**Exhibit 10.15**

 

STOCK SUBSCRIPTIONAGREEMENT

 

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

 

WITNESSETH:

 

WHEREAS,the Board of Directors of the Company (the “Board”) has adopted theEquinox Holdings, Inc. 2000 Stock Incentive Plan (as the same may beamended 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 “CommonStock”) 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 CommonStock 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 andsubject to the conditions set forth herein.

 

NOW,THEREFORE, to implement the foregoing and in consideration of the mutualpromises, covenants and agreements contained herein, the parties hereto herebyagree as follows:

 

# 1.                                       Purchaseand Sale of Common Stock.

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## (a)                                  Purchaseof Common Stock.  Subject to all ofthe terms and conditions of this Agreement, the Purchaser hereby subscribes forand shall purchase, and the Company shall sell to the Purchaser, the Shares, atan aggregate purchase price of $                as calculated on Schedule A attached hereto, at the Closing provided forin Section 2(a) hereof. Notwithstanding anything in this Agreement to the contrary, the Companyshall have no obligation to sell any shares of Common Stock (including theShares) to any person who is a resident of a jurisdiction in which the sale ofCommon Stock to such person would constitute a violation of the securities, “bluesky” or other laws of such jurisdiction, provided that the Company shall useits reasonable efforts to comply with any such laws unless the Board determinesin its sole discretion that compliance would require the Company to incurmaterial costs or fees or which would require the Company to register theShares.

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## (b)                                 Consideration.  Subject to all of the terms and conditions ofthis Agreement, the Purchaser shall deliver to the Company at the Closingreferred to in Section 2(a) hereof, immediately available funds in anamount equal to the aggregate

 

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

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# 2.                                       Closing.

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

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## (b)                                 Deliveryby 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 shalldeliver to the Company a duly executed Joinder Agreement (as defined in theStock Incentive Plan).

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

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# 3.                                       Purchaser’sRepresentations, Warranties and Covenants.

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## (a)                                  InvestmentIntention.  The Purchaser representsand warrants that the Purchaser is acquiring the Shares solely for thePurchaser’s own account for investment and not with a view to or for sale inconnection with any distribution thereof. The Purchaser agrees that the Purchaser will not, directly orindirectly, offer, transfer, sell, pledge, hypothecate or otherwise dispose ofany of the Shares (or solicit any offers to buy, purchase or otherwise acquireor take a pledge of any Shares), except in compliance with the Securities Actof 1933, as amended (the “Securities Act”), and the rules andregulations 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 ofthe Shares may be transferred, sold, pledged, hypothecated or otherwisedisposed of (i) unless the provisions of Section 4 herein andthe Shareholders Agreement shall have been complied with or have expired, (ii) unless(A) such disposition is pursuant to an effective registrationstatement under the Securities Act, (B) the Purchaser shall havedelivered to the Company an opinion of counsel, which opinion and counsel shallbe reasonably satisfactory to the Company, to the effect that such dispositionis exempt from the provisions of Section 5 of the Securities Act or (C) ano-action letter from the Commission, reasonably satisfactory to the Company,shall have been obtained with respect to such disposition and (iii) unlesssuch disposition is pursuant to registration under any applicable statesecurities laws or an exemption therefrom.

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## (b)                                 Legends.  The Purchaser acknowledges that thecertificate or certificates representing the Shares shall bear the followinglegends:

 

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“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVEBEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIESACT 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 SECURITIESLAWS OR UNLESS SUCH TRANSFER IS (A) EXEMPT FROM REGISTRATION OR ISOTHERWISE IN COMPLIANCE WITH THE ACT AND SUCH LAWS IN THE OPINION OF COUNSEL TOTHE SHAREHOLDER, WHICH COUNSEL MUST BE, AND THE FORM AND SUBSTANCE OFWHICH OPINION ARE, REASONABLY SATISFACTORY TO THE ISSUER AND (B) INCOMPLIANCE WITH THE SHAREHOLDERS AGREEMENT OF THE ISSUER, DATED AS OF                   ,2000 AND ANY AMENDMENTS, SUPPLEMENTS OR MODIFICATIONS THERETO (THE “SHAREHOLDERSAGREEMENT”).

