNERS, L.P., a California limited
partnership ("FCIP"), RR CAPITAL PARTNERS, L.P., a Delaware limited partnership
("RRC"), and FARALLON CAPITAL INSTITUTIONAL PARTNERS II, L.P., a California
limited partnership ("FII" and, collectively with FCP, FCIP, and RRC, the
"Farallon Investors", and individually, a "Farallon Investor"), CANTERBURY
DETROIT PARTNERS, L.P., a Delaware limited partnership ("Canterbury Detroit"),
CANTERBURY MEZZANINE CAPITAL, L.P., a Delaware limited partnership ("Canterbury
Mezzanine" and, together with Canterbury Detroit, the "Canterbury Investors",
and individually, a "Canterbury Investor"), ROSEWOOD CAPITAL, L.P., a Delaware
limited partnership ("Rosewood"), ROSEWOOD CAPITAL IV, L.P., a Delaware limited
partnership ("Rosewood IV"), ROSEWOOD CAPITAL IV ASSOCIATES, L.P., a Delaware
limited partnership ("Rosewood Associates" and, collectively with Rosewood and
Rosewood IV, the "Rosewood Investors", and individually, a "Rosewood Investor"),
CAPITALSOURCE HOLDINGS LLC, a Delaware limited liability company
("CapitalSource"), XXXXX XXXXXX ("Alessi"), XXXX XXXXXX ("Xxxxxx"), and certain
stockholders of the Company listed on the Executive Signature Page hereto (each,
an "Executive", collectively, the "Executives") (the BRS Investors, the Farallon
Investors, the Canterbury Investors, the Rosewood Investors, CapitalSource,
Xxxxxx, Xxxxxx and the Executives are referred to collectively herein as the
"Contributors", and individually herein as a "Contributor").
WHEREAS, the Contributors own all of the issued and
outstanding capital stock of the Company;
WHEREAS, the Contributors and the Company desire to
restructure the Company by creating Holdings, a holding company which shall own
all of the issued and outstanding capital stock of the Company;
WHEREAS, following the restructuring of the Company, the
Contributors shall own all of the issued and outstanding capital stock of
Holdings on the same terms and in the same proportion as is held currently in
the Company by the Contributors; and
WHEREAS, on January 20, 2004, Holdings was incorporated in the
State of Delaware to effectuate such restructuring.
NOW, THEREFORE, in consideration of the premises and the
mutual promises herein made, and in consideration of the representations,
warranties, and covenants herein contained, the parties hereto agree as follows.
1. CONTRIBUTION TO HOLDINGS. On the date of this
Agreement, each Contributor agrees to contribute and deliver to Holdings
certificates representing the number of shares of (a) Series A Preferred Stock,
par value $1.00 per share, of the Company (the "Company Series A Preferred"),
(b) Series B Preferred Stock, par value $1.00 per share, of the Company (the
"Company Series B Preferred"), and (c) Class A Common Stock, par value $.001 per
share, of the Company (the "Company Class A Common" and, collectively with the
Company Series A Preferred and the Company Series B Preferred, the "Company
Shares", and individually, a "Company Share"), as applicable, as specified for
each such Contributor on Schedule 1 attached hereto, endorsed in blank or
accompanied by duly executed assignment documents, and in exchange therefore,
Holdings agrees to issue and deliver to each Contributor the number of shares of
(a) Series A Preferred Stock, par value $1.00 per share, of Holdings (the
"Holdings Series A Preferred"), (b) Series B Preferred Stock, par value $1.00
per share, of Holdings (the "Holdings Series B Preferred"), and (c) Class A
Common Stock, par value $.001 per share, of Holdings (the "Holdings Class A
Common" and, collectively with the Holdings Series A Preferred and the Holdings
Series B Preferred, the "Holdings Shares", and individually, a "Holdings
Share"), as applicable, as specified for each such Contributor on Schedule 1
attached hereto (in each case, in the form of stock certificates issued by
Holdings representing such shares). The parties hereto intend that the
transactions described in this Section 1 (the "Initial Exchange") be
characterized as an exchange under Section 351(a) of the Internal Revenue Code
of 1986, as amended.
