Exhibit 10.15


 


STOCK SUBSCRIPTION
AGREEMENT


 


STOCK
SUBSCRIPTION AGREEMENT, dated as of                ,
200  , between Equinox Holdings, Inc., a Delaware corporation
(the “Company”) and the purchaser, an employee of the Company, whose
name appears on the signature page hereof (the “Purchaser”).


 


W  I
T  N  E  S  S  E  T  H:


 


WHEREAS,
the Board of Directors of the Company (the “Board”) has adopted the
Equinox Holdings, Inc. 2000 Stock Incentive Plan (as the same may be
amended from time to time, the “Stock Incentive Plan”);


 


WHEREAS,
the Company and the Purchaser entered into an Option Agreement, dated as of
                 ,
200  , pursuant to which the Company granted Purchaser options (the “Options”)
to purchase                
shares of Common Stock, par value $0.01 per share, of the Company (the “Common
Stock”) pursuant to the Stock Incentive Plan; and


 


WHEREAS,
the Purchaser desires to exercise                 
Options to purchase from the Company the aggregate number of shares of Common
Stock set forth on the signature page hereof (each a “Share” and,
collectively, the “Shares”), at an aggregate purchase price of $                  ,
and the Company desires to sell the Shares to the Purchaser on the terms and
subject to the conditions set forth herein.


 


NOW,
THEREFORE, to implement the foregoing and in consideration of the mutual
promises, covenants and agreements contained herein, the parties hereto hereby
agree as follows:


 


1.                                       Purchase
and Sale of Common Stock.


 


(a)                                  Purchase
of Common Stock.  Subject to all of
the terms and conditions of this Agreement, the Purchaser hereby subscribes for
and shall purchase, and the Company shall sell to the Purchaser, the Shares, at
an aggregate purchase price of $                
as calculated on Schedule A attached hereto, at the Closing provided for
in Section 2(a) hereof. 
Notwithstanding anything in this Agreement to the contrary, the Company
shall have no obligation to sell any shares of Common Stock (including the
Shares) to any person who is a resident of a jurisdiction in which the sale of
Common Stock to such person would constitute a violation of the securities, “blue
sky” or other laws of such jurisdiction, provided that the Company shall use
its reasonable efforts to comply with any such laws unless the Board determines
in its sole discretion that compliance would require the Company to incur
material costs or fees or which would require the Company to register the
Shares.


 


(b)                                 Consideration.  Subject to all of the terms and conditions of
this Agreement, the Purchaser shall deliver to the Company at the Closing
referred to in Section 2(a) hereof, immediately available funds in an
amount equal to the aggregate


 





















 


purchase price for
the Shares to be purchased at such Closing set forth on the signature page hereof.


 


2.                                       Closing.


 


(a)                                  Time
and Place.  Except as otherwise
mutually agreed by the Company and the Purchaser, the closing of the purchase
and sale of the Shares pursuant to this Agreement shall be held at the offices
of Debevoise & Plimpton, 919 Third Avenue, New York, New York at 10:00 a.m.
(New York time) on or about                    ,
200   (the “Closing”).


 


(b)                                 Delivery
by the Purchaser.  At the Closing,
the Purchaser shall deliver to the Company the consideration referred to in Section 1(b) hereof.  On or before the Closing, the Purchaser shall
deliver to the Company a duly executed Joinder Agreement (as defined in the
Stock Incentive Plan).


 


(c)                                  Delivery
by the Company.  At the Closing, the
Company shall deliver to the Purchaser (i) a receipt for the
consideration received from the Purchaser and (ii) a stock
certificate registered in the Purchaser’s name and representing the Shares,
which certificate shall bear the legends set forth in Section 3(b).


 


3.                                       Purchaser’s
Representations, Warranties and Covenants.


 


