Bark, Inc S-1/A, filed Jul 1, 2021
Bark, Inc. (BARK)
As filed with the Securities and Exchange Commission on July 1, 2021.
Registration No. 333-257306
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2 TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE ORIGINAL BARK COMPANY
Additional Registrants Listed on Schedule A Hereto
(Exact name of registrant as specified in its charter)
| Delaware | 6770 | 83-4109918 | ||
| (State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification No.) |
221 Canal Street
New York, NY 10013
855-501-2275
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Manish Joneja
Chief Executive Officer
221 Canal Street
New York, NY 10013
855-501-2275
(Name, address, including zip code, and telephone number, including area code, of agent for service)
With copies to
| Matthew S. Miller, Esq. General Counsel The Original BARK Company 221 Canal Street New York, NY 10013 Telephone: 855-501-2275 |
Melissa B. Marks, Esq. Jeffrey R. Vetter, Esq. Keith J. Scherer, Esq. Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP 1250 Broadway, 23rd Floor New York, New York 10001 Telephone: (212) 730-8133 Fax: (877) 881-3007 |
Approximate date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 check the following box: ☒
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer ☐ | Accelerated filer ☐ | |
| Non-accelerated filer ☒ | Smaller reporting company ☒ | |
| Emerging growth company ☒ | ||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
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| ||||||||
| Title of Securities to be Registered | Amount to be Registered(1) |
Proposed Maximum Offering Price per Share |
Proposed Maximum Offering Price |
Amount of Registration Fee | ||||
| Common Stock, par value $0.0001 per share (2) |
20,000,000 | $10.77(8) | $215,300,000.00 | $23,489.23 | ||||
| Common Stock, par value $0.0001 per share (3) |
8,478,333 | $11.50(8) | $97,500,829.50 | $10,637.35 | ||||
| Common Stock, par value $0.0001 per share (4) |
1,897,212 | $1.05 | $1,992,072.60 | $217.34 | ||||
| 5.50% convertible senior secured notes due 2025 (5) |
$98,434,330.49(6) | — | $98,434,330.49(6) | $10,739.19 | ||||
| Guarantees of 5.50% convertible senior notes due 2025 |
— | — | — | (9) | ||||
| Common Stock, par value $0.0001 per share (7) |
9,843,433(7) | — | — | (7) | ||||
| Total |
$45,083.11(10) | |||||||
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| (1) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of Registrant’s common stock that become is issuable as a result of any anti-dilution provision, stock dividend, stock split, recapitalization, or other similar transaction effected without the receipt of consideration that results in an increase to the number of outstanding shares of Registrant’s common stock, as applicable. |
| (2) | These securities are being registered solely in connection with the resale of common stock by certain selling stockholders (the “PIPE Investors”) that purchased an aggregate of 20,000,000 shares of common stock, par value $0.0001 per share (the “common stock”) from the Registrant, pursuant to separate subscription agreements. |
| (3) | Consists of 8,478,333 shares of the Registrant’s common stock issuable upon exercise of warrants that were issued to stockholders in connection with the initial public offering of the Registrant. Each such warrant currently is exercisable for one share of the Registrant’s common stock at a price of $11.50 per share. These shares are being registered for issuance on this Registration Statement. |
| (4) | Consists of 1,897,212 shares of the Registrant’s common stock issuable upon the exercise of warrants that were assumed in the Business Combination. Each such warrant is exercisable for one share of the Registrant’s common stock at a weighted average price of $1.05 per share. These shares are being registered for resale on this Registration Statement. |
| (5) | Consists of the 5.50% convertible senior secured notes due 2025 (the “2025 Convertible Notes”) of Legacy BARK (including paid-in-kind interest through December 1, 2025). The 2025 Convertible Notes are being registered for resale on this Registration Statement. |
| (6) | Estimated pursuant to Rule 457(f) under the Securities Act of 1933, as amended, solely for the purposes of calculating the registration fee. The maximum offering price is based on the aggregate principal and accrued interest on the 2025 Convertible Notes as of June 2, 2021. |
| (7) | Represents the number of shares of common stock that may be issued upon conversion of the 2025 Convertible Notes registered hereunder (including shares issuable upon the conversion of 2025 Convertible Notes issued as paid-in-kind interest through December 1, 2025). These shares are being registered for resale on this Registration Statement. As more fully described in this Registration Statement, the initial conversion rate is 100 shares of common stock per $1,000 principal amount of the Convertible Notes. The number of shares of common stock being registered represents a good faith estimate of the maximum number of shares that may be issued upon conversion of the Selling Noteholders’ 2025 Convertible Notes. The shares of common stock issued upon conversion of the 2025 Convertible Notes are not subject to an additional fee pursuant to Rule 457(i) under the Securities Act since no additional consideration will be received for the shares of common stock issuable upon conversion of the 2025 Convertible Notes. |
| (8) | Estimated solely for purposes of calculating the registration fee according to Rule 457(c) under the Securities Act based on the average of the high and low prices of the Registrant’s common stock quoted on the New York Stock Exchange on June 18, 2021. |
| (9) | Pursuant to Rule 457(n) under the Securities Act, no additional registration fee is payable with respect to the guarantees. |
| (10) | Previously paid. |
The Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act, or until this registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
Schedule A
| Exact Name of Additional Registrants |
Jurisdiction of Incorporation or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | |||||||||||||
| Barkbox, Inc. |
DE | 221 Canal Street New York, NY 10013 |
5961 | 45-3720765 | |||||||||||||
| BarkRetail, LLC |
DE | 221 Canal Street New York, NY 10013 |
5961 | 81-4316775 | |||||||||||||
| BarkPark, LLC |
DE | 221 Canal Street New York, NY 10013 |
5961 | 45-3720765 | |||||||||||||
| BARK International, LLC |
DE | 221 Canal Street New York, NY 10013 |
5961 | — | |||||||||||||
| The Original BARK Company Pty Ltd. |
NSW | Suite 17, 2-14 Bayswater Rd Potts Point NSW 2011 |
5961 | — | |||||||||||||
EXPLANATORY NOTE
The Original BARK Company is filing this Amendment No. 2 to its registration statement on Form S-1 (File No. 333-257306) solely for the purpose of updating the exhibit list. This Amendment No. 2 does not modify any provision of the prospectus that forms a part of the Registration Statement. Accordingly, a preliminary prospectus has been omitted.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses to be borne by the registrant in connection with the issuance and distribution of the shares of common stock being registered hereby.
