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Exhibit 10.3
THIS WARRANT AND THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT
BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR AN APPLICABLE
EXEMPTION TO THE REGISTRATION REQUIREMENTS OF SUCH ACT OR SUCH LAWS.
WARRANT
To Purchase 3,000,000 Shares of Common Stock of
PETMED EXPRESS, INC.
THIS IS TO CERTIFY THAT, TRICON HOLDINGS, LLC, a Florida limited
liability company, or registered assigns (the "Holder"), is entitled, at any
time prior to the Expiration Date (as hereinafter defined), to purchase from
PETMED EXPRESS, INC., a Florida corporation (the "Company"), Three Million
(3,000,000) shares of Common Stock (as hereinafter defined and subject to
adjustment as provided herein), in whole or in part, at a purchase price of
Thirty-Three Cents ($0.33) per share (subject to adjustment as provided herein),
all on the terms and conditions and pursuant to the provisions hereinafter set
forth.
1. DEFINITIONS
As used in this Warrant, the following terms have the respective
meanings set forth below:
"Additional Shares of Common Stock" shall mean all shares of Common
Stock issued by the Company after the date hereof, other than Warrant Stock.
"Adjustment Period" shall mean the period of five (5) consecutive
Trading Days preceding the date as of which the Fair Market Value of a security
is to be determined.
"Board of Directors" shall mean the board of directors of the Company.
"Business Day" shall mean any day that is not a Saturday or Sunday or a
day on which banks are required or permitted to be closed in the State of New
York.
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency then administering the Securities Act and other federal
securities laws.
"Common Stock" shall mean (except where the context otherwise
indicates) the Common Stock, par value $0.001 per share, of the Company as
constituted on the date hereof, and any capital
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stock into which such Common Stock may thereafter be changed, and shall also
include (i) capital stock of the Company of any other class (regardless of how
denominated) issued to the holders of shares of Common Stock upon any
reclassification thereof which is not preferred as to dividends or assets over
any other class of stock of the Company and which is not subject to redemption
and (ii) shares of common stock or other equity securities of any successor or
acquiring corporation (as described in Section 4.7) received by or distributed
to the holders of Common Stock of the Company in the circumstances contemplated
by Section 4.7.
"Convertible Securities" shall mean evidences of indebtedness, shares
of stock or other securities which are convertible into or exchangeable or
exercisable, with or without payment of additional consideration in cash or
property, for Additional Shares of Common Stock, either immediately or upon the
occurrence of a specified date or a specified event.
"Current Market Price" when used with reference to shares of Common
Stock or other securities on any date, shall mean the closing price per share of
Common Stock or such other securities on such date and, when used with reference
to shares of Common Stock or other securities for any period shall mean the
average of the daily closing prices per share of Common Stock or such other
securities for such period. The closing price for each day shall be the last
quoted bid price in the over-the-counter market, as reported by the Nasdaq Stock
Market (the "NASDAQ") or such other system then in use, or, if on any such date
the Common Stock or such other securities are not quoted by any such
organization, the closing bid price as furnished by a professional market maker
making a market in the Common Stock or such other securities selected by the
Board of Directors. If the Common Stock is listed or admitted to trading on a
national securities exchange, the closing price shall be the closing bid price,
regular way, as reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading on the New York
Stock Exchange or, if the Common Stock or such other securities are not listed
or admitted to trading on the New York Stock Exchange, as reported in the
principal consolidated transaction reporting system with respect to securities
listed on the principal national securities exchange on which the Common Stock
or such other securities are listed or admitted to trading. If the Common Stock
or such other securities are not publicly held or so listed or publicly traded,
"Current Market Price" shall mean the Fair Market Value per share of Common
Stock or of such other securities as determined jointly by the Board of
Directors and the Holders; provided that if such parties are unable to reach
agreement after twenty (20) Business Days, such Fair Market Value shall be based
on an opinion of an independent investment banking firm with experience in the
pet veterinary and health industry acceptable to the Holders, which opinion may
be based on such assumptions as such firm shall deem to be necessary and
appropriate.
"Current Warrant Price" shall mean, in respect of a share of Common
Stock at any date herein specified, the price at which a share of Common Stock
may be purchased pursuant to this Warrant on such date, which shall initially be
Thirty-Three Cents ($0.33).
"Excluded Securities" shall mean (i) Additional Shares of Common Stock
issuable or issued to employees, outside directors or consultants of the Company
directly or pursuant to any existing
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or future stock option plan or stock incentive plan of the Company; and (ii)
Additional Shares of Common Stock issued or issuable as direct consideration for
the acquisition by the Company of capital stock or assets of another business
entity or in connection with a merger or consolidation to the extent such
issuances are approved by a majority of the members of the Board of Directors
that are not employees of the Company.
"Expiration Date" shall mean 5:00 p.m., New York time on ____________,
2005.
"Fair Market Value" shall mean, as to shares of Common Stock or any
other class of capital stock or securities of the Company or any other issuer
which are publicly traded, the average of the Current Market Prices of such
shares of securities for each day of the Adjustment Period. The "Fair Market
Value" of any security which is not publicly traded or of any other property
shall mean the fair value thereof as determined by an independent investment
banking or appraisal firm experienced in the valuation of such securities or
property selected in good faith by the Board of Directors or a committee thereof
and acceptable to the Holder.
"Holder" shall mean the Person in whose name this Warrant is registered
on the books of the Company maintained for such purpose. "Holders" shall mean,
collectively, each Holder of a Warrant, in the event of any division of this
Warrant.