(a)                                  Investment
Intention.  The Purchaser represents
and warrants that the Purchaser is acquiring the Shares solely for the
Purchaser’s own account for investment and not with a view to or for sale in
connection with any distribution thereof. 
The Purchaser agrees that the Purchaser will not, directly or
indirectly, offer, transfer, sell, pledge, hypothecate or otherwise dispose of
any of the Shares (or solicit any offers to buy, purchase or otherwise acquire
or take a pledge of any Shares), except in compliance with the Securities Act
of 1933, as amended (the “Securities Act”), and the rules and
regulations of the Securities and Exchange Commission (the “Commission”)
thereunder, and in compliance with applicable state securities or “blue sky”
laws and foreign securities laws, if any. 
The Purchaser further understands, acknowledges and agrees that none of
the Shares may be transferred, sold, pledged, hypothecated or otherwise
disposed of (i) unless the provisions of Section 4 herein and
the Shareholders Agreement shall have been complied with or have expired, (ii) unless
(A) such disposition is pursuant to an effective registration
statement under the Securities Act, (B) the Purchaser shall have
delivered to the Company an opinion of counsel, which opinion and counsel shall
be reasonably satisfactory to the Company, to the effect that such disposition
is exempt from the provisions of Section 5 of the Securities Act or (C) a
no-action letter from the Commission, reasonably satisfactory to the Company,
shall have been obtained with respect to such disposition and (iii) unless
such disposition is pursuant to registration under any applicable state
securities laws or an exemption therefrom.


 


(b)                                 Legends.  The Purchaser acknowledges that the
certificate or certificates representing the Shares shall bear the following
legends:


 


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“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE OFFERED, SOLD,
ASSIGNED, PLEDGED, HYPOTHECATED, TRANSFERRED OR OTHERWISE DISPOSED OF (EACH, A “TRANSFER”)
UNLESS AND UNTIL REGISTERED UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES
LAWS OR UNLESS SUCH TRANSFER IS (A) EXEMPT FROM REGISTRATION OR IS
OTHERWISE IN COMPLIANCE WITH THE ACT AND SUCH LAWS IN THE OPINION OF COUNSEL TO
THE SHAREHOLDER, WHICH COUNSEL MUST BE, AND THE FORM AND SUBSTANCE OF
WHICH OPINION ARE, REASONABLY SATISFACTORY TO THE ISSUER AND (B) IN
COMPLIANCE WITH THE SHAREHOLDERS AGREEMENT OF THE ISSUER, DATED AS OF                   ,
2000 AND ANY AMENDMENTS, SUPPLEMENTS OR MODIFICATIONS THERETO (THE “SHAREHOLDERS
AGREEMENT”).


 


THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO THE RESTRICTIONS ON TRANSFER SET FORTH IN (I) A STOCK SUBSCRIPTION
AGREEMENT, DATED AS OF              ,
200  , AND (II) A SHAREHOLDERS AGREEMENT, COPIES OF WHICH ARE
AVAILABLE FOR INSPECTION AT THE OFFICES OF THE COMPANY.  NO TRANSFER OF SUCH SECURITIES WILL BE MADE
ON THE BOOKS OF THE COMPANY, AND SUCH TRANSFER SHALL BE VOIDABLE, UNLESS
ACCOMPANIED BY EVIDENCE OF COMPLIANCE WITH THE TERMS OF SUCH AGREEMENTS.


 


(c)                                  Securities
Law Matters.  The Purchaser
acknowledges receipt of advice from the Company that (i) the offer
and sale of the Shares hereby have not been registered under the Securities Act
or any state or foreign securities or “blue sky” laws, (ii) it is
not anticipated that there will be any public market for the Shares, (iii) the
Shares must be held indefinitely and the Purchaser must continue to bear the
economic risk of the investment in the Shares unless there is a public market
for the Shares and, to the extent required under the Securities Act, the Shares
are registered for resale under the Securities Act and such state laws or an
exemption from registration is available, (iv) Rule 144
promulgated under the Securities Act (“Rule 144”) is not presently
available with respect to sales of any securities of the Company, and the
Company has made no covenant to make Rule 144 available, (v) when
and if the Shares may be disposed of without registration in reliance upon Rule 144,
such disposition by an affiliate of the Company, within the meaning of Rule 405,
can be made only in limited amounts in accordance with the terms and conditions
of Rule 144, (vi) the Company does not plan to file reports
with the Commission or make public information concerning the Company available
unless required to do so by law, (vii) if the exemption afforded by
Rule 144 is not generally available, sales of the Shares may be difficult
to effect because of the absence of public information concerning the Company, (viii) a
restrictive legend in the form heretofore set forth shall be placed on the
certificates representing the Shares and (ix) a notation shall be
made in the appropriate records of the Company indicating that


 


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the Shares are
subject to restrictions on transfer set forth in this Agreement and, if the
Company should in the future engage the services of a stock transfer agent,
appropriate stop-transfer restrictions will be issued to such transfer agent
with respect to the Shares.


