(Amendment No. 3)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e),
240.13d-1(f) or 240.13d-1(g), check the following box. ☐
CUSIP NO.: 517942108
(1)
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NAME OF REPORTING PERSON: HG Vora Capital Management, LLC
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(2)
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(5)
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ☐
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(6)
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CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH:
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(7)
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SOLE VOTING POWER: 1,500,0001
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(8)
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SHARED VOTING POWER: 0
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(9)
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SOLE DISPOSITIVE POWER: 1,500,0001
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(10)
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SHARED DISPOSITIVE POWER: 0
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(11)
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 1,500,0001
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(12)
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ☐
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(13)
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 5.4%
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(14)
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TYPE OF REPORTING PERSON: OO (Delaware limited liability company)
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1 Consists of 1,500,000 shares of Common
Stock that PW Partners Atlas Fund II LP has the right to purchase pursuant to the Option Agreement (as defined below).
INTRODUCTORY STATEMENT
This Amendment No. 3 amends the Schedule
13D filed with the Securities and Exchange Commission on June 26, 2017, as amended by Amendment No. 1 filed on July 13, 2017,
and Amendment No. 2 filed on December 13, 2019, by HG Vora Capital Management, LLC (the “Manager” or the “Reporting
Person”) with respect to the shares of Common Stock owned directly by the HG Vora Special Opportunities Master Fund, Ltd.
(the “Fund”). The Manager is hereinafter referred to as the “Reporting Person.” Any disclosures herein
with respect to persons other than the Reporting Person are made on information and belief after making inquiry to the appropriate
party. Capitalized terms used but not defined herein shall have the meaning given in the Schedule 13D, as amended.
Items 5, 6, and 7 of the Schedule 13D
are hereby amended and supplemented as follows.
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Item 5.
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Interest in Securities of the Issuer
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(a) and (b). Set forth below is
the beneficial ownership of shares of Common Stock of the Issuer for each person named in Item 2.
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1.
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Manager – 1,500,000 shares of common stock, which
represents 5.4% of the Issuer’s outstanding Common Stock.
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All percentages set forth in this
Schedule 13D are based upon the Issuer’s 28,002,197 outstanding shares of Common Stock as reported in the Issuer’s
Form 10-Q filed with the Securities and Exchange Commission on November 5, 2019. The 1,500,000 shares of Common Stock reported
above consists of 1,500,000 shares of Common Stock that PW Partners Atlas Fund II LP has the right to purchase pursuant to the
Option Agreement attached as Exhibit 2 to Amendment No. 2, which was filed by the Manager on December 13, 2019.
(d) and (e). Not applicable.
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Item 6.
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Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
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On December
13, 2019, the Fund entered into a Stock Purchase Agreement (the “SPA”) with Kennedy Lewis Capital Partners Master
Fund, Ltd. (“Kennedy Lewis”) pursuant to which Kennedy Lewis agreed to purchase 4,200,000 SPA Shares from the Fund
for $1.50 per Share (the “Purchase Price”). The SPA provides that the closing of the sale to, and purchase by, Kennedy
Lewis of the SPA Shares shall not take place prior to December 23, 2019, or at such other time and place as the seller and purchaser
shall mutually agree. If the closing has not occurred by 11:59 p.m. Eastern time on December 23, 2019 (the “Termination
Time”) due to any failure by Kennedy Lewis to pay the Purchase Price, such failure to pay shall not constitute a breach
of the SPA and the SPA shall terminate unless both parties agree in writing to extend such date and time. Notwithstanding the
foregoing, the Termination Time shall automatically be extended if the parties are working in good faith to close the transactions
contemplated hereby and the only reason the closing has not occurred is because the transfer agent requires additional time to
appropriately process the transfer of the shares.
The foregoing
description of the SPA does not purport to be complete and is qualified in its entirety by reference to the full text of the agreement,
a copy of which is attached as an exhibit hereto and is incorporated herein by reference.
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Item 7.
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Material to be Filed as Exhibits
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Exhibit 1 – Stock Purchase Agreement
by and between the Fund and Kennedy Lewis, dated December 13, 2019.
