Contract
EXHIBIT 4.11
THIS WARRANT AND THE COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THIS WARRANT AND THE COMMON STOCK ISSUABLE UPON
EXERCISE OF THIS WARRANT MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THIS WARRANT UNDER SAID ACT OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO DOVER SADDLERY, INC. THAT SUCH REGISTRATION IS NOT REQUIRED.
AMENDED AND RESTATED COMMON STOCK PURCHASE WARRANT
No. W-5A
|
Original Issue Date: December 11, 2007 |
THIS
IS TO CERTIFY THAT, for value received,
,a
, and its successors and permitted assigns (“Initial Holder”) are entitled,
subject to the terms and conditions set forth in this Amended and Restated Common Stock Purchase
Warrant (this “Warrant”), to purchase from Dover Saddlery, Inc., a Delaware corporation, at
any time and from time to time after 9:00 A.M., Providence, Rhode Island time on the Initial
Exercise Date (as defined in Section 1 below) and on or prior to 5:00 P.M., Providence, Rhode
Island time on the Expiration Date (as defined in Section 1 below), all or any portion of the
Warrant Shares (as defined in Section 1 below), at a purchase price per share equal to the Exercise
Price (as defined in Section 1 below). The number and character of the Warrant Shares and the
Exercise Price are subject to adjustment as provided herein. This Warrant amends, restates and
supersedes in its entirety that certain Common Stock Purchase Warrant No. W-2A (the “Initial
Warrant”) issued to the Initial Holder on December 11, 2007.
1. Definitions. As used in this Warrant, the following terms shall have the respective
meanings set forth below or elsewhere in this Warrant as referred to below:
“Appraisal Procedure” if applicable, shall mean a valuation of the Common Stock
determined by an investment banking firm of national recognition, which firm shall be reasonably
acceptable to the Corporation and Holder. If the Corporation and Holder are unable to agree upon
an acceptable investment banking firm within ten (10) days after the date either party proposed
that one be selected, the investment banking firm will be selected by an arbitrator located in
Providence, Rhode Island, selected by the American Arbitration Association (or if such organization
ceases to exist, the arbitrator shall be chosen by a court of competent jurisdiction). The
arbitrator shall select the investment banking firm (within ten (10) days of its appointment) from
a list, jointly prepared by the Corporation and Holder, of not more than six (6) investment banking
firms of national standing in the United States, of which no more than three (3) may be named by
the Corporation and no more than three (3) may be named by Holder. The arbitrator may consider,
within the ten-day period allotted, arguments from the parties regarding which investment banking
firm to choose, but the selection by the arbitrator shall be made in its sole discretion from the
list of six (6). The Corporation and Holder shall submit their respective valuations and other
relevant data to the investment banking firm, and the investment banking firm shall as soon as
practicable thereafter make its own determination of the valuation amount. The final valuation
amount for purposes hereof shall be the average of the two (2) valuation amounts closest together,
as determined by the investment banking firm, from among the valuation amounts submitted by the
Corporation and Holder and the valuation amount calculated by the investment banking firm. The
determination of the final valuation amount by such investment-banking firm shall be final and
binding upon the parties. The Corporation and Holder shall share equally the fees and expenses of
the investment banking firm(s) and arbitrator (if any) used to determine the valuation amount.
“Capital Stock” means the Common Stock, and all other classes of common stock (whether
voting or non-voting), and all other forms of capital stock or securities of Corporation (preferred
or
otherwise).
“Common Stock” shall mean the shares of the Common Stock of the Corporation, $0.0001
par value per share, and shall include the Corporation’s Common Stock authorized as at the date of
this Warrant.
“Corporation” shall mean Dover Saddlery, Inc., a Delaware corporation, and/or any
Person that shall succeed to, or assume the obligations of Dover Saddlery, Inc. hereunder.
“Determination Date” shall have the meaning set forth in subsection 2.4 hereof.
“Exercise Price” shall mean, as of the Initial Exercise Date, the Initial Exercise
Price, and after the Initial Exercise Date, the Initial Exercise Price as adjusted from time to
time pursuant to the terms of this Warrant.
