Exhibit 10.48
THIS WARRANT AND ANY SECURITIES
ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR ANY STATE SECURITIES LAWS AND NEITHER THE
SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD,
TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR SUCH LAWS OR AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS THAT, IN
THE OPINION OF COUNSEL FOR THE HOLDER, WHICH COUNSEL AND OPINION
ARE REASONABLY SATISFACTORY TO COUNSEL FOR THIS CORPORATION, IS
AVAILABLE.
|
|
|
|
|
Warrant
to Purchase
|
|
|
|
Date:
, 2009
|
|
350,000
|
|
|
|
|
Shares
of Common Stock,
|
|
|
as
herein described
|
No. 313
OurPet’s
Company
Common Stock Purchase
Warrant
Article 1. General
Provisions.
Section 1.01
This certifies that, for good and
valuable consideration, OurPet’s Company, a corporation
organized under the laws of Colorado (the “
Company ”), grants to Steven and Evangelia
Tsengas (the “ Warrantholder ”), the
right to purchase from the Company 350,000 validly issued, fully
paid and nonassessable shares (the “ Warrant
Shares ”) of the Company’s Common Stock,
without par value, on or after September 17, 2009 (the “
Effective Date ”) and on or before
September 17, 2012 (the “ Expiration Date
”), at the exercise price of $0.4525 (U.S. dollars) per share
(the “ Exercise Price ”), all subject to
the terms, conditions and adjustments herein set forth.
Article 2. Duration, Vesting
and Exercise of Warrants.
Section 2.01 Duration;
Vesting of Warrants . The vested portion of this Warrant may be
exercised, in whole or in part, at any time on or after the
Effective Date and prior to the close of business on the Expiration
Date. Subject to adjustment from time to time as provided in
Section 4 below, this Warrant shall vest and become
exercisable over a period of thirty-six (36) months, in which
1/36 th
of the Warrant Shares granted to the
Warrantholder shall vest each calendar month. At the end of the
thirty-sixth (36 th ) month all of the Warrant Shares granted
herein shall be fully vested and exercisable. In the event that,
prior to the Warrant Shares becoming fully vested and exercisable,
the Company’s lender terminates the guaranty provided by
Warrantholder which secures the Company’s line of credit with
such lender, then the vesting schedule set forth above shall
terminate and no further Warrant Shares shall vest and become
exercisable.
Section 2.02 Exercise of
Warrant .
(a) This warrant may be exercised, in whole or in
part, by surrendering it, together with a Notice of Exercise, 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 7.10 hereof, or as such corporate office may be
relocated from time to time.
(b) Notwithstanding the foregoing, the Warrantholder
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 Warrantholder 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 price of the Common Stock (as
currently traded on the NASDAQ over-the-counter bulletin board or
“ OTCBB ”) 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 2.02(b) . This warrant, when so
surrendered, shall be cancelled by or on behalf of the
Company.
Section 2.03 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 2.02 with respect to such Warrant
Shares.
Article 3. Restrictions on
Transfer; Restrictive Legends .
Section 3.01 Restrictions
on Transfer . This
Warrant may not be offered, sold, transferred, pledged or otherwise
disposed of in whole or in part, to any person; provided
that the Warrantholder may offer, sell or transfer this Warrant to
any Affiliate (defined herein) of the Warrantholder, subject to
compliance with any applicable securities laws. “
Affiliate ” means any person who is an
“affiliate” as defined in Rule 12b-2 of the General
Rules and Regulations under the Securities and Exchange Act of
1934.
Section 3.02 Restrictive
Legends . Except as
otherwise permitted by this Article 3 , each stock
certificate for Warrant Shares issued upon the exercise of any
Warrant and each stock certificate issued upon the direct or
indirect transfer of any such Warrant Shares shall be stamped or
otherwise imprinted with a legend in substantially the following
form:
THE SECURITIES REPRESENTED HEREBY
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS AND NEITHER THE SECURITIES
NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED
OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT OR SUCH LAWS OR AN EXEMPTION
FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS THAT, IN THE OPINION
OF COUNSEL FOR THE HOLDER, WHICH COUNSEL AND OPINION ARE REASONABLY
SATISFACTORY TO COUNSEL FOR THIS CORPORATION, IS
AVAILABLE.
Section 3.03 Removal of
Legend . Notwithstanding the foregoing, the Warrantholder
may require the Company to issue a Warrant or a stock certificate
for Warrant Shares, in each case without a legend, if either
(a) such Warrant or such Warrant Shares, as the case may be,
have been registered for resale under the Securities Act,
(b) the Warrantholder has delivered to the Company an opinion
of legal counsel (from a firm reasonably satisfactory to the
Company)
which opinion shall be addressed to the Company
and be reasonably satisfactory in form and substance to the
Company’s counsel, to the effect that such registration is
not required with respect to such Warrant or such Warrant Shares,
as the case may be, or (c) such Warrant or Warrant Shares are
sold in compliance with Rule 144 or Rule 144(k) (or any successor
provision then in effect) under the Securities Act, the Company
receives customary representations to such effect and the Company
receives an opinion of counsel to the Company in customary form
that such legend may be removed.
Article 4. Anti-Dilution
Provisions .
Section 4.01 Stock
Dividends, Splits, Combinations . If at any time after the date of the issuance of
this Warrant, the Company (a) declares a dividend or other
distribution payable in Common Stock or subdivides its outstanding
Common Stock into a larger number or (b) combines its
outstanding Common Stock into a smaller number, then (i) the
number of Warrant Shares to be delivered upon exercise of this
Warrant will, upon the occurrence of an event set forth in clause
(a) above, be increased and, upon the occurrence of an event
set forth in clause (b) above, be decreased so that such
Warrantholder will be entitled to receive the number of Common
Stock that such Warrantholder would have owned immediately
following such action had this Warrant been exercised immediately
prior thereto and (ii) the Exercise Price in effect
immediately prior to such dividend, other distribution, subdivision
or combination, as the case may be, shall be adjusted
proportionately by multiplying such Exercise Price by a fraction,
of which the numerator shall be the n