"Other Property" shall have the meaning set forth in Section 4.7.
"Outstanding" shall mean, when used with reference to Common Stock, at
any date as of which the number of shares thereof is to be determined, all
issued shares of Common Stock, except shares then owned or held by or for the
account of the Company or any subsidiary thereof, and shall include all shares
issuable in respect of outstanding scrip or any certificates representing
fractional interests in shares of Common Stock. For the purposes of Sections
4.3, 4.4, 4.5 and 4.6, Common Stock Outstanding shall also include all shares of
Common Stock issuable in respect of options or warrants to purchase, or
securities convertible into, shares of Common Stock, the exercise or conversion
price of which is less than the Current Market Price as of any date on which the
number of shares of Common Stock Outstanding is to be determined.
"Permitted Issuances" shall mean the issuance or reissuance of any
shares of Common Stock (whether treasury shares or newly issued shares) pursuant
to (i) a dividend or distribution on, or subdivision, combination or
reclassification of, the outstanding shares of Common Stock requiring an
adjustment in the conversion ratio pursuant to Section 4.1, or (ii) issuances of
Excluded Securities.
"Person" shall mean any individual, firm, corporation, partnership or
other entity, and shall include any successor by merger or otherwise of such
entity.
"Registration Rights Agreement" shall mean the registration rights
agreement, dated as of the date hereof, among the Company and the Holder.
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"Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Subscription Agreement" shall mean that certain Subscription Agreement
entered into on even date herewith by the Company and the Holder, and pursuant
to which the Company issued this Warrant.
"Trading Day" means a Business Day or, if the Common Stock is listed or
admitted to trading on any national securities exchange or automated quotation
system, a day on which such securities exchange or automated quotation system is
open for the transaction of business.
"Transfer" shall mean any disposition of any Warrant or Warrant Stock
or of any interest in either thereof.
"Warrant Price" shall mean an amount equal to the product of (i) the
number of shares of Common Stock being purchased upon exercise of this Warrant
pursuant to Section 2.1, multiplied by (ii) the Current Warrant Price as of the
date of such exercise.
"Warrant Stock" shall mean the shares of Common Stock purchased by the
Holders of the Warrants upon the exercise thereof.
2. EXERCISE OF WARRANT
2.1 MANNER OF EXERCISE. At any time or from time to time from and after
the date hereof and until 5:00 P.M., New York time, on the Expiration Date,
Holder may exercise this Warrant, on any Business Day, for all or any part of
the number of shares of Common Stock purchasable hereunder.
In order to exercise this Warrant, in whole or in part, Holder
shall deliver to the Company at its principal office at 1441 SW 29th Avenue,
Pompano Beach, Florida 33069 (i) a written notice of Holder's election to
exercise this Warrant, which notice shall specify the number of shares of Common
Stock to be purchased, (ii) payment of the Warrant Price and (iii) this Warrant.
Such notice shall be substantially in the form appearing at the end of this
Warrant as Exhibit A, duly executed by Holder. Upon receipt of the items
specified in the second preceding sentence, the Company shall execute or cause
to be executed and deliver or cause to be delivered to Holder a certificate or
certificates representing the aggregate number of full shares of Common Stock
issuable upon such exercise, together with cash in lieu of any fraction of a
share, as hereinafter provided. The stock certificate or certificates so
delivered shall be in such denomination or denominations as Holder shall request
in the notice and shall be registered in the name of Holder or, subject to
Section 9, such other name as shall be designated in the notice. This Warrant
shall be deemed to have been exercised and such certificate or certificates
shall be deemed to have been issued, and Holder or any other Person so
designated shall be deemed to have become a holder of record of such shares for
all
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purposes, as of the date the notice, together with the Warrant Price and this
Warrant, are received by the Company as described above. If this Warrant shall
have been exercised in part, the Company shall, at the time of delivery of the
certificate or certificates representing Warrant Stock, deliver to Holder a new
Warrant evidencing the right of Holder to purchase the unpurchased shares of
Common Stock called for by this Warrant, which new Warrant shall in all other
respects be identical with this Warrant, or, at the request of Holder,
appropriate notation may be made on this Warrant and the same returned to
Holder. Payment of the Warrant Price shall be made at the option of Holder by
certified or official bank check, and, in either case, specifying the number of
shares of Common Stock to be purchased, during normal business hours on any
Business Day.
2.2 PAYMENT OF TAXES. All shares of Common Stock issuable upon the
exercise of this Warrant shall be validly issued, fully paid and nonassessable
and without any preemptive rights. The Company shall pay all expenses in
connection with, and all taxes and other governmental charges that may be
imposed with respect to, the issue or delivery thereof (other than transfer
taxes payable in connection with issuing the Warrant Stock in a name other than
that of the Holder).
2.3 FRACTIONAL SHARES. The Company shall not be required to issue a
fractional share of Common Stock upon exercise of this Warrant. As to any
fraction of a share which Holder would otherwise be entitled to purchase upon
such exercise, the Company shall pay a cash adjustment in respect of such
fraction in an amount equal to the same fraction of the Current Market Price per
share of Common Stock on the date of exercise.
