EXHIBIT 10.5
DOVER SADDLERY, INC.
2005 EQUITY INCENTIVE PLAN
RESTRICTED STOCK PURCHASE AGREEMENT
THIS AGREEMENT made this ________ day of __________________, _____, by and
between Dover Saddlery, Inc., a corporation organized under the laws of the
State of Delaware (the "Company"), and __________________, an individual
currently residing at ____________________________(the "Purchaser").
W I T N E S S E T H T H A T:
WHEREAS, Purchaser's association with the Company or an Affiliate
is considered by the Company to be important for the growth of it and its
Affiliates; and
WHEREAS, the Company desires to sell to Purchaser, and Purchaser desires
to purchase from the Company, shares of the Company's common stock, par value
$.0001 per share (the "Common Stock"), pursuant to the Company's 2005 Equity
Incentive Plan (the "Plan") and otherwise according to the terms and conditions
hereof;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein set forth, and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto hereby mutually covenant and agree as
follows:
1. ISSUANCE OF COMMON STOCK
1.1. The Company hereby agrees to sell to Purchaser and Purchaser hereby
agrees to purchase an aggregate of _______________________ (__________) shares
of Common Stock in consideration of an amount of cash equal to the product of
such number of shares and $_______ (the "Cash Purchase Price Per Share").
1.2. Upon receipt by the Company of a copy of this Agreement duly executed
and completed by the Purchaser, and the aggregate cash consideration described
in Section 1.1, the Company shall issue in the name of Purchaser duly executed
certificates evidencing the shares of Common Stock purchased endorsed with the
legend set forth in Section 7.3 below. Certificates evidencing Acquired Shares
shall be held in escrow by the Company as hereinafter provided.
2. RESTRICTION ON TRANSFER
2.1. Subject to the remaining provisions of this Section and except for
the escrow described in Section 4, none of the Restricted Shares or any
beneficial interest therein shall be sold, transferred, assigned, pledged,
encumbered or otherwise disposed of in any way at any time (including, without
limitation, by operation of law) other than (i) to the Company or its assignees
or (ii), to any other person on (but only upon) death by will, bequest or
operation of law (a "Permitted Transferee").
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2.2. All Permitted Transferees of Restricted Shares or any interest
therein shall be required as a condition of such transfer to agree in writing,
in form satisfactory to the Company, that they shall receive and hold such
Shares or interest subject to the provisions of this Agreement, including,
without limitation, the Repurchase Right. Any sale, transfer, assignment,
pledge, encumbrance or other disposition of the Restricted Shares other than in
accordance with this Section shall be void. The Company shall not be required
(i) to transfer on its books any Restricted Shares sold, transferred or
otherwise disposed of in violation of this Section or (ii) to treat as owner of
any Restricted Shares, or to pay dividends in respect of Restricted Shares to,
any person purporting to have acquired Restricted Shares or any beneficial
interest therein unless such Restricted Shares or interest were acquired in
compliance with the provisions of this Section.
3. REPURCHASE RIGHT AS TO RESTRICTED SHARES
3.1. As of the Purchaser's Termination Date, the Company shall have an
irrevocable, exclusive right, but not any obligation, to reacquire from the
Purchaser or any Permitted Transferee all or any portion of the Restricted
Shares as of such Date at its election and for cash consideration equal to the
product of the Cash Purchase Price Per Share (subject to adjustment as provided
in the Plan in the event of any stock split or other corporate action affecting
the Restricted Shares) and the number of the Restricted Shares the Company has
elected to repurchase. The Company may exercise its Repurchase Right at any time
within ninety (90) days after the Purchaser's Termination Date by written notice
to Purchaser or any Permitted Transferee beneficially owning such Restricted
Shares accompanied by cash or its check in the amount of the cash consideration
required. Upon delivery of such notice and consideration the Company shall
become the legal and beneficial owner of the Shares being reacquired and all
rights and interests therein or relating thereto, and the Company shall have the
right to retain and transfer to its own name the number of Shares being
reacquired by the Company.