 


(d)                                 Compliance
with Rule 144.  If any of the
Shares are to be disposed of in accordance with Rule 144, the Purchaser
shall transmit to the Company an executed copy of Form 144 (if required by
Rule 144) no later than the time such form is required to be transmitted
to the Commission for filing and such other documentation as the Company may
reasonably require to assure compliance with Rule 144 in connection with
such disposition.


 


(e)                                  Ability
to Bear Risk.  The Purchaser
represents and warrants that (i) the financial situation of the
Purchaser is such that the Purchaser can afford to bear the economic risk of
holding the Shares for an indefinite period and (ii) the Purchaser
can afford to suffer the complete loss of the Purchaser’s investment in the
Shares.


 


(f)                                    Access
to Information.  The Purchaser
represents and warrants that (i) the Purchaser has carefully
reviewed the information describing the Company and the terms of the
transaction contemplated hereby furnished to the Purchaser and (ii) the
Purchaser is, and will be at the time of the closing, an officer or employee of
the Company or an Affiliate.


 


(g)                                 Restrictions
on Sale upon Public Offering.  The
Purchaser acknowledges and agrees that, in the event that the Company files a
registration statement under the Securities Act with respect to an underwritten
public offering of any shares of its capital stock, the Purchaser will not
effect any public sale or distribution of any shares of Common Stock (other
than as part of such underwritten public offering), including but not limited
to, pursuant to Rule 144 or Rule 144A under the Securities Act,
during the 20 days prior to and the 180 days (or such lesser number of days
that the managing underwriter may require) after the effective date of such
registration statement.  The Purchaser
further understands and acknowledges that any sale, transfer or other disposition
of the Shares by him following any underwritten public offering of the Common
Stock will be subject to compliance with, and may be limited under, the federal
securities laws and/or state “blue sky” securities laws.


 


4.                                       Restrictions
on Disposition of Shares.  Neither
the Purchaser nor any of the Purchaser’s heirs or representatives shall sell,
assign, transfer, pledge or otherwise directly or indirectly dispose of or
encumber any of the Shares to or with any other person, firm, trust,
association, corporation or entity except in compliance with the Shareholders
Agreement, dated as of                    ,
2000, among the Company, Purchaser and the other parties thereto.


 


5.                                       Repurchase
Right Effective on Termination of Employment.


 


(a)                                  Termination
of Employment.  If the Purchaser’s
active employment with the Company or any Subsidiary thereof that employs the
Purchaser is, or has been, terminated for any reason, the Company shall have
the option to purchase all or a portion


 


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of the Shares then
held by the Purchaser (or, if his or her employment was terminated by his or
her death, his or her estate) and shall have 90 days from the date of
termination of Purchaser’s employment (such 90 day period, the “First Option
Period”) during which to give notice in writing to the Purchaser (or his or
her estate) of its election to exercise or not to exercise such option, in
whole or in part.  The Company hereby
undertakes to use reasonable efforts to act as promptly as practicable
following such date of termination to make such election.  If the Company fails to give notice that it
intends to exercise such option within the First Option Period or the Company
gives notice that it does not intend to exercise such option or that it intends
to exercise such option with respect to only a portion of the Shares, then
NCP-EH (as defined below) shall have the right to purchase any or all the
Shares then held by the Purchaser (or his or her estate) that will not be
repurchased by the Company, and shall have until the expiration of the earlier
of (x) 90 days following the end of the First Option Period or
(y) 90 days from the date of receipt by NCP-EH of written
notice from the Company indicating whether it will exercise its option to
purchase any of the Shares (such 90-day period being hereinafter referred to as
the “Second Option Period”), to give notice in writing to the Purchaser
(or his estate) of NCP-EH’s exercise of its option, in whole or in part.  If the options of the Company and NCP-EH to
purchase the Shares pursuant to this subsection are not exercised with
respect to all of the Shares as provided herein (other than as a result of Section 9
hereof), the Purchaser (or his or her estate) shall be entitled to retain the
Shares, as to which the right is not exercised, subject to all of the
provisions of this Agreement.  All
purchases pursuant to this Section 5(a) by the Company shall be for a
purchase price and in the manner prescribed by Section 6 hereof.  For all purposes under this Agreement, the
terms “employment” or “termination of employment” with respect to a person who
is not an employee shall mean services with, or the termination of services
with, (i) the entity for whom the Participant provides services to, (ii) the
Company, or (iii) the Company by the entity from whom the Participant
provides services to.