3. TRANSFER, DIVISION AND COMBINATION
3.1 TRANSFER. Subject to compliance with Sections 9 and 12.4, Transfer
of this Warrant and all rights hereunder, in whole or in part, shall be
registered on the books of the Company to be maintained for such purpose, upon
surrender of this Warrant at the principal office of the Company referred to in
Section 2.1, together with a written assignment of this Warrant substantially in
the form of Exhibit B hereto duly executed by Holder and funds sufficient to pay
any transfer taxes payable upon the making of such Transfer. Upon such surrender
and, if required, such payment, the Company shall, subject to Sections 9 and
12.4, execute and deliver a new Warrant or Warrants in the name of the assignee
or assignees and in the denomination specified in such instrument of assignment,
and shall issue to the assignor a new Warrant evidencing the portion of this
Warrant not so assigned, and this Warrant shall promptly be canceled. A Warrant,
if properly assigned in compliance with Sections 9 and 12.4, may be exercised by
a new Holder for the purchase of shares of Common Stock without having a new
Warrant issued.
3.2 DIVISION AND COMBINATION. Subject to Sections 9 and 12.4, this
Warrant may be divided into multiple Warrants or combined with other Warrants
upon presentation hereof at the aforesaid office or agency of the Company,
together with a written notice specifying the names and denominations in which
new Warrants are to be issued, signed by Holder. Subject to compliance with
Section 3.1 and with Sections 9 and 12.4, as to any Transfer which may be
involved in such
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division or combination, the Company shall execute and deliver a new Warrant or
Warrants in exchange for the Warrant or Warrants to be divided or combined in
accordance with such notice.
3.3 EXPENSES. The Company shall prepare, issue and deliver at its own
expense (other than transfer taxes) the new Warrant or Warrants under this
Section 3.
3.4 MAINTENANCE OF BOOKS. The Company agrees to maintain, at its
aforesaid office, books for the registration and the registration of Transfer of
the Warrants.
4. ADJUSTMENTS
The number of shares of Common Stock for which this Warrant is
exercisable and/or the Current Warrant Price at which such shares may be
purchased upon exercise of this Warrant, shall be subject to adjustment from
time to time as set forth in this Section 4. The Company shall give each Holder
notice of any event described below which requires an adjustment pursuant to
this Section 4 at the time of such event.
4.1 STOCK DIVIDENDS, SUBDIVISIONS AND COMBINATIONS. In case the Company
shall at any time or from time to time after the date hereof (A) take a record
of the holders of its Common Stock for the purpose of entitling them to receive
a dividend, or any distribution, on the outstanding shares of Common Stock in
Additional Shares of Common Stock, (B) subdivide the outstanding shares of
Common Stock, (C) combine the outstanding shares of Common Stock into a smaller
number of shares or (D) issue by reclassification of the shares of Common Stock
any shares of capital stock of the Company, then (i) the number of shares of
Common Stock for which this Warrant is exercisable immediately after the
occurrence of any such event shall be adjusted to equal the number of shares of
Common Stock which a record holder of the same number of shares of Common Stock
for which this Warrant is exercisable immediately prior to the occurrence of
such event would own or be entitled to receive after the happening of such
event, and (ii) the Current Warrant Price per share shall be adjusted to equal
the quotient of (A) the Current Warrant Price multiplied by the number of shares
of Common Stock for which this Warrant is exercisable immediately prior to the
adjustment, divided by (B) the number of shares for which this Warrant is
exercisable immediately after such adjustment. An adjustment made pursuant to
this Section 4.1 shall become effective (x) in the case of any such dividend or
distribution, immediately after the close of business on the record date for the
determination of holders of shares of Common Stock entitled to receive such
dividend or distribution, or (y) in the case of such subdivision,
reclassification or combination, at the close of business on the day upon which
such corporate action becomes effective.
4.2 CERTAIN OTHER DISTRIBUTIONS. If the Company shall at any time or
from time to time after the date hereof declare, order, pay or make a dividend
or other distribution of:
(a) cash, except that the provisions of this Section 4.2 shall
not apply to any dividend or distribution of cash to the extent such dividend or
distribution is payable out of consolidated earnings or retained earnings,
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(b) any evidences of its indebtedness, any shares of its stock
or any other securities or property of any nature whatsoever by way of dividend
(other than cash, Convertible Securities or Additional Shares of Common Stock),
or
(c) any warrants or other rights to subscribe for or purchase
any evidences of its indebtedness, any shares of its stock or any other
securities or property of any nature whatsoever (other than cash, Convertible
Securities or Additional Shares of Common Stock),
then (i) the number of shares of Common Stock for which this Warrant is
exercisable shall be adjusted to equal the product of the number of shares of
Common Stock for which this Warrant is exercisable immediately prior to such
adjustment multiplied by a fraction (A) the numerator of which shall be the
Current Market Price per share of Common Stock for the period of twenty (20)
Trading Days preceding such adjustment and (B) the denominator of which shall be
such Current Market Price per share of Common Stock less the Fair Market Value
per share of Common Stock of any such dividend or distribution and (ii) the
Current Warrant Price shall be adjusted to equal the quotient of (A) the Current
Warrant Price multiplied by the number of shares of Common Stock for which this
Warrant is exercisable immediately prior to the adjustment, divided by (B) the
number of shares for which this Warrant is exercisable immediately after such
adjustment. A reclassification of the Common Stock (other than a change in par
value, or from par value to no par value or from no par value to par value) into
shares of Common Stock and shares of any other class of stock shall be deemed a
distribution by the Company to the holders of its Common Stock of such shares of
such other class of stock within the meaning of this Section 4.2 and, if the
outstanding shares of Common Stock shall be changed into a larger or smaller
number of shares of Common Stock as a part of such reclassification, then such
change shall be deemed a subdivision or combination, as the case may be, of the
outstanding shares of Common Stock within the meaning of Section 4.1.
