Exhibit 4.2
SHAREHOLDERS' AGREEMENT
THIS SHAREHOLDERS' AGREEMENT dated as of September 17th, 1998 (as amended,
supplemented or modified from time to time, the "Agreement") by and among DOVER
SADDLERY, INC., a Delaware corporation (the "Company") STEPHEN L. DAY, an
individual resident of New Hampshire ("Day"), JONATHAN A.R. GRYLLS, an
individual resident of New Hampshire ("Grylls"), DAVID POST, DONALD MOTSENBOCKER
and THOMAS GAINES (collectively, together with Day and Grylls, the
"Purchasers"), JAMES F. POWERS, an individual resident of Massachusetts ("JP"),
DAVID J. POWERS, an individual resident of Massachusetts ("DP") and MICHELE R.
POWERS, an individual resident of Massachusetts ("MP" and, collectively with JP
and DP, the "Sellers"). The Purchasers and the Sellers are sometimes
collectively referred to herein as the "Shareholders."
RECITALS
WHEREAS, pursuant to a Stock Purchase Agreement (the "Purchase Agreement")
dated as of August 14, 1998 among the Company and the Sellers, the Sellers are
selling, and the Company is purchasing, all of the capital stock of Dover
Saddlery, Inc., a Massachusetts corporation; and
WHEREAS, in connection therewith, the ownership of the capital stock of the
Company shall be as set forth on Annex I; and
WHEREAS, the Purchasers and the Sellers wish to set forth certain
agreements and understandings among themselves as more particularly set forth
herein so as to facilitate the ongoing operations of the Company.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration the receipt of and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
Section 1. Definitions.
(a) As used in this Agreement, unless otherwise defined herein, terms
defined in the Purchase Agreement (as in effect on the date hereof, whether or
not the Purchase Agreement is thereafter terminated or expires according to its
terms) shall have such defined meanings when used herein and the following terms
shall have the following meanings, unless the context otherwise requires:
"Board" shall mean the then current Board of Directors of the Company.
"Call Period" shall mean the period commencing 9:00 a.m New York time on
the eight year anniversary of the date of this Agreement and ending at 5:00
p.m., New York time, on the date preceding the nine year anniversary of the date
of this agreement; provided that in the event that a Liquidity Event shall have
occurred prior to the expiration of the Call Period, the Call Period shall
expire on the date of such Liquidity Event.
"Call Price" shall have the meaning given to such term in subsection
12(a)(i).
"Call Right" shall have the meaning given to such term in subsection
12(a)(i).
"Citizens" shall mean, collectively, Citizens Capital, Inc., and Citizens
Ventures, Inc. and their respective successors and assigns in their collective
capacity as lender of subordinated debt to and holder of capital stock of the
Company.
"Citizens Agreement" shall mean those certain Securities Purchase
Agreements of even date herewith between the Company and Citizens, as amended,
modified or supplemented from time to time.
"Citizens Stockholders and Registration Rights Agreement" shall mean that
certain Stockholders and Registration Rights Agreement of even date herewith
among the Company, Citizens and Day, as amended, modified or supplemented from
time to time.
"Closing Date" shall mean September 17, 1998, the date of the closing of
the Contemplated Transactions (as defined in the Purchase Agreement).
"Commission" shall mean the Securities and Exchange Commission or any
entity succeeding to any or all of its functions under the Securities Act and
the Exchange Act.
"Common Stock" shall mean the common stock (class A and B) of the Company,
without par value, and shall include any stock into which such Common Stock
shall have been changed or any stock resulting from any reclassification of such
Common Stock.
"EBITDA" shall mean earnings (or losses) from operations for any period,
after all expenses and other proper charges but before payment or provision for
any depreciation, amortization, income taxes and increased by interest expense
(including non-cash interest expense) and, to the extent consistent with both
the setting of the EBITDA budget and measuring the Company's performance,
pension expense and option or warrant related expenses for such period.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
or any successor federal statute and the rules and regulations of the commission
promulgated thereunder, all as the same may remain in effect from time to time.
"Fair Market Value" shall mean the per share fair market value of the
capital stock of the Company or any applicable portion thereof as determined by
an independent valuation expert (the "Expert") selected by the Board and paid
for by the Company, determined in good faith by valuing
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the Company assuming the Company is sold to an independent third party as a
going concern with no discount for lack of liquidity of the Company's common
stock or the minority ownership discount and assuming exercise of all "in the
money" warrants and any other rights to purchase shares which may be outstanding
(i.e. warrants and other rights where the strike price is less than the Fair
Market Value of the shares that issue on exercise).
"Liquidity Event" shall mean an initial public offering of the Common Stock
of the Company which yields proceeds in an amount equal to or greater than
$10,000,000.
"Material Adverse Effect" shall mean a material adverse effect on the
business, properties, financial condition, prospects or operations of the
Company.
"Permitted Acquisition" shall mean the acquisition or proposed acquisition
by the Company or any Person that controls or is controlled by, or under common
control with the Company of all or any portion of the stock or assets of an
"Unrelated Person" whose line(s) of business, whether primary or secondary or
otherwise, involves or are in any way reasonably related to the catalog,
mail-order, equine, sport, or the equine or sport retail businesses. For
purposes of the definition of Permitted Acquisition and of clauses (i) and (ii)
of Section 3, an "Unrelated Person" shall mean a Person who is not controlled by
Day or the Company or as to which Day directly or indirectly owns 20% or less of
the equity interests of such person.
"Person" shall mean any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, limited
liability partnership, joint venture, estate, trust, association, organization,
labor union, or other entity or governmental body.
"Put Closing Date" shall have the meaning given to such term in subsection
11(a)(i).
"Put Period" shall mean the period commencing at 9:00 a.m., New York time,
on the seven year anniversary of the date of this Agreement and ending at 5:00
p.m., New York time, on the date preceding the eight year anniversary of the
date of this agreement; provided that in the event that a Liquidity Event shall
have occurred prior to the expiration of the Put Period, the Put Period shall
expire on the date of such Liquidity Event.
"Put Price" shall have the meaning given to such term in subsection
11(a)(i).
"Put Right" shall have the meaning given to such term in subsection
11(a)(i).
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
successor federal statute and the rules and regulations of the Commission
promulgated thereunder, all as the same may be in effect from time to time.
"Senior Loan Documents" shall mean those agreements, documents and
instruments in effect from time to time which evidence or secure senior
indebtedness of the Company.
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(b) For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(i) "Herein", "hereof" and "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular Section
or other subdivision;
(ii) Any uses of the masculine, feminine or neuter gender shall also
be deemed to include any other gender as appropriate;
(iii) The exhibits and schedules to this Agreement shall be deemed an
integral part of this Agreement;
(iv) All references herein to any action(s) which are to be taken (or
which are prohibited from being taken) by any Person or the Company shall
apply to such Person or the Company, as the case may be, whether such
action is taken directly or indirectly; and
(v) All references herein to actions by the Company (including,
without limitation, actions denoted by terms such as "create", "sell",
"transfer" or "dispose of") mean such action whether voluntary or
involuntary, by operation of law or otherwise.