SIGNATURE
After reasonable inquiry and to the best of
my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
December 17, 2019
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HG VORA CAPITAL MANAGEMENT, LLC
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By:
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/s/ Parag Vora
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Name:
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Parag Vora
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Title:
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Managing Member
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Exhibit 1
THE SECURITIES OFFERED HEREBY HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY
STATE AND ARE BEING OFFERED AND SOLD IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE
SECURITIES PURCHASED HEREUNDER ARE SUBJECT TO RESTRICTIONS ON TRANSFER AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER THE SECURITIES ACT AND OTHER APPLICABLE LAWS PURSUANT TO REGISTRATION OR EXEMPTION FROM REGISTRATION REQUIREMENTS
THEREUNDER.
STOCK PURCHASE AGREEMENT
This Stock Purchase
Agreement (this “Agreement”) is made as of December 13, 2019, by and between HG Vora Special Opportunities
Master Fund, Ltd., a Cayman Islands exempted company (the “Seller”), and Kennedy Lewis Capital Partners Master
Fund LP, a Cayman Islands limited partnership (the “Purchaser” and, together with the Seller, the “Parties”
and each, a “Party”).
RECITALS
A. The
Seller is the beneficial owner of shares of the common stock, $0.001 par value per share (the “Common
Stock”), of Town Sports International Holdings, Inc., a Delaware corporation (the
“Company”).
B. The
Seller desires to sell 4,200,000 shares of the Common Stock to the Purchaser (the “Shares”), and the Purchaser
desires to purchase such Shares for $1.50 per share (the “Per Share Purchase Price”), subject to all of the
terms, conditions, promises, representations and warranties set forth herein.
WHEREAS, in connection
with such sale and purchase, the Seller, on the one hand, and the Purchaser on the other hand, are willing to make certain representations
and warranties and agree to observe certain covenants set forth herein for the benefit of the other Party, as applicable, and
the other applicable Party will rely on such representations, warranties and covenants as a material inducement to entering in
to such sale and purchase.
AGREEMENT
NOW, THEREFORE, for
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Sale
and Purchase of the Shares. Subject to the terms and conditions of this Agreement, at the Closing (as hereinafter
defined), the Seller shall sell, assign, transfer, convey and deliver the Shares to the Purchaser, by instructing its broker to
transfer the Shares to a broker account designated by the Purchaser (or another method of transfer selected by the Purchaser,
which shall be acceptable to the Seller), and the Purchaser shall purchase the Shares from the Seller for the Purchase Price (as
hereinafter defined). At the Closing, the Purchaser shall pay to the Seller cash in the total amount of the Purchase Price by
wire transfer in immediately available funds to such account(s) as the Seller shall designate in writing to the Purchaser no later
than two business days prior to the Closing Date (as hereinafter defined).
2. Closing.
The closing of the sale to, and purchase by, the Purchaser of the Shares (the “Closing”) shall take place electronically
at 12:00 p.m. Eastern time within two (2) Business Days after satisfaction (or waiver) of the closing conditions set forth
in Section 6 below but in no event prior to December 23, 2019 (the “Closing Date”), or at such
other time and place as the Seller and the Purchaser shall mutually agree. The aggregate purchase price of the Shares acquired
pursuant to this Section 2 shall be $6,300,000 (the “Purchase Price”).
3. Representations
and Warranties of the Seller. The Seller hereby represents and warrants to the Purchaser as of the Closing Date, that:
(a) The
Seller is duly organized, validly existing and in good standing under the laws of the state of its formation, and has all corporate
power and authority to own its properties and conduct its business as presently conducted.
(b) The
Seller has all necessary power and authority under all applicable provisions of applicable law to execute and deliver this Agreement
and to carry out the provisions hereof. All action on the Seller’s part required for the lawful execution and delivery of
this Agreement has been taken as of the date hereof.
(c) This
Agreement has been duly and validly executed and delivered by the Seller, and constitutes the valid and binding agreement of the
Seller, enforceable against the Seller in accordance with its terms, except as limited by general principles of equity that restrict
the availability of equitable remedies.