“Expiration Date” shall mean the date that is nine (9) years from the Issue Date.
“Fair Market Value” shall having the meaning set forth in subsection 2.4 hereof.
“Holder” shall mean, as applicable, (i) the Initial Holder, (ii) any successor of the
Initial Holder or (iii) any other holder of record of this Warrant or any portion thereof to whom
this Warrant or any portion thereof shall have been transferred in accordance with the provisions
of Section 9 hereof.
“Initial Exercise Date” shall mean the Issue Date.
“Initial Exercise Price” shall mean $2.75 per share of Common Stock.
“Initial Holder” shall have the meaning set forth in the second paragraph hereof.
“Initial Warrant Shares” shall mean shares of Common Stock of the Corporation equal to
eight-tenths of one percent (0.8%) of the total issued and outstanding Capital Stock of the
Corporation, on a fully diluted basis (which on the date of this Warrant is 47,268 shares). The
number of Initial Warrant Shares shall be computed as of the date of exercise (or, if applicable,
each respective partial exercise) of this Warrant. For the avoidance of doubt, all outstanding
options on the date of this Warrant shall be included in the “fully diluted” calculation, but
options granted after the date of this Warrant under the 2005 Equity Incentive Plan, as presently
constituted, shall not be taken into account.
“Issue Date” shall mean the Original Issue date stated on the face of this Warrant.
“Person” shall mean an individual, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association, joint venture, governmental
authority or other entity of whatever nature.
“Purchase Price” shall mean the Exercise Price.
“Registration Rights Agreement” shall mean that certain Registration Rights Agreement,
dated the date hereof, by and between Holder and the Corporation.
“Securities Act” shall mean the Securities Act of 1933, as amended.
“Subscription Form” shall have the meaning set forth in subsection 2.2 hereof.
“Warrant” shall have the meaning set forth in the second paragraph hereof.
“Warrant Shares” shall mean shares of Stock consisting of the Initial Warrant Shares,
and at any time thereafter such Initial Warrant Shares, after giving effect to any adjustments in
the number of Initial Warrant Shares as set forth in Section 5 hereof.
2. Exercise of Warrant.
2.1. Number of Shares Issuable upon Exercise. From and after the Initial Exercise
Date through and including the Expiration Date, the holder hereof shall be entitled to receive,
upon exercise of this Warrant in whole in accordance with the terms of subsection 2.2 hereof or
upon exercise of this Warrant in part in accordance with subsection 2.3 hereof, shares of Common
Stock of the Corporation, subject to adjustment pursuant to Section 4 hereof.
2.2. Full Exercise. This Warrant may be exercised in full by the holder hereof by
delivery of an original or fax copy of the form of subscription attached as Exhibit A
hereto (the “Subscription Form”) duly executed by such Holder, to the Corporation at its
principal office or at the office of its warrant agent (as provided hereinafter), accompanied by
payment, in cash, wire transfer, or by certified or official bank check payable to the order of the
Corporation, in the amount obtained by multiplying the number of shares of Common Stock for which
this Warrant is then exercisable by the Purchase Price then in effect.
2.3. Partial Exercise. This Warrant may be exercised in part (but not for a
fractional share) by surrender of this Warrant in the manner and at the place provided in
subsection 2.2 hereof except that the amount payable by the holder on such partial exercise shall
be the amount obtained by multiplying (a) the number of shares of Common Stock designated by the
holder in the Subscription Form by (b) the Purchase Price then in effect. On any such partial
exercise, the Corporation, at its expense, will forthwith issue and deliver to or upon the order of
the holder hereof a new Warrant of like tenor, in the name of the holder hereof or as such holder
(upon payment by such holder of any applicable transfer taxes) may request, for the number of
shares of Common Stock for which such Warrant may still be exercised.
2.4. Fair Market Value. Fair Market Value of a share of Common Stock as of a
particular date (the “Determination Date”) shall mean:
(a) If the Corporation’s Common Stock is traded on an exchange, including, without limitation,
the NASDAQ Stock Exchange (“NASDAQ”), then the average closing or last sale price,
respectively, reported for the ten (10) business days immediately preceding the Determination Date.
