EXHIBIT 4.3
OPTION TO PURCHASE COMMON STOCK
Date of Issuance: As of _______ Option to Purchase An Aggregate
of ______ shares of Common Stock
FOR VALUE RECEIVED, PetMed Express, Inc., a Florida
corporation (the "Company") promises to issue in the name of, and
sell and deliver to ___________ (the "Holder") a certificate or
certificates for an aggregate of _____________ (_______) shares
of the Company's common stock, par value $.001 per share (the
"Common Stock"), upon payment by the Holder of $_____ per share
(the "Exercise Price"), with the Exercise Price being subject to
adjustment in the circumstances set forth below.
Section 1.
Exercise of Option
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1.1 Exercise Period. The Holder may exercise this Option,
in whole or in part (but not as to fractional shares), at any
time and time to time commencing upon the date hereof (the
"Vesting Date") and ending at 5:00 p.m., Eastern Time, on
__________ (the "Exercise Period").
1.2 Exercise Procedure.
a. This Option will be deemed to have been exercised
at such time as the Company has received all of the following
items (the "Exercise Date"):
i. a completed Exercise Agreement, in the form
attached hereto as Exhibit 1 hereto, executed by the Holder (the
"Purchaser"); and
ii. a cashier's or official bank check or other
immediately available funds payable to the Company in an amount
equal to the sum of the product of the Exercise Price multiplied
by the number of shares of Common Stock being purchased upon such
exercise.
b. Certificates for the shares of Common Stock
purchased upon exercise of this Option will be delivered by the
Company to the Purchaser within five (5) business days after the
Exercise Date. Unless this Option has expired or all of the
purchase rights represented hereby have been exercised, the
Company will prepare a new Option representing the rights
formerly represented by this Option that have not expired or been
exercised. The Company will, within such five (5) day period,
deliver such new Option to the Holder at the address set forth in
this Option.
c. The shares of Common Stock issuable upon the
exercise of this Option will be deemed to have been transferred
to the Purchaser on the Exercise Date, and the Purchaser will be
deemed for all purposes to have become the record holder of such
Common Stock on the Exercise Date.
d. The issuance of certificates for shares of Common
Stock upon the exercise of this Option will be made without
charge to the Purchaser for any issuance tax in respect thereof
or any other cost incurred by the Company in connection with such
exercise and related transfer of the shares; provided, however,
that the Company shall not be required to pay any tax that may be
payable in respect of any transfer involved in the issuance and
delivery of any certificate or instrument in a name other than
that of the Holder of this Option, and that the Company shall not
be required to issue or deliver any such certificate or
instrument unless and until the person or persons requiring the
issue thereof shall have paid to the Company the amount of such
tax or shall have established to the satisfaction of the Company
that such tax has been paid.
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Exhibit 4.3
e. Unless the Company shall have registered the
shares of Common Stock underlying this Option, the shares of
Common Stock issuable upon the exercise of this Option have not
been registered under the Securities Act of 1933, as amended (the
"Act") and, accordingly, will be "restricted securities" as that
term is defined in the Act. The Company may insert the following
or similar legend on the face of the certificates evidencing
shares of Common Stock if required in compliance with state
securities laws:
"These securities have not been registered under
any state securities laws and may not be sold or
otherwise transferred or disposed of except
pursuant to an effective registration statement
under any applicable state securities laws, or an
opinion of counsel satisfactory to counsel to the
Company that an exemption from registration under
any applicable state securities laws is available."
1.3 Fractional Shares. If a fractional share of Common
Stock would, but for the provisions of Subsection 1.1, be
issuable upon exercise of the rights represented by this Option,
the Company will, within 30 days after the Exercise Date, deliver
to the Purchaser a check payable to the Purchaser, in lieu of
such fractional share, in an amount equal to the value of such
fractional share as determined by the closing price of the
Company's Common Stock as reported on the principal exchange on
which the Company's Common Stock is then traded, as of the close
of business on the Exercise Date.
Section 2.
