UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

OURPET’S COMPANY

(Exact name of registrant as specified in its charter)

 

 

 

Colorado   34-1480558
(State of incorporation)   (I.R.S. Employer Identification No.)

 

1300 East Street, Fairport Harbor, OH   44077
(Address of Principal Executive Offices)   (Zip Code)

 

 

2008 Stock Option Plan

(Full Title of the Plan)

 

 

 

  Copy to:
Steven Tsengas   Connie S. Carr, Esq.
Chairman, President and CEO   Kohrman Jackson & Krantz P.L.L.
OurPet’s Company   1375 East 9th Street, 20th Floor
1300 East Street   Cleveland, Ohio 44114
Fairport Harbor, Ohio 44077   216-696-8700
(440) 354-6500  

(Name, address, telephone number, including area code of agent for service)

 

 

Calculation of Registration Fee

 

Title of securities

to be registered

  Amount to be
registered (1)
 

Proposed maximum
offering price

per share

 

Proposed maximum
aggregate

offering price

  Amount of
registration fee

Common Stock, without par value

  1,000,000 shares   $0.46 (2)   $460,000   $18.08
 
 

 

(1) Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended, this registration statement shall cover any additional shares of common stock which become issuable under the plan set forth herein by reason of any stock dividend, stock split, recapitalization or any other similar transaction without receipt of consideration which results in an increase in the number of outstanding shares of common stock of the Company.
(2) Estimated solely for the purpose of computing the registration fee upon the basis of fluctuating market prices pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933, as amended. The proposed maximum aggregate offering price was determined by averaging the high and low prices of the Company’s shares of common stock, as reported on the OTC Bulletin Board on June 17, 2008.

 

 

 


PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The information required by Part I is included in documents sent or given to participants in the 2008 Stock Option Plan of OurPet’s Company (the “Plan”) pursuant to Rule 428(b)(1) issued by the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”).

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

The following documents previously filed by OurPet’s Company, a Colorado corporation (the “Company”), with the Commission are hereby incorporated by reference in this Registration Statement:

 

  (a) The Company’s Annual Report on Form 10-KSB for the fiscal year ended December 31, 2007;

 

  (b) The Company’s Proxy Statement filed with the Commission on May 7, 2008;

 

  (c) The Company’s Quarterly Report on Form 10-Q for the period ended March 31, 2008;

 

  (d) The Company’s Current Report on Form 8-K dated April 28, 2008;

 

  (e) The description of the Company’s Common Stock contained in its Registration Statement on Form 10-SB dated January 8, 2001 (File No. 000-31279), as amended, filed with the Commission pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and

 

  (f) All reports and documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment that indicates all securities offered have been sold or that deregisters all securities then remaining unsold.

 

Item 4. Description of Securities.

Not applicable.

 

Item 5. Interests of Named Experts and Counsel.

Not applicable.

 

2


Item 6. Indemnification of Directors and Officers.

Certain provisions of the Colorado Business Corporation Act, the Company’s Articles of Incorporation, as amended, the Company’s Bylaws, the Indemnification Agreement between the Company and each director, and certain other contracts provide that in certain cases, officers and directors of the Company will be indemnified by the Company against certain costs, expenses and liabilities which such officer or director may incur in his or her capacity as such.

 

Item 7. Exemption From Registration Claimed.

Not applicable.

 

Item 8. Exhibits.

 

  4.1   2008 Stock Option Plan of OurPet’s Company (incorporated by reference to Annex A to the Company’s Proxy Statement filed with the Commission on May 7, 2008)
  5.1   Opinion of Kohrman Jackson & Krantz P.L.L.
23.1   Consent of S. R. Snodgrass, A. C.
23.2   Consent of Kohrman Jackson & Krantz P.L.L. (contained in its opinion filed as Exhibit 5.1)
24.1   Reference is made to the Signatures section of this Registration Statement for the Power of Attorney contained therein

 

Item 9. Undertakings.

 

  (a) The Company hereby undertakes:

(1) To include any additional or changed material information on the plan of distribution.

(2) For determining liability under the Securities Act, treat each post-effective amendment as a new registration statement of the securities offered, and the offering of the securities at that time to be the initial bona fide offering.

(3) File a post-effective amendment to remove from registration any of the securities that remain unsold at the end of the offering.

(4) For determining liability of the Company under the Securities Act to any purchaser in the initial distribution of the securities, the Company undertakes that in a primary offering of securities of the Company pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the Company will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

(i) Any preliminary prospectus or prospectus of the Company relating to the offering required to be filed pursuant to Rule 424;

 

3


(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the Company or used or referred to by the Company;

(iii) The portion of any other free writing prospectus relating to the offering containing material information about the Company or its securities provided by or on behalf of the Company; and

(iv) Any other communication that is an offer in the offering made by the Company to the purchaser.

(b) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.

 

4


SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fairport Harbor, State of Ohio, on June 20, 2008.

