UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 

 

FORM 8-K

 

 

Current Report

Pursuant to Section 13 or 15(d) of the

Securities Act of 1934

Date of Report: October 18, 2010

(Date of earliest event reported)

 

 

OurPet’s Company

(Exact name of registrant as specified in its charter)

 

 

 

Colorado   000-31279   34-1480558

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(I.R.S. Employer

Identification Number)

1300 East Street, Fairport Harbor, OH 44077

(Address of principal executive offices including zip code)

440-354-6500

(Registrant’s telephone number, including area code)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


 

Item 1.01. Entry into a Material Definitive Agreement.

On October 18, 2010, FirstMerit Bank, N.A. (“FirstMerit”) and OurPet’s Company (“OurPet’s”) entered into an Amendment to Note (the “Amendment”) that amends a Note dated July 13, 2006 to increase availability under OurPet’s line of credit from $2,000,000 to $2,500,000. The Amendment does not change any other terms or conditions of the Note. A copy of the original Note was filed as Exhibit 10.24 to OurPet’s Form 10.QSB filed on August 18,2006. The increase in OurPet’s line of credit is to meet its working capital needs.

Steven Tsengas, OurPet’s President and Chief Executive Officer, and his wife, Evangelia, have provided an unlimited guarantee of the increased line of credit. In consideration for this guarantee, OurPet’s Board of Directors authorized the issuance of warrants for the right to purchase OurPet’s common stock. Further information regarding the warrants is set forth below in Item 3.02.

The foregoing description of the Amendment is not complete and is qualified in its entirety by reference to the Amendment, which is attached to this current report as Exhibit 10.52.

 

Item 3.02. Unregistered Sales of Equity Securities.

In connection with the Loan referenced above under Items 1.01 and 2.03, OurPet’s Board of Directors authorized the issuance of warrants to Steven and Evangelia Tsengas providing for the right to purchase in the aggregate 62,500 shares of OurPet’s common stock at $0.98 per share. The warrant vests immediately and is exercisable any time prior to its expiration on October 18, 2015. Upon exercise of the warrants, the shares will be restricted securities pursuant to Rule 144 of the Securities Act of 1933, as amended (the “Act”), in reliance on the exemption from registration provided by Section 4(2) of the Act. A copy of the form of warrant that will be issued is attached to this current report as Exhibit 10.53.

 

Item 9.01. Financial Statements and Exhibits.

 

  (d) Exhibits.

 

10.52    Amendment to Note executed by OurPet’s Company and Steven and Evangelia Tsengas as Guarantors on October 18, 2010
10.53    Form of Warrant

 

2


 

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

Date: October 22, 2010   OurPet’s Company
  By:  

/s/ Scott R. Mendes

    Scott R. Mendes, Chief Financial Officer and Treasurer

 

3


 

EXHIBIT INDEX

 

Exhibit

Number

  

Description

10.52    Amendment to Note executed by OurPet’s Company and Steven and Evangelia Tsengas as Guarantors on October 18, 2010
10.53    Form of Warrant

 

Exhibit 10.52

Customer No. 2920

Note No. 53125

AMENDMENT TO NOTE

This Amendment to Note (“Amendment”) is effective as of October 15, 2010, by and between FirstMerit Bank, N.A., (hereafter “FMB” or “Lender”) and Ourpet’s Company (hereafter “Borrower”) (Collectively “Parties”).

Whereas FMB loaned to the Borrower the sum of $2,000,000.00 evidenced by a Note dated July 13, 2006, including any and all amendments thereto (the “Note”); and

Whereas, FMB and Borrower desire to modify and amend the terms of the Note which has a principal balance of $1,634,000.00 as of October 14, 2010;

Now, therefore, in consideration of the foregoing and of other good and valuable consideration the receipt of which is hereby acknowledged by the Parties hereto, the Note is modified and amended to read as follows:

 

  1. The section of said Note titled “PROMISE TO PAY” is hereby amended and restated to read as follows:

PROMISE TO PAY: Ourpet’s Company (“Borrower”), promises to pay to FirstMerit Bank, N.A. (“Lender”), or order, in lawful money of the United States of America, on demand, the principal amount of Two-Million Five-Hundred Thousand & 00/100 Dollars ($2,500,000.00) or so much as may be outstanding, together with interest on the unpaid outstanding principal balance of each advance. Interest shall be calculated from the date of each advance until repayment of each advance.