Effect of Reorganization, Reclassification,
Consolidation, Merger or Sale
-------------------------------------------
2.1 Recapitalization or Reclassification of Common Stock.
In case the Company shall at any time prior to the exercise or
termination of this Option effect a recapitalization or
reclassification of such character that its Common Stock shall be
changed into or become exchangeable for a larger or smaller
number of shares, then, upon the effective date thereof, the
number of shares of Common Stock that the Holder of this Option
shall be entitled to purchase upon exercise hereof shall be
increased or decreased, as the case may be, in direct proportion
to the increase or decrease in such number of shares of Common
Stock by reason of such recapitalization or reclassification, and
the Exercise Price of such recapitalized or reclassified Common
Stock shall, in the case of an increase in the number of shares,
be proportionately decreased and, in the case of a decrease
in the number of shares, be proportionately increased.
2.2 Consolidation, Merger or Sale. In case the Company
shall at any time prior to the exercise of this Option, or the
expiration of the Exercise Period, whichever first occurs,
consolidate or merge with any other corporation (unless the
Company shall be the surviving entity) or transfer all or
substantially all of its assets to any other corporation
preparatory to a dissolution, then the Company shall, as a
condition precedent to such transaction, cause effective
provision to be made so that the Holder of this Option, upon the
exercise thereof after the effective date of such transaction,
shall be entitled to receive the kind and amount of shares,
evidences of indebtedness, and/or other property receivable on
such transaction by a holder of the number of shares of Common
Stock as to which the Option was exercisable immediately prior to
such transaction (without giving effect to any restriction upon
such exercise); and, in any such case, appropriate provision
shall be made with respect to the rights and interests of the
Holder hereof to the effect that the provisions of this Option
shall thereafter be applicable (as nearly as may be practicable)
with respect to any shares, evidences of indebtedness, or other
securities or assets thereafter deliverable upon exercise of this
Option.
2.3 Notice of Adjustment. Whenever the number of shares of
Common Stock purchasable upon exercise of this Option shall be
adjusted as provided herein, the Company shall file with its
corporate records a certificate of its Chief Financial Officer
setting forth the computation and the adjusted number of shares
of Common Stock purchasable hereunder resulting from such
adjustments, and a copy of such certificate shall be mailed to
the Holder. Any such certificate or letter shall be conclusive
evidence as to the correctness of the adjustment or adjustments
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Exhibit 4.3
referred to therein and shall be available for inspection by the
holders of the Options on any day during normal business hours.
Section 3.
Reservation of Common Stock
---------------------------
The Company will at all time reserve and keep available such
number of shares of Common Stock as will be sufficient to permit
the exercise in full of this Option. Upon exercise of this
Option pursuant to its terms, the Holder will acquire fully paid
and non-assessable ownership rights of the Common Stock, free and
clear of any liens, claims or encumbrances.
Section 4.
No Shareholder Rights or Obligations
------------------------------------
This Option will not entitle the Holder hereof to any voting
rights or other rights as a shareholder of the Company. Until
the shares of Common Stock issuable upon the exercise of this
Option are recorded as issued on the books and records of the
Company's transfer agent, the Holder shall not be entitled to any
voting rights or other rights as a shareholder; provided,
however, the Company uses its bests efforts to ensure that, upon
receipt of the Exercise Agreement and payment of the Exercise
Price, the appropriate documentation necessary to effectuate the
exercise of the Option and the issuance of the Common Stock is
accomplished as expeditiously as possible. No provision of this
Option, in the absence of affirmative action by the Holder to
purchase Common Stock, and no enumeration in this Option of the
rights or privileges of the Holder, will give rise to any
obligation of such Holder for the Exercise Price or as a
stockholder of the Company.
Section 5.