(d) The
execution, delivery and performance of this Agreement by the Seller will not: (i) result in any default or violation of the governing
documents of or applicable to it, (ii) contravene any law, rule or regulation of any state or of the United States, or any order,
writ, judgment, injunction, decree, determination or award, or cause the suspension or revocation of any authorization, consent,
approval or license, presently in effect that affects or binds the Seller in any material respect; or (iii) conflict with or result,
with or without the passage of time or giving of notice, a material breach of or default or require any consent or waiver under
any such provision, under any indenture or loan or credit agreement or any other material agreement or instrument to which the
Seller is a party or by which the Seller or its material properties may be affected or bound.
(e) The
Shares are beneficially owned by the Seller free and clear of any and all restrictions on transfer, taxes, liens, encumbrances,
options, warrants, purchase rights, contracts, commitments, equities, claims, and demands; and the Seller is not a party to any
option, warrant, purchase right, or other contract or commitment that could require the Seller to sell, transfer, or otherwise
dispose of the Shares (other than pursuant to this Agreement).
(f) The
stock power or other documentation executed and delivered by the Seller to the Purchaser pursuant to Section 6.1(b) will
be a valid and binding obligation of the Seller, enforceable in accordance with its terms, and will transfer to the Purchaser
good, valid and marketable title to the Shares to be transferred by the Seller to the Purchaser pursuant to and contemplated by
this Agreement, free and clear of all encumbrances whatsoever, other than those that may be created by the Purchaser.
(g) Except
in the case of fraud, the Seller has not relied upon any representation or other information from the Purchaser (whether oral
or written) with respect to the Company.
(h) The
Seller has adequate information concerning the business and financial condition of the Company to make an informed decision regarding
the sale of the Shares and has independently and without reliance upon the Purchaser or its agents made its own analysis and decision
to sell the Shares.
(i) There
is no action, suit, claim, proceeding, inquiry or investigation, before or by any court, public board, government agency, self-regulatory
organization or body pending or threatened against the Seller that (a) could reasonably be expected to adversely affect the ability
of the Seller to consummate the transactions contemplated hereby, or (b) could reasonably be expected to prevent, impede, hinder,
delay, make illegal, impose limitations or conditions on, or otherwise interfere with, the transactions contemplated hereby.
(j) Assuming
that the representations of the Purchaser set forth in Section 4 of this Agreement are true and correct, no consent, approval,
order or authorization of, or registration, qualification, declaration, or filing with, any governmental authority is required
in connection with the sale of the Shares or the consummation of the transactions contemplated hereby, except for the filings
with the Securities and Exchange Commission of such reports under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and the rules and revisions thereunder, as may be required in connection with this Agreement and the transactions
contemplated by this Agreement. Assuming that the representations of the Purchaser set forth in Section 4 of this Agreement are
true and correct, the sale of the Shares in conformity with the terms of this Agreement are exempt from the registration requirements
of Section 5 of the Securities Act, and the rules and regulations promulgated thereunder, and all applicable state securities
laws.
(k) No
investment bank, financial advisor, broker or finder has acted for the Seller in connection with this Agreement or the transactions
contemplated hereby, and no investment bank, financial advisory, broker or finder is entitled to any brokerage or finder's fee
or other commissions in respect of such transactions based upon agreements, arrangements or understandings made by or on behalf
of the Seller.
(l) The
transactions contemplated hereunder shall not violate any insider trading policy or similar policy of the Company applicable to
the Seller.
4. Representations
and Warranties of Purchaser. The Purchaser hereby represents and warrants to the Seller as of the Closing Date, that:
(a) The
Purchaser is duly organized, validly existing and in good standing under the laws of the state of its formation, and has all corporate
power and authority to own its properties and conduct its business as presently conducted.
(b) The
Purchaser has all necessary power and authority under all applicable provisions of law to execute and deliver this Agreement and
to carry out the provisions hereof. All action on the Purchaser’s part required for the lawful execution and delivery of
this Agreement has been taken as of the date hereof.
(c) This
Agreement has been duly and validly executed and delivered by the Purchaser, and constitutes the valid and binding agreement of
the Purchaser, enforceable against the Purchaser in accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application affecting enforcement of creditors’ rights,
and/or (ii) as limited by general principles of equity that restrict the availability of equitable remedies.
