Delaware |
20-1884894
|
|
(State or other jurisdiction of Incorporation or Organization)
|
(I.R.S. Employer Identification Number)
|
Large accelerated filer ☒ | Accelerated filer ☐ |
Non-accelerated filer ☐ | Smaller reporting company ☐ |
Emerging growth company ☐ |
Item 1.
|
Plan Information.
|
Item 2.
|
Registrant Information and Employee Plan Annual Information.
|
Page
|
|
6 |
|
7 |
|
8 |
|
8 |
|
9 |
|
9 |
|
10 |
|
11 |
|
11 |
|
11 |
|
11 |
• |
our ability to meet our sustainability targets, goals, and commitments, including due to the impact of climate change;
|
• |
changes in global economic and financial market conditions generally, such as continued inflation and interest rate increases;
|
• |
the impact of various worldwide or macroeconomic events, such as the ongoing conflict between Russia and Ukraine and the current conflict in Israel and the Gaza Strip, on U.S. and global economics, our
employees, suppliers, customers and end consumers, which could adversely and materially impact our business, financial condition and results of operations;
|
• |
our ability to successfully implement our growth strategy, including related to implementing our marketing strategy and building capacity to meet demand, such as through the timely expansion of certain of our
Freshpet Kitchens (collectively, our Freshpet Kitchens Bethlehem, Freshpet Kitchens South and Freshpet Kitchens Ennis);
|
• |
our ability to successfully implement new processes and systems as we continue to stabilize and improve our ERP;
|
• |
our ability to timely complete the construction at our Freshpet Kitchens Ennis and achieve the anticipated benefits therefrom;
|
• |
the loss of key members of our senior management team;
|
• |
allegations that our products cause injury or illness or fail to comply with government regulations;
|
• |
the loss of a significant customer;
|
• |
the entrance of new competitors into our industry;
|
• |
the effectiveness of our marketing and trade spending programs;
|
• |
our ability to introduce new products and improve existing products;
|
• |
our ability to match our manufacturing capacity with demand;
|
• |
the impact of government regulation, scrutiny, warning and public perception;
|
• |
the effect of false marketing claims;
|
• |
adverse weather conditions, natural disasters, pestilences and other natural conditions affecting our operations;
|
• |
our ability to develop and maintain our brand;
|
• |
the effect of potential price increases and shortages on the inputs, commodities and ingredients that we require, including those effects caused by sustained inflation;
|
• |
our ability to manage our supply chain effectively;
|
• |
global or local pandemics, such as COVID-19;
|
• |
the failure of our information technology systems to perform adequately, including as a result of any interruptions, intrusions, cyber attacks or physical or electronic security breaches of such systems;
|
• |
actions of activist stockholders;
|
• |
volatility in the price of our common stock; and
|
• |
other factors discussed under the headings “Risk Factors” and elsewhere in this Reoffer Prospectus, and under the headings “Business” and “Management's Discussion and Analysis of Financial Condition and
Results of Operations” in our Annual Report on Form 10-K for the year ended December 31, 2023 filed with the SEC on February 26, 2024, as amended by our Annual Report on Form 10-K/A for the year ended December 31, 2023 filed with the SEC on
April 30, 2024 (the “2023 Form 10-K”) , and our subsequent Quarterly Reports on Form 10-Q.
|
Selling Stockholder
|
Shares of
Common Stock
Beneficially
Owned Prior to
this Offering (1)(2)
|
Percentage of
Shares of Common
Stock Beneficially
Owned Prior to this
Offering (1)(2)
|
Shares of Common
Stock Offered for
Resale in this Offering
(2)
|
Shares of
Common Stock
Beneficially
Owned After this
Offering (3)
|
Percentage of
Shares of
Common Stock
Beneficially
Owned After
this Offering
(1)(3)
|
|||||||||||||||
Todd Cunfer, Chief Financial Officer (4)
|
62,814
|
*%
|
62,501
|
313
|
*%
|
|||||||||||||||
Nicki Baty, Chief Operating Officer (5)
|
17,150
|
*%
|
17,150
|
0
|
—
|
1. |
Beneficial ownership and the percentage of shares of Common Stock beneficially owned is computed on the basis of 48,536,779 shares of Common Stock outstanding as of October 31, 2024 and determined in
accordance with the rules and regulations of the SEC.
|
2. |
Includes shares of Common Stock issuable upon vesting of restricted stock units or vesting and exercise of stock options included in the Inducement Awards, including those that are subject to vesting within
60 days from October 31, 2024.