4.3 ISSUANCE OF ADDITIONAL SHARES OF COMMON STOCK. If at any time the
Company shall (except as hereinafter provided) issue or sell any Additional
Shares of Common Stock, other than Permitted Issuances, in exchange for
consideration in an amount per Additional Share of Common Stock less than the
Current Market Price of the Common Stock at the time the Additional Shares of
Common Stock are issued, then (i) the Current Warrant Price as to the number of
shares for which this Warrant is exercisable prior to such adjustment shall be
reduced to a price determined by multiplying the Current Warrant Price by a
fraction, the numerator of which shall be the sum of (A) the total number of
shares of Common Stock Outstanding immediately prior to such issuance or sale
and (B) the number of shares of Common Stock which the consideration received
for the total number of Additional Shares of Common Stock being issued or sold
would purchase at the Current Market Price, and the denominator of which is the
sum of (X) the number of shares of Common Stock Outstanding immediately prior to
such issuance or sale and (Y) the number of Additional Shares of Common Stock
being issued or sold and (ii) the number of shares of Common Stock for which
this Warrant is exercisable shall be adjusted to equal the product obtained by
multiplying the Current Warrant Price in effect immediately prior to such issue
or sale by the number of shares of Common Stock for which this Warrant is
exercisable immediately prior to such issue or sale and
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dividing the product thereof by the Current Warrant Price resulting from the
adjustment made pursuant to clause (i) above.
4.4 ISSUANCE OF WARRANTS OR OTHER RIGHTS. If at any time the Company
shall take a record of the holders of its Common Stock for the purpose of
entitling them to receive a distribution of, or shall in any manner (whether
directly or by assumption in a merger in which the Company is the surviving
corporation) issue or sell, any warrants or other rights to subscribe for or
purchase any Additional Shares of Common Stock or any Convertible Securities,
whether or not the rights to exchange or convert thereunder are immediately
exercisable, and the price per share for which Common Stock is issuable upon the
exercise of such Warrants or other rights or upon conversion or exchange of such
Convertible Securities shall be less than the Current Market Price in effect
immediately prior to the time of such issue or sale, then the number of shares
for which this Warrant is exercisable and the Current Warrant Price shall be
adjusted as provided in Section 4.3 on the basis that the maximum number of
Additional Shares of Common Stock issuable pursuant to all such warrants or
other rights or necessary to effect the conversion or exchange of all such
Convertible Securities shall be deemed to have been issued and outstanding and
the Company shall have received all of the consideration payable therefor, if
any, as of the date of the actual issuance of the number of shares for which
this Warrant is exercisable and such warrants or other rights. No further
adjustments of the Current Warrant Price shall be made upon the actual issue of
such Common Stock or of such Convertible Securities upon exercise of such
warrants or other rights or upon the actual issue of such Common Stock upon such
conversion or exchange of such Convertible Securities. On the expiration of any
such warrants or other rights or the termination of any such right to convert or
exchange such Convertible Securities, the Current Warrant Price then in effect
hereunder shall forthwith be increased to the Current Warrant Price which would
have been in effect at the time of such expiration or termination had such
warrants, rights or Convertible Securities so expired or terminated never been
issued.
4.5 ISSUANCE OF CONVERTIBLE SECURITIES. If at any time the Company
shall take a record of the holders of its Common Stock for the purpose of
entitling them to receive a distribution of, or shall in any manner (whether
directly or by assumption in a merger in which the Company is the surviving
corporation) issue or sell, any Convertible Securities, whether or not the
rights to exchange or convert thereunder are immediately exercisable, and the
price per share for which Common Stock is issuable upon such conversion or
exchange shall be less than the Current Market Price in effect immediately prior
to the time of such issue or sale, then the number of shares for which this
Warrant is exercisable and the Current Warrant Price shall be adjusted as
provided in Section 4.3 on the basis that the maximum number of Additional
Shares of Common Stock necessary to effect the conversion or exchange of all
such Convertible Securities shall be deemed to have been issued and outstanding
and the Company shall have received all of the consideration payable therefor,
if any, as of the date of actual issuance of such Convertible Securities. No
adjustment of the number of shares for which this Warrant is exercisable and the
Current Warrant Price shall be made under this Section 4.5 upon the issuance of
any Convertible Securities which are issued pursuant to the exercise of any
warrants or other subscription or purchase rights therefor, if any such
adjustment shall previously have been made upon the issuance of such warrants or
other rights pursuant to Section 4.4. No further
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adjustments of the number of shares for which this Warrant is exercisable and
the Current Warrant Price shall be made upon the actual issue of such Common
Stock upon conversion or exchange of such Convertible Securities and, if any
issue or sale of such Convertible Securities is made upon exercise of any
warrant or other right to subscribe for or to purchase any such Convertible
Securities for which adjustments of the number of shares for which this Warrant
is exercisable and the Current Warrant Price have been or are to be made
pursuant to other provisions of this Section 4, no further adjustments of the
number of shares for which this Warrant is exercisable and the Current Warrant
Price shall be made by reason of such issue or sale. On the expiration of any
such warrants or other rights or the termination of any such right to convert or
exchange such Convertible Securities, the Current Warrant Price then in effect
hereunder shall forthwith be increased to the Current Warrant Price which would
have been in effect at the time of such expiration or termination had such
warrants, rights or Convertible Securities so expired or terminated never been
issued.
