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EXHIBIT 4.2
VOTING AGREEMENT, dated as of April 27, 2000, by and among The Sports
Club Company, Inc., a Delaware corporation, and the Millennium Entities (as
defined herein).
PRELIMINARY STATEMENT
The Millennium Entities currently own 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 the Millennium Entities, the Company has required
the Millennium Entities to agree, and the Millennium Entities are willing to
agree, that they will vote any Shares owned by them 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. "LOAN AND STOCK PLEDGE AGREEMENT" means the Amended and Restated
Loan and Stock Pledge Agreement, dated as of December 30, 1997, by
and between Xxxxx X. Xxxxx and MDP Ventures II LLC, as such
agreement may be amended or modified from time to time.
e. "MILLENNIUM ENTITIES" means Millennium Partners LLC, Millennium
Entertainment Partners LP, Millennium Development Partners LP, MDP
Ventures I LLC, MDP Ventures II LLC and their respective Affiliates.
f. "NON-RESTRICTED SHARES" means all outstanding Shares other than the
Restricted Shares.
g. "RESTRICTED SHARES" means, as of any date, the Shares owned by the
Millennium Entities on such date in excess of the Threshold Number.
h. "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.
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i. "SHARES" means shares of the Company's common stock, par value $.01
per share.
j. "TALLA VOTING AGREEMENT" means the Voting Agreement, dated as of
April 27, 2000, between D. Xxxxxxx Xxxxx and the Company.
k. "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 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.
l. "THRESHOLD NUMBER" means, as of any date, the greater of:
i. the sum of:
(1) 4,964,890 Shares and
(2) the number of Shares acquired as of such date by the
Millennium Entities pursuant to the Loan and Stock
Pledge Agreement or upon exercise of any remedy
available under the Loan and Stock Pledge Agreement or
by exercise of statutory rights, and
ii. a number of Shares equal to 28% of all Shares outstanding as
of such date.
2. VOTING RESTRICTIONS.
a. The Millennium Entities agree that, from the date hereof until the
Termination Date, they 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, and cause the other Millennium Entities to 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 Talla Voting Agreement is amended or modified, or any
provision thereof is waived, the Company shall notify the Millennium
Entities
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promptly of any such amendment, modification or waiver. If any such
amendment, modification or waiver reduces or eliminates the
restrictions contained in the Talla Voting Agreement, the Millennium
Entities 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. The Millennium Entities acknowledge and agree that
irreparable damage would occur if any of the provisions of
this agreement were not performed 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 the Millennium Entities
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 the Millennium Entities 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 the Millennium Entities 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.
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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.
00000 Xxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxxx Xxxxxx Xxxxxxxx & Xxxxx LLP
1901 Avenue of the Stars
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
if to the Millennium Entities, to:
Millennium Partners
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxxxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile No: (000) 000-0000
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.
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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.
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.
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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. MILLENNIUM PARTNERS LLC
By: /s/ Xxx Xxxxxxxxx By: Millennium Partners Management
--------------------------------- LLC, its managing member
Xxx Xxxxxxxxx, Co-Chief Executive
Officer
By: Millennium Manager I, Inc.,
its manager
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Vice President
MILLENNIUM DEVELOPMENT
PARTNERS LP
By: Millennium Development Associates
LP, its general partner
By: Millennium Development
Corp., its general partner
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Vice President
MILLENNIUM ENTERTAINMENT
PARTNERS, LP
By: Millennium Entertainment
Associates, LP, its general partner
By: Millennium Entertainment
Corp., its general partner
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Vice President
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MDP VENTURES I LLC
By: Millennium Development Partners
LP, its managing member
By: Millennium Development
Associates LP, its general
partner
By: Millennium Development
Corp., its general partner
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx,
Vice President
MDP VENTURES II LLC
By: Millennium Development Partners II
LLC, its managing member
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx,
Vice President
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