Section 2. Election of Directors; Number of Directors, Certain Financial
Information.
(a) Each Shareholder hereby irrevocably agrees (i) to vote all of the
Common Stock each such Shareholder holds (whether now or hereafter acquired), at
any annual or special shareholders meeting called for such purpose, in favor of,
and (ii) whenever the shareholders of the Company act by written consent with
respect to election of directors, the right and power to vote or otherwise, to
give such Shareholder's consent in respect of the Common Stock it holds (whether
now or hereafter acquired), in favor of, and the Company shall take all
necessary and desirable actions within its control to effect, the following
actions:
(i) the establishment and setting of the authorized number of
directors on the Board of Directors of the Company (the "Board") at five
(5) directors except as provided otherwise in subsection (iii) of this
Section 2(a);
(ii) the designation and election of certain members of the Board as
follows:
(1) at all times prior to a Liquidity Event, two individuals
designated by Sellers, who shall initially be JP and DP or, if one of them shall
be unwilling or unable to serve, either MP or an individual designated pursuant
to subsection 2(a)(v);
(2) Day and an individual who shall be designated by Day; and
(3) an individual mutually agreeable to Day and the Sellers (the
"Fifth Director")
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all of which persons or designees shall hold office, subject to their
earlier removal in accordance with clause (iv) below, the By-laws of the
Company and applicable corporate law, until their respective successors
shall have been elected and shall have qualified;
(iii) (1) if required by Citizens pursuant to the Citizens
Stockholders and Registration Rights Agreement, to increase the authorized
number of directors on the Board to six (6) directors and to elect an
additional director to be designated by Citizens; and
(2) if Citizens so requires a sixth director, to increase the
authorized number of directors on the Board to seven (7) directors, and to
elect an additional director selected by the affirmative vote of at least
four (4) of the existing six (6) directors.
(iv) the removal from the Board (with or without cause) of any
representative (other than a director elected or designated pursuant to
clauses (a)(ii) or (a)(iii) (1) of this Section 2 (any such director
being referred to herein as an "Independent Director")) designated
hereunder by the Person(s) entitled to make such designation hereunder (or
under the Citizens Stockholders and Registration Rights Agreement, as the
case may be), upon such Person(s') written request for removal as to its
designee, but only upon such written request; provided that (i) no director
may be removed by any Person(s) not entitled to designate such director
hereunder and (ii) any Independent Director may be removed with cause or
without cause by a majority vote of the Shareholders;
(v) upon any vacancy in the Board as a result of any individual,
excepting, any Independent Director designated or otherwise serving as
provided in clause (ii) above ceasing to be a member of the Board, whether
by resignation, removal pursuant to subsection (iv) hereof, or otherwise,
the election to the Board of an individual designated by the Shareholder or
Shareholders which designated the individual who shall have so ceased to be
a member of the Board; and
(vi) upon the resignation, removal or death of the Fifth Director, his
replacement will be chosen in the following manner: (A) Day shall propose a
replacement board member and such Person shall be either accepted or vetoed
by the Sellers; (B) In the event such person is vetoed by the Sellers, the
process set forth in item (A) shall be repeated, up to two additional times
(for a total of three times); (C) In the event a successor still has not
been approved by the Sellers, Day shall have the right to choose two
nominees (which may include persons previously nominated and rejected by
the Sellers), and the Sellers shall have the right to choose two nominees.
Citizens shall then choose the Fifth director from among these nominees.
All proposed replacements to the Fifth Director, (or any successor to the
Fifth Director) shall be reasonably independent and have sufficient
experience to fill their position as a director of the Company.
(b) The Company will reimburse all such directors for travel expenses
reasonably incurred in connection with attending meetings of the Board.
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(c) Any Person serving as an officer of the Company shall not be
compensated for his service as a director of the Company so long as he continues
to serve as an officer of the Company and shall thereafter be compensated in an
amount determined by the Board but not in excess of the amount paid to JP or DP.
JP and DP shall each receive $750 per meeting as a consulting fee and each other
director shall receive $750 per meeting as a director's fee.
(d) The officers of the Company shall, until otherwise elected by the
Board, be as follows:
President, Treasurer and Secretary - Day
(e) Until a Liquidity Event shall have occurred, the Company shall deliver
to each Seller, (a) promptly following the date delivered to the lender under
the Senior Loan Documents, (i) a consolidated balance sheet of the Company as at
the end of such fiscal year, and consolidated statements of income and of cash
flows of the Company for such fiscal year, accompanied by a report thereon of
independent certified public accountants, and (ii) any unaudited quarterly or
monthly financial statements delivered by the Company to such holder(s)
containing, if required by such lender, comparisons to budget and prior year
result and (b) timely notification of all events requiring consent under section
3 hereof and prompt notification following the occurrence of other significant
legal and financial events of the Company.
Section 3. Certain Consents and Rights of Sellers. At all times prior to
the earlier to occur of (a) a Liquidity Event, or (b) (1) in the case of clauses
(iii), (iv) and (v) of this Section 3, the first date on which none of the
individual Sellers remains a member of the Board (other than by reason of the
death, disability, or incapacity of all of the Sellers) and (2) in the case of
clauses (i), (ii) and (vi) the first date on which none of the individual
Sellers remains a Shareholder, the consent of the Sellers (which consent will be
deemed to have been obtained if, within ten days following a request therefor, a
majority in interest of the Sellers shall have (x) consented in writing to, (y)
voted in favor of or (z) not objected in writing to or voted against, such
request) must be obtained with respect to the taking of any of the following
actions by the Company; (i) a merger of the Company with or into an entity
controlled by Day or the Company or under common control with the Company or
which is not an Unrelated Person; (ii) an acquisition by the Company of the
stock or assets of an entity controlled by Day or the Company or under common
control with the Company or which is not an Unrelated Person; (iii) an
acquisition which is not a Permitted Acquisition; (iv) the guarantee by the
Company of the obligations of third parties, except as permitted by the Citizens
Agreement or the Senior Loan Documents; (v) the payment of a salary to Day in
excess of $150,000 during the first year following the date hereof and (vi) the
issuance of any new equity securities other than (A) issuances pursuant to the
Company's incentive plans authorized by Section 13 hereof, (B) upon conversion
of the Company's 8% Convertible Preferred Stock originally issued to Citizens,
(C) upon conversion of shares of one class of Common Stock for shares of the
other class thereof, (D) pursuant to offerings to which the Sellers' preemptive
rights under this Agreement are applicable, and (E) pursuant to stock for stock
mergers with an unrelated third party where such securities are issued at a
value which reasonably approximates Fair Market Value provided that if for the
purposes of this clause (vi)(E) of Section 3 only, the Company is in compliance
with all of its financial covenants under the
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Senior Loan Documents and the Citizens Agreement, the Sellers shall be deemed to
have given their consent (as a Seller but not as a director of the Company) to
such issuance if such issuance is approved by the Board. The consent rights set
forth in this Section 3 are personal to Sellers and may not be transferred to
any Person other than a Permitted Transferee.