 

THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARESUBJECT TO THE RESTRICTIONS ON TRANSFER SET FORTH IN (I) A STOCK SUBSCRIPTIONAGREEMENT, DATED AS OF              ,200  , AND (II) A SHAREHOLDERS AGREEMENT, COPIES OF WHICH AREAVAILABLE FOR INSPECTION AT THE OFFICES OF THE COMPANY.  NO TRANSFER OF SUCH SECURITIES WILL BE MADEON THE BOOKS OF THE COMPANY, AND SUCH TRANSFER SHALL BE VOIDABLE, UNLESSACCOMPANIED BY EVIDENCE OF COMPLIANCE WITH THE TERMS OF SUCH AGREEMENTS.

 

## (c)                                  SecuritiesLaw Matters.  The Purchaseracknowledges receipt of advice from the Company that (i) the offerand sale of the Shares hereby have not been registered under the Securities Actor any state or foreign securities or “blue sky” laws, (ii) it isnot anticipated that there will be any public market for the Shares, (iii) theShares must be held indefinitely and the Purchaser must continue to bear theeconomic risk of the investment in the Shares unless there is a public marketfor the Shares and, to the extent required under the Securities Act, the Sharesare registered for resale under the Securities Act and such state laws or anexemption from registration is available, (iv) Rule 144promulgated under the Securities Act (“Rule 144”) is not presentlyavailable with respect to sales of any securities of the Company, and theCompany has made no covenant to make Rule 144 available, (v) whenand 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 conditionsof Rule 144, (vi) the Company does not plan to file reportswith the Commission or make public information concerning the Company availableunless required to do so by law, (vii) if the exemption afforded byRule 144 is not generally available, sales of the Shares may be difficultto effect because of the absence of public information concerning the Company, (viii) arestrictive legend in the form heretofore set forth shall be placed on thecertificates representing the Shares and (ix) a notation shall bemade in the appropriate records of the Company indicating that

 

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## the Shares aresubject to restrictions on transfer set forth in this Agreement and, if theCompany should in the future engage the services of a stock transfer agent,appropriate stop-transfer restrictions will be issued to such transfer agentwith respect to the Shares.

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## (d)                                 Compliancewith Rule 144.  If any of theShares are to be disposed of in accordance with Rule 144, the Purchasershall transmit to the Company an executed copy of Form 144 (if required byRule 144) no later than the time such form is required to be transmittedto the Commission for filing and such other documentation as the Company mayreasonably require to assure compliance with Rule 144 in connection withsuch disposition.

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## (e)                                  Abilityto Bear Risk.  The Purchaserrepresents and warrants that (i) the financial situation of thePurchaser is such that the Purchaser can afford to bear the economic risk ofholding the Shares for an indefinite period and (ii) the Purchasercan afford to suffer the complete loss of the Purchaser’s investment in theShares.

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## (f)                                    Accessto Information.  The Purchaserrepresents and warrants that (i) the Purchaser has carefullyreviewed the information describing the Company and the terms of thetransaction contemplated hereby furnished to the Purchaser and (ii) thePurchaser is, and will be at the time of the closing, an officer or employee ofthe Company or an Affiliate.

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## (g)                                 Restrictionson Sale upon Public Offering.  ThePurchaser acknowledges and agrees that, in the event that the Company files aregistration statement under the Securities Act with respect to an underwrittenpublic offering of any shares of its capital stock, the Purchaser will noteffect any public sale or distribution of any shares of Common Stock (otherthan as part of such underwritten public offering), including but not limitedto, 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 daysthat the managing underwriter may require) after the effective date of suchregistration statement.  The Purchaserfurther understands and acknowledges that any sale, transfer or other dispositionof the Shares by him following any underwritten public offering of the CommonStock will be subject to compliance with, and may be limited under, the federalsecurities laws and/or state “blue sky” securities laws.