(d) The
execution, delivery and performance of this Agreement by the Purchaser will not: (i) result in any default or violation of the
governing documents of or applicable to it, (ii) contravene any law, rule or regulation of any state or of the United States,
or any order, writ, judgment, injunction, decree, determination or award, or cause the suspension or revocation of any authorization,
consent, approval or license, presently in effect that affects or binds the Purchaser in any material respect; or (iii) conflict
with or result, with or without the passage of time or giving of notice, a material breach of or default or require any consent
or waiver under any such provision, under any indenture or loan or credit agreement or any other material agreement or instrument
to which the Purchaser is a party or by which the Purchaser or its material properties may be affected or bound.
(e) The
Shares are being acquired by the Purchaser for investment for the Purchaser’s own account only, and not with a view to,
or for resale in connection with, any “distribution” of such Shares within the meaning of the Securities Act.
(f) Except
in the case of fraud, the Purchaser has not relied upon any representation or other information from the Seller (whether oral
or written) with respect to the Company.
(g) The
Purchaser has adequate information concerning the business and financial condition of the Company to make an informed decision
regarding the purchase of the Shares and has independently and without reliance upon the Seller or its agents made its own analysis
and decision to purchase the Shares.
(h) The
Purchaser is an “accredited investor” as defined in Rule 501(a) under the Securities Act. The Purchaser is sophisticated
and experienced in evaluating the merits and risks involved in an investment in the Shares. The Purchaser has the ability to bear
the economic risks of its purchase of the Shares.
(i) The
Purchaser’s purchase of the Shares is not the result of any general solicitation or general advertising by the Seller or
any agent of the Seller.
(j) No
investment bank, financial advisor, broker or finder has acted for the Purchaser in connection with this Agreement or the transactions
contemplated hereby, and no investment bank, financial advisory, broker or finder is entitled to any brokerage or finder's fee
or other commissions in respect of such transactions based upon agreements, arrangements or understandings made by or on behalf
of the Purchaser.
(k) The
Purchaser has funds readily and unconditionally available sufficient to fund the Purchase Price.
(l) The
Purchaser shall in good faith use commercially reasonable efforts to obtain any required authorizations or approvals from, and
make any filings or disclosures required by, applicable governmental authorities or regulatory bodies to the extent required in
connection with the purchase and sale of the Shares hereunder.
(m) There
is no action, suit, claim, proceeding, inquiry or investigation, before or by any court, public board, government agency, self-regulatory
organization or body pending or threatened against the Purchaser that (a) could reasonably be expected to adversely affect the
ability of the Purchaser to consummate the transactions contemplated hereby, or (b) could reasonably be expected to prevent, impede,
hinder, delay, make illegal, impose limitations or conditions on, or otherwise interfere with, the transactions contemplated hereby.
(n) Assuming
that the representations of the Seller set forth in Section 3 of this Agreement are true and correct, no consent, approval, order
or authorization of, or registration, qualification, declaration, or filing with, any governmental authority is required in connection
with the sale of the Shares or the consummation of the transactions contemplated hereby, except for the filings with the Securities
and Exchange Commission of such reports under the Exchange Act and the rules and revisions thereunder, as may be required in connection
with this Agreement and the transaction contemplated by this Agreement.
(o) The
transactions contemplated hereunder shall not violate (i) any insider trading policy or similar policy of the Company applicable
to the Purchaser or (ii) any agreement or understanding (if any) the Purchaser has with the Company.
(p) The
Purchaser understands that the Shares being acquired by it hereunder have not been registered under the Securities Act or under
applicable state securities laws (“Blue Sky Laws”), in reliance upon exemptions contained in the Securities Act and
Blue Sky Laws and any applicable regulations promulgated thereunder or interpretations thereof, and cannot be offered for sale,
sold or otherwise transferred unless, among other things, the Shares subsequently are so registered or qualify for exemption from
registration under the Securities Act and Blue Sky Laws. The Purchaser represents that it is able to bear the economic risk of
investment in the Shares for an indefinite period of time. The Purchaser acknowledges that it is purchasing the Shares in good
faith solely for its own account, for investment and not with a view toward resale or other distribution in violation of the Securities
Act or Blue Sky Laws, and understands that the Shares shall not be disposed of by it in contravention of the Securities Act or
any applicable Blue Sky Laws. The Purchaser is aware of the provisions of Rule 144 under the Securities Act which permit limited
resale of securities purchased in a private placement.
