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Exhibit 10.2
WARRANT FOR THE PURCHASE OF
SHARES OF COMMON STOCK OF
NATURE VISION, INC.
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, OR APPLICABLE STATE SECURITIES
LAW. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT
AND MAY NOT BE OFFERED FOR SALE, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ASSIGNED OR OTHERWISE DISPOSED OF, AND NO TRANSFER OF THE
SECURITIES WILL BE MADE BY THE COMPANY OR ITS TRANSFER AGENT, IN
THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
For
value received, Nature Vision, Inc. , a Minnesota
corporation (the “ Company ”),
hereby grants to Richard
Kiphart , or his successors or assigns (the “
Lender
”) the right (the “ Warrant ”)
to subscribe for and purchase from the Company, 100,000
of the fully paid and nonassessable shares of common stock of
the Company (the “ Warrant Shares
”). The Exercise Price will initially be
$1.31, which is the closing price on the day before the date
of issuance of this Warrant, subject to adjustment as
described herein. For purposes of this Agreement,
the “ Exercise Price
” means the amount payable for exercise of the Warrant
for the total number of Warrant Shares being exercised
hereunder at the warrant exercise price stated in the
preceding sentence. The Warrant may be exercised by
the Lender at any time or from time to time from and after
July 8, 2008, and on or prior to June 30, 2013.
The
Warrant is subject to the following provisions, terms and
conditions:
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1.1
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Procedure . The rights represented by the Warrant
may be exercised by the holder hereof, in whole or in part, by
written notice of exercise delivered to the Company at least twenty
(20) days prior to the intended date of exercise and by the
surrender of the Warrant (properly endorsed if required) at the
principal office of the Company and upon payment to the Company by
cash, certified check or bank draft of the purchase price for the
Warrant Shares being so purchased. The Warrant Shares so
purchased will be deemed to be issued as of the close of business
on the date on which the Warrant has been exercised by payment to
the Company of the Exercise Price.
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1.2
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Cashless Exercise . In lieu of exercising the
Warrant as described above, the registered holder may elect to
receive Warrant Shares equal to the value (as determined below) of
the Warrant (or the portion thereof being canceled) by surrender of
the Warrant at the principal office of the Company, together with
notice of such election (which notice will include the number of
Warrant Shares being exercised hereunder), in which event the
Company will issue to the registered holder a certificate
representing that number of Warrant Shares equal to the quotient of
the following: (a) the fair market value of the
Warrant Shares being exercised (the “ Exercised Units
”) on the date of such payment or receipt by the Company of
such notice (unless such notice specifies a later date, in which
case it will be such specified date) (the “ Exercise Date ”)
which fair market value will be determined by subtracting
(A) the aggregate Exercise Price of the Exercised Units
immediately prior to the exercise of the Warrant from (B) the
aggregate fair market value of the Exercised Units on the Exercise
Date; divided by
(b) the fair market value of one Warrant Unit as of the
Exercise Date. No fractional Warrant Shares will be
issuable upon exercise of the Warrant, and if the number of Warrant
Shares to be issued determined in accordance with the foregoing
formula is other than a whole number, the Company will pay to the
registered holder an amount in cash equal to the fair market value
of the resulting fractional share on the Exercise
Date.
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1.3
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Certificates . Certificates will be issued
representing the applicable Warrant Shares as soon as
practicable following the Exercise Date. Unless the
Warrant has expired, following any exercise of the Warrant a new
warrant representing the number of Warrant Shares, if any, with
respect to which the Warrant has not been exercised will also be
delivered to the holder hereof. No fractional Warrant
Shares will be issued upon the exercise of the
Warrant.
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1.4
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Valuation . For purposes of this Section 1,
the “ fair
market value ” of the Warrant Shares will be the
average of the closing prices quoted on the NASDAQ system (or
similar system) over the ten day period ending three days before
the day the current fair market value of the securities is being
determined. However, if at any time the Warrant Shares
are not listed on any securities exchange or the over-the-counter
market, the current fair market value of Warrant Shares will be as
determined in good faith by the Company’s Board of Directors
(the “ Board ”), unless
the Company will become subject to a merger, acquisition or other
consolidation pursuant to which the Company is not the surviving
party, in which case the fair market value of Warrant Shares will
be deemed to be the value received by the holders of the
Company’s common stock. If the Lender and the
Company disagree as to the Board’s determination of fair
market value, the fair market value will be determined by
arbitration under the rules of the American Arbitration
Association, at the Lender’s expense.
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2.
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Company Covenants . The Company covenants and
agrees that all Warrant Shares that may be issued upon the exercise
of the rights represented by the Warrant will, upon issuance, be
duly authorized and issued, fully paid and nonassessable shares of
common stock in the Company. The Company further
covenants and agrees that during the period within which the rights
represented b
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