3.2. The Acquired Shares shall be released from the Company's Repurchase
Right in accordance with the provisions of Schedule A attached hereto. Unless
otherwise expressly provided on such Schedule A, no Acquired Shares shall be
released from the Company's Repurchase Right following the Purchaser's
Termination Date. All Restricted Shares shall become Vested Shares following the
expiration of the period within which the Company may exercise the Repurchase
Right, but only to the extent the Company has not elected to exercise such
Right.
4. ESCROW OF SHARES
4.1. The Restricted Shares issued under this Agreement shall be held in
escrow by the Company, as escrow holder ("Escrow Holder"), together with a stock
power executed in blank by the Purchaser, until the expiration of the Company's
Repurchase Right and the Purchaser's satisfaction of the requirements of Section
5.1 (relating to tax withholdings).
4.2. If the Company exercises its Repurchase Right hereunder, it shall
have the right, as Escrow Holder, to take all steps necessary to accomplish such
transfer, including but not limited to presentment of certificates representing
the Shares subject to such repurchase,
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together with a stock power executed by or in the name of the Purchaser
appropriately completed by the Escrow Holder, to the Company's transfer agent
with irrevocable instructions to register transfer of such Shares into the name
of the Company. The Purchaser hereby appoints the Company, in its capacity as
Escrow Holder, as his or her irrevocable attorney-in-fact to execute in his or
her name, acknowledge and deliver all stock powers and other instruments as may
be necessary or desirable with respect to the Shares.
4.3. When any portion of the Acquired Shares have been released from the
Repurchase Right, upon Purchaser's request the Company, as Escrow Holder, shall
promptly cause a new certificate to be issued for such Shares and shall deliver
such certificate to Purchaser subject, however, to the Purchaser's satisfaction
of the requirements of Section 5.1 (relating to tax withholdings).
4.4. Subject to the terms hereof, Purchaser shall have all the rights of a
stockholder with respect to the Shares while they are held in escrow, including
without limitation, the right to receive any dividends declared thereon. If,
from time to time during the term of the Repurchase Right, there occurs any
corporate or other action giving rise to substituted or additional securities by
reason of ownership of the Shares such substituted or additional securities,
with the legend required by Section 7.3, shall be immediately subject to this
escrow and deposited with the Escrow Holder.
5. TAX CONSEQUENCES
5.1. It is understood by the Company and Purchaser that the issuance of
the Acquired Shares hereunder may be deemed compensatory in purpose and in
effect and that as a result the Company or an Affiliate may be obligated to pay
withholding taxes in respect of such Acquired Shares at the time Purchaser
becomes subject to Federal income taxation as a result of the receipt or vesting
of the Shares hereunder. In the event that at the time the above-said
withholding tax obligations arise (i) Purchaser is no longer in the employ of
the Company or an Affiliate or (ii) Purchaser's other cash compensation from the
Company and its Affiliates is not sufficient to meet the aforesaid withholding
tax obligation, Purchaser hereby agrees to provide the Company or its Affiliate
with an amount sufficient to pay all withholding taxes required to be paid as
and when such taxes become payable (which amount, subject to any applicable
election requirements of the Plan, may be provided in the form of shares of
Common Stock, including Acquired Shares then held by the Escrow Holder which
have become Vested Shares). Purchaser agrees that in the event and to the extent
the Company and its Affiliates determine that they are not obligated to withhold
taxes payable by Purchaser with respect to such Shares but the Company or an
Affiliate is later held liable due to any non-payment of taxes on the part of
Purchaser, the Purchaser shall indemnify and hold the Company and its Affiliates
harmless from the amount of any payment made by them in respect of such
liability.
5.2. Purchaser hereby agrees to deliver to the Company (and his or her
employing Affiliate, if applicable) a signed copy of any instrument, letter or
other document he or she may execute and file with the Internal Revenue Service
evidencing his or her election under Section 83(b)(2) of the Internal Revenue
Code of 1986, as amended, to treat his or her receipt of the Acquired Shares as
includible in his or her gross income in the year of receipt.
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Purchaser shall deliver the said copy of any such instrument of election within
five (5) days after the date on which any such election is required to be made
in accordance with the appropriate provisions of the Internal Revenue Code or
applicable Regulations thereunder.
