As
filed with the Securities and Exchange Commission on October 26, 2023
Registration
No. 333-●
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BARFRESH
FOOD GROUP INC.
(Exact
Name of Registrant as Specified in Its Charter)
| Delaware |
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27-1994406 |
(State
or other jurisdiction
of
incorporation or organization) |
|
(I.R.S.
Employer
Identification
Number) |
3600
Wilshire Boulevard, Suite 2730
Los
Angeles, California 90010
(310)
598-7113
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Riccardo
Delle Coste, Chief Executive Officer
3600
Wilshire Blvd., Suite 1720
Los
Angeles, California 90010
(310)
598-7113
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copy
to:
Fay
Matsukage, Esq.
Doida
Crow Legal LLC
7979
E. Tufts Ave. Suite 1750
Denver,
CO 80237
(720)
306-1001
Approximate
date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
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, other than securities offered only in connection with dividend or interest reinvestment plans, 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, please 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 registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company”
in Rule 12b-2 of the Exchange Act. (Check one):
| Large
accelerated filer |
☐ |
Accelerated
filer |
☐ |
| Non-accelerated
filer |
☐
(Do not check if a smaller reporting company) |
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. ☐
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 of 1933, as amended, or until this registration statement shall become effective
on such date as the Securities and Exchange Commission, acting pursuant to such Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting
an offer to buy these securities in any state where the offer or sale is not permitted.
Subject
to Completion, Dated October 26, 2023
PROSPECTUS
$5,000,000
BARFRESH
FOOD GROUP INC.
Common
Stock, Preferred Stock, Warrants, Rights,
Debt
Securities and Units
We
may offer and sell, from time to time in one or more offerings the following securities:
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shares
of common stock, par value $0.000001 per share; |
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shares
of preferred stock, par value $0.000001 per share; |
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warrants
to purchase shares of our common stock, preferred stock and/or debt securities; |
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rights
to purchase shares of our common stock, preferred stock, warrants and/or debt securities; |
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debt
securities consisting of senior notes, subordinated notes or debentures; |
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units
consisting of a combination of the foregoing securities; or |
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any
combination of these securities. |
We
may offer and sell up to $5,000,000 in the aggregate of the securities identified above from time to time in one or more offerings.
The securities may be distributed at a fixed price or prices, which may be changed, market
prices prevailing at the time of sale, prices related to the prevailing market prices, or negotiated
prices. This prospectus provides a general description of the securities that we may offer. However, this prospectus may not be
used to offer or sell our securities unless accompanied by a prospectus supplement relating to the offered securities. Each time that
we offer securities under this prospectus, we will provide the specific terms of the securities offered, including the public offering
price, in a related prospectus supplement. Such prospectus supplement may add to, update or change information contained in this prospectus.
To the extent there is a conflict between the information contained in this prospectus, on the one hand, and the information contained
in any prospectus supplement, on the other hand, you should rely on the information in the prospectus supplement. You should read this
prospectus and any applicable prospectus supplement together with additional information described under the headings “Where You
Can Find More Information” and “Information Incorporated by Reference” before making your investment decision.
These
securities may be sold directly by us, through dealers or agents designated from time to time, to or through underwriters or through
a combination of these methods. See “Plan of Distribution” in this prospectus for additional information on methods of sale.
We may also describe the plan of distribution for any particular offering of our securities in a prospectus supplement. If any agents,
underwriters or dealers are involved in the sale of any securities in respect of which this prospectus is being delivered, we will disclose
their names and the nature of our arrangements with them in that prospectus supplement. The net proceeds we expect to receive from any
such sale will also be included in the prospectus supplement.
Our
common stock is quoted on the Nasdaq Capital Market under the ticker symbol “BRFH.” The closing price of our common stock
on October 25, 2023 was $1.84 per share.
As
of October 25, 2023, the aggregate market value of our outstanding common equity held by non-affiliates, or public float, was
$15,042,228 based on 13,924,774 shares of common stock outstanding, of which 6,996,385 shares are held by non-affiliates,
and a per share price of $2.15 based on the average of the bid and asked prices of our common stock on the Nasdaq Capital
Market on October 10, 2023 (within 60 days prior to the date of filing). Therefore, as of October 25, 2023, the amount
being offered is no more than one-third of the aggregate market value of our common equity held by non-affiliates, as calculated
in accordance with General Instruction I.B.6 of Form S-3.