| Expense |
Estimated |
|||
| Securities and Exchange Commission registration fee |
$ | 45,083.11 | ||
| Accounting fees and expenses |
50,000 | |||
| Legal fees and expenses |
50,000 | |||
| Financial printing and miscellaneous expenses |
20,000 | |||
|
|
|
|||
| Total |
$ | 165,083.11 | ||
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Item 14. Indemnification of Directors and Officers.
The Original BARK Company, BarkBox, Inc., BarkRetail, LLC, BarkPark, LLC and BARK International, LLC are incorporated under the laws of the State of Delaware. The Original BARK Company Pty Ltd. is incorporated under the laws of Australia.
The Australian Corporations Act 2001 generally allows a company to indemnify its officers and directors for liability incurred in their position with the company, subject to certain exceptions, including liabilities owed to the company itself (or a related corporate body) and liabilities that arise out of a failure to act in good faith.
Section 18-108 of the Delaware Limited Liability Company Act provides that a limited liability company may, and shall have the power to, indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever.
The Limited Liability Company Agreement of BarkRetail, LLC, to the fullest extent authorized by the Delaware Limited Liability Company Act, provide for the indemnification of any member or officer or employee from any loss, damage or claim arising by reason of any act or omission performed or omitted by such member or officer in good faith on behalf of the company and in a manner reasonably believed to be within the scope of the authority conferred on such member or officer.
Section 145 of the Delaware General Corporation Law, or the DGCL, permits a corporation to indemnify its directors and officers against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlements actually and reasonably incurred by them in connection with any action, suit or proceeding brought by third parties. The directors or officers must have acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reason to believe their conduct was unlawful. In a derivative action, an action only by or in the right of the corporation, indemnification may be made only for expenses actually and reasonably incurred by directors and officers in connection with the defense or settlement of an action or suit, and only with respect to a matter as to which they must have acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation. No indemnification may be made if such person must have been adjudged liable to the corporation, unless and only to the extent that the court in which the action or suit was brought must determine upon application that the defendant officers or directors are fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability. The current certificate of incorporation and the bylaw of the registrant provide for indemnification by the registrant of its directors, senior officers and employees to the fullest extent permitted by applicable law.
Section 102(b)(7) of the DGCL permits a corporation to provide in its charter that a director of the corporation must not be personally liable to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, except for liability (1) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) for payments of unlawful dividends or unlawful stock purchases or redemptions or (4) for any transaction from which the director derived an improper personal benefit. The current certificate of incorporation of the registrant provide for such limitation of liability.
The Original BARK Company and BarkBox, Inc.’s amended and restated bylaws provide that each will indemnify its directors and officers to the fullest extent permitted by Delaware law, as it now exists or may in the future be amended, against all expenses and liabilities reasonably incurred in connection with their service for or on the their behalf. Their amended and restated bylaws provide that they shall advance the expenses incurred by a director or officer in advance of the final disposition of an action or proceeding, and permit them to secure insurance on behalf of any director, officer, employee, or other enterprise agent for any liability arising out of his or her action in that capacity, whether or not Delaware law would otherwise permit indemnification.
We have entered into indemnification agreements with each of our directors and officers in which we have agreed to indemnify, defend and hold harmless, and also advance expenses as incurred, to the fullest extent permitted under applicable law, from damage arising from the fact that such person is or was an officer or director of our company or our subsidiaries.
The indemnification rights set forth above shall not be exclusive of any other right which an indemnified person may have or hereafter acquire under any statute, our amended and restated certificate of incorporation, our amended and restated bylaws, any agreement, any vote of stockholders or disinterested directors or otherwise.