5. Nonpublic
Information. The Seller further acknowledges and agrees that the Purchaser or affiliates of the Purchaser may now possess
nonpublic information concerning the Company not known to the Seller, including confidential information which the Purchaser or
its affiliates may have received from the Company directly. Such confidential information may include certain forecasts and projections,
business plans and strategies and information relating to potential transactions relating to the Company (“Company Information”).
The confidential Company Information may or may not be material, may or may not have been publicly disclosed by or on behalf of
the Company, and may or may not be available to the Seller from sources other than the Purchaser. The Seller acknowledges that
such Company Information may be material to the Seller’s decision to sell the Shares, and that if such Company Information
was made known to the Seller, it could cause the Seller to not proceed with, or delay the timing of, the sale of its Shares, or
could cause the Seller to change the terms and conditions, including the Per Share Purchase Price, of the sale of its Shares.
The Seller, on behalf of itself and its equity owners, members, managers, officers, partners, affiliates, attorneys, agents, representatives,
beneficiaries, heirs, successors and assigns (collectively, the “Seller Related Parties”), to the maximum extent
permitted by applicable law, hereby, other than in the case of fraud or a breach of any terms or provisions hereunder:
(i) agrees
that neither the Purchaser nor any of its affiliates nor any of the Purchaser’s or its affiliates’ respective current
or former equity owners, members, managers, officers, partners, attorneys, agents, representatives, beneficiaries, heirs, successors
and assigns (collectively, the “Purchaser Released Parties”) shall have any liability to the Seller Related
Parties with respect to, based upon, arising from, resulting from, or relating to directly or indirectly the existence, substance,
possession, disclosure, or nondisclosure of any Company Information whatsoever, whether arising directly or indirectly, primarily
or secondarily, by contract or operation of law or otherwise, including, without limitation, as a matter of contribution, indemnification,
set-off, rescission, or reimbursement;
(ii) waives,
to the maximum extent permitted by law, any right, claim or cause of action at law or in equity with respect to, arising from,
based upon, resulting from or relating to directly or indirectly the existence, substance, possession, disclosure or nondisclosure
of any Company Information, including, without limitation, pursuant to Sections 10(b) and 20A of the Exchange Act, or the rules
and regulations promulgated by the Securities and Exchange Commission under the Exchange Act, or of any state statute or regulation;
(iii) forever
releases and discharges the Purchaser Released Parties of and from any and all suits, demands, obligations, liabilities, claims
and causes of action, contingent or otherwise, of every kind and nature, whether based on federal, state (including, without limitation,
federal and state securities laws) or foreign law, at law and in equity, whether asserted, unasserted, absolute, contingent, known
or unknown, which the Seller Related Parties may have against the Purchaser Released Parties, or any of them, to the extent arising
from, relating to, based upon, resulting from, relating to directly or indirectly, or in connection with the existence, substance,
possession, disclosure or nondisclosure of any Company Information; and
(iv) waives
any and all protections afforded by any state or federal statute or regulation that would, if enforced, have the effect of limiting
the enforceability or effectiveness of the foregoing releases or other foregoing provisions of this Agreement.
6. Conditions
to Purchase and Sale of the Shares.
6.1 Conditions
to Obligations of Purchaser. The obligation of the Purchaser to purchase the applicable Shares is subject to the fulfillment
or waiver of each of the following conditions on or before the Closing Date:
(a) Representations
and Warranties. The representations and warranties of the Seller contained in Section 3 shall be true and correct in
all material respects on and as of the Closing Date, with the same effect as though such representations and warranties had been
made on and as of such date.
(b) Performance.
The Seller shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions
contained in this Agreement that are required to be performed or complied with by the Seller on or before the Closing Date.
(c) Regulatory.
The Purchaser and the Seller shall have received all required authorizations or approvals from governmental authorities or regulatory
bodies, if any, related to the sale and purchase of the Shares contemplated hereby.
(d) Shares.