An
investment in our securities involves a high degree of risk. See the sections entitled “Risk Factors” included in our most
recent Annual Report on Form 10-K and in any subsequent Quarterly Report on Form 10-Q, which are incorporated by reference into this
prospectus, as well as in any prospectus supplement related to a specific offering we make pursuant to this prospectus. You should carefully
read this entire prospectus together with any related prospectus supplement and the information incorporated by reference into both before
you make your investment decision.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined
if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
This
prospectus may not be used to sell securities unless accompanied by a prospectus supplement.
The
date of this prospectus is , 2023
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities and Exchange Commission (the “SEC”) using
a “shelf” registration process. Under this shelf registration process, we may offer from time to time securities having a
maximum aggregate offering price of no more than one-third of the aggregate market value of the voting and non-voting common equity held
by non-affiliated stockholders, during the period of twelve months immediately prior to and including the subject offer. This prospectus
provides you with a general description of the securities we may offer. Each time we sell securities, we will prepare and file with the
SEC a prospectus supplement that describes the specific amounts, prices and terms of the securities offered. The prospectus supplement
also may add, update or change information contained in this prospectus or the documents incorporated herein by reference. You should
read carefully both this prospectus and any prospectus supplement together with additional information described below under “Risk
Factors,” “Where You Can Find More Information” and “Information Incorporated by Reference.”
This
prospectus does not contain all the information provided in the registration statement we filed with the SEC. For further information
about us or our securities offered hereby, you should refer to that registration statement, which you can obtain from the SEC or directly
from us as described below under “Where You Can Find More Information.”
You
should rely only on the information contained or incorporated by reference in this prospectus or any prospectus supplement. Neither we,
our affiliates nor any underwriters have authorized anyone to provide any information other than that contained or incorporated by reference
in this prospectus or in any free writing prospectus prepared by or on behalf of us or to which we have referred you. If anyone provides
you with different or inconsistent information, you should not rely on it. We and our affiliates take no responsibility for, and can
provide no assurance as to the reliability of, any other information that others may give you. This prospectus is not an offer to sell
securities, and it is not soliciting an offer to buy securities, in any jurisdiction where the offer or sale is not permitted. We and/or
our affiliates, are not making an offer of these securities in any state where the offer is not permitted. You should not assume that
the information contained in or incorporated by reference in this prospectus or any prospectus supplement or in any such free writing
prospectus is accurate as of any date other than their respective dates. You should assume that the information appearing in this prospectus
or any prospectus supplement, as well as information we have previously filed with the SEC and incorporated by reference, is accurate
as of the date of those documents only. Our business, financial condition, results of operations and prospects may have changed since
those dates.
We
may sell securities through underwriters or dealers, through agents, directly to purchasers or through any combination of these methods.
We and our agents reserve the sole right to accept or reject in whole or in part any proposed purchase of securities. The prospectus
supplement, which we will prepare and file with the SEC each time we offer securities, will set forth the names of any underwriters,
agents or others involved in the sale of securities, and any applicable fee, commission or discount arrangements with them. See “Plan
of Distribution.”
In
this prospectus, references to “Barfresh”, “we,” “us,” “our”, “the registrant”
and “our company” refer, collectively, to Barfresh Food Group Inc., a Delaware corporation, the issuer of the securities
offered hereby, and its consolidated subsidiaries.
We
have filed or incorporated by reference exhibits to the registration statement of which this prospectus forms a part. You should read
the exhibits carefully for provisions that may be important to you.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
Statement
in this prospectus and in documents incorporated by reference in this prospectus contain certain statements that may be deemed to be
forward-looking statements. The forward-looking statements included or incorporated by reference in this prospectus and those documents
address activities, events or developments that we expect or anticipate will or may occur in the future. Any statements in this document
about expectations, beliefs, plans, objectives, assumptions or future events or performance are not historical facts and are forward-looking
statements. These statements are often, but not always, made through the use of words or phrases such as “may”, “should”,
“could”, “predict”, “potential”, “believe”, “will likely result”, “expect”,
“will continue”, “anticipate”, “seek”, “estimate”, “intend”, “plan”,
“projection”, “would”, “outlook” and similar expressions. Accordingly, these statements involve estimates,
assumptions and uncertainties, which could cause actual results to differ materially from those expressed in them. Any forward-looking
statements are qualified in their entirety by reference to the factors discussed throughout this document. All forward-looking statements
concerning economic conditions, rates of growth, rates of income or values as may be included in this document are based on information
available to us on the dates noted, and we assume no obligation to update any such forward-looking statements.