We maintain standard policies of insurance that provide coverage (1) to our directors and officers against loss rising from claims made by reason of breach of duty or other wrongful act and (2) to us with respect to indemnification payments that we may make to such directors and officers.
We have purchased and intend to maintain insurance on behalf of the registrant and any person who is or was a director or officer against any loss arising from any claim asserted against him or her and incurred by him or her in that capacity, subject to certain exclusions and limits of the amount of coverage.
Item 15. Recent Sales of Unregistered Securities.
Subscription Agreements
In connection with the execution of the Business Combination Agreement, on December 16, 2020, Northern Star entered into separate subscription agreements (collectively, the “Subscription Agreements”) with a number of investors (collectively, the “Subscribers”), pursuant to which the Subscribers agreed to purchase, and Northern Star agreed to sell to the Subscribers, an aggregate of 20,000,000 PIPE Shares for a purchase price of $10.00 per share and an aggregate purchase price of $200 million, in a private placement (the “PIPE”). The PIPE was consummated concurrently with the Closing. The shares of Common Stock issued in the PIPE were not registered under the Securities Act, in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act and/or Regulation D promulgated thereunder.
Founder Shares
In July 2020, Northern Star issued 8,625,000 Founder Shares to the Sponsor for $25,000 in cash, at a purchase price of approximately $0.003 per share, in connection with Northern Star’s organization. Such securities were issued in connection with our organization pursuant to the exemption from registration contained in Section 4(a)(2) of the Securities Act. The Sponsor subsequently transferred 50,000 Founder Shares to each independent director and 100,000 founder shares to Northern Star’s chief financial officer, in each case at the same per-share purchase price paid by the Sponsor. In November 2020, Northern Star’s Sponsor contributed an aggregate of 1,437,500 Founder Shares to Northern Star’s capital for no consideration, resulting in there being 7,187,500 founder shares outstanding. As a result of the underwriters’ partial exercise of the overallotment option
on November 24, 2020, the Sponsor surrendered 828,750 Founder Shares for no consideration. In connection with the Business Combination, each outstanding share of Northern Star’s Class B common stock converted into one share of Northern Star’s Class A common stock at the closing, the Class B common stock ceased to exist and Northern Star has a single class of common stock. The issuance of Common Stock upon automatic conversion of the Founder Shares at the Closing was not registered under the Securities Act in reliance on the exemption from registration provided by Section 3(a)(9) of the Securities Act.
Private Warrants
The Sponsor purchased an aggregate of 4,500,000 warrants at the closing of Northern Star’s initial public offering and 58,000 warrants at the closing of the underwriter’s partial exercise of its over-allotment option, in each case at a price of $1.50 per Warrant (for a total purchase price of $6,837,000) from Northern Star on a private placement basis. The warrants are identical to the warrants included in the units sold in Northern Star’s initial public offering except that the warrants: (i) are not redeemable by Northern Star, and (ii) may be exercised for cash or on a cashless basis, as described in the prospectus for Northern Star’s initial public offering, so long as they are held by the initial purchasers or any of their permitted transferees. If the warrants are held by holders other than the initial purchasers or any of their permitted transferees, they will be redeemable by Northern Star and exercisable by the holders on the same basis as the warrants included in the units being sold in its initial public offering. Each warrant entitles the holder thereof to purchase one share of our Common Stock at an exercise price of $11.50 per share. The sales of the warrants were made pursuant to the exemption from registration contained in Section 4(a)(2) of the Securities Act.
The following list sets forth information regarding all unregistered securities sold by Legacy BARK in the three years preceding this registration statement. No underwriters were involved in the sales and the certificates representing the securities sold and issued contain legends restricting transfer of the securities without registration under the Securities Act or an applicable exemption from registration.
Stock Plan Related Issuances
(a) From June 21, 2018 through June 21, 2021, Legacy BARK granted to its directors, officers, employees, consultants and other service providers stock options to purchase an aggregate of 2,657,422 shares of common stock upon the exercise of options under the 2011 Stock Plan at exercise prices per share ranging from $8.85 to $92.84, for an aggregate exercise price of approximately $63.56 million.
(b) From June 21, 2018 through June 21, 2021, Legacy BARK issued an aggregate of 606,737 shares of common stock upon the exercise of options, at exercise prices ranging from $0.20 to $86.90 per share, for an aggregate exercise price of approximately $2.70 million.
(c) From June 21, 2018 through June 21, 2021, Legacy BARK granted to its directors, officers, employees, consultants and other service providers an aggregate of 229,282 shares of restricted common stock, for an aggregate value of approximately $3.12 million.
Sales of Warrants, Common Stock and Convertible Debt
(d) In December 2018, Legacy BARK issued warrants to acquire an aggregate of 179,366 shares of its common stock at an exercise price of $8.85 per share for an aggregate exercise price of approximately $1.59 million. In December 2018, Legacy BARK issued warrants to acquire an aggregate of 26,015 shares of its common stock at an exercise price of $9.61 per share for an aggregate exercise price of approximately $0.25 million.