(b) If the Corporation’s Common Stock is not traded on an exchange, but is traded on the NASD
OTC Bulletin Board, then the mean of the average of the closing bid and asked prices reported for
the ten (10) business days immediately preceding the Determination Date.
(c) If the Corporation’s Common Stock is not publicly traded, then as determined in accordance
with the Appraisal Procedures, unless otherwise agreed to by the Corporation and Holder.
2.5. Corporation Acknowledgment. The Corporation will, at the time of the exercise of
the Warrant, upon the request of the Holder acknowledge in writing its continuing obligation to
afford to Holder any rights to which Holder shall continue to be entitled after such exercise in
accordance with the provisions of this Warrant. If Holder shall fail to make any such request,
such failure shall not affect the continuing obligation of the Corporation to afford to Holder any
such rights.
2.6. Trustee for Warrant Holders. In the event that a bank or trust company shall have
been appointed as trustee for the Corporation, such bank or trust company shall have all the powers
and duties of a warrant agent (as hereinafter described) and shall accept, in its own name for the
account of the Corporation or such successor person as may be entitled thereto, all amounts
otherwise payable to the Corporation or such successor, as the case may be, on exercise of this
Warrant pursuant to this Section 2.
2.7 Delivery of Stock Certificates, etc. on Exercise. The Corporation agrees that the
shares of Common Stock purchased upon exercise of this Warrant shall be deemed to be issued to
Holder as the record owner of such shares as of the close of business on the date on which this
Warrant shall have been surrendered and payment made for such shares as aforesaid. As soon as
practicable after the exercise of this Warrant in full or in part, and in any event within seven
(7) days thereafter, the Corporation at its expense (including the payment by it of any applicable
issue taxes) will cause to be issued in the name of and delivered to the Holder, or as Holder (upon
payment by Holder of any applicable transfer taxes except as otherwise provided in Section 9
hereof) may direct in compliance with applicable securities laws, a certificate or certificates,
accompanied by the legend in the form specified in Section 7 below, for the number of duly and
validly issued, fully paid and nonassessable shares of Common Stock to which Holder shall be
entitled on such exercise, plus, in lieu of any fractional share to which Holder would otherwise be
entitled, cash equal to such fraction multiplied by the then Fair Market Value of one full share,
together with any other stock or other securities and property (including cash, where applicable)
to which Holder is entitled upon such exercise pursuant to this Section 2 or otherwise.
3. Payment of Purchase Price.
3.1 Form of Payment. Payment may be made either in (i) cash or by certified or
official bank check payable to the order of the Corporation equal to the applicable aggregate
Purchase Price, (ii) by delivery of the Warrant, Common Stock and/or Common Stock receivable upon
exercise of the Warrant in accordance with Section 3.2 below, or (iii) by a combination of any of
the foregoing methods, for the number of shares of Common Stock specified in such form (as such
exercise number shall be adjusted to reflect any adjustment in the total number of shares of Common
Stock issuable to Holder per the terms of this Warrant) and Holder shall thereupon be entitled to
receive the number of duly authorized, validly issued, fully-paid and non-assessable shares of
Common Stock determined as provided herein.
3.2 Cashless Exercise. Notwithstanding any provisions herein to the contrary, if the
Fair Market Value of one share of Common Stock on the Determination Date is greater than the
Purchase Price per share (at the date of calculation as set forth below), in lieu of exercising
this Warrant for cash, the Holder may elect a cashless exercise of the Warrant and thereby elect to
receive that lesser number of shares (as determined below) by surrender of this Warrant and
cancellation of that portion of the Warrant being exercised at the principal office of the
Corporation together with the properly endorsed Subscription Form, in which event the Corporation
shall issue to the Holder a number of shares of Common Stock computed using the following formula:
X=Y (A-B)
A
A
Where X=
|
the number of shares of Common Stock to be issued to the Holder | |
Y=
|
the number of shares of Common Stock purchasable under the Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being exercised (at the date of such calculation) | |
A=
|
the Fair Market Value of one share of the Corporation’s Common Stock (at the date of such calculation) | |