2. CONTRIBUTION TO THE COMPANY. Immediately following
the Initial Exchange, Holdings agrees to contribute and deliver to the Company
the certificates representing all of the Company Shares contributed to it
pursuant to the Initial Exchange, endorsed in blank or accompanied by duly
executed assignment documents, and in exchange therefore, the Company agrees to
(a) issue and deliver to Holdings 1,000 shares of Company Class A Common (in the
form of stock certificates issued by the Company representing such shares), and
(b) cancel on its books and records the certificates representing Company Shares
contributed to it by Holdings pursuant to this Section 2. The parties hereto
intend that the transactions described in this Section 2 (the "Second Exchange"
and, together with the Initial Exchange, the "Restructuring") be characterized
as an exchange under Section 351(a) of the Internal Revenue Code of 1986, as
amended.
3. REPRESENTATIONS AND WARRANTIES CONCERNING THE
TRANSACTION.
(a) Representations and Warranties with respect to the
Company. The Company represents and warrants to each of the Contributors that
its statements contained in this Section 3(a) are true and correct as of the
date of this Agreement.
(i) Organization of the Company. The Company is
duly organized, validly existing, and in good standing under the laws of the
State of New York.
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(ii) Authorization of Transaction. The Company
has full corporate power and authority to execute and deliver this Agreement and
to perform its obligations hereunder. This Agreement constitutes a valid and
binding obligation of the Company, enforceable in accordance with its terms and
conditions. The Company need not give any notice to, make any filing with, or
obtain any authorization, consent, or approval of any government or governmental
agency in order to consummate the transactions contemplated by this Agreement.
(iii) Noncontravention. Neither the execution and
the delivery of this Agreement, nor the consummation of the transactions
contemplated hereby, will (a) violate any constitution, statute, regulation,
rule, injunction, judgment, order, decree, ruling, charge, or other restriction
of any government, governmental agency, or court to which the Company is subject
or any provision of its charter or bylaws, or (b) result in a breach of or
constitute a default under, any agreement, contract, lease, license, instrument,
or other arrangement to which the Company is a party or by which it is bound or
to which any of its assets is subject.
(iv) Capital Stock and Related Matters.
(A) The authorized capital stock of the
Company consists of (i) 2,500,000 shares of Company Class A Common, of which (x)
1,247,673.29 shares are issued and outstanding and 162,759 are reserved for
issuance upon exercise of employee stock options issued pursuant to the
Company's Fourth Amended and Restated 1996 Common Stock Option Plan approved by
the board of directors of the Company, in each case, immediately prior to the
Restructuring and (y) 1,000 shares will be issued and outstanding and held by
Holdings immediately after the Restructuring, (ii) 500,000 shares of Class B
Common Stock, par value $.001 per share, none of which are issued and
outstanding immediately prior to or immediately after the Restructuring, (iii)
100,000 shares of Senior Preferred Stock, par value $1.00 per share, none of
which are issued and outstanding immediately prior to or immediately after the
Restructuring, (iv) 200,000 shares of Company Series A Preferred, (x) of which
153,636.54 shares are issued and outstanding immediately prior to the
Restructuring and (y) none of which shall be issued and outstanding immediately
after the Restructuring, and (v) 200,000 shares of Company Series B Preferred,
(x) of which 109,540.68 shares are issued and outstanding immediately prior to
the Restructuring and (y) none of which shall be issued and outstanding
immediately after the Restructuring. Immediately after the Restructuring, the
Company will not have outstanding any stock or securities convertible or
exchangeable for any shares of its capital stock or containing any profit
participation features, nor any rights or options to subscribe for or to
purchase its capital stock or any stock or securities convertible into or
exchangeable for its capital stock or any stock appreciation rights or phantom
stock plans. Immediately after the Restructuring, the Company shall not be
subject to any obligation (contingent or otherwise) to repurchase or otherwise
acquire or retire any shares of its outstanding capital stock or any warrants,
options or other rights to acquire its capital stock. As of the Restructuring
and immediately thereafter, all of the outstanding shares of the Company's
capital stock shall be validly issued, fully paid and nonassessable.