The Company shall have confirmed to the Purchaser in writing that the Shares represent less than fifteen percent (15%) of the
issued and outstanding Common Stock of the Company; provided, however, that if the Company is unable to confirm such statement
because the Shares to be purchased hereunder represent 15% or more of the issued and outstanding Common Stock of the Company,
then the number of Shares to be purchased hereunder (and the corresponding Purchase Price) shall automatically be reduced to the
first whole number that will make the Shares to be purchased hereunder represent less than fifteen (15%) of the issued and outstanding
Common Stock of the Company.
6.2 Conditions
to Obligations of the Seller. The obligation of the Seller to sell the applicable Shares is subject to the fulfillment or
waiver of each of the following conditions on or before the Closing Date:
(a) Representations
and Warranties. The representations and warranties of the Purchaser contained in Section 4 shall be true and correct
in all material respects on and as of the Closing Date, with the same effect as though such representations and warranties had
been made on and as of such date.
(b) Performance.
The Purchaser shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions
contained in this Agreement that are required to be performed or complied with by the Purchaser on or before the Closing Date.
(c) Board
Approval. On or prior to the date hereof, the board of directors of the Company shall have approved the transactions contemplated
hereby.
7. Termination.
If the Closing Date has not occurred by 11:59 pm E.S.T. on December 23, 2019 (the “Termination Time”) due to
any failure by the Purchaser to pay the Purchase Price, such failure to pay shall not constitute a breach of this Agreement and
this Agreement shall terminate unless both Parties agree in writing to extend such date and time. Notwithstanding the foregoing,
the Termination Time shall automatically be extended if the Parties are working in good faith to close the transactions contemplated
hereby and the only reason the Closing has not occurred is because the transfer agent requires additional time to appropriately
process the transfer of the Shares.
8. Miscellaneous.
(a) Governing
Law. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto
shall be governed, construed and interpreted in accordance with the laws of the State of Delaware, without giving effect to principles
of conflicts of law.
(b) Submission
to Jurisdiction; Venue; Waiver of Trial by Jury. Each of the Parties irrevocably submits to the exclusive jurisdiction
of any United States Federal court sitting in the State of Delaware, over any proceeding arising out of or relating to this Agreement
or the transactions contemplated hereby (or, solely to the extent that no such United States Federal court has jurisdiction over
such proceeding, to the exclusive jurisdiction of any state court sitting in Delaware with respect thereto). Each of the Parties
irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of
venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY
TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT
SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER,
(iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS SET FORTH IN THIS SECTION.
(c) Entire
Agreement; Enforcement of Rights; Amendment. This Agreement, together with any appendices hereto, sets forth the entire
agreement and understanding of the parties relating to the subject matter herein and merges all prior discussions between them
related thereto. No modification of or amendment to this Agreement shall be effective unless in writing signed by the parties
to this Agreement. Any waiver, permission, consent or approval of any kind or character on the part of any party of any breach
or default under this Agreement, or any waiver on the part of any party of any provisions or conditions of this Agreement, must
be in writing and shall be effective only to the extent specifically set forth in such writing. The failure by a party to enforce
any rights under this Agreement shall not be construed as a waiver of any rights of such party.
(d) Construction.
This Agreement is the result of negotiations between and has been reviewed by each of the parties hereto and their respective
counsel, if any; accordingly, this Agreement shall be deemed to be the product of all of the parties, and no ambiguity shall be
construed in favor of or against any one of the parties.
(e) Counterparts;
Originals. This Agreement may be executed in one or more counterparts and by PDF or other electronic transmission, each
of which shall be deemed an original and all of which together shall constitute one instrument.
(f) Consultation
with Advisors. The Seller and the Purchaser acknowledge and agree that they each had a full and complete opportunity to
consult legal, tax and business advisors and have in fact consulted such advisors with respect to this Agreement and any matters
hereunder to the extent it has deemed appropriate.
(g) Delays
or Omissions. No delay or omission to exercise any right, power or remedy accruing to any party under this Agreement,
upon any breach or default of any other party under this Agreement, shall impair any such right, power or remedy of such non-breaching
or non-defaulting party nor shall it be construed to be a waiver of any such breach or default, nor an acquiescence therein, nor
a waiver of or acquiescence in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permission, consent
or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on
the part of any party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the
extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to any
party, shall be cumulative and not alternative.