(e) On April 8, 2021, Legacy BARK issued 23,500 shares of common stock upon the exercise of warrants with an exercise price of $3.32 and on May 25, 2021, Legacy BARK issued 2,940 shares of common stock upon the exercise of warrants with an exercise price of $8.85, for an aggregate exercise price of approximately $0.08 million.
(f) On December 19, 2019, Legacy BARK issued convertible promissory notes in aggregate principal amount of $3,866,663.
(g) On March 31, 2020, Legacy BARK issued convertible promissory notes in aggregate principal amount of $3,300,000.
(h) On November 27, 2020, Legacy BARK issued $75,000,000 in aggregate principle amount of 5.50% Convertible Secured Notes due 2025.
No underwriters were involved in the foregoing issuances of securities. The offers, sales and issuances of the securities described in Items (a), (b) and (c) above were exempt from registration under the Securities Act under either (1) Rule 701 in that the transactions were under compensatory benefit plans and contracts relating to compensation as provided under Rule 701 or (2) Section 4(a)(2) of the Securities Act or Regulation D promulgated thereunder as transactions by an issuer not involving any public offering. The recipients of such securities were Legacy BARK’s directors, officers, employees, consultants or other service providers and received the securities under the 2011 Stock Incentive Plan. The recipients of securities in each of these transactions represented their intention to acquire the securities for investment only and not with view to or for sale in connection with any distribution thereof and appropriate legends were affixed to the securities issued in these transactions.
The offers, sales and issuances of the securities described in Items (d), (e), (f), (g) and (h) above were exempt from registration under the Securities Act under Section 4(a)(2) of the Securities Act or Regulation D promulgated thereunder as transactions by an issuer not involving a public offering. The recipients of securities in each of these transactions acquired the securities for investment only and not with a view to or for sale in connection with any distribution thereof and appropriate legends were affixed to the securities issued in these transactions. Each of the recipients of securities in these transactions was an accredited person and had adequate access, through employment, business or other relationships, to information about Legacy BARK.
Item 16. Exhibits and Financial Statements.
(a) Exhibits.
| * | Certain exhibits and schedules to this exhibit have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The registrant agrees to furnish a copy of the omitted exhibits and schedules to the SEC on a supplemental basis upon its request. |
| # | Indicates management contract or compensatory plan or arrangement. |
| + | To be filed by amendment. |
| (b) | Financial Statements. The financial statements filed as part of this registration statement are listed in the index to the financial statements immediately preceding such financial statements, which index to the financial statements is incorporated herein by reference. |
| Item 17. Undertakings. | |
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, as amended; |
| ii. | To reflect in the prospectus any facts or events arising after the effective date of the 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% 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, 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. |
| (4) | That, for the purpose of determining liability under the Securities Act to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use. |
| (5) | That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant 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 undersigned registrant 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 undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
| ii. | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
| iii. | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
| iv. | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
Insofar as indemnification for liabilities arising under the Securities 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 SEC such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue.
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of New York, State of New York, on July 1, 2021.
| THE Original BARK COMPANY | ||
| By: |
/s/ John Toth | |
| John Toth | ||
| Chief Financial Officer | ||
Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Name |
Title |
Date | ||
| * Manish Joneja |
Chief Executive Officer and President (Principal Executive Officer) |
July 1, 2021 | ||
| /s/ John Toth John Toth |
Chief Financial Officer (Principal Financial and Accounting Officer) |
July 1, 2021 | ||
| * Matt Meeker |
Executive Chairman | July 1, 2021 | ||
| * Jonathan J. Ledecky |
Director | July 1, 2021 | ||
| * Joanna Coles |
Director | July 1, 2021 | ||
| * Jim McGinty |
Director | July 1, 2021 | ||
| * Elizabeth McLaughlin |
Director | July 1, 2021 | ||
| *By: | /s/ John Toth | |
| Name: John Toth | ||
| Title: Attorney-in-fact | ||
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of New York, State of New York, on July 1, 2021.
| BARKBOX, INC. | ||
| By: |
/s/ John Toth | |
| John Toth | ||
| Chief Financial Officer | ||
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 dates indicated.
| Name |
Title |
Date | ||
| * Manish Joneja |
Chief Executive Officer and President (Principal Executive Officer) | July 1, 2021 | ||
| /s/ John Toth John Toth |
Chief Financial Officer (Principal Financial and Accounting Officer) |
July 1, 2021 | ||
| * Matt Meeker |
Executive Chairman | July 1, 2021 | ||
| *By: | /s/ John Toth | |
| Name: John Toth | ||
| Title: Attorney-in-fact | ||
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of New York, State of New York, on July 1, 2021.
| BARKRETAIL, LLC | ||
| By: BARKBOX, INC., its Sole Member | ||
| By: |
/s/ John Toth | |
| John Toth | ||
| Chief Financial Officer | ||
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 dates indicated.