(B) There are no statutory or
contractual stockholders preemptive rights or rights of refusal with respect to
the issuance of the Company Class A Common to Holdings pursuant to Section 2.
The Company has not violated any applicable federal or state securities laws in
connection with the issuance of any of its capital stock pursuant
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to Section 2, and the issuance of the Company Class A Common pursuant to Section
2 does not require registration under the Securities Act of 1933, as amended
(the "Securities Act"), or any applicable state securities laws. Immediately
after the Restructuring, there will be no agreements between the Company's
stockholders with respect to the voting, transfer or registration of the
Company's capital stock.
(b) Representations and Warranties with respect to
Holdings. The Company and Holdings represent and warrant, jointly and severally,
to each of the Contributors that the statements contained in this Section 3(b)
are true and correct as of the date of this Agreement.
(i) Organization of Holdings. Holdings is duly
organized, validly existing, and in good standing under the laws of the State of
Delaware.
(ii) Authorization of Transaction and Holdings
Shares. Holdings has full corporate power and authority to execute and deliver
this Agreement and to perform its obligations hereunder. Holdings has (i)
created the Holdings Shares by amending and restating its existing Certificate
of Incorporation in the form set forth as Exhibit A attached hereto (the
"Holdings Amended Certificate") and (ii) authorized the issuance of the Holdings
Shares to the Contributors pursuant to Section 1. This Agreement constitutes a
valid and binding obligation of Holdings, enforceable in accordance with its
terms and conditions. Holdings need not give any notice to, make any filing
with, or obtain any authorization, consent, or approval of any government or
governmental agency in order to consummate the transactions contemplated by this
Agreement, except for certain filings related to the issuance of Holdings Shares
pursuant to Section 1 to comply with the Securities Act and applicable state
securities laws.
(iii) Noncontravention. Neither the execution and
the delivery of this Agreement, nor the consummation of the transactions
contemplated hereby, will violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which Holdings is subject or any
provision of its charter or bylaws, or (b) result in a breach of or constitute a
default under, any agreement, contract, lease, license, instrument, or other
arrangement to which Holdings is a party or by which it is bound or to which any
of its assets is subject.
(iv) Capital Stock and Related Matters
(A) The authorized capital stock of
Holdings consists of (i) 2,500,000 shares of Holdings Class A Common, (x) none
of which are issued and outstanding immediately prior to the Restructuring and
(y) of which 1,247,673.29 shares are issued and outstanding and 131,532 shares
are reserved for issuance upon exercise of employee stock options (the "Holdings
Options") issued pursuant to Holdings' 2004 Common Stock Option Plan in the form
set forth as Exhibit B attached hereto approved by the board of directors of
Holdings, in each case, immediately after the Restructuring, (ii) 500,000 shares
of Class B Common Stock, par value $.001 per share, none of which are issued and
outstanding immediately prior to or immediately after the Restructuring, (iii)
200,000 shares of Holdings Series A Preferred, (x) none of which are issued and
outstanding immediately prior to the Restructuring and (y) of which 153,636.54
shares are issued and outstanding immediately after the Restructuring, and (iv)
200,000 shares of Holdings Series B Preferred, (x) none of which are issued and
outstanding
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immediately prior to the Restructuring and (y) of which 109,540.68 shares are
issued and outstanding immediately after the Restructuring. Immediately after
the Restructuring, Holdings will not have outstanding any stock or securities
convertible or exchangeable for any shares of its capital stock or containing
any profit participation features, nor any rights or options to subscribe for or
to purchase its capital stock or any stock or securities convertible into or
exchangeable for its capital stock or any stock appreciation rights or phantom
stock plans, except for the Holdings Options and the Holdings Series B
Preferred. Immediately after the Restructuring, Holdings shall not be subject to
any obligation (contingent or otherwise) to repurchase or otherwise acquire or
retire any shares of its outstanding capital stock or any warrants, options or
other rights to acquire its capital stock, except for the Holdings Options and
those obligations set forth in the Holdings Amended Certificate, the
Stockholders Agreement, dated as of the date hereof, by and among Holdings and
the Contributors in the form set forth as Exhibit C attached hereto (the
"Holdings Stockholders Agreement"), and the Registration Rights Agreement, dated
as of the date hereof, by and among Holdings and the Contributors in the form
set forth as Exhibit D attached hereto (the "Holdings Registration Agreement").