Section 4. Stock Transfer Restrictions.
(a) (i) Prior to a Liquidity Event, no Shareholder may transfer, sell,
convey, exchange, pledge, request, assign or otherwise dispose of (each being a
"Transfer"), and the Company shall not register the transfer of, any Common
Stock, except to Permitted Transferees or otherwise in accordance with this
Agreement.
(ii) In case of a Shareholder who is a natural person, "Permitted
Transferee" shall include:
(1) the spouse of such Shareholder, any lineal descendant of such
Shareholder, and any spouse of such lineal descendant (which descendants, their
spouses, the Shareholder, and his or her spouse are herein collectively referred
to as "Family Members");
(2) the trustee of (A) a trust (including without limitation a voting
trust) principally for the benefit of Family Members (or, in the case of
Sellers, for other Sellers or their family members), (B) a charitable trust, or
(C) a pension trust;
(3) the estate of such Shareholder;
(4) bona fide gifts to Family Members or to other Persons approved in
writing by the Board;
(5) a corporation or limited liability entity controlled by such
Shareholder, provided that reasonable transfer restrictions approved by the
Board are imposed on the stock or other ownership interests therein consistent
with this Section 4 for the benefit of the Shareholders of the Company; and
(6) another Shareholder.
(iii) In the case of a Shareholder holding the Common Stock in
question as trustee pursuant to a trust, "Permitted Transferee" also means (A)
any Person transferring Common Stock to such trust, or if irrevocable, any
Person to whom or for whose benefit principal may be distributed and (B) any
Permitted Transferee of any such transferor determined pursuant to clause
(a)(ii) above.
(iv) In the case of a Shareholder that is a corporation, limited
liability company or partnership acquiring record and beneficial ownership of
the shares of Stock upon initial issuance, ownership interests therein shall be
subject to restrictions as contemplated by Section 4 (ii)(5), and "Permitted
Transferee" means any subsidiary thereof (which is understood to include
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any subsidiary under common control), any Person of which such corporation,
limited liability company or partnership is a subsidiary, or any partner of such
partnership.
(v) In the case of a Shareholder that is the estate of a deceased
Shareholder, or which is the estate of a bankrupt or insolvent Shareholder,
which holds record and beneficial ownership of the shares of Common Stock in
question, "Permitted Transferee" means a Permitted Transferee of such deceased,
bankrupt or insolvent Shareholder as determined pursuant to clauses (ii) or
(iii) or (iv) above, as the case may be.
(b) Notwithstanding anything to the contrary set forth herein, (i) any
Shareholder may pledge such Shareholder's shares of Common Stock in the Company
pursuant to a bona fide pledge of such shares as collateral security for
indebtedness due to the pledgee; provided that (1) such shares shall be
transferred to or be registered in the name of the pledgee and shall remain
subject to the provisions of this Section 4, in particular and to this
Agreement, generally, and (2) the Board approves the form of such pledge in
writing (which approval will not be unreasonably withheld); and (ii) any
Shareholder may pledge any and all of their respective Common Stock to any
holder of senior indebtedness of the Company, provided that, notwithstanding
anything to the contrary herein, if such holder of senior indebtedness otherwise
becomes the transferee of any such pledged shares, such shares and such holder
and any transferee shall not thereafter be subject to this Agreement.
(c) For purposes of this Section 4:
(i) The relationship of any Person that is derived by or through legal
adoption shall be considered a natural one.
(ii) Each joint owner of shares of Common Stock shall be considered a
Shareholder of such shares.
(iii) A minor for whom shares of Common Stock are held pursuant to a
Uniform Gifts to Minors Act or similar law shall be considered a
Shareholder of such shares.
(d) (i) At least 30 days prior to making any Transfer by any Shareholder of
any Common Stock (other than to a Permitted Transferee or as otherwise permitted
under this Agreement), the transferring Shareholder (the "Transferring
Shareholder") will deliver a written notice (the "Offer Notice") to the Company
and the other Shareholders. The Offer Notice will disclose (i) the proposed
number of shares of Common Stock to be transferred (the "Subject Shares"), (ii)
the identity of the prospective transferee(s) if then known (provided that, if
not then known, such identity shall be disclosed to the Company and to the other
Shareholders by the Transferring Shareholder as soon as it is known), (iii) the
proposed form, timing and method of payment for the Subject Shares, and (iv) the
price at which the Subject Shares are proposed to be transferred. The other
Shareholders may elect to purchase, on a pro rata basis all or any part of the
Subject Shares at the price and on substantially equivalent terms (including the
form and method of payment) specified therein by delivering written notice of
such election to the Transferring Stockholder within 15 days after the delivery
of the Offer Notice. If the other
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Shareholders have elected to purchase the Subject Shares from the Transferring
Stockholder, the transfer of such shares will be consummated as soon as
practical after the delivery of the election notice, but in any event within 30
days after the delivery of the Offer Notice. If the other Shareholders do not
elect to purchase all of the Subject Shares being offered or if the other
Shareholders elect to purchase all of the Subject Shares but not do consummate
the purchase within the 30 days, the Transferring Stockholder may, within 120
days after the expiration of the thirty 30-day period for consummation, transfer
the Subject Shares not being purchased by the other Shareholders to one or more
third parties at a price and on other terms no more favorable (including the
form, timing and method of payment for the Subject Shares) to the transferees
than offered to the other Shareholders in the Offer Notice. Any Subject Shares
not transferred within such 120-day period will be subject to the provisions of
this Section 4(d) upon subsequent transfer. Any Shareholder who at any time
elects to purchase any Subject Shares and twice during the term of this
Agreement breaches its obligations to close such purchase shall forfeit all
further rights under this Section 4(d) with respect to future Offer Notices.
(e) The Company shall have the right to object to a proposed transferee
pursuant to Section 4(d) on the grounds set forth below by delivering to the
Transferring Stockholder, within 10 days after the identification of such
transferee, a notice of such objection stating that the proposed transferee is
(i) a competitor or a Person who or which could reasonably be expected to be a
competitor (or an affiliate of a competitor, or of any such Person who or which
could reasonably be expected to be a competitor, of the Company or any
subsidiary of the Company) or (ii) a Person who has committed a felony or has
sued or been sued by the Company or any subsidiary of the Company or any of
their respective officers, directors, or employees. In such event, the
Transferring Stockholder shall not proceed with any further steps relating to
the offer made by such transferee and shall not complete the transfer of the
Subject Shares to such transferee.