It is expressly agreed by the Parties that this Amendment does not change any other terms or conditions of the Note not specifically amended herein, and that such terms and conditions not amended shall remain in full force and effect and are expressly applicable to the terms of this Amendment.

The undersigned Borrower hereby ratifies and affirms its liability to FMB pursuant to the aforesaid indebtedness and loan relationship, evidenced in part, by this Amendment and agrees that its liability thereon shall continue in full force and effect and represents to FMB that it has no defenses, set-offs, or other claims against FMB. The undersigned Borrower releases and forever discharges FMB, its present and future, directors, officers, employees, agents, attorneys, successors and assigns, of and from, any and all actions, claims, and/or demands (whether these are now known or unknown, or whether these now exist or may hereafter accrue through the date of this Amendment) which said Borrower may hold against FMB, its present and future directors, officers, employees, agents, attorneys, successors and/or assigns, as a result of said Parties’ business , legal and contractual relationship, which in any manner arises under, arises in, or relates to, the indebtedness and loan relationship, evidenced in part, by this Amendment. The undersigned Borrower further agrees that in the event its indebtedness and loan relationship, evidenced in part, by this Amendment, is secured by any lien or security interest, nothing contained herein or done pursuant hereto shall affect such lien or security interest or the priority of the same with regard to other encumbrances. The undersigned Borrower further agrees that the present

 

Page 1 of 3


principal balance of its indebtedness and loan relationship, evidenced by this Amendment to FMB is in the amount stated above.

The undersigned Borrower hereby irrevocably authorizes and empowers any attorney-at-law, including an attorney engaged by Lender, to appear in any court of record and to confess judgment against Borrower for the unpaid amount of the aforesaid Note, as amended, as evidenced by an affidavit signed by an officer of Lender setting forth the amount then due, attorneys’ fees plus costs of suit, and to release all errors, and waive all rights of appeal. If a copy of the aforesaid Note, as amended, verified by an affidavit, shall have been filed in the proceeding, it will not be necessary to file the original as a warrant of attorney. Borrower hereby waives the right to any stay of execution and the benefit of all exemption laws now or hereafter in effect. No single exercise of the foregoing warrant and power to confess judgment will be deemed to exhaust the power, whether or not any exercise shall be held by any court to be invalid, voidable, or void; but the power will continue undiminished and may be exercised from time to time as Lender may elect until all amounts owing on the aforesaid Promissory Note, as amended, have been paid in full. Borrower hereby waives any conflict of interest that an attorney engaged by Lender may have in acting on behalf of Borrower in confessing judgment against Borrower while such attorney is engaged by Lender. Borrower expressly consents to such attorney acting for Borrower, in confessing judgment.

NOTICE: FOR THIS NOTICE “YOU” MEANS THE BORROWER AND “CREDITOR” AND “HIS” MEANS LENDER.

WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME, A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.

 

BORROWER:    
Ourpet’s Company    
By:  

/s/ Steven Tsengas

    10/18/10
  Steven Tsengas, President     Date
GUARANTOR:    
By:  

/s/ Steven Tsengas

    10/18/10
  Steven Tsengas, Individually     Date
By:  

/s/ Evangelia Tsengas

    10/18/10
  Evangelia Tsengas, Individually     Date

 

Page 2 of 3


 

APPROVED BY:

 

FirstMerit Bank, N.A.

   
By:  

/s/ Eric P. Hollinger

    10/18/10
  Eric P. Hollinger, Vice President     Date

 

Page 3 of 3

 

Exhibit 10.53

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.

 

    Warrant to Purchase
Date: October 18, 2010         62,500
   

Shares of Common Stock,

as herein described

No. 318

LOGO

Company

 

 

Common Stock Purchase Warrant

 

 

Article 1. General Provisions .