 


(b)                                 Notice
of Termination.  The Company or the
Subsidiary thereof that employs the Purchaser shall give written notice of any
termination of the Purchaser’s active employment with each of the Company and
any Subsidiary thereof that employs the Purchaser to NCP-EH, except that if
such termination (if other than as a result of death) is by the Purchaser, the
Purchaser shall give written notice of such termination to the Company and the
Company shall give written notice of such termination to NCP-EH .


 


(c)                                  Public
Offering.  In the event that a Public
Offering has been consummated, the Company and NCP-EH shall not have any rights
to purchase the Shares pursuant to this Section 5 and this Section 5
shall not apply to a sale as part of a Public Offering.


 


6.                                       Determination
of the Purchase Price; Manner of Payment.


 


(a)                                  Purchase
Price.  For the purposes of any
purchase of the Shares pursuant to Section 5, and subject to Section 9(c),
the purchase price per Share to be paid to the Purchaser (or his estate) for
each Share (the “Purchase Price”) shall equal the fair market value (the
“Fair Market Value”) of such Share as of the effective date of the
termination of employment that gives rise to the right of the Company to
repurchase such Share (such


 


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date of
termination the “Determination Date”); provided that if the Purchaser’s
employment is terminated by the Company or any Subsidiary thereof for Cause,
the Purchase Price for such Share shall equal the lesser of (i) the
Fair Market Value of such Share as of the effective date of termination of
Purchaser’s employment and (ii) the price at which the Purchaser
purchased such Share from the Company pursuant to this Agreement.  Whenever determination of the Fair Market
Value of a Share is required by this Agreement, such Fair Market Value shall be
such amount as is determined in good faith by the Board.  In making a determination of Fair Market
Value, the Board shall give due consideration to such factors as it deems
appropriate, including, without limitation, the earnings and certain other
financial and operating information of the Company and its Subsidiaries in
recent periods, the potential value of the Company and its Subsidiaries as a
whole, the future prospects of the Company and its Subsidiaries and the
industries in which they compete, the history and management of the Company and
its Subsidiaries, the general condition of the securities markets, the fair
market value of securities of companies engaged in businesses similar to those
of the Company and its Subsidiaries.  The
determination of Fair Market Value will not give effect to any restrictions on
transfer of the Shares or the fact that such Shares would represent a minority
interest in the Company.  The Fair Market
Value as determined in good faith by the Board and in the absence of fraud
shall be binding and conclusive upon all parties hereto.  If the Company at any time subdivides (by any
stock split, stock dividend or otherwise) the Common Stock into a greater
number of shares, or combines (by reverse stock split or otherwise) the Common
Stock into a smaller number of shares, the Purchase Price (including any
minimum or maximum Purchase Price specified herein or in effect as a result of
a prior adjustment) shall be appropriately adjusted to reflect such subdivision
or combination.


 


(b)                                 Closing
of Purchase; Payment of Purchase Price. 
Subject to Section 9, the closing of a purchase pursuant to Section 6
shall take place at the principal office of the Company on the tenth business
day following the receipt by the Purchaser (or his or her estate) of the notice
of the Company and/or NCP-EH of its exercise of its option to purchase any of
the Shares pursuant to Section 6(a). 
At the closing, (i) the Company and NCP-EH, as the case may
be, shall pay to the Purchaser (or his or her estate) an amount equal to the
Purchase Price and (ii) the Purchaser (or his or her estate) shall
deliver to the Company such certificates or other instruments representing the
Shares so purchased, appropriately endorsed by the Purchaser (or his or her
estate), as the Company may reasonably require.


 


7.                                       Representations
and Warranties of the Company.  The
Company represents and warrants to the Purchaser that (a) the
Company has been duly incorporated and validly exists under the laws of the
state of its incorporation, (b) this Agreement has been duly
authorized, executed and delivered by the Company and constitutes a valid and
legally binding obligation of the Company enforceable against the Company in
accordance with its terms and (c) the Shares, when issued,
delivered and paid for in accordance with the terms hereof, will be duly and
validly issued, fully paid and nonassessable, and free and clear of any liens
or encumbrances other than those created pursuant to this Agreement, the
Shareholders Agreement, or otherwise in connection with the transactions
contemplated hereby.