(f) Registration. Shares of Common Stock shall be registered in the names
of beneficial owners thereof and not in "street" or "nominee" name. For this
purpose, a "beneficial owner" of any shares of Common Stock shall mean a Person
who possesses the power, either singly or jointly, to direct the disposition of
such shares. The Company shall note on the certificates for shares of Common
Stock the restrictions on transfer and registration of transfer imposed by this
Section 4 and otherwise in this Agreement.
(i) At the closing of any sale of Common Stock pursuant to this
Section 4, the Transferring Shareholder shall deliver to the purchaser the
share certificates and other instruments representing such Common Stock,
together with stock powers and other instruments transferring such Common
Stock, duly endorsed for transfer and free and clear of any claim,
mortgage, charge, pledge, lien, security interest or encumbrance of any
kind, and the purchaser shall deliver to the Transferring Shareholder the
consideration payable upon closing.
(ii) In any event, prior to the effectiveness of registration of any
transfer or sale of Common Stock pursuant to this Section 4, the transferee
or purchaser shall execute such
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documents as the Company may reasonably request to bind such transferee or
purchaser to the terms and conditions of this Agreement.
Section 5. Drag-Along Right. If the Board and at least 50% in interest of
the Shareholders of the Company approve a sale of the Company to a Person not
controlled by Day or the Company or under common control with the Company and,
in connection therewith, the Company enters into an agreement to sell or cause
the sale of all or substantially all of the Common Stock or all or substantially
all of the assets and (i) such sale is structured such that, in the event less
than all of the Common Stock of the Company is being sold, the Shareholders of
the Company shall sell a pro rata portion of their shares (ii) the sale price
reasonably approximates Fair Market Value and (iii) the consideration received
by the Sellers for such sale is in the form of either cash or marketable
securities (unless any or all Sellers elect to accept other consideration), (an
"Approved Sale"), the Shareholders will consent to and raise no objections to
the Approved Sale, and (i) if the Approved Sale is structured as a sale of
stock, the Shareholders will agree to sell all of their Common Stock, and rights
to acquire Common Stock, on the terms and conditions approved by the Board, and
(ii) if the Approved Sale of the Company is structured as a merger, a
consolidation or other reorganization, the Shareholders will vote in favor
thereof and will not exercise any dissenters' rights of appraisal they may have
under the law of the state of incorporation of the Company, at such time. The
Shareholders will cooperate in the Approved Sale and will take necessary and
desirable actions in connection with the consummation of the Approved Sale as
are reasonably requested by the Board; provided that the Shareholders shall not
be required to incur any out-of-pocket expenses in connection with such Approved
Sale which are not reimbursed by the Company .
Section 6. Tag-Along Right.
(a) If Day or Grylls or any Permitted Transferee thereof (a "Disposing
Purchaser") enter into an agreement to sell or cause the sale of any or all of
their and their Affiliates' Common Stock to any Person or group of Persons
acting in concert (an "Acquirer") other than a Permitted Transferee (a
"Disposition"), such Disposing Purchaser shall, at least 30 days prior to the
consummation of the Disposition, give notice (a "Disposition Notice") to each of
the other Shareholders describing the terms and conditions of the Disposition in
reasonable detail, including the proposed price per share of Common Stock, the
method of payment, the anticipated closing date and the identity of the
Acquirer, and stating that each of the Shareholders may elect to participate in
such Disposition in accordance with this Section 6.
(b) The election by the Shareholders pursuant to Section 6(a) shall be
exercised by notice to such Disposing Purchaser given within the time period
specified in the Disposition Notice, which time period shall not be less than 20
business days after such Disposition Notice is given. If a Shareholder gives
notice of its election to sell (an "Electing Shareholder"), such Electing
Shareholder shall be obligated to sell to, and the Disposing Purchaser shall be
required to include in the sale to, the Acquirer the shares of Common Stock
specified in its notice upon the terms and subject to the conditions specified
in the Disposition Notice, conditional upon the closing of the Disposition and
the possible reduction in the number of shares pursuant to Section 6(c) below.
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(c) If the Acquirer, pursuant to the Disposition, has a specified limited
number of shares of Common Stock which it is willing to purchase in the
aggregate (the "Maximum Number"), each of the Electing Shareholders, Citizens
(to the extent it is electing to sell shares pursuant to any tag along right it
may have), and the Purchasers or their Affiliates (collectively, the "Disposing
Shareholders") shall have the right to sell to the Acquirer that number of
shares of Common Stock owned by such Disposing Shareholder which equals the
product of (a) the Maximum Number times (b) a fraction, the numerator of which
is the number of shares of Common Stock then held by such Disposing Shareholder
as of the date of the Disposition Notice, and the denominator of which is the
number of shares of Common Stock then held by all Disposing Shareholders and the
Disposing Purchaser (calculated on a fully diluted or "as converted" basis), all
as of such date (the "Tag-Along Share"). If any Disposing Shareholder elects to
sell less than its full Tag-Along Share to the Acquirer (such Shareholder being
referred to as a "Partially Disposing Shareholder"), the other Disposing
Shareholders may sell additional shares of Common Stock to the Acquirer to the
extent of the shares of Common Stock not sold by any Partially Disposing
Shareholders pursuant hereto.
(d) The sale or transfer of shares of Common Stock to the Acquirer by the
Shareholders pursuant to this Section 6 shall occur simultaneously.
(e) This Section 6 shall not apply to any sale of Common Stock as part of
any public offering of the Company's Stock.
Section 7. Representations and Warranties Relating to an Approved Sale or
Disposition. In connection with any Approved Sale or Disposition in which any
Common Stock is to be sold by a Seller, the Purchasers may require such Seller
to enter into agreements with the purchaser or Acquirer representing and
warranting that, except as specifically disclosed to the purchaser or Acquirer
in writing, such Seller, at the time of the closing of the Approved Sale or
Disposition, has good and marketable title, free and clear of liens and
encumbrances, in such Seller's Common Stock. The liability of the Seller under
such representation and warranty shall be limited to the amount which he
receives from the sale of his stock in connection with the Approved Sale or
Disposition.
Section 8. Commission Rules. If the Purchasers or their Affiliates enter
into any negotiation or transaction for which Rule 506 (or any similar rule then
in effect) promulgated by the Commission may be available with respect to such
negotiation or transaction (including a merger, consolidation or other
reorganization), then the Purchasers will, to the extent required to comply with
Rule 501, appoint a purchaser representative (as such term is defined in Rule
501) reasonably acceptable to the Sellers. If the Purchasers appoint a purchaser
representative, the Company will pay the fees of such purchaser representative
(including legal fees).
Section 9. Preemptive Rights.