This certifies that Steven and Evangelia Tsengas (the “ Holder ”), is entitled to purchase, at any time on or after October 18, 2010 (the “ Effective Date ”) and on or before October 18, 2015 (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 $0.98 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 Dividends . If the Company shall declare a dividend or any other distribution upon any capital stock which is payable in shares of Common Stock, the Exercise Price shall be reduced to the quotient obtained by dividing (i) the number of shares of Common Stock outstanding immediately prior to such declaration multiplied by the then effective Exercise Price by (ii) the total Common Stock and all convertible securities issuable in payment of any dividend or other distribution upon the capital stock of the Company shall be deemed to have been issued or sold without consideration.

Section 3.03 Stock Splits and Reverse Stock Splits . If the Company shall subdivide its outstanding shares of Common Stock into a greater number of shares, the Exercise Price shall be proportionately reduced and the number of Warrant Shares issuable upon exercise of this Warrant shall be proportionately increased. If the Company shall combine the outstanding shares of Common Stock into a smaller number of shares, the Exercise Price shall be proportionately increased and the number of Warrant Shares issuable upon exercise of this Warrant shall be proportionately decreased.

Section 3.04 Reorganizations . If any capital reorganization or reclassification of the Company, or any consolidation or merger of the Company with another corporation, shall be affected in such a way that the holders of the Common Stock shall be entitled to receive securities or assets with respect to or in exchange for shares of Common Stock, adequate provision shall be made, prior to and as a condition of such reorganization, reclassification, consolidation or merger whereby the holder of this Warrant shall have the right to receive, upon the terms and conditions specified herein and in lieu of the Warrant Shares otherwise receivable upon the exercise of this Warrant, such securities or assets as may be issued or payable with respect to or in exchange for the number of outstanding shares of Common Stock equal to the number of Warrant Shares otherwise receivable had such reorganization, reclassification, consolidation or merger not taken place. In any such case appropriate provision shall be made


with respect to the rights and interests of such holder so that the provisions of this Warrant shall be applicable with respect to any securities or assets thereafter deliverable upon exercise of this Warrant. The Company shall not affect any such consolidation or merger unless prior to or simultaneously with the consummation thereof the survivor or successor corporation resulting from such consolidation or merger shall assume by written instrument delivered to the holder of this Warrant the obligation to deliver to such holder such securities or assets as such holder may be entitled to receive.

Section 3.05 Form of Warrant . This Warrant need not be changed because of any adjustment to the Exercise Price or any change in the amount or nature of securities issuable or deliverable pursuant to this Article 3 . The Company may, however, in its discretion, at any time change the form of Warrants to reflect any such change in the amount or nature of securities issuable or deliverable upon exercise, provided such change in form does not otherwise affect the substance thereof.

Article 4. Other Provisions for Protection of Warrantholders .

Section 4.01 Reservation of Shares . The Company shall at all times reserve and keep available such number of shares of its authorized but unissued Common Stock as shall from time to time be sufficient to permit the exercise of all outstanding Warrants. If at any time the number of authorized but unissued shares of Common Stock shall not be sufficient for such purpose, the Company will take such action as, in the opinion of its counsel, may be necessary to increase its authorized but unissued Common Stock to such number of shares as shall be sufficient for such purpose.

Section 4.02 Lost and Misplaced Warrant Certificates . If any Warrant becomes lost, stolen, mutilated or destroyed, the Company will, on such terms as to indemnify or otherwise as it may in its discretion impose, issue a new Warrant of like denomination, tenor and dates as the Warrant so lost, stolen, mutilated or destroyed. Any such new Warrant shall constitute an original contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated or destroyed Warrant shall at any time be enforceable by anyone.

Section 4.03 Enforcement of Warrant Rights . All rights of action are vested in the respective holders of the Warrants. Any holder of any Warrant may, in his own behalf and for his own benefit, enforce, and may institute and maintain any suit, action or proceeding against the Company suitable to enforce, or otherwise in respect of, his right to exercise his Warrant for the purchase of the number of Warrant Shares issuable or deliverable in exchange therefor.

