FORM OF AMENDMENT
TO
EXECUTIVE SEVERANCE AGREEMENT
This Amendment to
the Executive Severance Agreement (this “ Amendment
”) by and between Town Sports International, LLC (the “
Company ”), and
(“ Executive ”) is effective as of December
, 2008.
WHEREAS, Executive
and the Company are parties to an Executive Severance Agreement
dated as of January 22, 2008 (the “ Executive
Severance Agreement ”); and
WHEREAS, Executive
and the Company desire to amend the Executive Severance Agreement
in a manner intended to bring it into compliance with the final
regulations issued under Section 409A of the Internal Revenue
Code of 1986, as amended.
NOW, THEREFORE, in
consideration of the mutual covenants in this Agreement, the
parties agree that the Executive Severance Agreement is amended as
set forth below:
1. The
definition of “Constructive Termination” is hereby
amended by adding the following at the end thereof:
“;
provided, however, that none of the foregoing conditions or events
shall constitute Constructive Termination unless (A) the
Executive shall have provided written notice to the Company within
ninety (90) days after the occurrence of such condition or
event describing the condition or event claimed to constitute
Constructive Termination and (B) the Company shall have failed
to remedy the condition or event within thirty (30) days of
its receipt of such written notice.”
2. Section 2(c)
is amended in its entirety to read as follows:
“(c)
Separation Release Agreement . The eligibility for receipt
of benefits under this Agreement as described in Section 3
(the “Severance Benefits”) is expressly conditioned
upon the following: (i) the Executive’s signing of a
release in which the Executive releases and/or waives any and all
claims the Executive may have against the Company within the time
specified therein but in no event later than fifty (50) days
of the Termination Date and (ii) the release becoming
effective. The Company shall provide to Executive the release no
later than three (3) days following Executive’s
Termination Date. If Executive does not timely execute and deliver
to the Company such release, or if Executive executes such release
but revokes it, no Severance Benefits shall be
paid.”
3. Section 3
is amended by inserting an “(a)” at the beginning
thereof.
4. Section 3(a)(i)
is hereby amended by deleting “beginning thirty
(30) days following the Termination Date or as soon as
administratively practicable thereafter” and replacing it
with “payable as described in Section 3(b)
below”.