(a) Prior to a Liquidity Event, the Company shall not issue any capital
stock or any security convertible into or having rights to purchase capital
stock, including without limitation
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shares of capital stock that have a right to participate generally in dividends
or distribution of assets upon liquidation, dissolution or the winding up of the
Company ("Participating Securities"), or any securities containing options or
rights to acquire any shares of Participating Securities, or any securities
exchangeable into Participating Securities, (other than a dividend on any
outstanding Common Stock or Participating Securities) (collectively, "Offered
Securities") unless the Company shall have first offered such Offered Securities
(the "Offer") pro rata to all Shareholders on the same terms and conditions. The
Offer shall specify the number of Offered Securities proposed to be issued by
the Company and the price per Offered Security and shall limit the time within
which the Offer, if not accepted, will be deemed to be declined (which time
shall be not less than 20 days nor more than 40 days after the date of the
Offer). Each Shareholder shall then have the right, exercisable by notice to the
Company within the time period specified in the Offer, to purchase his "Pro Rata
Share" of the Offered Securities at the price per Offered Security referred to
in the Offer. As used in this Section 9 the term "Pro Rata Share" shall mean the
product of (i) the total number of Offered Securities referred to in the Offer
and (ii) a fraction, the numerator of which is the number of shares of Common
Stock held by the Shareholder on the date the Offer is made and the denominator
of which is the aggregate number of shares of Common Stock owned by the
Shareholders.
(b) If any Offered Securities shall not be capable of being offered to or
being divided among the Shareholders in exact conformity to their Pro Rata Share
without division into fractions, the same shall be offered to or divided among
the Shareholders as nearly as may be in proportion to their Pro Rata Share
without division into fractions, as may be determined in good faith by the
Board.
(c) The closing of a purchase and sale pursuant to this Section 9 shall be
held at the principal office of the Company on the date specified in the Offer,
which date shall be not less than 15 or more than 30 days after the time at
which the Offer, if not accepted, will be deemed to be declined.
(d) If any Shareholder does not elect to purchase the full number of
Offered Securities which he or she is entitled to purchase pursuant to this
Section 9, the balance shall be offered pro rata to the remaining Shareholders
that did elect to purchase their Pro Rata Share on the terms specified in the
Offer and any of the Offered Securities not purchased by such remaining
Shareholders (the "Remaining Securities"), may be issued in compliance with
Section 9 above to such Person or Persons as the Board may in good faith
determine, but, in any event, at a price and on terms no less favorable to the
Company than specified in the Offer, provided however, that if such sale of
Remaining Securities is not consummated within one hundred eighty (180) days
after the expiration of the offer period pursuant to Section 9(a), the Company
shall not sell such securities without again complying with this Section 9.
(e) No Shareholder shall have any preemptive right to acquire stock from
the Company except pursuant to this Section 9 and, without limiting the
generality of the foregoing, shall have any preemptive rights with respect to,
or at any time after, a Liquidity Event, on any public offering of the Common
Stock of the Company, on the conversion of the 8% Convertible
12
Preferred Stock of the Company, or on the conversion of shares of one class of
common stock into shares of the other class thereof.
Section 10. Registration Participation Rights.
(a) If, at any time the Company proposes to register any of its shares of
Common Stock under the Securities Act, the Company shall give written notice of
such proposed registration to the Sellers as promptly as possible and shall,
subject in all cases to Section 10(b) hereof, include at the Company's sole
expense, (excluding underwriters' discounts and/or commissions) in such
registration and, if applicable, any ensuing public offering, a proportionate
number of shares of Common Stock then owned by the Sellers, such registration
and inclusion in any public offering to be upon the same terms (including the
method of distribution) as the Common Stock being registered and sold by the
Company.
(b) The Company's obligation to include the Common Stock owned by the
Sellers in any such registration and public offering pursuant-to-Section 10(a)
shall in all cases be subject to the following limitations and qualifications:
(i) The Company shall not be required to give notice to the Sellers or
include the Common Stock of the Sellers in any such registration if the
proposed registration is a registration made after the Company has
registered Common Stock under the Securities Act and such subsequent
registration is (A) of a stock option or other compensation plan or divided
reinvestment plan or a registration of Common Stock issued or issuable
pursuant to any such plan, (B) a registration of Common Stock proposed to
be issued in exchange for securities or assets of, or in connection with a
merger or consolidation with, another Person or (C) a registration of
Common Stock effected upon the exercise by Citizens of its "demand"
registration rights;
(ii) If the Company is advised in writing by its managing underwriter
that the number of shares of Common Stock requested to be included in such
registration exceeds the number of such securities which can be sold in an
orderly manner in such offering, the number of shares to be included in
such registration shall be determined on a pro rata basis among all
shareholders in accordance with the number of shares of Common Stock
requested by each shareholder to be included in such registration; and
(iii) The Company may, in its sole discretion and without the consent
of the Sellers, withdraw such registration statement and abandon the
proposed public offering in which any Shareholder had requested to
participate, but such abandonment shall not preclude an immediate or
subsequent request for registration, which shall nevertheless be subject to
this Section 10.
(c) The Sellers shall be afforded, and are hereby granted (i) the same
rights and the same treatment as the Purchasers in the case of any registration
initiated by Citizens pursuant to the Citizens Stockholders and Registration
Rights Agreement and (ii) the right to receive the
13
benefit of the most favorable "piggyback" registration rights granted or
afforded to any shareholder other than Citizens.
(d) As a condition to the inclusion of a Seller's Common Stock in any
registration statements, each such Seller requesting registration thereof will
furnish to the Company such information with respect to such Seller as is
required to be disclosed in the registration statement (and the prospectus
included therein) by the applicable rules, regulations and guidelines of the
Commission. Failure of a Seller to furnish such information or agreement shall
not affect the obligation of the Company under this Section 10 to the remaining
Shareholders who furnish such information.
(e) In connection with any such registration, the Company and the
Shareholders shall take all necessary actions under any federal or state
securities or blue sky law, including without limitation Rule 144 (or any
similar rule then in effect) promulgated by the Commission to effectuate such
registration and permit sales of shares thereunder.
(f) Within ninety (90) days following the first offering of Common Stock by
the Company pursuant to a registration under the Securities Act, the Company
shall register its Common Stock under the Securities Exchange Act of 1934 (the
"1934 Act") and shall become and shall thereafter, as long as any Stock shall be
outstanding and the Company remains public, remain subject to the reporting
requirements of either Section 13 or Section 15(d) of the 1934 Act. At all times
thereafter the Company shall file with the Securities and Exchange Commission in
a timely manner such information as the Commission may require under either of
said Sections, and shall take all action as may be required to be taken under
the 1934 Act to permit sales of the Shares pursuant to Rule 144 (or any similar
or successor exemptive rule hereafter in effect) and the use of Form S-3 (or any
similar form which hereafter may be promulgated under the Securities Act) for
registration of the Shares. The Company shall register or qualify the securities
covered by a registration statement which included shares under the securities
or blue sky laws of such jurisdictions as each selling holder of Shares shall
reasonably request, and do any and all other acts and things which may be
necessary or advisable to enable such holder to consummate the disposition of
the securities in such jurisdiction, but in no event shall the provisions hereof
be deemed to require the Company to register or qualify as a foreign corporation
or as a broker or dealer in any jurisdiction.