Immediately after the Restructuring, all of the outstanding shares of Holdings'
capital stock shall be validly issued, fully paid and nonassessable.
(B) There are no statutory or
contractual stockholders preemptive rights or rights of refusal with respect to
the issuance of the Holdings Shares to the Contributors pursuant to Section 1.
Holdings has not violated any applicable federal or state securities laws in
connection with the issuance of any of its capital stock pursuant to Section 1,
and the issuance of the Holdings Shares pursuant to Section 1 does not require
registration under the Securities Act, or any applicable state securities laws.
Immediately after the Restructuring, there will be no agreements between
Holding' stockholders with respect to the voting, transfer or registration of
Holdings' capital stock, except for the Holdings Stockholders Agreement and the
Holdings Registration Agreement.
(v) No Liabilities. As of immediately prior to
the Restructuring, Holdings does not have any liabilities or obligations,
whether accrued, absolute, contingent or otherwise, except for liabilities and
obligations relating to (a) its issuance of Senior Discount Notes due 2014 and
the documents related thereto executed by Holdings prior to the Restructuring,
(b) the Holdings Amended Certificate and (c) its franchise in the state of
Delaware.
(vi) No Litigation. There are no actions, suits,
proceedings or investigations pending or, to the best of the Company's and
Holdings' knowledge, any basis therefore or threat thereof against Holdings.
(vii) No Other Business. Holdings is engaged in
no other business, except for its ownership of the capital stock of the Company
pursuant to the Restructuring.
(c) Representations and Warranties of each Contributor.
Each Contributor, severally and not jointly, for itself only and not on behalf
of any other Contributor, represents
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and warrants to the Company and Holdings, as to such Contributor, that the
statements contained in this Section 3(c) are true and correct as of the date of
this Agreement.
(i) Authorization of Transaction. This Agreement
constitutes the valid and legally binding obligation of such Contributor,
enforceable in accordance with its terms and conditions. Such Contributor, to
the best of its knowledge, need not give any notice to, make any filing with, or
obtain any authorization, consent, or approval of any government or governmental
agency in order to consummate the transactions contemplated by this Agreement.
(ii) Noncontravention. To the best of such
Contributor's knowledge, neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which such Contributor is subject.
(iii) Brokers' Fees. Such Contributor has no
liability or obligation to pay any fees or commissions to any broker, finder, or
agent with respect to the transactions contemplated by this Agreement for which
the Company could become liable or obligated.
(iv) Investment. Such Contributor is acquiring
the Holdings Shares for such Contributor's own account and is not acquiring the
Holdings Shares with a view to, or for sale in connection with, any distribution
thereof within the meaning of the Securities Act.
(v) Sophistication of Contributor. Such
Contributor is sophisticated in financial matters, is able to evaluate the risks
and benefits of the investment in the Holdings Shares, and has determined that
such investment in the Holdings Shares is suitable for such Contributor, based
upon such Contributor's financial situation and needs, as well as such
Contributor's other securities holdings.