Transferability
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This Option and all rights hereunder are not transferrable,
in whole or in part, without the prior written consent of the
Company, which such consent may not be forthcoming. In the event
that the Company should consent to a transfer, this Option and
all rights hereunder are transferrable, in whole or in part, upon
surrender of this Option with a properly executed Assignment in
the form of Exhibit 2 hereto at the principal offices of the
Company. This Option and the underlying shares of Common Stock
may not be offered, sold or transferred except in compliance with
the Act, and any applicable state securities laws, and then only
against receipt of an agreement of the person to whom such offer
or sale or transfer is made to comply with the provisions of this
Option with respect to any resale or other disposition of such
securities; provided that no such agreement shall be required
from any person purchasing this Option or the underlying shares
of Common Stock pursuant to a registration statement effective
under the Act. The Holder of this Option agrees that, prior to
the disposition of any security purchased on the exercise hereof
other than pursuant to an registration statement then effective
under the Act, or any similar statute then in effect, the Holder
shall give written notice to the Company, expressing his
intention as to such disposition. Upon receiving such notice,
the Company shall present a copy thereof to its securities
counsel. If, in the sole opinion of such counsel, which such
opinion shall not be unreasonably withheld, the proposed
disposition does not require registration of such security under
the Act, or any similar statute then in effect, the Company
shall, as promptly as practicable, notify the Holder of such
opinion, whereupon the Holder shall be entitled to dispose of
such security in accordance with the terms of the notice
delivered by the Holder to the Company.
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Exhibit 4.3
Section 6.
Miscellaneous
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6.1 Notices. Any notices, requests or consents hereunder
shall be deemed given, and any instruments delivered, two days
after they have been mailed by first class mail, postage prepaid,
or upon receipt if delivered personally or by facsimile
transmission, as follows:
If to the Company: _________________________
_________________________
With a copy to: _________________________
_________________________
_________________________
_________________________
Attention: ______________
If to the Holder: _________________________
_________________________
except that any of the foregoing may from time to time by written
notice to the other designate another address which shall
thereupon become its effective address for the purposes of this
paragraph.
6.2 Entire Agreement. This Option, including the exhibits
and documents referred to herein which are a part hereof, contain
the entire understanding of the parties hereto with respect to
the subject matter and may be amended only by a written
instrument executed by the parties hereto or their successors or
assigns. Any paragraph headings contained in this Agreement are
for reference purposes only and shall not affect in any way the
meaning or interpretation of this Option.
6.3 Governing Law. This Option is governed by, interpreted
under and construed in all respects in accordance with the
substantive laws of the State of Florida, without regard to the
conflicts of law provision thereof, and irrespective of the place
of domicile or resident of the party. In the event of a
controversy arising out of the interpretation, construction,
performance or breach of this Option, the parties hereby agree
and consent to the jurisdiction and venue of the Courts of the
State of Florida, or the United States District Court for the
Southern District of Florida; and further agree and consent that
personal service of process in any such action or preceding
outside the State of Florida shall be tantamount to service in
person in Florida.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
PETMED EXPRESS, INC.
By:________________________________
Xxxx X. Xxxxx, M.D., President
ATTEST:
________________________
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Exhibit 4.3
EXHIBIT 1
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EXERCISE AGREEMENT
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To: Dated:
The undersigned record Holder, pursuant to the provisions
set forth in the within Option, hereby subscribed for and
purchases ______________ shares of Common Stock covered by such
Option and hereby makes full cash payment of $________________
for such shares at the Exercise Price provided by such Option.
______________________________
(Signature)
______________________________
(Print or type name)
______________________________
(Address)
NOTICE: The signature of this Exercise Agreement must
correspond with the name as written upon the face of the within
Option, or upon the Assignment thereof, if applicable, in every
particular, without alteration, enlargement or any change
whatsoever.
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Exhibit 4.3
EXHIBIT 2
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ASSIGNMENT
----------
FOR VALUE RECEIVED, _________________________________________,
the undersigned Holder hereby sell, assigns, and transfer all
of the rights of the undersigned under the within Option with
respect to the number of shares of Common Stock issuable upon the
exercise of such Option set forth below, unto the Assignee
identified below, and does hereby irrevocable constituted and
appoint to effect such transfer
of rights on the books of the Company, with full power of
substitution:
Number of Shares
Name of Assignee Address of Assignee of Common Stock
-----------------------------------------------------------------
Dated:_____________ ______________________________
(Signature of Holder)
______________________________
(Print or type name)
NOTICE: The signature of this Exercise Agreement must
correspond with the name as written upon the face of the within
Option, or upon the Assignment thereof, if applicable, in every
particular, without alteration, enlargement or any change
whatsoever.
CONSENT OF ASSIGNEE
-------------------
I HEREBY CONSENT to abide by the terms and conditions of the
within Option.
Dated:_____________ ______________________________
(Signature of Assignee)
______________________________
(Print or type name)
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Exhibit 4.3