4.6 OTHER PROVISIONS APPLICABLE TO ADJUSTMENTS UNDER THIS SECTION. The
following provisions shall be applicable to the making of adjustments of the
number of shares of Common Stock for which this Warrant is exercisable and the
Current Warrant Price provided for in this Section 4:
(a) COMPUTATION OF CONSIDERATION. To the extent that any
Additional Shares of Common Stock or any Convertible Securities or any warrants
or other rights to subscribe for or purchase any Additional Shares of Common
Stock or any Convertible Securities shall be issued for cash consideration, the
consideration received by the Company therefor shall be the amount of the cash
received by the Company therefor, or, if such Additional Shares of Common Stock
or Convertible Securities are offered by the Company for subscription, the
subscription price, or, if such Additional Shares of Common Stock or Convertible
Securities are sold to underwriters or dealers for public offering without a
subscription offering, the public offering price (in any such case subtracting
any amounts paid or receivable for accrued interest or accrued dividends and
without taking into account any compensation, discounts or expenses paid or
incurred by the Company for and in the underwriting of, or otherwise in
connection with, the issuance thereof). To the extent that such issuance shall
be for a consideration other than cash, then, except as herein otherwise
expressly provided, the amount of such consideration shall be deemed to be the
Fair Market Value of such consideration at the time of such issuance. In case
any Additional Shares of Common Stock or any Convertible Securities or any
warrants or other rights to subscribe for or purchase such Additional Shares of
Common Stock or Convertible Securities shall be issued in connection with any
merger in which the Company issues any securities, the amount of consideration
therefor shall be deemed to be the Fair Market Value of such portion of the
assets and business of the nonsurviving corporation as such Board of Directors
in good faith shall determine to be attributable to such Additional Shares of
Common Stock, Convertible Securities, warrants or other rights, as the case may
be. The consideration for any Additional Shares of Common Stock issuable
pursuant to any warrants or other rights to subscribe for or purchase the same
shall be the consideration received by the Company for issuing such warrants or
other rights plus the additional consideration payable to the Company upon
exercise of such warrants or other rights. The consideration for any Additional
Shares of Common Stock issuable pursuant to the terms of any Convertible
Securities shall be the
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consideration received by the Company for issuing warrants or other rights to
subscribe for or purchase such Convertible Securities, plus the consideration
paid or payable to the Company in respect of the subscription for or purchase of
such Convertible Securities, plus the additional consideration, if any, payable
to the Company upon the exercise of the right of conversion or exchange in such
Convertible Securities. In case of the issuance at any time of any Additional
Shares of Common Stock or Convertible Securities in payment or satisfaction of
any dividends upon any class of stock other than Common Stock, the Company shall
be deemed to have received for such Additional Shares of Common Stock or
Convertible Securities a consideration equal to the amount of such dividend so
paid or satisfied. If Additional Shares of Common Stock are sold as a unit with
other securities or rights of value, the aggregate consideration received for
such Additional Shares of Common Stock shall be deemed to be net of the Fair
Market Value of such other securities or rights of value.
(b) WHEN ADJUSTMENTS TO BE MADE. The adjustments required by
this Section 4 shall be made whenever and as often as any specified event
requiring an adjustment shall occur, except that any adjustment of the number of
shares of Common Stock for which this Warrant is exercisable that would
otherwise be required may be postponed (except in the case of a subdivision or
combination of shares of the Common Stock, as provided for in Section 4.1) up
to, but not beyond the date of exercise if such adjustment either by itself or
with other adjustments not previously made results in an increase or decrease of
less than one percent (1%) of the shares of Common Stock for which this Warrant
is exercisable immediately prior to the making of such adjustment; provided,
however, that such adjustment must result in an adjustment of One Cent ($0.01)
or more. Any adjustment representing a change of less than such minimum amount
(except as aforesaid) which is postponed shall be carried forward and made as
soon as such adjustment, together with other adjustments required by this
Section 4 and not previously made, would result in a minimum adjustment or on
the date of exercise. For the purpose of any adjustment, any specified event
shall be deemed to have occurred at the close of business on the date of its
occurrence.
(c) FRACTIONAL INTERESTS. In computing adjustments under this
Section 4, fractional interests in Common Stock shall be taken into account to
the nearest 1/100th of a share.
(d) WHEN ADJUSTMENT NOT REQUIRED. If the Company shall take a
record of the holders of its Common Stock for the purpose of entitling them to
receive a dividend or distribution or subscription or purchase rights and shall,
thereafter and before the distribution to stockholders thereof, legally abandon
its plan to pay or deliver such dividend, distribution, subscription or purchase
rights, then thereafter no adjustment shall be required by reason of the taking
of such record and any such adjustment previously made in respect thereof shall
be rescinded and annulled.
(e) ESCROW OF WARRANT STOCK. If, after any property becomes
distributable pursuant to this Section 4 by reason of the taking of any record
of the holders of Common Stock, but prior to the occurrence of the event for
which such record is taken, Holder exercises this Warrant, any Additional Shares
of Common Stock issuable upon exercise by reason of such adjustment shall be
deemed the last shares of Common Stock for which this Warrant is exercised
(notwithstanding
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any other provision to the contrary herein) and such shares or other property
shall be held in escrow for Holder by the Company to be issued to Holder when
and to the extent that the event actually takes place, upon payment of the then
Current Warrant Price. Notwithstanding any other provision to the contrary
herein, if the event for which such record was taken fails to occur or is
rescinded, then such escrowed shares shall be canceled by the Company and
escrowed property returned.