Management
cautions that forward-looking statements are qualified by their terms and/or important factors, many of which are outside of our control,
involve a number of risks, uncertainties and other factors that could cause actual results and events to differ materially from the statements
made, including, but not limited to, the following risk factors. Although we believe that the expectations reflected in the forward-looking
statements are reasonable, we cannot guarantee future results, levels of activity, performance, or achievements.
Certain
risks and uncertainties could cause actual results or outcomes to differ materially from those expressed in any forward-looking statements
made by us, and you should not place undue reliance on any such forward-looking statements. Actual results or outcomes may differ materially
from those expressed in any forward-looking statements made by us, and you should not place undue reliance on any such forward-looking
statements. Any forward-looking statement speaks only as of the date on which it is made and we do not undertake any obligation to update
any forward-looking statement or statements to reflect events or circumstances after the date on which such statement is made or to reflect
the occurrence of unanticipated events. New factors emerge from time to time, and it is not possible for us to predict which will arise.
In addition, we cannot assess the impact of each factor on our business or the extent to which any factor, or combination of factors,
may cause actual results to differ materially from those contained in any forward-looking statements.
PROSPECTUS
SUMMARY
This
prospectus summary highlights certain information about our company and other information contained elsewhere in this prospectus or in
documents incorporated by reference. This summary does not contain all of the information that you should consider before making an investment
decision. You should carefully read the entire prospectus, any prospectus supplement, including the section entitled “Risk Factors”
and the documents incorporated by reference into this prospectus, before making an investment decision.
THE
OFFERING
This
prospectus is part of a registration statement that we filed with the SEC utilizing a shelf registration process. Under this shelf registration
process, we may sell any combination of:
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common
stock; |
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preferred
stock; |
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debt
securities, in one or more series; |
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warrants
to purchase any of the securities listed above; |
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rights
to purchase any of the securities listed above; and/or |
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units
consisting of one or more of the foregoing. |
in
one or more offerings up to a total dollar amount of $5,000,000. This prospectus provides you with a general description of the
securities we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain specific information
about the terms of that specific offering and include a discussion of any risk factors or other special considerations that apply to
those securities. The prospectus supplement may also add, update or change information contained in this prospectus. You should read
both this prospectus and any prospectus supplement together with the additional information described under the heading “Risk Factors”
and “Where You Can Find More Information.”
THE
COMPANY
Business
Overview
Barfresh
is a leader in the creation, manufacturing and distribution of ready-to-drink and ready-to-blend frozen beverages. The current portfolio
of products includes smoothies, shakes and frappes.
Some
of the key benefits of the products for the end consumers that drink the products include:
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From
as little as 125-130 calories (per serving) |
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Real
fruit in every smoothie |
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Dairy
free options |
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Kosher
approved |
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Gluten
Free |
Products
Products
are packaged in three distinct formats.
The
Company’s ready-to-drink smoothie, “Twist & Go”™, has initially been focused towards the USDA national school
meal program, including the School Breakfast Program, the National School Lunch Program and Smart Snacks in Schools Program. This sweet
fruit and creamy yogurt smoothie contains four ounces of yogurt and a half-cup of fruit/fruit juice and comes in three different flavors:
strawberry banana, peach and mango pineapple. The product was originally launched in a bottled packaging format. The Company introduced
Twist & Go™ cartons in 2022. Twist & Go™ contains no added sugars, preservatives, artificial flavors or colors. At
only 125 -130 calories and with 5 grams of protein, it makes the perfect start to any day or on-the-go snack.
The
Company’s bulk “Easy Pour” format, which contains all the ingredients necessary to make the beverage, is packaged in
gallon containers in a concentrated formula that is mixed in beverage dispensing equipment 1:1 with water. The Company has a “no
sugar added” version of the bulk “Easy Pour” format, WHIRLZ 100% Juice Concentrate, that is specifically targeted for
the aforementioned USDA national school meal programs. In addition, the Company received approval from the United States Defense Logistics
Agency (“DLA”) to sell its smoothie products into all branches of the U.S. Armed Forces and is currently in contract with
and selling its bulk Easy Pour products into over one hundred military bases in the United States and abroad. In 2023, the Company
introduced a more concentrated version of its bulk product, sold to specific target markets in half-gallon containers.
The
Company’s single serve format features portion controlled and ready-to-blend beverage ingredient packs or “beverage packs”.
The beverage packs contain all the ingredients necessary to make the beverage, including the base (either sorbet, frozen yogurt, or ice
cream), real fruit pieces, juices, and ice – five ounces of water are added before blending.
Distribution
The
Company conducts sales through several channels, including National Accounts, Regional Accounts, and Broadline Distributors.