|
3. |
Assumes that all of the shares of Common Stock held by each Selling Stockholder and being offered under this Reoffer Prospectus are sold, and that no Selling Stockholder will acquire additional shares of
Common Stock before the completion of this offering.
|
4. |
Includes (a) 313 shares of Common Stock, 26,743 shares underlying options to purchase Common Stock and 14,919 shares underlying restricted stock units held by Mr. Cunfer that have vested or could vest within
60 days of October 31, 2024 and (b) 13,377 shares underlying options to purchase Common Stock and 7,462 shares underlying restricted stock units held by Mr. Cunfer that will not vest within 60 days of October 31, 2024.
|
5. |
Includes 17,150 restricted stock units held by Ms. Baty which will not vest within 60 days of October 31, 2024.
|
• |
• |
Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2024, June 30, 2024 and September
30, 2024, filed with the SEC on May 6, 2024, August 5, 2024 and November 4, 2024, respectively;
|
• |
Our Current Reports on Form 8-K filed with the SEC on February 28, 2024, April 4, 2024, April 10, 2024, August 30, 2024, September 3, 2024 and October 4, 2024 (except in each case for information contained therein which is furnished rather than filed); and
|
• |
The description of the Company’s Common Stock contained in our Annual Report on Form 10-K for the
year ended December 31, 2023 filed with the SEC on February 26, 2024, as amended by our Annual Report on Form 10-K/A for the
year ended December 31, 2023, filed with the SEC on April 30, 2024, including any amendment or report filed for the purpose of updating such description.
|
Item 3.
|
Incorporation of Documents by Reference.
|
• |
• |
Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2024, June 30, 2024 and September
30, 2024, filed with the SEC on May 6, 2024, August 5, 2024 and November 4, 2024, respectively;
|
• |
Our Current Reports on Form 8-K filed with the SEC on February 28, 2024, April 4, 2024, April 10, 2024, August 30, 2024, September 3, 2024 and October 4, 2024 (except in each case for information contained therein which is furnished rather than filed); and
|
• |
The description of the Company’s Common Stock contained in our Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on February 26, 2024, as amended by our Annual Report on Form 10-K/A for the year ended December 31, 2023, filed with the SEC on April 30, 2024, including any amendment
or report filed for the purpose of updating such description.
|
Item 4. |
Description of Securities.
|
Item 5. |
Interests of Named Experts and Counsel.
|
Item 6. |
Indemnification of Directors and Officers.
|
Item 7. |
Exemption from Registration Claimed.
|
Item 8. |
Exhibits.
|
Exhibit
Number
|
Exhibit Description
|
|
Opinion of Morgan, Lewis & Bockius LLP.
|
||
Consent of KPMG LLP.
|
||
Consent of Morgan, Lewis & Bockius LLP (included in Exhibit 5.1 hereof).
|
||
Power of Attorney (contained on the signature pages hereto).
|
||
Freshpet, Inc. 2024 Equity Incentive Plan (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the SEC on October 4, 2024)
|
||
Inducement Nonqualified Stock Option Award Agreement by and between Todd Cunfer and Freshpet, Inc., effective as of December 1, 2022.
|
||
Inducement Restricted Stock Unit Award Agreement by and between Todd Cunfer and Freshpet, Inc., effective as of December 1, 2022.
|
||
Inducement Restricted Stock Unit Award Agreement by and between Nicola Baty and Freshpet, Inc., effective as of September 1, 2024.
|
||
Inducement Restricted Stock Unit Award Agreement by and between Nicola Baty and Freshpet, Inc., effective as of September 1, 2024.
|
||
Filing Fee Table.
|
*
|
Filed herewith.
|
Item 9. |
Undertakings.
|
(a) |
The undersigned Registrant hereby undertakes:
|
(1) |
To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
|
(i) |
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
|
(ii) |
To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and
|
(iii) |
To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
|
(2) |
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
|
(3) |
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
|
(b) |
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
|
(c) |
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in such Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
|
FRESHPET, INC.
