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Exhibit
10.40
Form of
THE WARRANTS REPRESENTED BY THIS
CERTIFICATE AND THE UNDERLYING SHARES WHICH MAY BE ACQUIRED UPON
EXERCISE HEREOF HAVE BEEN ACQUIRED FOR INVESTMENT ONLY AND NOT WITH
A VIEW TO DISTRIBUTION THEREOF. THE SECURITIES EVIDENCED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES LAWS OF ANY JURISDICTION. THE WARRANTS REPRESENTED BY
THIS CERTIFICATE AND THE UNDERLYING SHARES WHICH MAY BE ACQUIRED
UPON EXERCISE MAY NOT BE SOLD OR OFFERED FOR SALE UNLESS AN
APPROPRIATE REGISTRATION STATEMENT UNDER APPLICABLE SECURITIES LAWS
IS THEN IN EFFECT WITH RESPECT THERETO, OR UNLESS AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER IS
PROVIDED THAT REGISTRATION IS NOT REQUIRED UNDER SUCH
LAWS.
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Warrant to Purchase |
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| Date:
June 20, 2008 |
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Shares of Common
Stock,
as herein
described
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No.
OurPet’s
Company
Common Stock Purchase
Warrant
Article 1. General
Provisions .
This certifies that
(the “ Holder ”), is entitled to
purchase, at any time on or after June 20, 2008 (the “
Effective Date ”) and on or before
June 20, 2013 (the “ Expiration Date
”), that number of fully paid and non-assessable shares of
Common Stock, without par value, of OURPET’S COMPANY, a
corporation incorporated under the laws of the State of Colorado
(the “ Company ”), as set forth above, at
the exercise price of $0.50 U.S. per share, all subject to
adjustment as hereinafter provided.
Article 2. Duration and
Exercise of Warrants .
Section 2.01 Duration of
Warrants . This Warrant may be exercised at any time on or
after the Effective Date and prior to the close of business on the
Expiration Date.
Section 2.02 Terms of
Exercise . This Warrant shall entitle the holder hereof to
purchase the number of shares of Common Stock set forth in
Article 1 , subject to adjustment as herein provided (the
“ Warrant Shares ”), upon payment of the
amount per share set forth in Section 1.01, subject to
adjustment as herein provided (the “ Exercise
Price ”).
Section 2.03 Exercise of
Warrant .
(a) This warrant may
be exercised in whole or in part by surrendering it, together with
a subscription in the form attached hereto duly executed,
accompanied by a certified or official bank check (or such other
form of payment as the Company may accept) in payment of the
Exercise Price. Warrants may be surrendered at the Company’s
corporate offices indicated in Section 7.02 hereof, or
as such corporate office may be relocated from time to
time.
(b) Notwithstanding
the foregoing, the Holder may, without the payment of cash or other
consideration (other than the surrender of the right to purchase
certain Warrant Shares implicit in the following formula), exercise
this Warrant for “Net Warrant Shares”. The Holder shall
provide written notice to the Company specifying the gross number
of Warrant Shares as to which this Warrant is then exercised. The
number of Net Warrant Shares deliverable upon such exercise will be
determined by the following formula: Net Warrant Shares = [WS x (CP
- EP)]/CP, where “WS” is the gross number of Warrant
Shares as to which this Warrant is to be exercised;
“CP” is the average market price of the Common Stock on
the ten (10) trading days preceding the date of the request to
exercise this Warrant; and “EP” shall mean the then
applicable Exercise Price.
(c) This Warrant shall
be exercisable during the period provided in
Section 2.01 at any time or in whole or from time to
time in part. As soon as practicable after the Warrant has been so
exercised, the Company shall issue and deliver or cause to be
delivered to, or upon the order of, the holder of the Warrant, in
such name or names as may be directed by such holder, a certificate
or certificates for the number of full Warrant Shares to which such
holder is entitled and, if this Warrant shall not have been
exercised in full, a new Warrant for the number of shares of Common
Stock as to which this Warrant shall not have been exercised,
subject to the surrender of the right to purchase certain Warrant
Shares implicit in the exercise of this Warrant under
Section 2.03(b). This Warrant, when so surrendered, shall be
cancelled by or on behalf of the Company.
Section 2.04 Common Stock
Issued Upon Exercise of Warrant .
(a) All Warrant Shares
shall be duly authorized, validly issued, fully paid and
nonassessable. The Company shall pay all documentary stamp taxes
attributable to the initial issuance of Warrant Shares. The Company
shall not be required, however, to pay any tax imposed in
connection with any transfer involved in the issue of the Warrant
Shares in a name other than that of that holder of this Warrant
upon exercise. In such case, the Company shall not be required to
issue any certificate for Warrant Shares until the person or
persons requesting the
same shall have paid to the Company the
amount of any such tax or shall have established to the
Company’s satisfaction that the tax has been paid or that no
tax is due.
(b) Irrespective of
the date of issue of certificates for any Warrant Shares acquired
upon exercise of this Warrant, each person in whose name any
certificate is issued shall be deemed to have become the holder of
record of the Warrant Shares represented thereby on the date on
which this Warrant was exercised and payment of the Exercise Price
was tendered as provided in Section 2.03 with respect
to such Warrant Shares.
Article 3.
Anti-Dilution Provisions .
Section 3.01 Adjustment of
Exercise Price and Number of Warrant Shares . The Exercise
Price shall be subject to adjustment from time to time as provided
in this Article 3 . Upon each adjustment of the Exercise
Price, the holder of this Warrant shall be entitled to purchase, at
the Exercise Price resulting from such adjustment, the number of
Warrant Shares, calculated to the nearest full share, obtained by
multiplying the Exercise Price in effect immediately prior to such
adjustment by the number of Warrant Shares purchasable pursuant to
the provisions of this Warrant immediately prior to such adjustment
and dividing the product thereof by the Exercise Price resulting
from such adjustment.
Section 3.02 Stock
Dividend
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