(vi) Economic Risk. Such Contributor is able to
bear the economic risk of such Contributor's investment in the Holdings Shares
for an indefinite period of time and such Contributor understands that the
Holdings Shares have not been registered under the Securities Act, and cannot be
sold unless subsequently registered under the Securities Act or unless an
exemption from such registration is available. Such Contributor acknowledges
that each of the Holdings Shares will be subject to the provisions of the
Holdings Stockholders Agreement.
(vii) Securities Law Compliance. Such Contributor:
(A) has not filed a registration
statement which is the subject of a currently effective registration stop order
entered pursuant to any state's securities law within the last five (5) years;
(B) has not been convicted within the
last five (5) years of any felony or misdemeanor in connection with the offer,
purchase, or sale of any security or any felony involving fraud or deceit,
including, but not limited to, forgery, embezzlement, obtaining money under
false pretenses, larceny, or conspiracy to defraud;
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(C) is not currently subject to any
state administrative enforcement order or judgment entered by the state
securities administrator within the last five (5) years or is subject to any
state's administrative enforcement order or judgment in which fraud or deceit,
including, but not limited to, making untrue statements of material facts and
omitting to state material facts, was found and the order or judgment was
entered within the last five (5) years;
(D) is not subject to any state's
administrative enforcement order or judgment which prohibits, denies or revokes
the use of any exemption from registration in connection with the offer,
purchase or sale of securities; and
(E) is not currently subject to any
order, judgment or decree of any court of competent jurisdiction, entered within
the last five (5) years, temporarily or preliminarily restraining or enjoining
such party from engaging in or continuing any conduct or practice in connection
with the purchase or sale of any security or involving the making of any false
filing with the state.
(viii) Information. Such Contributor has had an
opportunity to ask questions and receive answers concerning the terms and
conditions of the offering of Holdings Shares and has had full access to such
other information concerning Holdings as such Contributor has requested. Such
Contributor has reviewed, or has had an opportunity to review, the Holdings
Amended Certificate and the Bylaws of Holdings, the Holdings Stockholders
Agreement and the Holdings Registration Rights Agreement.
4. POST-CLOSING COVENANTS. Holdings, the Company and the
Contributors agree as follows with respect to the period following the
consummation of the transactions described herein.
(a) General. Each party to this Agreement will take such
further action (including the execution and delivery of such further instruments
and documents) as is reasonably necessary to carry out the purpose of this
Agreement as any other party hereto may reasonably request, all at the sole cost
and expense of such requesting party.
(b) Holdings Shares. Each Holding Share issued under this
Agreement will be imprinted with such legends as are required pursuant to the
terms and conditions of the Holdings Stockholders Agreement.
5. MISCELLANEOUS.
(a) Press Releases and Public Announcements. No party
hereto shall issue any press release or make any public announcement relating to
the subject matter of this Agreement without the prior written approval of
Holdings, the Company and BRS; provided, that any party hereto may make any
public disclosure it believes in good faith is required by applicable law (in
which case the disclosing party will use its reasonable best efforts to advise
the other parties hereto prior to making the disclosure).
(b) Succession and Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties named herein and their
respective successors and permitted
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assigns. No party hereto may assign either this Agreement or any of its rights,
interests, or obligations hereunder without the prior written approval of
Holdings and the Company; provided, that CapitalSource may assign this Agreement
and its rights, interests and obligations hereunder to CS Equity LLC without the
prior consent of Holdings and the Company, so long as CS Equity LLC is an
affiliate of CapitalSource. Notwithstanding anything herein to the contrary,
each of the Contributors may, in the ordinary course of its business and in
accordance with applicable law, at any time assign to an affiliate of such
Contributor or to one or more banks or other financial institution or entities
which are not in direct competition with the Company, all or any part of the
obligations under this Agreement; provided, that each of the Contributors may
make any such assignment only if it is required to do so pursuant to its limited
partnership agreement or limited liability operating agreement or in connection
with any dissolution of such Contributor pursuant to its limited partnership
agreement or limited liability operating agreement.