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# 4.                                       Restrictionson Disposition of Shares.  Neitherthe Purchaser nor any of the Purchaser’s heirs or representatives shall sell,assign, transfer, pledge or otherwise directly or indirectly dispose of orencumber any of the Shares to or with any other person, firm, trust,association, corporation or entity except in compliance with the ShareholdersAgreement, dated as of                    ,2000, among the Company, Purchaser and the other parties thereto.

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# 5.                                       RepurchaseRight Effective on Termination of Employment.

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## (a)                                  Terminationof Employment.  If the Purchaser’sactive employment with the Company or any Subsidiary thereof that employs thePurchaser is, or has been, terminated for any reason, the Company shall havethe option to purchase all or a portion

 

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## of the Shares thenheld by the Purchaser (or, if his or her employment was terminated by his orher death, his or her estate) and shall have 90 days from the date oftermination of Purchaser’s employment (such 90 day period, the “First OptionPeriod”) during which to give notice in writing to the Purchaser (or his orher estate) of its election to exercise or not to exercise such option, inwhole or in part.  The Company herebyundertakes to use reasonable efforts to act as promptly as practicablefollowing such date of termination to make such election.  If the Company fails to give notice that itintends to exercise such option within the First Option Period or the Companygives notice that it does not intend to exercise such option or that it intendsto exercise such option with respect to only a portion of the Shares, thenNCP-EH (as defined below) shall have the right to purchase any or all theShares then held by the Purchaser (or his or her estate) that will not berepurchased by the Company, and shall have until the expiration of the earlierof (x) 90 days following the end of the First Option Period or(y) 90 days from the date of receipt by NCP-EH of writtennotice from the Company indicating whether it will exercise its option topurchase any of the Shares (such 90-day period being hereinafter referred to asthe “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 topurchase the Shares pursuant to this subsection are not exercised withrespect to all of the Shares as provided herein (other than as a result of Section 9hereof), the Purchaser (or his or her estate) shall be entitled to retain theShares, as to which the right is not exercised, subject to all of theprovisions of this Agreement.  Allpurchases pursuant to this Section 5(a) by the Company shall be for apurchase price and in the manner prescribed by Section 6 hereof.  For all purposes under this Agreement, theterms “employment” or “termination of employment” with respect to a person whois not an employee shall mean services with, or the termination of serviceswith, (i) the entity for whom the Participant provides services to, (ii) theCompany, or (iii) the Company by the entity from whom the Participantprovides services to.

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

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

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# 6.                                       Determinationof the Purchase Price; Manner of Payment.

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## (a)                                  PurchasePrice.  For the purposes of anypurchase 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) foreach Share (the “Purchase Price”) shall equal the fair market value (the“Fair Market Value”) of such Share as of the effective date of thetermination of employment that gives rise to the right of the Company torepurchase such Share (such

 

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## date oftermination the “Determination Date”); provided that if the Purchaser’semployment is terminated by the Company or any Subsidiary thereof for Cause,the Purchase Price for such Share shall equal the lesser of (i) theFair Market Value of such Share as of the effective date of termination ofPurchaser’s employment and (ii) the price at which the Purchaserpurchased such Share from the Company pursuant to this Agreement.  Whenever determination of the Fair MarketValue of a Share is required by this Agreement, such Fair Market Value shall besuch amount as is determined in good faith by the Board.  In making a determination of Fair MarketValue, the Board shall give due consideration to such factors as it deemsappropriate, including, without limitation, the earnings and certain otherfinancial and operating information of the Company and its Subsidiaries inrecent periods, the potential value of the Company and its Subsidiaries as awhole, the future prospects of the Company and its Subsidiaries and theindustries in which they compete, the history and management of the Company andits Subsidiaries, the general condition of the securities markets, the fairmarket value of securities of companies engaged in businesses similar to thoseof the Company and its Subsidiaries.  Thedetermination of Fair Market Value will not give effect to any restrictions ontransfer of the Shares or the fact that such Shares would represent a minorityinterest in the Company.  The Fair MarketValue as determined in good faith by the Board and in the absence of fraudshall be binding and conclusive upon all parties hereto.  If the Company at any time subdivides (by anystock split, stock dividend or otherwise) the Common Stock into a greaternumber of shares, or combines (by reverse stock split or otherwise) the CommonStock into a smaller number of shares, the Purchase Price (including anyminimum or maximum Purchase Price specified herein or in effect as a result ofa prior adjustment) shall be appropriately adjusted to reflect such subdivisionor combination.