(h) Notices.
Unless otherwise provided, any notice required or permitted under this Agreement shall be in writing and shall be deemed to have
been duly given and received: (i) on the date of personal service thereof; (ii) on the third business day after mailing, if the
notice is mailed by registered or certified mail; (iii) one business day after being sent by professional or overnight courier
or messenger service guaranteeing overnight delivery, with receipt confirmed by the courier; or (iv) on the date of transmission
if sent by email, facsimile or by such other means of electronic transmission resulting in written copies, with receipt confirmed.
Any such notice shall be delivered or addressed to the parties at the most recent address specified by the addressee. Failure
to conform to the requirements that mailings be done by one of the above-specified methods shall not defeat the effectiveness
of notice actually received by the addressee.
(i) Specific
Performance. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms. It is accordingly agreed that the parties shall be entitled to seek
specific performance of the terms and provisions hereof in any Federal court sitting in the State of Delaware (or, solely to the
extent that no such Federal court has jurisdiction over such Proceeding, in any state court sitting in Delaware), this being in
addition to any other remedy to which they are entitled at law or in equity. Additionally, each Party irrevocably waives any defenses
based on adequacy of any other remedy, whether at law or in equity, that might be asserted as a bar to the remedy of specific
performance of any of the terms or provisions hereof or injunctive relief in any action brought therefor.
(j) Successors
and Assigns. Subject to the following sentence, the terms of this Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns. This Agreement may not be assigned by either Party hereto
without the prior written consent of the other Party; provided, however, that the Purchaser may, with notice to
the Seller, assign its obligation to purchase the Shares hereunder to one or more of its affiliates; provided, further,
that no such assignment will relieve the Purchaser of its obligations hereunder.
(k) Survival.
Each of the representations and warranties, covenants and agreements, set forth in this Agreement shall survive the Closing
under this Agreement.
(l) Section
Headings. The headings of the sections and subsections of this Agreement are inserted for convenience only and shall not
be deemed to constitute a part thereof.
(m) Further
Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and
shall execute and deliver all such other agreements, certificates, instruments and documents, as any other party may reasonably
request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions
contemplated hereby, including, with respect to the Seller, execution, acknowledgement and delivery of all further assignments,
transfers and any other such instruments of conveyance, upon the reasonable request of the Purchaser, to confirm the sale of the
Shares hereunder.
(n) Transaction
Expenses. The parties shall be responsible for their own fees and expenses related to the transactions contemplated by
this Agreement.
(o) Publicity.
No written public release or written announcement concerning the purchase of the Shares contemplated hereby shall be issued by
any Party without the prior written consent of the other Parties (which consent shall not be unreasonably withheld), except as
such release or announcement may be required by law (including the Exchange Act) or the rules or regulations of any securities
exchange, in which case the Party required to make the release or announcement shall, to the extent reasonably practicable, allow
the other Parties reasonable time to comment on such release or announcement in advance of such issuance.
(p) Securities
Act Legends. Each certificate representing Shares will have the following legend endorsed conspicuously thereupon:
THE SECURITIES REPRESENTED BY
THIS CERTIFICATE WERE ISSUED IN A PRIVATE PLACEMENT, WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”),
AND MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION UNDER THE ACT COVERING
THE TRANSFER OR AN OPINION OF COUNSEL, SATISFACTORY TO THE ISSUER, THAT REGISTRATION UNDER THE ACT IS NOT REQUIRED.
[remainder of page intentionally
left blank; signature pages follow]
IN WITNESS WHEREOF,
the parties hereto have executed this Stock Purchase Agreement as of the date first set forth above.
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THE SELLER:
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HG
Vora Special Opportunities Master Fund, Ltd.
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By:
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HG Vora Capital Management, LLC,
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Acting in its capacity as investment adviser
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By:
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/s/ Gary Moross
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Name: Gary Moross
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Title: Partner
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THE PURCHASER:
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KENNEDY LEWIS CAPITAL PARTNERS MASTER FUND LP
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By:
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/s/ Anthony Pasqua
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Name: Anthony Pasqua
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Title: Authorized Signatory
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