Article 5. Transfer and Ownership of Warrants .

Section 5.01 Negotiability and Ownership . The Warrants have been, and, if the Warrants are exercised, the Warrant Shares will be, acquired for the account of the holder for investment and not with a view to resale or further distribution thereof. This Warrant shall be transferable by the holder hereof only in compliance with applicable securities laws. Any attempted transfer in contravention of this Section shall be null and void. Any such transferee may be required to execute an investment letter containing representations and warranties as to his or her investment


intent, financial sophistication and ability to bear the risk of any investment in the Warrants or the Warrant Shares and to satisfy the Company of the bona fide nature of such representations.

Section 5.02 Exchange of Warrants . At any time after the issuance and prior to expiration, this Warrant may be surrendered at the corporate offices of the Company for exchange and, upon cancellation hereof, one or more new Warrants shall be issued as requested by the holder for the same aggregate number of shares.

Article 6. Miscellaneous Provisions .

Section 6.01 Closing of Books . The Company will at no time close its transfer books against the transfer of any warrant or of any shares of Common Stock issued or issuable upon the exercise of any warrant in any manner which interferes with the timely exercise of this Warrant.

Section 6.02 Modification and Waiver . This Warrant and any provision hereof may be changed, waived, discharged or terminated only by an instrument in writing signed by the party against which enforcement of the same is sought.

Section 6.03 Descriptive Headings and Governing Law . The description headings of the several articles, sections and paragraphs of this Warrant are inserted for convenience only and do not constitute a part of this Warrant. This Warrant shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the laws of the State of Ohio, without regard to conflict of laws principles.

Section 6.04 Notices to Warrant Holders . Any notice or other document required or permitted to be given or delivered to the Holder shall be delivered at, or sent by certified or registered mail to, such holder at its, his or her address appearing on the Company’s Warrant register. Any notice or other document required or permitted to be given or delivered to the Company shall be delivered at, or sent by certified or registered mail to, the Company at 1300 East Street, Fairport Harbor, Ohio, 44077. Any notice so addressed and mailed by registered or certified mail shall be deemed to be given when so mailed. Any notice so addressed and otherwise delivered shall be deemed to be given when actually received by the addressee.

IN WITNESS WHEREOF, this Warrant has been executed on behalf of the Company on October 18, 2010.

 

OURPET’S COMPANY
By:  

 

  Scott R. Mendes-Chief Financial Officer


 

ASSIGNMENT

To be executed by the registered holder to effect a transfer of the within Warrant, subject to the restrictions imposed by Section 5.01 of the Warrant.

FOR VALUE RECEIVED , the undersigned registered holder hereby sells, assigns and transfers unto

 

 

 

      (Address)

 

the right to purchase the Common Stock evidenced by the within Warrant, and does irrevocably constitute and appoint                      to transfer the said right on the books of the Company, with full power of substitution.

 

Dated:  

 

SIGNATURE  

 

NOTICE: The signature to this Assignment must correspond with the name as written upon the face of the within Warrant, in every particular, without alteration or change whatsoever, and must be guaranteed by a bank or trust company, or be a firm having membership on a registered national securities exchange.


 

EXERCISE OF WARRANT

The undersigned, registered holder or assignee of such registered holder of the within Warrant, hereby (1) subscribes for                      shares of Common Stock which the undersigned is entitled to purchase under the terms of the within Warrant, (2) makes the full cash payment therefore called for by the within Warrant, and (3) directs that the Common Stock issuable upon exercise of said Warrant be issued as described hereunder.

 

 

 

(Address)

 

(Signature)

 

Dated:  

 

NOTICE: The signature to this Assignment must correspond with the name as written upon the face of the within Warrant, in every particular, without alteration or change whatsoever, and must be guaranteed by a bank or trust company, or be a firm having membership on a registered national securities exchange.

[This form shall be modified by the Holder and the Company as appropriate in the event Holder exercises the Warrant, in whole or in part, in accordance with Section 2.03(b) of the Warrant.]