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

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# 7.                                       Representationsand Warranties of the Company.  TheCompany represents and warrants to the Purchaser that (a) theCompany has been duly incorporated and validly exists under the laws of thestate of its incorporation, (b) this Agreement has been dulyauthorized, executed and delivered by the Company and constitutes a valid andlegally binding obligation of the Company enforceable against the Company inaccordance with its terms and (c) the Shares, when issued,delivered and paid for in accordance with the terms hereof, will be duly andvalidly issued, fully paid and nonassessable, and free and clear of any liensor encumbrances other than those created pursuant to this Agreement, theShareholders Agreement, or otherwise in connection with the transactionscontemplated hereby.

 

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# 8.                                       Covenantsof the Company.

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## (a)                                  Rule 144.  The Company agrees that at all times after ithas filed a registration statement after the date hereof pursuant to therequirements of the Securities Act or Section 12 of the SecuritiesExchange Act of 1934, as amended (the “Exchange Act”), relating to anyclass of equity securities of the Company (other than (i) theregistration of equity securities of the Company and/or options or interests inrespect thereof to be offered primarily to directors and/or members ofmanagement or employees, sales agents or similar representatives of the Companyor its Subsidiaries, or directors or senior executives of corporations in whichentities managed or sponsored by North Castle Partners, L.L.C. (“NorthCastle”) or J.W. Childs Associates, L.P. (“Childs Associates”) havemade equity investments and/or other persons with whom North Castle or ChildsAssociates has consulting or other advisory relationships, or (ii) theregistration of equity securities and/or options or other interests in respectthereof solely on Form S-4 or S-8 or any successor form), it will file thereports required to be filed by it under the Securities Act and the ExchangeAct and the rules and regulations adopted by the Commission thereunder(or, if the Company is not required to file such reports, it will, upon therequest of the Purchaser, make publicly available such information as necessaryto permit sales pursuant to Rule 144 under the Securities Act), to theextent required from time to time to enable the Purchaser to sell the Shareswithout registration under the Securities Act within the limitation of theexemptions provided by (i) Rule 144, as such Rule may beamended from time to time, or (ii) any successor rule orregulation hereafter adopted by the Commission.

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## (b)                                 StateSecurities Laws.  The Company agreesto 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, providedthat the Company shall not be obligated to qualify or register the Shares underany such law or to qualify as a foreign corporation or file any consent toservice of process under the laws of any jurisdiction or subject itself totaxation as doing business in any such jurisdiction.

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# 9.                                       CertainRestrictions on Repurchases.

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## (a)                                  FinancingAgreements, etc.  Notwithstanding anyother provision of this Agreement, the Company shall not be obligated orpermitted to pay the purchase price for any Shares that the Company may electto purchase from the Purchaser pursuant to Section 5 if (i) thepayment of such purchase price would result in a violation of the terms orprovisions of, or a default or an event of default under, any financing orsecurity agreement or document entered into by the Company or any of itsSubsidiaries prior to the date hereof, any refunding thereof, or in connectionwith the operations of the Company or the Subsidiaries from time to time (suchagreements and documents, as each may be amended, modified or supplemented fromtime to time, are referred to herein as the “**Financing Agreements**”), in each case as the same may beamended, modified or supplemented from time to time, (ii) thepayment of such purchase price would violate any of the terms or provisions ofthe Certificate of Incorporation of the Company or (iii) theCompany has no funds legally available therefor under the General CorporationLaw of the State of Delaware.