Manufacturing
Barfresh
utilizes contract manufacturers to manufacture all of its products in the United States.
Corporate
Information
Our
current business was established following a 2012 reverse merger into an inactive Delaware corporation, formed on February 25, 2010.
We have two direct subsidiaries: Barfresh Corporation, Inc. (formerly known as Smoothie, Inc.) and Barfresh, Inc. Our corporate office
is located at 3600 Wilshire Boulevard Suite 1720, Los Angeles, 90010. Our telephone number is (310) 598-7113 and our website is www.barfresh.com.
The information contained on, or accessible through, our website is not incorporated in, and shall not be part of, this prospectus.
On
January 20, 2022, our shares of Common Stock began trading on the Nasdaq Capital Market under the symbol, “BRFH.”
RISK
FACTORS
Investing
in our securities involves substantial risks. Before purchasing any of the securities, you should carefully consider and evaluate all
of the information included and incorporated by reference or deemed to be incorporated by reference in this prospectus or the applicable
prospectus supplement, including the risk factors incorporated by reference herein from our Annual Report on Form 10-K for the fiscal
year ended December 31, 2022, as updated by annual, quarterly and other reports and documents we file with the SEC after the date of
this prospectus and that are incorporated by reference herein or in the applicable prospectus supplement. The risks and uncertainties
that we have described are not the only ones facing our company. Additional risks and uncertainties not presently known to us or that
we currently deem immaterial may also affect us. The occurrence of any of these risks could materially and adversely impact our business,
cash flows, condition (financial or otherwise), liquidity, prospects and/or results of operations. Please also refer to the sections
below entitled “Special Note on Forward-Looking Statements” and “Where You Can Find More Information.”
USE
OF PROCEEDS
Unless
otherwise indicated in a prospectus supplement, the net proceeds from the sale of the securities will be used for general corporate purposes,
including, but not limited to, working capital, acquisitions, and other business opportunities.
RATIO
OF EARNINGS TO FIXED CHARGES
Any
time debt securities are offered pursuant to this prospectus, we will provide a table setting forth our ratio of earnings to fixed charges
on a historical basis in the applicable prospectus supplement, if required.
DESCRIPTION
OF SECURITIES
We
may sell from time to time, in one or more offerings:
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shares
of our common stock; |
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shares
of our preferred stock; |
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debt
securities consisting of senior notes, subordinated notes or debentures; |
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warrants
to purchase shares of our common stock, shares of our preferred stock and/or debt securities; |
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rights
to purchase shares of our common stock, preferred stock, warrants and/or debt securities; |
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units
consisting of a combination of the foregoing securities. |
The
descriptions of the securities contained in this prospectus, together with any applicable prospectus supplement, summarize all the material
terms and provisions of the various types of securities that we may offer. We will describe in the applicable prospectus supplement relating
to a particular offering the specific terms of the securities offered by that prospectus supplement. We will indicate in the applicable
prospectus supplement if the terms of the securities differ from the terms we have summarized below. We will also include in the prospectus
supplement information, where applicable, material United States federal income tax considerations relating to the securities.
DESCRIPTION
OF CAPITAL STOCK
The
following descriptions of common and preferred stock, together with the additional information we include in any applicable prospectus
supplement, summarizes the material terms and provisions of the common stock and preferred stock that we may offer under this prospectus
but is not intended to be complete. For the full terms of our common and preferred stock, please refer to our certificate of incorporation,
as amended from time to time, and our bylaws, as amended from time to time. The Delaware General Corporation Law (“DGCL”)
may also affect the terms of these securities. While the terms we have summarized below will apply generally to any future common or
preferred stock that we may offer, we will describe the specific terms of any series of these securities in more detail in the applicable
prospectus supplement. If we so indicate in a prospectus supplement, the terms of any common or preferred stock we offer under that prospectus
supplement may differ from the terms of our outstanding capital stock that we describe below.
As
of October 25, 2023, our authorized capital stock consists of 23,400,000 shares of capital stock with a par value of $0.000001
per share, consisting of 23,000,000 shares of Common Stock, par value of $0.000001 per share, and 400,000 shares of preferred stock,
par value of $0.000001 per share, which may, at the sole discretion of the Board of Directors be issued in one or more series (the “Preferred
Stock”). As of October 25, 2023, there were 13,924,774 shares of Common Stock issued and outstanding, held by 88
holders of record. No shares of Preferred Stock were issued or outstanding as of October 25, 2023. The authorized and unissued
shares of both Common and Preferred Stock are available for issuance without further action by our stockholders, unless such action is
required by applicable law or the rules of any stock exchange on which our securities may be listed. Unless approval of our stockholders
is so required, our board of directors will not seek stockholder approval for the issuance and sale of either our common stock or preferred
stock.