B=
|
Exercise Price (as adjusted to the date of such calculation) | |
4. Adjustments.
4.1. Reorganization, Consolidation, Merger, etc. In case at any time or from time to
time, the Corporation shall (a) effect a reorganization, (b) consolidate with or merge into any
other person, (c) transfer voting control or direction over fifty percent (50%) or more of the
Corporation’s Capital Stock or (d) transfer all or substantially all of its properties or assets to
any other Person in one or more related transactions or under any plan or arrangement contemplating
the dissolution of the Corporation, then, in each such case, as a condition to the consummation of
such a transaction, proper and adequate provision shall be made by the Corporation whereby the
Holder, upon the exercise hereof as provided in Section 2 hereof at any time after the consummation
of such transaction, shall be entitled to receive the stock and other securities and property
(including cash) to which Holder would have been entitled upon such consummation or in connection
with such dissolution, as the case may be, as if Holder had exercised this Warrant prior to such
consummation or such effective date, all subject to further adjustment thereafter as provided in
Section 5 hereof.
4.2 Continuation of Terms. Upon any reorganization, consolidation, merger, transfer
(and any dissolution following any transfer) or other adjustment to the Initial Warrant Shares
referred to in this Section 4, this Warrant shall continue in full force and effect and the terms
hereof shall be applicable to the shares of Common Stock and other securities and property
receivable on the exercise of this Warrant after the consummation of such reorganization,
consolidation or merger or the effective date of dissolution following any such transfer, or any
other adjustment to the Initial Warrant Shares referred to in this Section 4, as the case may be,
and shall be binding upon the issuer of any such stock or other securities, including, in the case
of any such transfer, the person acquiring all or substantially all of the properties or assets of
the Corporation, whether or not such person shall have expressly assumed the terms of this Warrant
as provided in Section 4.
5. Extraordinary Events Regarding Common Stock. In the event that the Corporation
shall (a) issue additional shares of the Common Stock as a dividend or other distribution on
outstanding Common Stock, (b) subdivide its outstanding shares of Common Stock, or (c) combine its
outstanding shares of the Common Stock into a smaller number of shares of the Common Stock, then,
in each such event, the Purchase Price shall, simultaneously with the happening of such event, be
adjusted by multiplying the then Purchase Price by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding immediately prior to such event and the denominator of
which shall be the number of shares of Common Stock outstanding immediately after such event, and
the product so obtained shall thereafter be the Purchase Price then in effect. The Purchase Price,
as so adjusted, shall be readjusted in the same manner upon the happening of any successive event
or events described herein in this Section 5. The number of shares of Common Stock that the Holder
shall thereafter, on the exercise hereof as provided in Section 2 hereof, be entitled to receive
shall be increased or decreased to a number determined by multiplying the number of shares of
Common Stock that would otherwise (but for the provisions of this Section 5) be issuable on such
exercise by a fraction of which (a) the numerator is the Purchase Price that would otherwise (but
for the provisions of this Section 5) be in effect, and (b) the denominator is the Purchase Price
in effect on the date of such exercise.
6. Certificate as to Adjustments. In each case of any adjustment or readjustment in
the shares of Common Stock issuable on the exercise of the Warrant, the Corporation at its expense
will promptly cause its Chief Financial Officer or other appropriate designee to compute such
adjustment or
readjustment in accordance with the terms of the Warrant and prepare a certificate setting
forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or
readjustment is based, including a statement of (a) the consideration received or receivable by the
Corporation for any additional shares of Common Stock issued or sold or deemed to have been issued
or sold, (b) the number of shares of Common Stock outstanding or deemed to be outstanding, and (c)
the Purchase Price and the number of shares of Common Stock to be received upon exercise of this
Warrant, in effect immediately prior to such adjustment or readjustment and as adjusted or
readjusted as provided in this Warrant. The Corporation will forthwith mail a copy of each such
certificate to the Holder and any Warrant agent of the Corporation (appointed pursuant to Section
11 hereof).