(c) Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(d) Headings. The section headings contained in this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
(e) Notices. All notices, requests, demands, claims, and
other communications hereunder will be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given if (and then
two business days after) it is sent by registered or certified mail, return
receipt requested, postage prepaid, and addressed to the intended recipient as
set forth below:
To any Contributor:
As specified for each such Contributor on the books
and records of the Company.
To Holdings or the Company:
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxxxxxxx
Facsimile No.: (000) 000-0000
with copies to (which shall not constitute notice to
Holdings or the Company):
Bruckmann, Xxxxxx, Xxxxxxxx & Co., Inc.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Rice Xxxxxxx
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Facsimile No.: (000) 000-0000
and
Xxxxxxxx & Xxxxx LLP
Citigroup Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx Xxxx, Esq.
Facsimile No.: (000) 000-0000
Any party hereto may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail, or electronic mail), but no such
notice, request, demand, claim, or other communication shall be deemed to have
been duly given unless and until it actually is received by the intended
recipient. Any party may change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered by giving the
other parties notice in the manner herein set forth.
(f) 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 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.
(g) Amendments and Waivers. This Agreement may be
amended, or any provision of this Agreement may be waived upon a written
approval, executed by the parties hereto. No course of dealing between or among
the parties hereto shall be deemed effective to modify, amend, or discharge any
part of this Agreement or any rights or obligations of any such party or such
holder under or by reason of this Agreement.
(h) Severability. Any term or provision of this Agreement
that is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction.
(i) Expenses. Each of the Contributors and Holdings and
the Company will bear its own costs and expenses (including legal fees and
expenses) incurred in connection with this Agreement and the transactions
contemplated hereby.
(j) Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party hereto by virtue
of the authorship of any of the provisions of this Agreement.
* * * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
TOWN SPORTS INTERNATIONAL, INC.
By: /s/ Xxxxxxx Xxxx
-----------------------------------
Name: Xxxxxxx Xxxx
Title: Chief Financial Officer
TOWN SPORTS INTERNATIONAL HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Title: Chief Financial Officer
BRUCKMANN, XXXXXX, XXXXXXXX & CO., L.P.
By: BRS Partners, Limited Partnership
Its: General Partner
By: BRSE Associates, Inc.
Its: General Partner
By: /s/ Xxxx Xxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxx
Title: Secretary
FARALLON CAPITAL PARTNERS, L.P.
By: Farallon Partners, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Member
FARALLON CAPITAL INSTITUTIONAL
PARTNERS, L.P.
By: Farallon Partners, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Member
RR CAPITAL PARTNERS, L.P.
By: Farallon Partners, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Member
FARALLON CAPITAL INSTITUTIONAL PARTNERS II,
L.P.
By: Farallon Partners, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Member
CANTERBURY DETROIT PARTNERS, L.P.
By: Canterbury Detroit, LLC
Its: General Partner
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Manager
CANTERBURY MEZZANINE CAPITAL, L.P.
By: Canterbury Capital, LLC
Its: General Partner
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Manager
ROSEWOOD CAPITAL, L.P.
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: Principal
ROSEWOOD CAPITAL IV, L.P.
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: Principal
ROSEWOOD CAPITAL IV ASSOCIATES, L.P.
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: Principal
CAPITALSOURCE HOLDINGS LLC
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: General Counsel
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
[BRS AFFILIATE SIGNATURE PAGE]
/s/ Xxxxxxx Xxxxxxxx
-------------------------------
XXXXXXX XXXXXXXX, as
Attorney-in-Fact for each
of the following Investors:
Xxxxx Xxxxxxxxx
Xxxxxxxxx XxXxxxx
Xxxxxxx Place
X. Xxxxxxxxx
BCB Partnership
NAZ Partnership
Xxxxxx X. Xxxxxx
Xxxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxx
Xxxxx Xxxxx
Xxxx X. Xxxxxxxx
Xxxxxxx Xxxxx Xxxxxx Xxxxxx & Xxxxx,
Custodian for the Benefit of Xxxx X.