| Name |
Title |
Date | ||
| /s/ Matt Meeker Matt Meeker |
President (Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer) |
July 1, 2021 | ||
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of New York, State of New York, on July 1, 2021.
| BARKPARK, LLC | ||
| By: BARKBOX, INC., its Sole Member | ||
| By: |
/s/ John Toth | |
| John Toth | ||
| Chief Financial Officer | ||
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 dates indicated.
| Name |
Title |
Date | ||
| * Manish Joneja |
Chief Executive Officer and President (Principal Executive Officer) | July 1, 2021 | ||
| /s/ John Toth John Toth |
Chief Financial Officer (Principal Financial and Accounting Officer) |
July 1, 2021 | ||
| * Matt Meeker |
Executive Chairman | July 1, 2021 | ||
| *By: | /s/ John Toth | |
| Name: John Toth | ||
| Title: Attorney-in-fact | ||
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of New York, State of New York, on July 1, 2021.
| BARK INTERNATIONAL, LLC | ||
| By: BARKBOX, INC., its Sole Member | ||
| By: |
/s/ John Toth | |
| John Toth | ||
| Chief Financial Officer | ||
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 dates indicated.
| Name |
Title |
Date | ||
| * Manish Joneja |
Chief Executive Officer and President (Principal Executive Officer) | July 1, 2021 | ||
| /s/ John Toth John Toth |
Chief Financial Officer (Principal Financial and Accounting Officer) |
July 1, 2021 | ||
| * Matt Meeker |
Executive Chairman | July 1, 2021 | ||
| *By: | /s/ John Toth | |
| Name: John Toth | ||
| Title: Attorney-in-fact | ||
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of New York, State of New York, on July 1, 2021.
| THE ORIGINAL BARK COMPANY PTY LTD. | ||
| By: |
/s/ Matt Miller | |
| Matt Miller | ||
| Authorized Representative in the United States | ||
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 dates indicated.
| Signature |
Title |
Date | ||
| * Whitney Komor |
Director, Company Secretary (Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer) |
July 1, 2021 | ||
| /s/ Matt Miller Matt Miller |
Authorized Representative in the United States |
July 1, 2021 | ||
| *By: | /s/ Matt Miller | |
| Name: Matt Miller | ||
| Title: Attorney-in-fact | ||
Exhibit 5.2
| July 1, 2021 | ||
The Original Bark Company
221 Canal Street
New York, NY 10013
| Re: | 2025 Convertible Notes Issued by BarkBox, Inc. |
Ladies and Gentlemen:
We have acted as special counsel to The Original BARK Company, a Delaware corporation (“BARK”), BarkBox, Inc., a Delaware corporation (“Legacy BARK”), BarkPark, LLC, a Delaware limited liability company (“Park”), BarkRetail, LLC, a Delaware limited liability company (“Retail”), Bark International, LLC, a Delaware limited liability company (“International”), and The Original Bark Company Pty Ltd, an Australian proprietary limited company (“Original”) in connection with the filing of a registration statement (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”), on Form S-1 with the Securities and Exchange Commission (the “Commission”), for the purpose of, among other things, registering under the Act the resale by the noteholders named in the prospectus contained in the Registration Statement (the “Prospectus”) of up to $75,000,000 aggregate principal amount of 5.50% convertible senior notes due 2025 issued by Legacy BARK (the “Notes”) and the related guarantees of the Notes (the “Guarantees”) by each of BARK, Park, Retail, International, and Original (collectively, the “Guarantors”).
The Notes and Guarantees have been issued under an Indenture dated as of November 27, 2020 by and among Legacy BARK, the Guarantors, and U.S. Bank National Association, a national banking association, as trustee (in such capacity as trustee, the “Trustee”), as amended by that certain Supplemental Indenture No. 1 dated as of April 20, 2021, and as further amended by that certain Supplemental Indenture No. 2 dated as of June 2, 2021 (as amended, the “Indenture”).
In rendering the opinions expressed below, we have examined copies of (and our opinions are limited to): (i) the Registration Statement; (ii) the Prospectus; (iii) the Indenture; (iv) the form of the Notes; (v) the form of the Guarantees as set forth in the Indenture; and (vi) and such other documents, consents, corporate filings, certificates and records as we have deemed necessary or appropriate as a basis for the opinions set forth herein in our limited capacity as special counsel.
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The Original Bark Company
July 1, 2021
Page 2
In our examination, we have assumed, without independent investigation, that (i) the signatures of persons executing all documents in connection with this opinion is rendered are genuine; (ii) the signatures of persons executing all documents in connection with this opinion is rendered are authorized (other than with respect to Legacy Bark and the Guarantors); (iii) all documents submitted to us as originals are authentic; (iv) all documents submitted to us as copies, whether certified or not, conform to original documents and such originals are authentic; (v) that the statements contained in the certificates and comparable documents of public officials, officers and representatives of Legacy Bark and the Guarantors were true and correct as of the date thereof; and (vi) all parties to the documents reviewed by us are duly organized and validly existing and have full power and authority to execute, deliver and perform their obligations under such documents (other than with respect to Legacy Bark and the Guarantors).