Section 11. Put Rights.
(a) Subject to the limitations hereinafter set forth each Shareholder shall
have the right, upon written notice to the Company delivered during the Put
Period, to require the Company, subject to the availability of financing and to
receipt of all approvals required under the Senior Loan Documents and the
Citizens Agreement (and the absence of any default or event of default
thereunder both before and after giving effect thereto), to purchase all, but
not less than all, of the respective ownership interest of such Shareholder in
the Company (any such right being herein called a "Put Right"). The price to be
paid to such Shareholder upon exercise of a Put Right shall be an amount equal
to the Fair Market Value of such ownership interest at the date the notice
14
exercising such Put Right is given to the Company (the "Put Price"). The Company
shall use reasonable efforts to obtain such financing and such approvals.
(b) The Put Price shall be determined and calculated in accordance with
subsection 11(a) by the Expert. The Expert may be, but shall not be required to
be, the Company's independent certified public accountants provided they satisfy
the definition of Expert. The Company shall fully disclose to the Expert any
pending or contemplated transaction which could have a material bearing on the
value of such interest. The Company shall cause the Expert to deliver to the
Company and such Shareholder, not later than 90 days following the date on which
the notice exercising the Put Right was given, a written statement, signed by
the Expert, setting forth in reasonable detail the Fair Market Value of such
ownership interest and the calculation thereof and stating that such calculation
was made and delivered pursuant to this Section 11.
(c) The completion of the purchase and sale of such ownership interest
pursuant to exercise of the Put Right shall take place on the later of (i) the
ninetieth (90th) day following the date on which the Fair Market Value of such
ownership interest is determined pursuant to Section 11(b) or (ii) the last
business day of the calendar quarter in which such ninetieth day occurs, unless
another date is mutually agreed upon by the Company and such Shareholder (the
"Put Closing Date"). The Put Price for such purchase and sale shall be paid by
the Company to such Shareholder in immediately available funds against delivery
of certificates representing such ownership interest to be purchased, duly
endorsed for transfer to the Company.
(d) The certificates representing such ownership interest shall bear a
legend indicating that such ownership interest is subject to the provisions of
this Section 11.
(e) Notwithstanding any provision of this Agreement to the contrary, all of
such ownership interest which is sold pursuant to an effective registration
statement under the Securities Act shall, upon such sale, cease to be subject to
the provisions of this Section 11.
(f) In the event that the employment of either Day or Grylls is
involuntarily terminated by the Company or the Board, such terminated employee
shall have a Put Right with respect to that number of shares of the Common Stock
of the Company, valued at Fair Market Value at the time of such termination then
held by such terminated employee, which is equal to the amount of their
respective original investment i.e. $750,000 in the case of Day or $50,000 in
the case of Grylls, which may be exercised by their giving of written notice to
the Company within sixty (60) days of the effective date of such termination and
which otherwise shall be on the same terms and conditions as are set forth in
subparagraphs 11(a) through 11(e) inclusive except that (i) the Put Price shall
be paid pursuant to a scheduled payout over time (but in no event longer than
four (4) years in the aggregate) determined by the Board, (ii) such Person shall
enter into a non competition agreement (with a term not to exceed one (1) year
in duration) with the Company on customary and reasonable terms and conditions
mutually acceptable to such Person and to the Board and (iv) notwithstanding
Section 2(a)(i)(2), after giving effect to such Put Right, Day shall only be
able to designate members of the Board as set forth in the following table:
15
Percentage of Original Number of Shares
(adjusted for all prior recapitilizations) held Number of Board Members (including
by Day after Put himself to be Designated by Day
- ----------------------------------------------- ----------------------------------
75% - 100% 2
30% - 74.99% 1
less than 30% 0
The balance of any equity securities held by Day or Grylls following the
exercise of this Put Right shall remain subject to all of the other terms and
conditions of this Agreement.
Section 12. Call Rights.
(a) Subject to the limitations hereinafter set forth, the Company shall
have the right, subject to the availability of financing and to receipt of all
approvals required under the Senior Loan Documents and the Citizens Agreement
(and the absence of any default or event of default thereunder both before and
after giving effect thereto), upon written notice to the Shareholders delivered
during the Call Period, to require any or all of (i) the Sellers, collectively
and not individually, (ii) Day and Grylls, collectively and not individually and
(iii) the other Purchasers, collectively and not individually, to sell all, but
not less than all, of their respective ownership interest in the Company to the
Company (any such right being herein called a "Call Right"), provided that if
one or more Shareholders have exercised their Put Right but the Company has not
completed the purchase of the entire ownership interest of such Shareholder,
then the Company shall purchase such unpurchased shares (on a pro rata basis if
more than one Shareholder) prior to purchasing any ownership interests of any
other Shareholders pursuant to the Call Right. The price to be paid to such
Shareholders upon exercise of the Call Right shall be an amount equal to the
Fair Market Value of such ownership interest (the "Call Price"). The Company
shall use reasonable efforts to obtain such financing and such approvals.
(b) The Call Price shall be determined and calculated in accordance with
subsection 12(a) by the Expert. The Expert may be, but shall not be required to
be, the Company's independent certified public accountants provided they satisfy
the definition of Expert. The Company shall fully disclose to the Expert any
pending or contemplated transaction which could have a material bearing on the
value of such interest. The Company shall cause the Expert to deliver to the
Company and such Shareholders, not later than 90 days following the date on
which the notice exercising the Call Right was given, a written statement,
signed by the Expert, setting forth in reasonable detail the Fair Market Value
of such ownership interest and the calculation thereof and stating that such
calculation was made and delivered pursuant to this Section 12.
(c) The completion of the purchase and sale of such ownership interest
pursuant to exercise of the Call Rights shall take place on later of (i) the
ninetieth (90th) day following the date on which the Fair Market Value of such
ownership interest is determined pursuant to Section 12(b) or (ii) the last
business day of the calendar quarter in which such ninetieth day occurs, unless
16
another date is mutually agreed upon by the Company and such Shareholders (the
"Call Closing Date"). Except as provided otherwise in this Section 12(a), the
Call Price for such purchase and sale shall be paid by the Company to such
Shareholders in immediately available funds against delivery of such ownership
interest, duly endorsed for transfer to the Company.
(d) The certificates representing such ownership interest shall bear a
legend indicating that such ownership interest is subject to the provisions of
this Section 12.
(e) Notwithstanding any provision of this Agreement to the contrary, all of
such ownership interest which is sold pursuant to an effective registration
statement under the Securities Act shall, upon such sale, cease to be subject to
the provisions of this Section 12.