 


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8.                                       Covenants
of the Company.


 


(a)                                  Rule 144.  The Company agrees that at all times after it
has filed a registration statement after the date hereof pursuant to the
requirements of the Securities Act or Section 12 of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), relating to any
class of equity securities of the Company (other than (i) the
registration of equity securities of the Company and/or options or interests in
respect thereof to be offered primarily to directors and/or members of
management or employees, sales agents or similar representatives of the Company
or its Subsidiaries, or directors or senior executives of corporations in which
entities managed or sponsored by North Castle Partners, L.L.C. (“North
Castle”) or J.W. Childs Associates, L.P. (“Childs Associates”) have
made equity investments and/or other persons with whom North Castle or Childs
Associates has consulting or other advisory relationships, or (ii) the
registration of equity securities and/or options or other interests in respect
thereof solely on Form S-4 or S-8 or any successor form), it will file the
reports required to be filed by it under the Securities Act and the Exchange
Act and the rules and regulations adopted by the Commission thereunder
(or, if the Company is not required to file such reports, it will, upon the
request of the Purchaser, make publicly available such information as necessary
to permit sales pursuant to Rule 144 under the Securities Act), to the
extent required from time to time to enable the Purchaser to sell the Shares
without registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144, as such Rule may be
amended from time to time, or (ii) any successor rule or
regulation hereafter adopted by the Commission.


 


(b)                                 State
Securities Laws.  The Company agrees
to use its reasonable efforts to comply with all state securities or “blue sky”
laws, if any, applicable to the sale of the Shares to the Purchaser, provided
that the Company shall not be obligated to qualify or register the Shares under
any such law or to qualify as a foreign corporation or file any consent to
service of process under the laws of any jurisdiction or subject itself to
taxation as doing business in any such jurisdiction.


 


9.                                       Certain
Restrictions on Repurchases.


 


(a)                                  Financing
Agreements, etc.  Notwithstanding any
other provision of this Agreement, the Company shall not be obligated or
permitted to pay the purchase price for any Shares that the Company may elect
to purchase from the Purchaser pursuant to Section 5 if (i) the
payment of such purchase price would result in a violation of the terms or
provisions of, or a default or an event of default under, any financing or
security agreement or document entered into by the Company or any of its
Subsidiaries prior to the date hereof, any refunding thereof, or in connection
with the operations of the Company or the Subsidiaries from time to time (such
agreements and documents, as each may be amended, modified or supplemented from
time to time, are referred to herein as the “Financing Agreements”), in each case as the same may be
amended, modified or supplemented from time to time, (ii) the
payment of such purchase price would violate any of the terms or provisions of
the Certificate of Incorporation of the Company or (iii) the
Company has no funds legally available therefor under the General Corporation
Law of the State of Delaware.


 


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(b)                                 Delay
of Repurchase.  In the event that the
payment of the purchase price for any Shares by the Company otherwise permitted
under Section 5 is prevented solely by the terms of Section 9(a), (i) the
payment of such purchase price will be postponed and will be made without the
application of further conditions or impediments (other than as set forth in Section 5
hereof or in this Section 9) at the first opportunity thereafter when the
Company has funds legally available therefor and when the payment of such
purchase price will not result in any default, event of default or violation
under any of the Financing Agreements or in a violation of any term or
provision of the Certificate of Incorporation of the Company and (ii) the
Purchaser’s right to receive payment of such purchase price shall rank against
other similar rights with respect to shares of Common Stock or options in
respect thereof according to priority in time of the effective date of the
event giving rise to any such right, provided that any such right as to which a
common date determines priority shall be of equal priority and shall share pro
rata in any purchase payments made pursuant to clause (i) above.


 


(c)                                  Purchase
Price Adjustment.  In the event that
a repurchase of Shares from the Purchaser is delayed pursuant to this Section 9,
the purchase price per Share when the repurchase of such Shares eventually
takes place as contemplated by Section 9(b) shall equal the sum of (i) the
Purchase Price determined in accordance with Section 6 hereof at the time
that the repurchase of such Shares would have occurred but for the operation of
this Section 9, plus (ii) an
amount equal to interest on such Purchase Price for the period from the date on
which the completion of the repurchase would have taken place but for the
operation of this Section 9 to the date on which such repurchase actually
takes place (the “Delay Period”)
at a rate equal to the average annual cost to the Company of its and its
Subsidiaries bank indebtedness obligations outstanding during the Delay Period
or, if there are no such obligations outstanding, one percentage point greater
than the average prime rate charged during such period by a nationally
recognized bank designated by the Company.