4.7 REORGANIZATION, RECLASSIFICATION, MERGER, CONSOLIDATION OR
DISPOSITION OF ASSETS. In case the Company shall (i) reorganize its capital,
(ii) reclassify its capital stock, (iii) consolidate or merge with or into
another corporation (where the Company is not the surviving corporation or where
there is a change in or distribution with respect to the Common Stock of the
Company), or (iv) sell, transfer or otherwise dispose of all or substantially
all its property, assets or business to another corporation and, pursuant to the
terms of such reorganization, reclassification, merger, consolidation or
disposition of assets, shares of Common Stock of the successor or acquiring
corporation, or any cash, shares of stock or other securities or property of any
nature whatsoever (including warrants or other subscription or purchase rights)
in addition to or in lieu of Common Stock of the successor or acquiring
corporation ("Other Property"), are to be received by or distributed to the
holders of Common Stock, then Holder shall have the right thereafter to receive,
upon exercise of this Warrant and payment of the Warrant Price, the number of
shares of common stock of the successor or acquiring corporation or of the
Company, if it is the surviving corporation, and Other Property receivable upon
or as a result of such reorganization, reclassification, merger, consolidation
or disposition of assets by a holder of the number of shares of Common Stock for
which this Warrant is exercisable immediately prior to such event. In case of
any such reorganization, reclassification, merger, consolidation or disposition
of assets, the successor or acquiring corporation (if other than the Company)
shall expressly assume the due and punctual observance and performance of each
and every covenant and condition of this Warrant to be performed and observed by
the Company and all the obligations and liabilities hereunder, subject to such
modifications as may be deemed appropriate (as determined by resolution of the
Board of Directors) in order to provide for adjustments of shares of the Common
Stock for which this Warrant is exercisable which shall be as nearly equivalent
as practicable to the adjustments provided for in this Section 4. For purposes
of this Section 4.7, "common stock of the successor or acquiring corporation"
shall include stock of such corporation of any class which is not preferred as
to dividends or assets over any other class of stock of such corporation and
which is not subject to redemption and shall also include any evidences of
indebtedness, shares of stock or other securities which are convertible into or
exchangeable for any such stock, either immediately or upon the arrival of a
specified date or the happening of a specified event and any warrants or other
rights to subscribe for or purchase any such stock. Notwithstanding the
foregoing, in the event of a transaction described in clauses (iii) or (iv) of
this Section 4.7, to the extent such transaction is a bona fide unaffiliated
third party transaction, the Company may require that the Warrants be converted
into, for each share of Warrant Stock issuable upon the exercise of a Warrant,
the consideration received in respect of a share of the Company's Common Stock
in such transaction less with respect to each share of Warrant Stock issuable
upon exercise of a Warrant, the Current Warrant Price thereof. The foregoing
provisions of this Section 4.7 shall similarly apply to successive
reorganizations, reclassifications, mergers, consolidations or disposition of
assets.
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4.8 CERTAIN LIMITATIONS. Notwithstanding anything herein to the
contrary, the Company agrees not to enter into any transaction which, by reason
of any adjustment hereunder, would cause the Current Warrant Price to be less
than the par value per share of Common Stock.
5. NOTICES TO WARRANT HOLDERS
5.1 NOTICE OF ADJUSTMENTS; CHANGE IN WARRANT STATUS. Whenever the
number of shares of Common Stock for which this Warrant is exercisable, or
whenever the price at which a share of such Common Stock may be purchased upon
exercise of the Warrants, shall be adjusted pursuant to Section 2.1 or Section
4, the Company shall forthwith prepare a certificate to be executed by the chief
financial officer of the Company setting forth, in reasonable detail, the event
requiring the adjustment and the method by which such adjustment was calculated
(including a description of the basis on which the Board of Directors determined
the Fair Market Value of any evidences of indebtedness, shares of stock, other
securities or property or warrants or other subscription or purchase rights
referred to in Section 4.2 or 4.6(a)), specifying the number of shares of Common
Stock for which this Warrant is exercisable and (if such adjustment was made
pursuant to Section 4.7) describing the number and kind of any other shares of
stock or Other Property for which this Warrant is exercisable, and any change in
the purchase price or prices thereof, after giving effect to such adjustment or
change. The Company shall promptly cause a signed copy of such certificate to be
delivered to each Holder in accordance with Section 12.2. The Company shall keep
at its principal office copies of all such certificates and cause the same to be
available for inspection at said office during normal business hours by any
Holder or any prospective purchaser of a Warrant designated by a Holder thereof.