|
|||
By: | /s/ William B. Cyr | ||
Name: William B. Cyr
|
|||
Title: Chief Executive Officer
|
Name
|
Title
|
Date
|
||
/s/ William B. Cyr
|
Chief Executive Officer and Director
(Principal Executive Officer)
|
November 7, 2024
|
||
William B. Cyr
|
||||
/s/ Todd Cunfer
|
Chief Financial Officer
(Principal Financial and Accounting Officer)
|
November 7, 2024
|
||
Todd Cunfer
|
Name
|
Title
|
Date
|
||
Directors:
|
||||
/s/ Walter N. George III
|
Chairperson of the Board
|
November 7, 2024
|
||
Walter N. George III
|
||||
/s/ Olu Beck
|
Director
|
November 7, 2024
|
||
Olu Beck
|
||||
/s/ David B. Biegger
|
Director
|
November 7, 2024
|
||
David B. Biegger
|
||||
/s/ Daryl G. Brewster
|
Director
|
November 7, 2024
|
||
Daryl G. Brewster
|
||||
/s/ Jacki Kelley
|
Director
|
November 7, 2024
|
||
Jacki Kelley
|
||||
/s/ Lauri Kien Kotcher
|
Director
|
November 7, 2024
|
||
Lauri Kien Kotcher
|
||||
/s/ Timothy R. McLevish
|
Director
|
November 7, 2024
|
||
Timothy R. McLevish
|
||||
/s/ Leta D. Priest
|
Director
|
November 7, 2024
|
||
Leta D. Priest
|
||||
/s/ Joseph E. Scalzo
|
Director
|
November 7, 2024
|
||
Joseph E. Scalzo
|
||||
/s/ Craig D. Steeneck
|
Director
|
November 7, 2024
|
||
Craig D. Steeneck
|
||||
/s/ David J. West
|
Director
|
November 7, 2024
|
||
David J. West
|
Morgan, Lewis & Bockius llp
|
||
2222 Market Street
Philadelphia, PA 19103-3007
United States
|
+1.215.963.5000
|
Vesting Date
|
Percentage of
Option Shares Vesting |
|
First Anniversary of Grant Date
|
33%
|
|
Second Anniversary of Grant Date
|
33%
|
|
Third Anniversary of Grant Date
|
34%
|
FRESHPET, INC.
|
|||
By:
|
/s/ Thembi Machaba
|
||
Name:
|
Thembi Machaba
|
||
Title:
|
Senior Vice President, Human Resources
|
||
PARTICIPANT
|
|||
/s/ Todd Cunfer
|
|||
Name: Todd Cunfer
|
Vesting Date
|
Number of RSUs Vesting
|
First Anniversary of Grant Date
|
7,460
|
Second Anniversary of Grant Date
|
7,460
|
Third Anniversary of Grant Date
|
7,461
|
FRESHPET, INC.
|
||
By:
|
/s/ Thembi Machaba
|
|
Name:
|
Thembi Machaba
|
|
Title:
|
Senior Vice President, Human Resources
|
|
PARTICIPANT
|
||
/s/ Todd Cunfer
|
||
Name: Todd Cunfer
|
Number of Restricted Stock Units Granted:
|
11,360
|
Vesting Date
|
Number of RSUs Vesting
|
First Anniversary of Grant Date
|
4,425
|
Second Anniversary of Grant Date
|
5,492
|
Third Anniversary of Grant Date
|
1,443
|
FRESHPET, INC.
|
|||
|
|
||
By:
|
/s/ Thembi Machaba
|
||
Name:
|
Thembi Machaba
|
||
Title:
|
Chief Human Resources Officer
|
||
|
|||
PARTICIPANT
|
|||
/s/ Nicola Baty
|
|||
Name: Nicola Baty
|
Number of Restricted Stock Units Granted:
|
5,790
|
Vesting Date
|
Number of RSUs Vesting
|
First Anniversary of Grant Date
|
1,286
|
Second Anniversary of Grant Date
|
1,286
|
Third Anniversary of Grant Date
|
3,218
|
FRESHPET, INC.
|
|||
By:
|
/s/ Thembi Machaba
|
||
Name:
|
Thembi Machaba
|
||
Title:
|
Chief Human Resources Officer
|
||
PARTICIPANT
|
|||
/s/ Nicola Baty
|
|||
Name: Nicola Baty
|
Calculation of Filing Fee Tables |
|||
|
|||
|
Table 1: Newly Registered Securities |
---|
Security Type |
Security Class Title |
Fee Calculation Rule |
Amount Registered |
Proposed Maximum Offering Price Per Unit |
Maximum Aggregate Offering Price |
Fee Rate |
Amount of Registration Fee |
|
---|---|---|---|---|---|---|---|---|
1 |
|
|
|
|
$
|
$
|
|
$
|
2 |
|
|
|
|
$
|
$
|
|
$
|
3 |
|
|
|
|
$
|
$
|
|
$
|
Total Offering Amounts: |
$
|
$
|
||||||
Total Fee Offsets: |
$
|
|||||||
Net Fee Due: |
$
|
Offering Note |
1 |
|
||||||
|
|||||||
2 |
|
||||||
|
|||||||
3 |
|
||||||
|