Section 13. Stock Option Plans. The Shareholders shall vote to implement,
and shall cause the Board to (i) implement an incentive stock option plan
covering up to ten percent (10%) of the common equity of the Company and, (ii)
grant to (a) Day options to acquire three percent (3%) of the common equity of
the company on a fully diluted basis calculated of the time of grant, (b) Grylls
options to acquire two percent (2%) of the common equity of the Company on a
fully diluted basis calculated at the time of grant, and (c) grant to other key
employees not more than five percent (5%) of the common equity of the Company on
a fully diluted basis calculated at the time of grant. The options issued to Day
or Grylls shall vest in equal amounts over a five year period subject to the
Company's meeting or exceeding EBITDA budgets for such year approved by the
Board. With respect to the additional options which may be issued to key
employees, such options shall vest in equal amounts over a five year period,
subject to the Company's meeting or exceeding EBITDA budgets approved by the
Board. The shares made available for issuance upon the exercise of any options
which do not vest due to any EBITDA budget not having been met may in the
discretion of the Board, (x) in the case of Day and Grylls, accrue and vest in
any subsequent year on terms and conditions set by the Board and (y) in the case
of other key employees, shall, in the discretion of the Board, either accrue for
vesting to such key employees or remain available for issuance to other key
employees pursuant to additional option grants in a manner consistent with this
Section. EBITDA budgets shall be set by the Board, but initially shall be based
upon the existing 5 year plan of the Company. Adjustments will be made by the
Board in its discretion for any extraordinary transactions (e.g. acquisitions).
In addition, a stock option program shall be established by the Company for
the purpose of having up to 1.2% of the common equity on a fully diluted basis
available for issuance to members of the Board who are not Shareholders or their
designees. A maximum of ten percent (10%) of the shares available under this
program may be issued to any given Board member in a single year and it is
anticipated that approximately one quarter of such yearly allocation would be
issued for each Board meeting in which a member participates. The exercise price
of these options would be fixed at the higher of the fair market value of the
underlying shares at the time of such grant or $1.25 per share. A maximum of two
board members may participate in the option plan.
Section 14. Compensation Committee. A compensation committee, consisting of
Day, one of the Sellers and the Fifth Director (or his successor) shall be
established by the Board which
17
shall approve initial compensation and periodic increases thereto for Day and
Grylls as determined by such committee in its discretion.
Section 15. Representations and Warranties.
(a) Each Shareholder represents and warrants to the Company and the other
Shareholders as follows:
(i) The execution, delivery and performance of this Agreement by such
Shareholder will not violate any provision of law, any order of any court or
other agency of government, or any provision of any indenture, agreement or
other instrument to which such Shareholder or any of its or his properties or
assets is bound, or conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any such indenture, agreement
or other instrument, or result in the creation or imposition of any lien, charge
or encumbrance of any nature whatsoever upon any of the properties or assets of
such Shareholder.
(ii) This Agreement has been duly executed and delivered by such
Shareholder and constitutes the legal, valid and binding obligation of such
Shareholder, enforceable in accordance with its terms.
(iii) The shares of Common Stock listed in Annex I hereto opposite the name
of such Shareholder constitute all the shares of the capital stock of the
Company owned by such Shareholder or that such Shareholder has acquired or may
acquire pursuant to the Purchase Agreement.
(b) Each Shareholder hereby represents and warrants to the Company and
other Shareholders as follows:
(i) The Shareholder's shares are being acquired solely for the
Shareholder's own account, for investment purposes only, and are not being
purchased with a view to or for the resale, distribution, subdivision or
fractionalization thereof; the Shareholder has no agreement or other
arrangement, formal or informal, with any Person to sell, transfer, pledge or
subject to any lien by any part of such shares being acquired or which would
guarantee the Shareholder any profit or protect the Shareholder against any loss
with respect to such shares; and the Shareholder has no plans to enter into any
such agreement or arrangement. The Shareholder understands that he or she must
bear the economic risk of the investment for an indefinite period of time
because the Shareholder's shares have not been registered under the Securities
Act, or any applicable state securities laws and, therefore, cannot be resold or
otherwise transferred unless subsequently registered under the Securities Act
and any applicable state securities laws (which the Company is not obligated to
do), or an exemption from such registration is available. The Shareholder
further understands that the exemption under Rule 144 under the Securities Act
may be unavailable because of the conditions and limitations of such rule.
(ii) The Shareholder has had access to all information concerning all
matters the Shareholder considers material with respect to the shares of
capital stock of the Company.
18
(iii) The Shareholder was solicited to acquire the Shareholder's shares
privately and directly by the representatives of the Company and did not become
aware of, or obtain information regarding, the purchase of such Shareholder's
shares as a result of (a) any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or broadcast
over television or radio, (b) any seminar or meeting attended by the Shareholder
and other potential investors, or (c) any other form of general solicitation or
general advertising.
(iv) Except for Grylls, such Shareholder is an "Accredited Investor," as
defined in Regulation D promulgated pursuant to the Securities Act.
Section 16. Consent to Amendments: Waivers. Except as otherwise expressly
provided herein, the provisions of this Agreement may be amended or waived at
any time only by the written agreement of the Company, a majority in interest of
the Purchasers and a majority in interest of the Sellers. Any waiver, permit,
consent or approval of any kind or character on the part of any such holder of
any provisions or conditions of this Agreement must be made in writing and shall
be effective only to the extent specifically set forth in such writing.
Section 17. Binding Effect. Except as otherwise expressly provided herein,
all covenants and agreements contained in this Agreement by or on behalf of any
of the parties hereto and all rights enjoyed by such parties shall, except only
as expressly provided otherwise, bind and inure to the benefit of the respective
permitted successors and assigns of the parties hereto, whether so expressed or
not. The parties hereby agree that all Common Stock acquired by any of them at
any time and for any reason shall be subject to the terms of this Agreement.
Section 18. Assignment.
(a) The Company may reorganize, restructure and/or recapitalize itself in
order to take such actions as it and a majority in interest of the Shareholders
believe are in the best interest of the Company and its Shareholders in respect
of an initial public offering or a sale, including without limitation the
creation of a parent entity to serve as the issuer or target in an initial
public offering or sale, respectively which actions shall be implemented
reasonably contemporaneously with such initial public offering or sale. To this
end, each of the parties hereto agrees to take such actions and execute such
agreements, documents and instruments as are necessary or appropriate to
effect such restructuring or recapitalization.
(b) Subject to the foregoing, no party may assign any of its rights or
delegate any of its duties under this Agreement.
Section 19. Counterparts. This Agreement may be executed in counterparts,
each of which shall be considered an original, but all of which together shall
constitute one and the same instrument.