To the extent that the obligations of Legacy BARK and the Guarantors under the Notes, the Guarantees and the Indenture, as applicable, may be dependent upon such matters, we have also assumed for purposes of this opinion that (i) the Trustee is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; (ii) the Trustee has been duly qualified to engage in the activities contemplated by the Indenture; (iii) the Indenture constitutes a legal, valid and binding obligation of the Trustee, enforceable against the Trustee in accordance with its terms; (iv) the Trustee is in compliance generally and with respect to acting as Trustee under the Indenture, with all applicable laws and regulations; and (v) the Trustee has the requisite organizational and legal power and authority to perform its obligations under the Indenture.
We have also assumed that the choice of New York law is legal and valid under the laws of any jurisdiction outside the State of New York relevant to such parties and that insofar as any obligation referred to herein is to be performed in, or by a party organized under the laws of, any jurisdiction outside the State of New York, its performance will not be illegal or ineffective in that jurisdiction by virtue of the law of that jurisdiction.
Based on the foregoing and having regard to legal considerations we deem relevant, we are of the opinion that:
1. The Notes are valid and binding obligations of Legacy BARK and enforceable against Legacy BARK in accordance with their terms, except (a) as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or other similar laws relating to or affecting the rights of creditors generally, and (b) as the enforceability of the Notes is subject to the application of general principles of equity (regardless of whether considered in a proceeding in equity or at law), including without limitation (i) the possible unavailability of specific performance, injunctive relief or any other equitable remedies and (ii) concepts of materiality, reasonableness, good faith and fair dealing.
The Original Bark Company
July 1, 2021
Page 3
2. The Guarantees are valid and binding obligations of the Guarantors and enforceable against the Guarantors in accordance with their terms, except (a) as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or other similar laws relating to or affecting the rights of creditors generally, (b) as the enforceability of the Guarantees is subject to the application of general principles of equity (regardless of whether considered in a proceeding in equity or at law), including without limitation (i) the possible unavailability of specific performance, injunctive relief or any other equitable remedies and (ii) concepts of materiality, reasonableness, good faith and fair dealing, and (c) the waiver of defenses by the Guarantors in the Guarantees may be limited by principles of public policy in New York, and we express no opinion with respect any so called savings clause including as set forth in Section 15.05 of the Indenture.
The opinions expressed herein are qualified to the extent that certain rights, remedies, forfeitures, penalties, waivers or elections contained in the Indenture, the Notes and the Guarantees may be rendered ineffective or limited by applicable laws or judicial decisions governing such provisions, but the application thereof would not, in our opinion, render the Indenture invalid as a whole, or render the remedies provided for therein, taken as a whole, inadequate for the practical realization of the benefits intended to be provided thereby (except for the economic consequences of procedural or other delay). In addition, we note that a court may fail or refuse to enforce provisions of agreements or documents in the exercise of its equitable powers if the enforcement thereof is based upon defaults or breaches which the court determines are immaterial to the ultimate performance contemplated thereby.
We express no opinion as to any waiver of forum non conveniens or similar doctrine with respect to proceedings in any court other than a court of the State of New York.
We have assumed for the purposes of this opinion letter that the opinions and assumptions set forth in that certain opinion letter of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP of dated June 22, 2021, are true and accurate in all respects and, in making the opinions set forth herein, we have relied upon the opinions set forth therein, including matters relating to the conversion shares issuable upon conversion of the Note pursuant to the Indenture. We have assumed for the purposes of this opinion letter that the opinions and assumptions set forth in that certain opinion letter of Teddington Legal dated June 24, 2021, are true and accurate in all respects and, in making the opinions set forth herein, we have relied upon the opinions set forth therein.
We express no opinion as to the law of any jurisdiction other than the law of the State of New York, the Delaware General Corporation Law (based solely upon our review of a standard compilation thereof and without review of any case law thereunder), the Delaware Limited Liability Company Act (based solely upon our review of a standard compilation thereof and without review of any case law thereunder) and the federal laws of the United States of America, which, in each instance, are limited to those laws in effect as of the date hereof, and those laws and regulations that a lawyer exercising customary professional diligence would reasonably recognize as being applicable to the parties or the transactions contemplated by the Indenture, the Notes and the Guarantees.
The Original Bark Company
July 1, 2021
Page 4
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our name under the caption “Legal Matters” in the Prospectus, without admitting that we are experts, within the meaning of the term “expert” as used in the Act or the rules and regulations of the Commission issued thereunder, with respect to any part of the Registration Statement, including this exhibit. This opinion is furnished to you in connection with the Registration Statement, is solely for your benefit and may not be relied upon, nor copies delivered to, any other person or entity without our prior written consent.
| Very truly yours, |
| RUTAN & TUCKER, LLP |
|
Exhibit 5.3
Our ref:
24 June 2021
BARKBOX, INC.