 

OurPet’s Company
By:  

/s/ Steven Tsengas

  Steven Tsengas, Chairman, President and CEO

K NOW A LL M EN B Y T HESE P RESENTS , that each person whose signature appears below hereby constitutes and appoints Connie S. Carr his true and lawful attorney-in-fact, with full powers of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments, including any post-effective amendments, to this registration statement, and to file the same, with exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorneys-in-fact or their substitutes, each acting alone, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated.

 

Name

 

Title

 

Date

/s/ Steven Tsengas

  Chairman, President and CEO   June 20, 2008
Steven Tsengas   (Principal Executive Officer)  

/s/ John G. Murchie

 

Vice President, Treasurer and Controller

(Principal Financial and Accounting Officer)

  June 20, 2008
John G. Murchie    

/s/ Joseph T. Aveni

  Director   June 20, 2008
Joseph T. Aveni    

/s/ William M. Fraser

  Director   June 20, 2008
William M. Fraser    

/s/ James D. Ireland III

  Director   June 20, 2008
James D. Ireland III    

/s/ John Spirk

  Director   June 20, 2008
John Spirk    

 

5


EXHIBIT INDEX

 

  4.1   2008 Stock Option Plan of OurPet’s Company (incorporated by reference to Annex A to the Company’s Proxy Statement filed with the Commission on May 7, 2008)
  5.1   Opinion of Kohrman Jackson & Krantz P.L.L.
23.1   Consent of S. R. Snodgrass, A. C.
23.2   Consent of Kohrman Jackson & Krantz P.L.L. (contained in its opinion filed as Exhibit 5.1)
24.1   Reference is made to the Signatures section of this Registration Statement for the Power of Attorney contained therein

 

6

Exhibit 5.1

LOGO   
   June 11, 2008
  

 

OurPet’s Company

1300 East Street

Fairport Harbor, Ohio 44077

 

Re: Registration Statement on Form S-8 of OurPet’s Company

  

 

Ladies and Gentlemen:

 

OurPet’s Company, a Colorado corporation (the “Company”), is filing with the Securities and Exchange Commission its Registration Statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”). The Registration Statement relates to the offering and sale by the Company of up to 1,000,000 shares of the Company’s common stock, without par value (the “Common Stock”), pursuant to the exercise of options to purchase Common Stock and Restricted Stock Awards (collectively, “Awards”) to be granted under the Company’s 2008 Stock Option Plan (the “Plan”). We have acted as counsel to the Company in connection with the preparation and filing of the Registration Statement. Capitalized terms used in this opinion letter and not otherwise defined have the meanings attributed to them in the Registration Statement.

 

In connection with this opinion letter, we have examined and relied upon the original or a copy, certified to our satisfaction, of: (i) the Articles of Incorporation, as amended and the Bylaws of the Company; (ii) the Plan; (iii) resolutions of the Board of Directors of the Company authorizing the Plan; and (iv) such other documents and instruments as we have deemed necessary for providing this opinion letter.

One Cleveland Center

 

20th Floor

 

1375 East Ninth Street

 

Cleveland, OH 44114-1793

 

216 696 8700

 

www.kjk.com

  

 

We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as certified or photostatic copies. We have made such investigations of law as we deem appropriate as a basis for rendering the opinions expressed below, and as to various questions of fact material to the opinions, we have relied, to the extent we deem appropriate, upon representations or certificates of officers or directors of the Company and upon documents, records and instruments furnished to us by the Company, without independently verifying the accuracy of such documents, records and instruments.


LOGO

 

  

Based upon the foregoing examination and subject to the qualifications and limitations stated herein, we are of the opinion that (i) the Company presently has at least 1,000,000 authorized and unissued shares of Common Stock from which the 1,000,000 shares of Common Stock proposed to be sold pursuant to Awards under the Plan may be issued, and (ii) assuming (a) the Company maintains an adequate number of authorized but unissued shares of Common Stock available for issuance to those persons who receive Awards in accordance with the Plan, and (b) the shares of Common Stock are duly delivered against payment therefore in accordance with the terms of the Plan, the shares of Common Stock issued pursuant to Awards will be validly issued, fully paid and non-assessable.

 

We express no opinion other than as to matters under the Colorado General Corporation Law. We are qualified to practice law only in the State of Ohio and do not purport to be experts in the laws of any other state. However, in order to provide this opinion, we have reviewed applicable provisions of the Colorado General Corporation Law.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not admit that we come within the category of persons whose consent is required by Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission thereunder.

  

 

K OHRMAN J ACKSON & K RANTZ P.L.L.

 

/s/ Christopher J. Hubbert

By  Christopher J. Hubbert, a partner

  

 

Page 2

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

As independent auditors, we hereby consent to the incorporation of our report, dated March 3, 2008, incorporated by reference to the Annual Report on Form 10-KSB for the year ended December 31, 2007 filed by OurPet’s Company and Subsidiaries with the Securities and Exchange Commission (SEC file No. 000-31279.)

 

S.R. Snodgrass, A.C.
Mentor, Ohio
June 11, 2008