7. Stock Fully Paid; Reservation of Stock, etc. Issuable on Exercise of Warrant; Financial
Statements. All of the Common Stock issuable upon the exercise of the rights represented by
this Warrant (the “Issued Common Stock”) will, upon issuance and receipt of the Exercise Price
therefor, be fully paid and nonassessable, and free from all taxes, liens and charges with respect
to the issue thereof. The Corporation will at all times reserve and keep available, solely for
issuance and delivery on the exercise of the Warrant, all shares of Common Stock from time to time
issuable on the exercise of the Warrant. This Warrant entitles the Holder to receive copies of all
financial and other information distributed or required to be distributed to the holders of the
Corporation’s Common Stock. The Issued Common Stock will be registered upon the terms and
conditions set forth in the Registration Rights Agreement.
8. Investment Representation. Neither this Warrant nor the Warrant Shares issuable
upon the exercise of this Warrant have been registered under the Securities Act, or any other
securities laws. The Holder acknowledges by acceptance of the Warrant that (a) it has acquired
this Warrant for investment and not with a view to distribution; (b) it has either a pre-existing
personal or business relationship with the Corporation, or its executive officers, or by reason of
its business or financial experience, it has the capacity to protect its own interests in
connection with the transaction; and (c) it is an accredited investor as that term is defined in
Regulation D promulgated under the Securities Act. Until registration pursuant to the Registration
Rights Agreement, the Common Stock will bear a legend indicating that the securities represented
thereby have not been registered under any State or Federal securities laws and are subject to
certain customary transfer restrictions.
9. Assignment; Exchange of Warrant. Subject to compliance with applicable Securities
laws, this Warrant, and the rights evidenced hereby, may be transferred by any registered holder
hereof (a “Transferor”) with respect to any or all of the Common Stock from time to time
issuable on the exercise of the Warrant. On the surrender for exchange of this Warrant, with the
Transferor’s endorsement in the form of Exhibit B attached hereto (the “Transferor
Endorsement Form”) and together with evidence reasonably satisfactory to the Corporation
demonstrating compliance with applicable Securities Laws, which shall include, without limitation,
a legal opinion from the Transferor’s counsel that such transfer is exempt from the registration
requirements of federal securities laws, the Corporation (at its expense but with payment by the
Transferor of any applicable transfer taxes) will issue and deliver to or on the order of the
Transferor thereof a new Warrant of like tenor, in the name of the Transferor and/or the
transferee(s) specified in such Transferor Endorsement Form (each a “Transferee”), calling
in the aggregate on the face or faces thereof for the number of shares of Common Stock called for
on the face or faces of the Warrant so surrendered by the Transferor.
10. Replacement of Warrant. On receipt of evidence reasonably satisfactory to the
Corporation of the loss, theft, destruction or mutilation of this Warrant and, in the case of any
such loss, theft or destruction of this Warrant, on delivery of an indemnity agreement or security
reasonably satisfactory in form and amount to the Corporation or, in the case of any such
mutilation, on surrender and cancellation of this Warrant, the Corporation at its expense will
execute and deliver, in lieu thereof, a new Warrant of like tenor.
11. Warrant Agent. The Corporation may, by written notice to Holder, appoint an agent
for the purpose of issuing Common Stock on the exercise of this Warrant pursuant to Section 2
hereof, exchanging this Warrant pursuant to Section 9 hereof, and replacing this Warrant pursuant
to Section 10 hereof, or any of the foregoing, and thereafter any such issuance, exchange or
replacement, as the case may be, shall be made at such office by such agent.
12. Transfer on the Corporation’s Books. Until this Warrant is transferred on the
books of the Corporation, the Corporation may treat the registered holder hereof as the absolute
owner hereof for all purposes, notwithstanding any notice to the contrary.
13 Notices, etc. All notices and other communications from the Corporation to the
Holder shall be mailed by first class registered or certified mail, postage prepaid, at such
address as may have been furnished to the Corporation in writing by Holder or, until any Holder
furnishes to the Corporation an address, then to, and at the address of, the last Holder of this
Warrant who has so furnished an address to the Corporation.