Xxxxxxxx XXX
[EXECUTIVE SIGNATURE PAGE]
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
/s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
/s/ Xxxxxxx Xxxx
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Xxxxxxx Xxxx
/s/ Xxxxxxxxx Xxxxxxxxxxxxx
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Xxxxxxxxx Xxxxxxxxxxxxx
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
/s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
/s/ Xxx Xxxxxxxx
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Xxx Xxxxxxxx
/s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
/s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
[EXECUTIVE SIGNATURE PAGE]
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
/s/ Xxxxxxx Bachiccio
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Xxxxxxx Bachiccio
SCHEDULE 1
CONTRIBUTED SECURITIES
CONTRIBUTOR CONTRIBUTED COMPANY SHARES ISSUED HOLDINGS SHARES
----------- -------------------------- ----------------------
Bruckmann, Xxxxxx, Xxxxxxxx & Co., L.P. 104,330.35 Company Series A Preferred 104,330.35 Holdings Series A Preferred
504,456.01 Company Class A Common 504,456.01 Holdings Class A Common
Xxxxx Xxxxxxxxx 2,112.63 Company Series A Preferred 2,112.63 Holdings Series A Preferred
10,214.93 Company Class A Common 10,214.93 Holdings Class A Common
Xxxxxxxxx XxXxxxx 33.08 Company Series A Preferred 33.08 Holdings Series A Preferred
159.97 Company Class A Common 159.97 Holdings Class A Common
Xxxxxxx Place 33.08 Company Series A Preferred 33.08 Holdings Series A Preferred
159.97 Company Class A Common 159.97 Holdings Class A Common
X. Xxxxxxxxx 282.92 Company Series A Preferred 282.92 Holdings Series A Preferred
1,367.96 Company Class A Common 1,367.96 Holdings Class A Common
BCB Partnership 121.71 Company Series A Preferred 121.71 Holdings Series A Preferred
588.48 Company Class A Common 588.48 Holdings Class A Common
NAZ Partnership 58.73 Company Series A Preferred 58.73 Holdings Series A Preferred
283.97 Company Class A Common 283.97 Holdings Class A Common
Xxxxxx X. Xxxxxx 424.44 Company Series A Preferred 424.44 Holdings Series A Preferred
2,052.23 Company Class A Common 2,052.23 Holdings Class A Common
Xxxxxx Xxxxxxxx 1,414.59 Company Series A Preferred 1,414.59 Holdings Series A Preferred
6,839.79 Company Class A Common 6,839.79 Holdings Class A Common
Xxxxxxx Xxxxxxxx 2,178.79 Company Series A Preferred 2,178.79 Holdings Series A Preferred
Schedule 1, Page 1
CONTRIBUTOR CONTRIBUTED COMPANY SHARES ISSUED HOLDINGS SHARES
----------- -------------------------- ----------------------
10,534.87 Company Class A Common 10,534.87 Holdings Class A Common
Xxxxx Xxxxx 84.91 Company Series A Preferred 84.91 Holdings Series A Preferred
410.56 Company Class A Common 410.56 Holdings Class A Common
Xxxx X. Xxxxxxxx 238.47 Company Series A Preferred 238.47 Holdings Series A Preferred
1,153.04 Company Class A Common 1,153.04 Holdings Class A Common
Xxxxxxx Xxxxx Xxxxxx Xxxxxx & Xxxxx Custodian
for the Benefit of Xxxx X. Xxxxxxxx XXX 95.39 Company Series A Preferred 95.39 Holdings Series A Preferred
461.22 Company Class A Common 461.22 Holdings Class A Common