6. COMPLIANCE WITH LAW
6.1. Purchaser represents and warrants, and each Permitted Transferee
shall, as a condition of transfer, represent and warrant, that he or she is
acquiring the Shares of his or her own account for the purpose of investment and
not with a view to, or for sale in connection with, the distribution of any such
Shares.
6.2. Purchaser acknowledges and agrees, and each Permitted Transferee
shall, as a condition of transfer, acknowledge and agree, that neither the
Company nor any agent of the Company shall be under any obligation to recognize
any transfer of any of the Shares if, in the opinion of counsel for the Company,
such transfer would result in violation by the Company of any federal or state
law with respect to the offering, issuance or sale of securities.
7. GENERAL PROVISIONS
7.1. This Agreement shall be governed and enforced in accordance with the
terms of the Plan and the laws of the State of Delaware, without regard to the
conflict of laws principles thereof, and shall be binding upon the heirs,
personal representatives, executors, administrators, successors and assigns of
the parties.
7.2. This Agreement embodies the complete agreement and understanding
among the parties hereto with respect to the subject matter hereof and thereof,
supersedes and preempts any prior understandings, agreements or representations
by or among the parties, written or oral, which may have related to the subject
matter hereof in any way and may only be modified or amended in writing signed
by the Company and the Purchaser.
7.3. The certificates representing the Restricted Shares shall be
endorsed with the following legend:
The transferability of this certificate and the shares represented by this
certificate are subject to the terms and conditions (including, without
limitation, the right of Dover Saddlery, Inc. to repurchase the shares) of
the Dover Saddlery, Inc. 2005 Equity Incentive Plan and a Restricted Stock
Purchase Agreement entered into by the registered owner and Dover
Saddlery, Inc.. Copies of such Plan and Agreement are on file in the
offices of Dover Saddlery, Inc.
7.4. All notices or communications provided for under this
Agreement shall be given in writing and by hand or by registered mail,
return receipt requested, postage prepaid, and shall be addressed
(i) in the case of Purchaser, to his or her address appearing
at the outset of this Agreement and
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(ii) in the case of the Company, to its principal place of
business, addressed to the attention of its Treasurer.
Notices given as hereinabove provided shall be deemed received (i) in the
case of personal delivery, on the date of such delivery; (ii) in the case of
mailing, when received by the addressee; and (iii) in the case of facsimile
transmission, when confirmed by facsimile machine report. Any party hereto may
designate a change of address by written notice to the other parties given at
least ten (10) days before such change is to become effective for purposes of
this Agreement.
7.5. The rights and obligations of each party under this Agreement shall
inure to the benefit of and be binding upon such party's heirs, legal
representatives, successors and permitted assigns. The rights and obligations of
the Company under this Agreement shall be assignable by the Company to any one
or more persons or entities without the consent of the Purchaser or any other
person. The rights and obligations of any person other than the Company under
this Agreement may only be assigned with the prior written consent of the
Company.
7.6. No consent to or waiver of any breach or default in the performance
of any obligations hereunder shall be deemed or construed to be a consent to or
waiver of any other breach or default in the performance of any of the same or
any other obligations hereunder. Failure on the part of any party to complain of
any act or failure to act of any other party or to declare any party in default,
irrespective of the duration of such failure, shall not constitute a waiver of
rights hereunder and no waiver hereunder shall be effective unless it is in
writing, executed by the party waiving the breach or default hereunder.
7.7. If any provision of this Agreement shall be held illegal, invalid or
unenforceable, such illegality, invalidity or unenforceability shall attach only
to such provision and shall not in any manner affect or render illegal, invalid
or unenforceable any other severable provisions of this Agreement.
7.8. The headings in this Agreement are for convenience of identification
only, do not constitute a part hereof, and shall not affect the meaning or
construction hereof.
7.9. Purchaser agrees upon request to execute any further documents or
instruments necessary or desirable to carry out the purposes or intent of this
Agreement.