221 Canal Street, Floor 2
New York, New York 10013
Attention: John Toth
THE ORIGINAL BARK COMPANY PTY LTD (ACN 649 264 175)
Suite 17, 2-14 Bayswater Rd,
Potts Point NSW 2011
Attention: Whitney Komor
Dear Colleagues,
RE: Guarantee from The Original Bark Company Pty Ltd
| 1. | Introduction |
I am an Australian Legal Practitioner as the term is defined in the Legal Profession Uniform Law (NSW). As such, I have been retained as the Australian legal advisor of Barkbox, Inc. (the “Company”), a company incorporated in the state of Delaware, and its subsidiary, The Original Bark Company Pty Ltd (ACN 649 264 175), an Australian private company incorporated in New South Wales, Australia (the “Guarantor”), to provide an opinion in connection with the Indenture (as defined below), including the Guarantee (as defined below) as set forth therein.
This opinion is given in connection with the guarantee provided by the Guarantor (the “Guarantee”) under the Indenture dated 27 November 2020 between the Company, the guarantors named therein, and U.S. Bank National Association, as Trustee (the “Trustee”) and Collateral Agent (the “Collateral Agent) providing for the issuance of Convertible Secured Notes due 2025 (the “Notes”), as amended and supplemented by (a) Supplemental Indenture No. 1 (the “First Supplemental Indenture”) dated 30 April 2021 among the Company, the guarantors named therein, the Trustee and the Collateral Agent, and (b) Supplemental Indenture No. 2 (the “Second Supplemental Indenture”) dated 2 June 2021, between, among others, the Company, the Guarantor, the Trustee and the Collateral Agent (the First Supplemental Indenture and the Second Supplemental Indenture, together, the “Supplemental Indentures”). I have not been involved in the negotiation of the Guarantee, the Indenture, the Supplemental Indentures, the Deed, or any other related documents.
I have been asked to provide this opinion in accordance with the requirements of Item 601 (b)(5) of Regulation S-K under the U.S. Securities Act of 1933 (the “Securities Act”) regarding the Indenture (including the Guarantee as set forth therein), as amended and supplemented by the Supplemental Indentures, under the laws in force at the date of this opinion in the Relevant Jurisdiction. I express no opinion as to any laws other than the laws of the Relevant Jurisdiction.
This opinion relates solely to matters governed by, and should be interpreted in accordance with, the laws of the Relevant Jurisdiction as in force and as interpreted as of date of this opinion. I have no obligation to inform you of any change in any Relevant Law occurring after that date.
| 2. | Definitions |
In this opinion, the following terms are used:
ASIC means the Australian Securities & Investments Commission.
Company means Barkbox, Inc.
Guarantor means The Original Bark Company Pty Ltd.
Personal Property Securities Register, Security Interest and Personal Property means the definition stated in the Personal Property Securities Act 2009 (Cth).
Relevant Jurisdiction means each of the Commonwealth of Australia or the State of New South Wales.
Relevant Laws means laws of Commonwealth of Australia or the State of New South Wales.
U.S. means the United States of America.
If a word or phrase is defined, its other grammatical forms have corresponding meanings.
Unless the contrary intention appears, the singular includes the plural and vice versa.
| 3. | Documents |
| a. | In connection to this opinion, I have examined the following documents: |
| (i) | Indenture dated 27 November 2020 between the Company, the guarantors named therein, and the Trustee and the Collateral Agent in portable document format (pdf); |
| (ii) | the Supplemental Indentures; |
| (iii) | a verification certificate dated 1 June 2021 signed by the sole director of the Guarantor, confirming that the Guarantor does not have a constitution and is therefore governed by the replaceable rules set out in the Corporations Act 2001 (Cth), and attaching true, up-to-date and complete copies of its (i) certificate of incorporation; and (ii) an extract of the resolutions of the sole director of the Guarantor dated 1 June 2021; and |
| (iv) | such other documents as I have determined were necessary to enable me to express an informed judgment as to the matters addressed herein. |
| b. | Further, on 1 June 2021, I carried out a search of the Guarantor’s online records with the ASIC. These records are not necessarily up-to-date or complete. |
| 4. | Assumptions |
In rendering the opinions set forth below, I have assumed that:
| a. | all information contained in all documents reviewed by me is true and correct and no relevant matter has been withheld from me, whether deliberately or inadvertently; |
| b. | all dates, seals and signatures, any duty stamp or marking on all documents examined by me are genuine; |
| c. | all copies of the documents submitted to me are complete and conform to the originals of those documents were in full force and effect as of the date of the Indenture (including the Guarantee as set forth therein) and the Supplemental Indentures; |
| d. | all documents have been or will have been duly authorized, executed and delivered (other than on behalf of the Guarantor) by persons with authority to sign in such capacity; |
| e. | the Indenture and the Supplemental Indentures constitute valid and binding obligations to all parties to it under all relevant laws but without assuming the conclusions of my opinion herein; |
| f. | I am entitled to make and rely on all the assumptions specified in section 129 other than those in section 129 (5) and (6) of the Corporations Act of 2001 (Commonwealth of Australia), and I do not know or suspect that this assumption is incorrect; |
| g. | the execution and delivery of the Second Supplemental Indenture by the Guarantor, and the performance of its obligations under the Indenture (including the Guarantee set forth therein), as amended and supplemented by the Supplemental Indentures, is or will be for its commercial benefit; |