Farallon Capital Partners, L.P. 14,365.91 Company Series A Preferred 14,365.91 Holdings Series A Preferred
94,532.02 Company Class A Common 94,532.02 Holdings Class A Common
Farallon Capital Institutional Partners, L.P. 16,418.18 Company Series A Preferred 16,418.18 Holdings Series A Preferred
108,036.59 Company Class A Common 108,036.59 Holdings Class A Common
RR Capital Partners, L.P. 2,052.27 Company Series A Preferred 2,052.27 Holdings Series A Preferred
13,504.57 Company Class A Common 13,504.57 Holdings Class A Common
Farallon Capital Institutional Partners II, L.P. 8,209.09 Company Series A Preferred 8,209.09 Holdings Series A Preferred
54,018.30 Company Class A Common 54,018.30 Holdings Class A Common
Xxxxx Xxxxxx 591.00 Company Series A Preferred 591.00 Holdings Series A Preferred
2,857.00 Company Class A Common 2,857.00 Holdings Class A Common
Xxxx Xxxxxx 591.00 Company Series A Preferred 591.00 Holdings Series A Preferred
2,857.00 Company Class A Common 2,857.00 Holdings Class A Common
Canterbury Mezzanine Capital, L.P. 121,529.24 Company Class A Common 121,529.24 Holdings Class A Common
Canterbury Detroit Partners, L.P. 17,907.62 Company Class A Common 17,907.62 Holdings Class A Common
Schedule 1, Page 2
CONTRIBUTOR CONTRIBUTED COMPANY SHARES ISSUED HOLDINGS SHARES
----------- -------------------------- ----------------------
Rosewood Capital, L.P. 17,907.62 Company Class A Common 17,907.62 Holdings Class A Common
Rosewood Capital IV, L.P. 101,890.82 Company Series B Preferred 101,890.82 Holdings Series B Preferred
Rosewood Capital IV Associates, L.P. 7,649.86 Company Series B Preferred 7,649.86 Holdings Series B Preferred
CapitalSource Holdings, LLC 23,000.00 Company Class A Common 23,000.00 Holdings Class A Common
Xxxx Xxxxx 66,125.00 Company Class A Common 66,125.00 Holdings Class A Common
Xxxxxx Xxxxxxxx 50,651.00 Company Class A Common 50,651.00 Holdings Class A Common
Xxxxxxx Xxxx 42,582.00 Company Class A Common 42,582.00 Holdings Class A Common
Xxxxxxxxx Xxxxxxxxxxxxx 42,011.00 Company Class A Common 42,011.00 Holdings Class A Common
Xxxxxx Xxxxx 15,908.00 Company Class A Common 15,908.00 Holdings Class A Common
Xxxxx Xxxxxxxx 13,428.00 Company Class A Common 13,428.00 Holdings Class A Common
Xxxxxx Xxxxxxx 8,091.00 Company Class A Common 8,091.00 Holdings Class A Common
Xxxxxx Xxxxx 2,857.00 Company Class A Common 2,857.00 Holdings Class A Common
Xxxxxx Xxxxxxx 2,274.00 Company Class A Common 2,274.00 Holdings Class A Common
Xxx Xxxxxxxx 1,749.00 Company Class A Common 1,749.00 Holdings Class A Common
Xxxx Xxxxxxxx 3,603.00 Company Class A Common 3,603.00 Holdings Class A Common
Xxxxx Xxxxxxxxx 2,332.00 Company Class A Common 2,332.00 Holdings Class A Common
Xxxxx Xxxxxxx 1,166.00 Company Class A Common 1,166.00 Holdings Class A Common
Xxxxxxx Bochiccio 63.33 Company Class A Common 63.33 Holdings Class A Common
Schedule 1, Page 3
EXHIBIT A
HOLDINGS AMENDED CERTIFICATE
See attached.
Exhibit A, Page 1
EXHIBIT B
HOLDINGS STOCK OPTION PLAN
See attached.
Exhibit B, Page 1
EXHIBIT C
HOLDINGS STOCKHOLDERS AGREEMENT
See attached.
Exhibit C, Page 1
EXHIBIT D
HOLDINGS REGISTRATION AGREEMENT
See attached.
Exhibit D, Page 1