 


10.                                 Miscellaneous.


 


(a)                                  Notices.  All notices and other communications required
or permitted to be given under this Agreement shall be in writing and shall be
deemed to have been given if delivered personally or sent by certified or
express mail, return receipt requested, postage prepaid to the Company or the
Purchaser, as the case may be, at the following addresses or to such other
address as the Company or the Purchaser, as the case may be, shall specify by
notice to the others:


 


(i)                                     if
to the Company, to the Company at:


 


Equinox Holdings, Inc.

895 Broadway

New York, New York  10003

Attention:  Chief Executive
Officer


 


(ii)                                  if
to the Purchaser, to the Purchaser at the address set forth on the signature page hereof:


 


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(iii)                               if
to NCP-EH, to:


 


NCP-EH, L.P.

c/o North Castle Partners, L.L.C.

183 E. Putnam Avenue

Greenwich, CT  06830

Attention:  Adam Saltzman


 


All such notices and communications shall be deemed to
have been received on the date of delivery if delivered personally or on the
third business day after the mailing thereof; provided that the party giving
such notice or communication shall have attempted to telephone the party or
parties to which notice is being given during regular business hours on or
before the day such notice or communication is being sent, to advise such party
or parties that such notice or communication is being sent.  Copies of any notice or other communication
given under this Agreement shall also be given to:


 


North Castle Partners,
L.L.C.

183 E. Putnam Avenue 

Greenwich, CT 06830

Attention:  Adam Saltzman


 


and


 


Debevoise &
Plimpton

919 Third Avenue

New York, New York  10022

Attention:  Franci J. Blassberg, Esq.


 


And


 


J.W. Childs Equity
Partners II, L.P.

c/o J.W. Childs Associates L.P.

One Federal Street

Boston, Massachusetts  02110

Attention:  Glenn A. Hopkins


 


and


 


Kaye, Scholer,
Fierman, Hays and Handler LLP

425 Park Avenue

New York, New York  10022

Attention:  Stephen C. Koval, Esq.


 


(b)                                 Binding
Effect; Benefits.  This Agreement
shall be binding upon the parties to this Agreement and their respective
successors and assigns and shall inure to the benefit of the parties to this
Agreement, NCP-EH, L.P. (“NCP-EH”) and their respective successors and
assigns.  Nothing in this Agreement,
express or implied, is intended or shall be construed to give any person other
than the parties to this Agreement,


 


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NCP-EH or their
respective successors or assigns any legal or equitable right, remedy or claim
under or in respect of any agreement or any provision contained herein.


 


(c)                                  Waiver;
Amendment.


 


(i)                                     Waiver.  Any party hereto or beneficiary hereof may by
written notice to the other parties (A) extend the time for the
performance of any of the obligations or other actions of the other parties
under this Agreement, (B) waive compliance with any of the
conditions or covenants of the other parties contained in this Agreement and (C) waive
or modify performance of any of the obligations of the other parties under this
Agreement, provided that any waiver of the provisions of Section 5, must
be consented to in writing by NCP-EH. 
Except as provided in the preceding sentence, no action taken pursuant
to this Agreement, including, without limitation, any investigation by or on
behalf of any party or beneficiary shall be deemed to constitute a waiver by
the party or beneficiary taking such action of compliance with any
representations, warranties, covenants or agreements contained herein.  The waiver by any party hereto or beneficiary
hereof of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any preceding or succeeding breach and no failure by a
party to exercise any right or privilege hereunder shall be deemed a waiver of
such party’s or beneficiary’s rights or privileges hereunder or shall be deemed
a waiver of such party’s or beneficiary’s rights to exercise the same at any
subsequent time or times hereunder.


 


(ii)                                  Amendment.  This Agreement may not be amended, modified
or supplemented orally, but only by a written instrument executed by the Purchaser
and the Company, and, in the case of any amendment, modification or supplement
to or affecting any of Section 5 or that adversely affects the rights of
NCP-EH hereunder, consented to by NCP-EH in writing.  The parties hereto acknowledge that the Company’s
consent to an amendment or modification of this Agreement may be subject to the
terms and provisions of the financing arrangements to which the Company may be
party or bound.