5.2 NOTICE OF CORPORATE ACTION. If at any time
(a) the Company shall take a record of the holders of its
Common Stock for the purpose of entitling them to receive a dividend (other than
a cash dividend which is payable out of earnings or earned surplus legally
available for the payment of dividends under the laws of the jurisdiction of
incorporation of the Company) or other distribution, or any right to subscribe
for or purchase any evidences of its indebtedness, any shares of stock of any
class or any other securities or property, or to receive any other right, or
(b) there shall be any capital reorganization of the Company,
any reclassification or recapitalization of the capital stock of the Company or
any consolidation or merger of the Company with, or any sale, transfer or other
disposition of all or substantially all the property, assets or business of the
Company to, another corporation, or
(c) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
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then, in any one or more of such cases, the Company shall give to Holder (i) at
least twenty (20) days' prior written notice of the date on which a record date
shall be selected for such dividend, distribution or right or for determining
rights to vote in respect of any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, dissolution, liquidation or winding
up, and (ii) in the case of any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, dissolution, liquidation or winding
up, at least twenty (20) days' prior written notice of the date when the same
shall take place. Such notice in accordance with the foregoing clause also shall
specify (i) the date on which any such record is to be taken for the purpose of
such dividend, distribution or right, the date on which the holders of Common
Stock shall be entitled to any such dividend, distribution or right, and the
amount and character thereof, and (ii) the date on which any such
reorganization, reclassification, merger, consolidation, sale, transfer,
disposition, dissolution, liquidation or winding up is to take place and the
time, if any such time is to be fixed, as of which the holders of Common Stock
shall be entitled to exchange their shares of Common Stock for securities or
other property deliverable upon such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, dissolution, liquidation or winding
up. Each such written notice shall be sufficiently given if addressed to Holder
at the last address of Holder appearing on the books of the Company and
delivered in accordance with Section 12.2.
6. RIGHTS OF HOLDERS
6.1 NO IMPAIRMENT. The Company shall not by any action, including,
without limitation, amending its Articles of Incorporation or comparable
governing instruments or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms of this Warrant, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such actions as may be
necessary or appropriate to protect the rights of Holder against impairment.
Without limiting the generality of the foregoing, the Company will (a) not
increase the par value of any shares of Common Stock receivable upon the
exercise of this Warrant above the amount payable therefor upon such exercise
immediately prior to such increase in par value, (b) take all such action as may
be necessary or appropriate in order that the Company may validly and legally
issue fully paid and nonassessable shares of Common Stock upon the exercise of
this Warrant, and (c) use its best efforts to obtain all such authorizations,
exemptions or consents from any public regulatory body having jurisdiction
thereof as may be necessary to enable the Company to perform its obligations
under this Warrant.
Upon the request of Holder, the Company will at any time
during the period this Warrant is outstanding acknowledge in writing, in form
reasonably satisfactory to Holder, the continuing validity of this Warrant and
the obligations of the Company hereunder.
7. RESERVATION AND AUTHORIZATION OF COMMON STOCK; REGISTRATION WITH OR APPROVAL
OF ANY GOVERNMENTAL AUTHORITY
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From and after the date hereof, the Company shall at all times reserve
and keep available for issue upon the exercise of Warrants such number of its
authorized but unissued shares of Common Stock as will be sufficient to permit
the exercise in full of all outstanding Warrants. All shares of Common Stock
which shall be so issuable, when issued upon exercise of any Warrant and payment
therefor in accordance with the terms of such Warrant, shall be duly and validly
issued and fully paid and nonassessable, and not subject to preemptive rights.
Before taking any action which would cause an adjustment reducing the
Current Warrant Price below the then par value, if any, of the shares of Common
Stock issuable upon exercise of the Warrants, the Company shall take any
corporate action which may be necessary in order that the Company may validly
and legally issue fully paid and nonassessable shares of such Common Stock at
such adjusted Current Warrant Price.
8. TAKING OF RECORD; STOCK AND WARRANT TRANSFER BOOKS
In the case of all dividends or other distributions by the Company to
the holders of its Common Stock with respect to which any provision of Section 4
refers to the taking of a record of such holders, the Company will in each such
case take such a record and will take such record as of the close of business on
a Business Day. The Company will not at any time, except upon dissolution,
liquidation or winding up of the Company, close its stock transfer books or
Warrant transfer books so as to result in preventing or delaying the exercise or
Transfer of any Warrant.
9. RESTRICTIONS ON TRANSFERABILITY
The Warrants and the Warrant Stock shall not be transferred,
hypothecated or assigned before satisfaction of the conditions specified in this
Section 9, which conditions are intended to ensure compliance with the
provisions of the Securities Act with respect to the Transfer of any Warrant or
any Warrant Stock. Holder, by acceptance of this Warrant, agrees to be bound by
the provisions of this Section 9.
9.1 RESTRICTIVE LEGEND. Except as otherwise provided in this Section 9,
each Warrant and each certificate for Warrant Stock initially issued upon the
exercise of a Warrant, and each certificate for Warrant Stock issued to any
subsequent transferee of any such certificate, shall be stamped or otherwise
imprinted with the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE SECURITIES
HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH SUCH ACT."
9.2 REGISTRATION RIGHTS. The Holders shall have the registration rights
set forth in the Registration Rights Agreement.
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10. LOSS OR MUTILATION
Upon receipt by the Company from any Holder of evidence reasonably
satisfactory to it of the ownership of and the loss, theft, destruction or
mutilation of this Warrant and indemnity reasonably satisfactory to it, and in
case of mutilation upon surrender and cancellation hereof, the Company will
execute and deliver in lieu hereof a new Warrant of like tenor to such Holder;
provided, in the case of mutilation, no indemnity shall be required if this
Warrant in identifiable form is surrendered to the Company for cancellation.
11. LIMITATION OF LIABILITY
No provision hereof, in the absence of affirmative action by Holder to
purchase shares of Common Stock, and no enumeration herein of the rights or
privileges of Holder hereof, shall give rise to any liability of such Holder for
the purchase price of any Common Stock or as a stockholder of the Company,
whether such liability is asserted by the Company or by creditors of the
Company.