7.10. In case of any dispute hereunder, the parties will submit to the
exclusive jurisdiction and venue of any court of competent jurisdiction sitting
in the county in which the Company's headquarters is located, and will comply
with all requirements necessary to give such court jurisdiction over the parties
and the controversy. Each party hereto, in addition to being entitled to
exercise all rights granted by law including recovery of damages (but subject to
the remainder of this subsection), will be entitled to specific performance of
his, her or its rights under this Agreement. The parties hereto agree that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach of the provisions of this Agreement and hereby agree to waive
the defense in any action for specific performance that a remedy at law would be
adequate. EACH PARTY HEREBY WAIVES
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ANY RIGHT TO A JURY TRIAL AND TO CLAIM OR RECOVER PUNITIVE DAMAGES.
7.11. Nothing contained in this Agreement shall confer upon the Purchaser
any right with respect to the continuation of his or her employment or other
association with the Company or any Affiliate, or interfere in any way with the
right of the Company and its Affiliates, subject to the terms of Purchaser's
separate employment or consulting agreement, if any, or provision of law or
corporate articles or by-laws to the contrary, at any time to terminate such
employment or consulting agreement or otherwise modify the terms and conditions
of Purchaser's employment or association with the Company or an Affiliate.
7.12. This Agreement may be executed in one or more counterparts, each of
which when executed shall be deemed an original and all of which, taken
together, shall constitute one and the same instrument. In making proof of this
Agreement it shall not be necessary to produce or account for more than one such
counterpart.
8. DEFINITIONS
For all purposes of this Agreement, the following terms shall have the
respective meanings set out below, unless the context clearly requires
otherwise:
"Acquired Shares" means (i) the shares of Common Stock acquired by the
Purchaser pursuant to this Agreement, and (ii) any shares of stock or other
securities issued in respect of or in replacement for the shares of Common Stock
described in clause (i) as a result of a corporate or other action such as a
stock dividend, stock split, merger, consolidation, reorganization, or
recapitalization.
"Cash Purchase Price Per Share" has the meaning assigned such term in
Section 1.1 hereof.
"Common Stock" has the meaning assigned such term in the Preamble.
"Escrow Holder" has the meaning assigned such term in Section 4 hereof.
"Income Recognition Date" has the meaning assigned such term in Section
5.3 hereof.
"Permitted Transferee" has the meaning assigned such term in Section
2.1(ii) hereof.
"Repurchase Right" means the right of the Company to reacquire any or all
of the Restricted Shares as provided in Section 3.1.
"Restricted Shares" means, at the time of reference thereto, that number
of the Acquired Shares as shall not have become Vested Shares.
"Termination Date" means the date, as reasonably fixed and determined by
the Company, of the voluntary or involuntary termination of the Purchaser's
employment or other association with all of the Company and its Affiliates, for
any or no reason whatsoever,
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including death or disability; provided, however, that military or sick leave
shall not be deemed a termination of employment or other association, if it does
not exceed the longer of 90 days or the period during which the Purchaser's
reemployment rights, if any, are guaranteed by statute or by contract.
"Vested Shares" means, at the time of reference thereto, that number, if
any, of Acquired Shares as shall have been released from the Repurchase Right on
or prior to such time.
All other capitalized terms used but not defined herein shall have the
respective meaning given such terms in the Plan.
IN WITNESS WHEREOF, the parties have duly executed this Agreement under
seal as of the month, day and year first set forth above.
DOVER SADDLERY, INC. PURCHASER
By: __________________________ ________________________________
Title:__________________________
SCHEDULE A
This Schedule A provides for the vesting and release from the Company's
Repurchase Right set out in the Restricted Stock Purchase Agreement (the
"Agreement") to which it is attached of the Acquired Shares thereunder.
Capitalized terms not defined herein shall have the same meaning as such terms
are assigned under the Agreement.
1. Release Based on Continued Employment. At each anniversary of the date
of the Agreement, that percentage of the Acquired Shares set forth opposite such
anniversary shall be released from the Company's Repurchase Right and become
Vested Shares, with any fractions rounded down except on the final installment:
Anniversary Percentage
----------- ----------
-------- --%
-------- --%
-------- --%
-------- --%
-------- --%
2. Release On Certain Events. Upon the occurrence of a Change of
Control (as defined in the Plan), all of the then Restricted Shares shall
be released from the Company's Repurchase Right and become Vested Shares.