Section 20. Legend on Certificates. All Common Stock of the Company now or
hereafter owned by the parties to this Agreement shall be subject to the
provisions of this Agreement and the certificates representing said shares shall
bear substantially the following legend:
19
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS
OF ANY STATE AND THUS MAY NOT BE TRANSFERRED, SOLD OR OFFERED FOR SALE
UNLESS SO REGISTERED OR UNLESS AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO THE COMPANY, THAT AN EXEMPTION FROM REGISTRATION
IS AVAILABLE SHALL HAVE BEEN DELIVERED TO THE COMPANY. THE SALE, TRANSFER,
ENCUMBRANCE OR OTHER DISPOSITION OF THIS CERTIFICATE AND THE SHARES OF
CAPITAL STOCK EVIDENCED HEREBY ARE SUBJECT TO A SHAREHOLDERS' AGREEMENT
DATED SEPTEMBER 17, 1998, BY AND AMONG THE COMPANY, THE ORIGINAL HOLDER
OF THIS CERTIFICATE, AND CERTAIN OTHERS OF THE COMPANY'S SHAREHOLDERS. A
COPY OF SAID SHAREHOLDERS' AGREEMENT IS ON FILE IN THE OFFICE OF THE
SECRETARY OF THE COMPANY. THE SHAREHOLDERS' AGREEMENT PROVIDES, AMONG
OTHER THINGS, FOR CERTAIN RESTRICTIONS ON THE TRANSFER AND VOTING OF THE
SHARES OF CAPITAL STOCK EVIDENCED BY THIS CERTIFICATE. BY ACCEPTING THE
SHARES OF CAPITAL STOCK EVIDENCED BY THIS CERTIFICATE, THE HOLDER AGREES TO
BE BOUND BY THE PROVISIONS OF SAID SHAREHOLDERS' AGREEMENT."
Section 21. Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
Section 22. Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience of reference only and do not constitute a
part of and shall not be utilized in interpreting this Agreement.
Section 23. Notices. Any notices required or permitted to be sent hereunder
shall be delivered personally or mailed, certified mail, return receipt
requested, facsimile transmission, or delivered by overnight courier services to
the following addresses, or such other address as any party hereto designates by
written notice to the Company, and shall be deemed to have been given upon
delivery, if delivered personally, or three days after mailing, if mailed, or
upon the transmission thereof if sent by facsimile (with telephonic
confirmation), or one business day after delivery to the courier, if delivered
by overnight courier service:
20
If to the Purchasers, to:
Stephen L. Day
Jonathan A. R. Grylls
David Post
Donald Motsenbocker
Thomas Gaines
c/o Blue Grass Investments
75 Gilcreast Road
Suite 200
Londonderry, New Hampshire 03050
Telecopy No. 603-434-2656
Telephone No. 603-421-1783
E-Mail: toad@bit-net.com
with a copy to:
Pepe & Hazard LLP
Goodwin Square
Hartford, Connecticut 06103-4302
Attn: James C. Schulwolf, Esq.
Telecopy No.: 860/522-2796
Telephone No.: 860/241-2684
E-Mail: jschulwolf@pepehazard.com
and to:
Sulloway & Hollis, P.L.L.C.
9 Capitol Street
Concord, New Hampshire 03302-1256
Attn: John M. Sullivan, Esq.
Telecopy No.: 603/226-2404
Telephone No.: 603/224-2341
E-Mail: jms@sulloway.com
if to the Sellers: James F. Powers
97 Dedham Street
Dover, MA 02030
Telephone: (508) 785-2416
Facsimile: (508) 785-0411
David J. Powers
50 Springdale Avenue
Dover, MA 02030
Telephone: (508) 785-2894
21
Michele R. Powers
157 Center Street
Dover, MA 02030
Telephone: (508) 785-0210
with a copy to: Tarlow, Breed, Hart, Murphy & Rodgers, P.C.
21 Custom House Street
Boston, MA 02110
Attn: William R. Rodgers, Esq.
Telecopy No.: 617-261-7673
Telephone No.: 617-261-7600
E-Mail: tbhmr@tiac.net
Section 24. Governing Law. All questions concerning the construction,
validity and interpretation of this Agreement, and the performance of the
obligations imposed by this Agreement, shall be governed by the laws of the
State of Delaware.
Section 25. Final Agreement. This Agreement constitutes the complete and
final agreement of the parties concerning the matters referred to herein, and
supersedes all prior agreements and understandings pertaining to these matters.
Section 26. Remedies. The parties hereto shall have all rights and remedies
set forth in this Agreement and all rights and remedies available under any
applicable law. The parties hereto agree and acknowledge that money damages may
not be an adequate remedy for any breach of the provisions of this Agreement and
that any party may, in its sole discretion, apply to any court of law or equity
of competent jurisdiction for specific performance or injunctive relief (without
posting bond or other security) in order to enforce, or prevent any violations
of, the provisions of this Agreement. This remedy shall be cumulative and in
addition to any other right or remedy such party may have.
Section 27. Additional Representation of the Company. The Company
represents and warrants that it will cease all trade debt existing on the date
hereof to be fully paid or otherwise returned by the later to occur of (i) the
date which is sixty (60) days following the date hereof and (ii) the date on
which the payment terms for such trade debt require the payment thereof.
22
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly
executed and delivered, as of the date and year first above written.
COMPANY
DOVER SADDLERY, INC.
By: /s/ Stephen L. Day
------------------------------------
Name: Stephen L. Day
Title: President
PURCHASERS
/s/ Stephen L. Day
----------------------------------------
Stephen L. Day
/s/ Jonathan A. R. Grylls
----------------------------------------
Jonathan A. R. Grylls
----------------------------------------
David Post
----------------------------------------
Donald Motsenbocker
----------------------------------------
Thomas Gaines
23
----------------------------------------
Stephen L. Day
----------------------------------------
Jonathan A. R. Grylls
/s/ David Post
----------------------------------------
David Post
/s/ Donald Motsenbocker
----------------------------------------
Donald Motsenbocker
/s/ Thomas Gaines
----------------------------------------
Thomas Gaines
SELLERS
----------------------------------------
James F. Powers
----------------------------------------
David E. Powers
----------------------------------------
Michele R. Powers
24
SELLERS
/s/ James F. Powers
----------------------------------------
James F. Powers
/s/ David E. Powers
----------------------------------------
David E. Powers
/s/ Michele R. Powers
----------------------------------------
Michele R. Powers
25
ANNEX I
DOVER SADDLERY, INC.
(DELAWARE)
CAPITALIZATION TABLE
NUMBER OF PERCENTAGE
SHAREHOLDER CLASS OF SHARES SHARES HELD OWNERSHIP
----------- ------------------ ----------- ----------
Stephen L. Day Common 649,607 18.56%
Jonathan A.R. Grylls Common 144,617 4.13%
David J. Powers Common 527,659 15.08%
James F. Powers Common 527,659 15.08%
Michele R. Powers Common 117,257 3.35%
Donald Motsenbocker Common 32,050 0.92%
David Post Common 64,101 1.83%
Thomas Gaines Common 32,050 0.92%
Citizens Ventures, Inc. Preferred 1,015,000 29.00%
Management/Director Options Options for Common 390,000 11.14%
--------- ------
Total: 3,500,000 100.00%
========= ======