Exhibit 4.2
Voting Agreement
T HIS V OTING A GREEMENT (this “Agreement”) is made and
entered into as of January 3, 2006, by and among
OurPet’s Company, a Colorado corporation (the
“Company”), Steven Tsengas, Evangelia S. Tsengas,
Konstantine S. Tsengas, Nicholas S. Tsengas, Senk Properties,
Joseph T. Aveni, Carl Fazio, Jr., and John G. Murchie (together,
the “OurPet’s Stockholders”), and Pet Zone
Products Ltd., an Ohio limited liability company (“Pet
Zone”), Capital One Partners, LLC, an Ohio limited liability
company, LJR Limited Partnership, an Ohio limited partnership,
Nottingham Ventures, Ltd., an Ohio limited liability company, and
Spirk Ventures, Ltd., an Ohio limited liability company (together
with Pet Zone, the “Pet Zone Stockholders”).
W HEREAS , as
of the date of this Agreement, the OurPet’s Stockholders are
the legal and beneficial owners of the number of shares of the
Company’s common stock, no par value (the
“Stock”), listed on attached Exhibit 1
.
W HEREAS ,
each of Joseph T. Aveni, Carl Fazio, Jr. and Steven Tsengas is
currently a director of the Company;
W HEREAS ,
the Company is acquiring substantially all of the assets of Pet
Zone pursuant to an asset purchase agreement of even date (the
“Transaction”);
W HEREAS ,
the Company is issuing 3,082,000 shares of its Stock and warrants
to purchase an additional 2,729,000 shares of its Stock to Pet Zone
as part of the Transaction;
W HEREAS ,
the Pet Zone Stockholders are the owners of Pet Zone;
W HEREAS ,
the Company’s current board of directors has five seats, with
one vacancy;
W HEREAS , in
connection with the Transaction, Benjamin D. Suarez is resigning
from the Company’s board and the remaining directors are
appointing James D. Ireland III and John Spirk directors to fill
the two empty board seats;
W HEREAS ,
the OurPet’s Stockholders, Pet Zone and the Pet Zone
Stockholders are referred to below collectively as the
“Stockholders” and individually as a
“Stockholder;”
W HEREAS ,
the Stockholders believe that it is in their mutual best interest
(i) that qualified persons serve the Company as members of its
board of directors to provide advice as to the Company’s
management, policies, administration and development and
(ii) to make provision for the voting of the Stock and any
other class of capital stock of the Company entitled to vote
(together with the Stock, the “Voting Stock”) held by
the Stockholders and certain other matters concerning the
governance of the Company; and
N OW ,
T HEREFORE , in consideration of the foregoing, and of the
mutual promises set forth below and of other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Scope and Term of
Agreement
1.1 Scope of Agreement. This
Agreement shall govern the voting of all shares of Voting Stock of
which any Stockholder is now or in the future becomes the legal or
beneficial owner, including, without limitation, any shares of
Voting Stock acquired upon the exercise of any warrants or stock
options issued by the Company, with respect to the appointment or
election of directors of the Company. For purposes of this
Agreement, the term “beneficial owner” has the meaning
assigned to it in Rule 13d-3 promulgated under the Securities
Exchange Act of 1934, as amended.
1.2 Effect of Transfer of
Shares. If any Stockholder voluntarily or involuntarily
transfers, sells, assigns, exchanges, gifts, pledges or otherwise
disposes of any of his or its shares of Voting Stock to any person
or entity other than an Affiliated Transferee (as defined below),
the acquiror of the shares shall not acquire any rights under this
Agreement and shall not be considered a “Stockholder”
under the Agreement. For purposes of this Agreement, an
“Affiliated Transferee” means any of the following:
(i) any other Stockholder; (ii) the spouse or a lineal
descendant of the transferring Stockholder, if such transferring
Stockholder is a natural person; (iii) to the estate of the
transferring Stockholder upon his or her death, if such
transferring Stockholder is a natural person; (iv) to a trust
created by or on behalf of the transferring Stockholder, if such
transferring Stockholder is a natural person and the primary
beneficiaries of the trust are any one or more of the transferring
Stockholder, his or her spouse, his or her lineal descendants and
their spouses and any organization described in § 2055(a) of
the Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder; (v) if the transferring Stockholder is
a trust, to any one or more beneficiaries of such trust who are
described in clause (iv) of this sentence (determined as if
the settlor of the trust was the transferring Stockholder);
(vi) if the transferring Stockholder is not a natural person,
to any one or more stockholders, partners, members or other owners
of such entity; or (vii) an “affiliate” of the
Stockholder as defined in Rule 144(a)(1) promulgated under the
Securities Act of 1933, as amended. For purposes of this Agreement,
an Affiliated Transferee shall acquire all of the rights and be
bound by all of the obligations under this Agreement of the
transferring Stockholder with respect to the transferred shares of
Voting Stock. Any Affiliated Transferee shall be required to sign
an instrument of joinder in the form attached as Exhibit 3
agreeing to be subject to the terms of this Agreement.
1.3 Term of Agreement. This
Agreement will terminate upon the first to occur of (i) the
death or dissolution of the last of the Stockholders having any
rights or obligations under this Agreement, or (ii) the mutual
written agreement of all of the Stockholders to terminate this
Agreement.
2
2. Election of
Directors
2.1 Composition of the Board of
Directors. Notwithstanding anything to the contrary in the
certificate of incorporation or by-laws of the Company as in effect
from time to time, and subject to applicable law, each of the
Stockholders agrees to take, or cause any persons or entities under
his or its control to take, all necessary or desirable actions
within his or its control (whether as a director, member of a
committee of the board of directors or officer of the Company and
including, without limitation, voting all shares of Voting Stock
under his or its direction or control and, to the extent permitted
by the certificate of incorporation or by-laws of the Company, each
as then in effect, executing and delivering any written consents of
stockholders and calling special stockholders’ meetings) to
ensure that the board of directors of the Company shall at all
times consist of five members.
2.2 Election of Tsengas’
Designees . Each Stockholder agrees to take, or cause any
persons or entities under his or its control to take, all necessary
or desirable actions within his or its control (whether as a
director, member of a committee of the board of directors or
officer of the Company and including, without limitation, voting
all shares of Voting Stock