14. Miscellaneous. This Warrant and any term hereof may be changed, waived, discharged
or terminated only by an instrument in writing signed by the party against which enforcement of
such change, waiver, discharge or termination is sought. This Warrant shall be governed by and
construed in accordance with the laws of State of Delaware without regard to principles of
conflicts of laws. Any action brought concerning the transactions contemplated by this Warrant
shall be brought only in the state or federal courts located in the State of Delaware. The
individuals executing this Warrant on behalf of the Corporation agree to submit to the jurisdiction
of such courts and waive trial by jury. The prevailing party shall be entitled to recover from the
other party its reasonable attorney’s fees and costs. In the event that any provision of this
Warrant is invalid or unenforceable under any applicable statute or rule of law, then such
provision shall be deemed inoperative to the extent that it may conflict therewith and shall be
deemed modified to conform with such statute or rule of law. Any such provision which may prove
invalid or unenforceable under any law shall not affect the validity or enforceability of any other
provision of this Warrant. The headings in this Warrant are for purposes of reference only, and
shall not limit or otherwise affect any of the terms hereof. The invalidity or unenforceability of
any provision hereof shall in no way affect the validity or enforceability of any other provision.
The Corporation acknowledges that legal counsel participated in the preparation of this Warrant
and, therefore, stipulates that the rule of construction that ambiguities are to be resolved
against the drafting party shall not be applied in the interpretation of this Warrant to favor any
party against the other party.
[THIS SPACE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Corporation has executed this Warrant under seal as of September 24,
2009.
| DOVER SADDLERY, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Witness:
Exhibit A
to Warrant
to Warrant
FORM OF SUBSCRIPTION
(To be signed only on exercise of Warrant)
(To be signed only on exercise of Warrant)
TO: Dover Saddlery, Inc.
The undersigned, pursuant to the provisions set forth in the attached Warrant (No.
), hereby irrevocably elects to purchase (check applicable box):
o shares of the Common Stock covered by such Warrant; or
o the maximum number of shares of Common Stock covered by such Warrant pursuant to the cashless
exercise procedure set forth in Section 3.
The undersigned herewith makes payment of the full purchase price for such shares at the price per
share provided for in such Warrant, which is $ . Such payment takes the form
of (check applicable box or boxes):
o $ in lawful money of the United States; and/or
o the cancellation of such portion of the attached Warrant as is exercisable for a total of
shares of Common Stock (using a Fair Market Value of $ per share
for purposes of this calculation); and/or
o the cancellation of such number of shares of Common Stock as is necessary, in accordance with
the formula set forth in Section 3, to exercise this Warrant with respect to the maximum number of
shares of Common Stock purchaseable pursuant to the cashless exercise procedure set forth in
Section 3.
The undersigned requests that the certificates for such shares be issued in the name of, and
delivered to whose address is
.
.
The undersigned represents and warrants that all offers and sales by the undersigned of the
securities issuable upon exercise of the within Warrant shall be made pursuant to registration of
the Common Stock under the Securities Act of 1933, as amended (the “Securities Act”) or pursuant to
an exemption from registration under the Securities Act.
Dated:
| (Signature must conform to name of Holder as specified on the face of the Warrant) | ||||
| (Address) | ||||
Exhibit B
to Warrant
to Warrant
FORM OF TRANSFEROR ENDORSEMENT
(To be signed only on transfer of Warrant)
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and transfers unto the person(s)
named below under the heading “Transferees” the right represented by the within Warrant to purchase
the percentage and number of shares of Common Stock of Dover Saddlery, Inc. to which the within
Warrant relates specified under the headings “Percentage Transferred” and “Number Transferred,”
respectively, opposite the name(s) of such person(s) and appoints each such person Attorney to
transfer its respective right on the books of Dover Saddlery, Inc. with full power of substitution
in the premises.
| Percentage | Number | |||||||
| Transferees | Transferred | Transferred | ||||||
Dated: , ___ ___ |
||||||||
| (Signature must conform to name of Holder as specified on the face of the warrant) | ||||
Signed in the presence of:
| (Name) | (address) | |
| ACCEPTED AND AGREED: [TRANSFEREE] |
(address) | |
| (Name) | ||||