 

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

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## (c)                                  PurchasePrice Adjustment.  In the event thata repurchase of Shares from the Purchaser is delayed pursuant to this Section 9,the purchase price per Share when the repurchase of such Shares eventuallytakes place as contemplated by Section 9(b) shall equal the sum of (i) thePurchase Price determined in accordance with Section 6 hereof at the timethat the repurchase of such Shares would have occurred but for the operation ofthis Section 9**,** plus (ii) anamount equal to interest on such Purchase Price for the period from the date onwhich the completion of the repurchase would have taken place but for theoperation of this Section 9 to the date on which such repurchase actuallytakes place (the “**Delay Period**”)at a rate equal to the average annual cost to the Company of its and itsSubsidiaries bank indebtedness obligations outstanding during the Delay Periodor, if there are no such obligations outstanding, one percentage point greaterthan the average prime rate charged during such period by a nationallyrecognized bank designated by the Company.

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# 10.                                 Miscellaneous.

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

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### (i)                                     ifto the Company, to the Company at:

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Equinox Holdings, Inc.895 BroadwayNew York, New York  10003Attention:  Chief ExecutiveOfficer

 

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

 

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### (iii)                               ifto NCP-EH, to:

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NCP-EH, L.P.c/o North Castle Partners, L.L.C.183 E. Putnam AvenueGreenwich, CT  06830Attention:  Adam Saltzman

 

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

 

North Castle Partners,L.L.C.183 E. Putnam Avenue Greenwich, CT 06830Attention:  Adam Saltzman

 

and

 

Debevoise &Plimpton919 Third AvenueNew York, New York  10022Attention:  Franci J. Blassberg, Esq.

 

And

 

J.W. Childs EquityPartners II, L.P.c/o J.W. Childs Associates L.P.One Federal StreetBoston, Massachusetts  02110Attention:  Glenn A. Hopkins

 

and

 

Kaye, Scholer,Fierman, Hays and Handler LLP425 Park AvenueNew York, New York  10022Attention:  Stephen C. Koval, Esq.

 

## (b)                                 BindingEffect; Benefits.  This Agreementshall be binding upon the parties to this Agreement and their respectivesuccessors and assigns and shall inure to the benefit of the parties to thisAgreement, NCP-EH, L.P. (“NCP-EH”) and their respective successors andassigns.  Nothing in this Agreement,express or implied, is intended or shall be construed to give any person otherthan the parties to this Agreement,

 

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## NCP-EH or theirrespective successors or assigns any legal or equitable right, remedy or claimunder or in respect of any agreement or any provision contained herein.

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## (c)                                  Waiver;Amendment.

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### (i)                                     Waiver.  Any party hereto or beneficiary hereof may bywritten notice to the other parties (A) extend the time for theperformance of any of the obligations or other actions of the other partiesunder this Agreement, (B) waive compliance with any of theconditions or covenants of the other parties contained in this Agreement and (C) waiveor modify performance of any of the obligations of the other parties under thisAgreement, provided that any waiver of the provisions of Section 5, mustbe consented to in writing by NCP-EH. Except as provided in the preceding sentence, no action taken pursuantto this Agreement, including, without limitation, any investigation by or onbehalf of any party or beneficiary shall be deemed to constitute a waiver bythe party or beneficiary taking such action of compliance with anyrepresentations, warranties, covenants or agreements contained herein.  The waiver by any party hereto or beneficiaryhereof of a breach of any provision of this Agreement shall not operate or beconstrued as a waiver of any preceding or succeeding breach and no failure by aparty to exercise any right or privilege hereunder shall be deemed a waiver ofsuch party’s or beneficiary’s rights or privileges hereunder or shall be deemeda waiver of such party’s or beneficiary’s rights to exercise the same at anysubsequent time or times hereunder.