 


(d)                                 Assignability.  Except as provided herein, neither this
Agreement nor any right, remedy, obligation or liability arising hereunder or
by reason hereof shall be assignable by the Company or the Purchaser without
the prior written consent of the other party hereto, and NCP-EH; provided that
this Agreement and the rights, remedies, obligations and liabilities of the
Company shall be assignable by the Company to any Successor of the Company.


 


(e)                                  Applicable
Law.  THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK, WITHOUT REFERENCE TO PRINCIPLES OF CONFLICT OF LAWS WHICH WOULD
REQUIRE APPLICATION OF THE LAW OF ANOTHER JURISDICTION EXCEPT TO THE EXTENT
THAT THE CORPORATE LAW OF THE STATE OF INCORPORATION OF THE COMPANY
SPECIFICALLY AND MANDATORILY APPLIES.


 


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(f)                                    Jurisdiction.  The Purchaser hereby irrevocably and
unconditionally submits, for himself and his property, to the nonexclusive
jurisdiction of any New York State court or Federal court of the United States
of America sitting in New York City, and any appellate court from any thereof,
in any action or proceeding arising out or of relating to this Agreement or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State
court or, to the extent permitted by law, in such Federal court.  Each of the parties hereby agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.  Nothing in this
Agreement shall affect any right that the Company may otherwise have to bring
any action or proceeding relating to this Agreement against the Purchaser or
his properties in the courts of any jurisdiction.  The Purchaser hereby irrevocably and
unconditionally waives, to the fullest extent he or she may legally and
effectively do so, any objection that he may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to
this Agreement in any New York or Federal court.  Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.


 


(g)                                 Section and
Other Headings, etc.  The section and
other headings contained in this Agreement are for reference purposes only and
shall not affect the meaning or interpretation of this Agreement.


 


(h)                                 Counterparts.  This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original and all of
which together shall constitute one and the same instrument.


 


(i)                                     Certain
Definitions.


 


“Affiliate”:  with respect to any Person, means
any other Person that, directly or indirectly through one or more
intermediaries, Controls, is Controlled by, or is under common Control with the
first Person, including but not limited to a Subsidiary of the first
Person, a Person of which the first Person is a Subsidiary, or
another Subsidiary of a Person of which the first Person is also
a Subsidiary.


 


“Control”:  with respect to any Person, means the
possession, directly or indirectly, severally or jointly, of the power to
direct or cause the direction of the management policies of such Person,
whether through the ownership of voting securities, by contract or credit
arrangement, as trustee or executor, or otherwise.


 


“Person”:  any natural person, firm, partnership,
limited liability company, association, corporation, company, trust, business
trust, governmental authority or other entity.


 


“Subsidiary”:  with respect to any Person, each corporation
or other Person in which the first Person owns or Controls, directly or
indirectly, capital stock or other ownership


 


11





















 


interests representing 50% or more of the
combined voting power of the outstanding voting stock or other ownership
interests of such corporation or other Person.


 


“Successor”:  of a Person means a Person that
succeeds to the first Person’s assets and liabilities by merger, liquidation,
dissolution or otherwise by operation of law, or a Person to which all or
substantially all the assets and/or business of the first Person are
transferred.


 


[the remainder of this page has
been intentionally left blank.]


 


12





















 


IN
WITNESS WHEREOF, the Company and the Purchaser have executed this Agreement as
of the date first above written.


 


	
   

  	
  EQUINOX HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
  Name

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  THE PURCHASER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
  as
  Attorney-in-Fact

  
	
   

  	
  Name:

  
	
   

  	
   

  
	
   

  	
  Address of the Purchaser:

  



 


 


Total Number of Shares

of Common Stock of

Equinox Holdings, Inc.

to be Purchased:


 


	
  Total Cash Purchase

  	
   

  	
   

  	
   

  
	
  Price:

  	
   

  	
  $«Share_Amount»

  	
   

  



 


13





















 


Schedule A


 


Calculation of Purchase
Price


 


	
  Number of Options

  	
   

  	
  Exercise Price Per Option

  	
   

  	
  Aggregate Exercise Price

  Per Tranche