12. MISCELLANEOUS
12.1 NONWAIVER AND EXPENSES. No course of dealing or any delay or
failure to exercise any right hereunder on the part of Holder shall operate as a
waiver of such right or otherwise prejudice Holder's rights, powers or remedies.
12.2 NOTICE GENERALLY. Any notice, demand, request, consent, approval,
declaration, delivery or other communication hereunder to be made pursuant to
the provisions of this Warrant shall be sufficiently given or made if in writing
and either delivered in person with receipt acknowledged or sent by registered
or certified mail, return receipt requested, postage prepaid, or by a nationally
recognized overnight courier or by facsimile and confirmed by facsimile
answerback, addressed as follows:
(a) If to any Holder or holder of Warrant Stock, at its last
known address appearing on the books of the Company maintained for such purpose.
(b) If to the Company at:
PetMed Express, Inc.
1441 SW 29th Avenue
Pompano Beach, FL 33069
Attention: Marc A. Puleo, M.D.
Facsimile Number: 954-971-0544
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice.
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Every notice, demand, request, consent, approval, declaration, delivery or other
communication hereunder shall be deemed to have been duly given or served on the
date on which personally delivered, with receipt acknowledged, sent by facsimile
and confirmed by facsimile answerback, one (1) Business Day after the same shall
have been deposited with a nationally recognized overnight courier or three (3)
Business Days after the same shall have been deposited in the United States
mail. Failure or delay in delivering copies of any notice, demand, request,
approval, declaration, delivery or other communication to the Person designated
above to receive a copy shall in no way adversely affect the effectiveness of
such notice, demand, request, approval, declaration, delivery or other
communication.
12.3 REMEDIES. Each Holder and holder of Warrant Stock, in addition to
being entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights under of this
Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Warrant and hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
12.4 SUCCESSORS AND PERMITTED ASSIGNS. Subject to the provisions of
Sections 3.1, this Warrant and the rights evidenced hereby shall inure to the
benefit of and be binding upon the successors of the Company and the successors
and permitted assigns of Holder. The provisions of this Warrant are intended to
be for the benefit of all Holders from time to time of this Warrant and, with
respect to Section 9 hereof, holders of Warrant Stock, and shall be enforceable
by any such Holder or holder of Warrant Stock.
12.5 AMENDMENT. This Warrant and all other Warrants may be modified or
amended or the provisions hereof waived with the written consent of the Company
and the Holders of the majority of the outstanding Warrants, provided that no
such Warrant may be modified or amended to reduce the number of shares of Common
Stock for which such Warrant is exercisable or to increase the price at which
such shares may be purchased upon exercise of such Warrant (before giving effect
to any adjustment as provided therein) without the prior written consent of the
Holder thereof.
12.6 SEVERABILITY. Wherever possible, each provision of this Warrant
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Warrant shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Warrant.
12.7 HEADINGS. The headings used in this Warrant are for the
convenience of reference only and shall not, for any purpose, be deemed a part
of this Warrant.
12.8 GOVERNING LAW. This Warrant shall be governed by the laws of the
State of Florida, without regard to the provisions thereof relating to conflict
of laws.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed and its corporate seal to be impressed hereon and attested by its
Secretary or an Assistant Secretary.
Dated: November 22, 2000
PETMED EXPRESS, INC.
By: /s/ Marc Puleo, M.D.
---------------------------------
Name: Marc Puleo, M.D.
Title: Chief Executive Officer
Attest:
By: /s/ Marc Puleo, M.D.
-------------------------------
Name: Marc Puleo, M.D.
Title: Chief Executive Officer
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EXHIBIT A
EXERCISE FORM
[To be executed only upon exercise of Warrant]
Net Issue Exercise _____ No ______ Yes
The undersigned registered owner of this Warrant irrevocably exercises
this Warrant for the purchase of _____ Shares of Common Stock of PETMED EXPRESS,
INC. and herewith makes payment therefor, all at the price and on the terms and
conditions specified in this Warrant and requests that certificates for the
shares of Common Stock hereby purchased (and any securities or other property
issuable upon such exercise) be issued in the name of and delivered to
_____________ whose address is ________________ and, if such shares of Common
Stock shall not include all of the shares of Common Stock issuable as provided
in this Warrant, that a new Warrant of like tenor and date for the balance of
the shares of Common Stock issuable hereunder be delivered to the undersigned.
-----------------------------------------
(Name of Registered Owner)
-----------------------------------------
(Signature of Registered Owner)
-----------------------------------------
(Street Address)
-----------------------------------------
(City) (State) (Zip Code)
NOTICE: The signature on this subscription must correspond with the name as
written upon the face of the within Warrant in every particular,
without alteration or enlargement or any change whatsoever.
19
EXHIBIT B
ASSIGNMENT FORM
FOR VALUE RECEIVED the undersigned registered owner of this Warrant
hereby sells, assigns and transfers unto the Assignee named below all of the
rights of the undersigned under this Warrant, with respect to the number of
shares of Common Stock set forth below:
Name and Address of Assignee No. of Shares of Common Stock
---------------------------- -----------------------------
and does hereby irrevocably constitute and appoint ________________
attorney-in-fact to register such transfer on the books of PETMED EXPRESS, INC.
maintained for the purpose, with full power of substitution in the premises.
Dated: Print Name:
------------------------- --------------------------------
Signature:
---------------------------------
Witness:
-----------------------------------
NOTICE: The signature on this assignment must correspond with the name as
written upon the face of the within Warrant in every particular,
without alteration or enlargement or any change whatsoever.