| h. | no party to the Indenture and the Supplemental Indentures is conducting or will conduct any relevant transaction or any associated activity in a manner or for a purpose not evident on the face of the aforesaid documents which might render the Indenture or guarantee or any relevant transaction or associated activity illegal, void, voidable or unenforceable; |
| i. | no liquidator, administrator, receiver or like person has been appointed to the Guarantor or the Company and there is no current application for the winding up of the Guarantor or the Company (the ASIC Search do not reveal any such appointment or application); and |
| j. | the Indenture and the Supplemental Indentures remain effective and have not been amended (except insofar as the Supplemental Indentures are concerned), novated, released or terminated and no rights under them and the guarantee have been waived. |
| 5. | Opinion |
Based on the foregoing, we are of the opinion, limited in all respects to the laws of Australia, that:
| a. | the Second Supplemental Indenture has been validly executed by the Guarantor; |
| b. | the Second Supplemental Indenture complies with the requirements of Article 10 of the Indenture; |
| c. | the Second Supplemental Indenture entered into by the Guarantor is permitted or authorized by the Indenture; |
| d. | the Guarantee is the legal, valid, and binding obligation of the Guarantor enforceable in accordance with their terms; |
| e. | the entry into of the Second Supplemental Indenture by the Guarantor, and the performance of its obligations under the Indenture (including the Guarantee as set forth therein), as amended and supplemented by the Supplemental Indentures, will not violate any provision of any Relevant Laws applicable to companies generally of the Relevant Jurisdiction or its constitution; |
| f. | the Guarantor is a validly existing corporation under the laws of Australia, incorporated in New South Wales, Australia with the corporate authority to execute, deliver and perform its obligations under the Indenture (including the Guarantee as set forth therein), as amended by the Supplemental Indentures; |
| g. | the Guarantor has the necessary corporate power to enter into and perform its obligations under the Indenture (including the Guarantee as set forth therein), as amended and supplemented by the Supplemental Indentures; and |
| h. | the Second Supplemental Indenture has been duly authorized, executed and delivered by the Guarantor in accordance with Australian law except as may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors’ rights in general. |
| 6. | Qualifications |
My opinion is subject to the following qualifications:
| a. | I express no opinion as to: |
| (i) | whether any representations and warranties made or given to be made or given by the Guarantor in the Indenture and the Supplemental Indentures are correct except insofar (and to the extent) as any such representation or warranty relates to a matter which is the subject of this opinion; |
| (ii) | any agreement, document or other instrument (other than the Indenture and the Supplemental Indentures) referred to in, contemplated by or in any way connected with the Indenture (including the Guarantee as set forth therein) (including each of the Registration Statement and prospectus referred to in paragraph 7 below); or |
| (iii) | matters of fact and in that regard I note that I did not conduct any investigation in respect of the accuracy of any facts set out in the Indenture (including the Guarantee as set forth therein), the Supplemental Indentures, the Registration Statement or prospectus referred to in paragraph 7 below or the certificate referred in paragraph 3 (a)(v) above, other than by obtaining and reviewing the verification certificate dated 1 June 2021 and ASIC Search; |
| b. | I have not taken into account the implications of any pending or foreshadowed legislative or regulatory proposal or amendment or any litigation, hearing or judgment pending in any Relevant Jurisdiction, including, but not limited to, any matter not yet decided on appeal; |
| c. | I have relied on the ASIC Search but I note that the records of ASIC available for public search may not be complete or up to date; |
| d. | court proceedings may be stayed if the subject of the proceedings in concurrently before another court; and |
| e. | a court will not give effect to a choice of laws to govern the Indenture, Supplemental Indenture and the Deed and the guarantee or to a submission to the jurisdiction of certain courts if to do so would be contrary to public policy in the Relevant Jurisdictions. |
| 7. | Filing |
I consent to the reliance on this opinion, in connection with the matters set out in it, by Rutan & Tucker, LLP for the purposes of any opinion to be given by it in connection with the Indenture (including the Guarantee as set forth therein) and the Supplemental Indentures and which will be filed as an exhibit to the registration statement on Form S-1 (File No. 333-257306) (the “Registration Statement”) filed with the U.S. Securities and Exchange Commission in connection with the Indenture (including the Guarantee as set forth therein), the Supplemental Indentures and the Notes.
I consent to this opinion being filed as an exhibit to the Registration Statement in relation to the Indenture (including the Guarantee as set forth therein) and the Supplemental Indentures and to the use of my name, Teddington Legal, under the section “ Legal Matters” in the prospectus that is a part of such Registration Statement. In giving such consent, I do not thereby admit that I am in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the U.S. Securities and Exchange Commission thereunder.
Yours sincerely,
| Teddington | Legal |
| Lawyer, | Consultant & Business Advisor |
Contact: +61 2 8096 8143.
Email: mark@tt.legal