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### (ii)                                  Amendment.  This Agreement may not be amended, modifiedor supplemented orally, but only by a written instrument executed by the Purchaserand the Company, and, in the case of any amendment, modification or supplementto or affecting any of Section 5 or that adversely affects the rights ofNCP-EH hereunder, consented to by NCP-EH in writing.  The parties hereto acknowledge that the Company’sconsent to an amendment or modification of this Agreement may be subject to theterms and provisions of the financing arrangements to which the Company may beparty or bound.

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## (d)                                 Assignability.  Except as provided herein, neither thisAgreement nor any right, remedy, obligation or liability arising hereunder orby reason hereof shall be assignable by the Company or the Purchaser withoutthe prior written consent of the other party hereto, and NCP-EH; provided thatthis Agreement and the rights, remedies, obligations and liabilities of theCompany shall be assignable by the Company to any Successor of the Company.

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## (e)                                  ApplicableLaw.  THIS AGREEMENT SHALL BEGOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OFNEW YORK, WITHOUT REFERENCE TO PRINCIPLES OF CONFLICT OF LAWS WHICH WOULDREQUIRE APPLICATION OF THE LAW OF ANOTHER JURISDICTION EXCEPT TO THE EXTENTTHAT THE CORPORATE LAW OF THE STATE OF INCORPORATION OF THE COMPANYSPECIFICALLY AND MANDATORILY APPLIES.

 

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## (f)                                    Jurisdiction.  The Purchaser hereby irrevocably andunconditionally submits, for himself and his property, to the nonexclusivejurisdiction of any New York State court or Federal court of the United Statesof 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 forrecognition or enforcement of any judgment, and each of the parties heretohereby irrevocably and unconditionally agrees that all claims in respect of anysuch action or proceeding may be heard and determined in such New York Statecourt or, to the extent permitted by law, in such Federal court.  Each of the parties hereby agrees that afinal judgment in any such action or proceeding shall be conclusive and may beenforced in other jurisdictions by suit on the judgment or in any other mannerprovided by law.  Nothing in thisAgreement shall affect any right that the Company may otherwise have to bringany action or proceeding relating to this Agreement against the Purchaser orhis properties in the courts of any jurisdiction.  The Purchaser hereby irrevocably andunconditionally waives, to the fullest extent he or she may legally andeffectively do so, any objection that he may now or hereafter have to thelaying of venue of any suit, action or proceeding arising out of or relating tothis Agreement in any New York or Federal court.  Each of the parties hereto hereby irrevocablywaives, to the fullest extent permitted by law, the defense of an inconvenientforum to the maintenance of such action or proceeding in any such court.

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## (g)                                 Section andOther Headings, etc.  The section andother headings contained in this Agreement are for reference purposes only andshall not affect the meaning or interpretation of this Agreement.

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

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## (i)                                     CertainDefinitions.

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“Affiliate”:  with respect to any Person, meansany other Person that, directly or indirectly through one or moreintermediaries, Controls, is Controlled by, or is under common Control with thefirst Person, including but not limited to a Subsidiary of the firstPerson, a Person of which the first Person is a Subsidiary, oranother Subsidiary of a Person of which the first Person is alsoa Subsidiary.

 

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

 

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

 

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

 

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

 

“Successor”:  of a Person means a Person thatsucceeds to the first Person’s assets and liabilities by merger, liquidation,dissolution or otherwise by operation of law, or a Person to which all orsubstantially all the assets and/or business of the first Person aretransferred.

 

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INWITNESS WHEREOF, the Company and the Purchaser have executed this Agreement asof 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 Sharesof Common Stock ofEquinox Holdings, Inc.to be Purchased:

 
| Total Cash Purchase |   |                      |   |
|---------------------|--------|---------------------------|--------|
| Price:              |   | $«Share_Amount» |   |

 

13

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**Schedule A**

** **

Calculation of PurchasePrice

 
| **Number of Options** | ** ** | **Exercise Price Per Option** | ** ** | **Aggregate Exercise Price  Per Tranche** | ** ** |
|-----------------------|------------|-------------------------------|------------|-------------------------------------------|------------|
|                  |       |                          |       |                                      |       |

 

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