The
Board may from time to time authorize by resolution the issuance of any or all shares of the Common Stock and the Preferred Stock authorized
in accordance with the terms and conditions set forth in the certificate of incorporation for such purposes, in such amounts, to such
persons, corporations, or entities, for such consideration and in the case of the Preferred Stock, in one or more series, all as the
Board in its discretion may determine and without any vote or other action by the stockholders, except as otherwise required by law.
Common
Stock
Holders
of our Common Stock are entitled to one vote for each share on all matters submitted to a stockholder vote. Holders of Common Stock do
not have cumulative voting rights. Therefore, holders of a majority of the votes of holders of the Common Stock voting for the election
of directors can elect all of the directors. Holders of our Common Stock representing a majority of the voting power of our capital stock
issued, outstanding and entitled to vote, represented in person or by proxy, are necessary to constitute a quorum at any meeting of stockholders.
Holders
of our Common Stock are entitled to share in all dividends that our Board of Directors, in its discretion, declares from legally available
funds. In the event of a liquidation, dissolution or winding up, each outstanding share entitles its holder to participate pro rata in
all assets that remain after payment of liabilities and after providing for each class of stock, if any, having preference over the Common
Stock. Our Common Stock has no pre-emptive rights, no conversion rights and there are no redemption provisions applicable to our capital
stock.
Preferred
Stock
The
Board of Directors is authorized at any time, and from time to time, to provide the for the issuance of shares of Preferred Stock in
one or more series, and to determine the designations, preferences, limitations and relative or other rights of the Preferred Stock or
any series thereof. For each series, the Board of directors shall determine, by resolution or resolutions adopted prior to the issuance
of any shares thereof, the designations, preferences, limitations and relative or other rights thereof. The issuance of preferred stock
may have the effect of delaying, deferring or preventing a change in control of our company without further action by stockholders and
could adversely affect the rights and powers, including voting rights, of the holders of common stock.
Options
to Purchase Common Stock and Performance Share Unit Grants
As
of October 25, 2023, there are 650,000 shares of
Common Stock reserved for issuance pursuant to the 2023 Equity Incentive Plan, 480,000 reserved for issuance pursuant to the 2015
Equity Incentive Plan and 172,253 reserved for issuance outside of our plans. As of October 25, 2023, there are outstanding
options to purchase 598,632 shares of our Common Stock issuable upon the exercise of stock options granted to key employees, officers
and directors at a weighted average exercise price of $6.62, and 32,606 issuable pursuant to restricted stock awards and restricted
stock units.
As
of October 25, 2023, there are outstanding grants of 312,438 performance share units
pursuant to the Company’s 2023 and 2015 Equity Incentive Plans to the Company’s officers and employees.
Anti-Takeover
Effects of Various Provisions of Delaware Law and our Certificate of Incorporation
Provisions
of the DGCL and our Certificate of Incorporation and Bylaws could make it more difficult to acquire us by means of a tender offer, a
proxy contest or otherwise, or to remove incumbent officers and directors. These provisions, summarized below, would be expected to discourage
certain types of coercive takeover practices and takeover bids our board of directors may consider inadequate and to encourage persons
seeking to acquire control of us to first negotiate with us. We believe that the benefits of increased protection of our ability to negotiate
with the proponent of an unfriendly or unsolicited proposal to acquire or restructure us will outweigh the disadvantages of discouraging
takeover or acquisition proposals because, among other things, negotiation of these proposals could result in an improvement of their
terms.
Effects
of authorized but unissued common stock and blank check preferred stock. One of the effects of the existence of authorized
but unissued common stock and undesignated preferred stock may be to enable our board of directors to make more difficult or to discourage
an attempt to obtain control of our company by means of a merger, tender offer, proxy contest or otherwise, and thereby to protect the
continuity of management. If, in the due exercise of its fiduciary obligations, the board of directors were to determine that a takeover
proposal was not in our best interest, such shares could be issued by the board of directors without stockholder approval in one or more
transactions that might prevent or render more difficult or costly the completion of the takeover transaction by diluting the voting
or other rights of the proposed acquirer or insurgent stockholder group, by putting a substantial voting bloc in institutional or other
hands that might undertake to support the position of the incumbent board of directors, by effecting an acquisition that might complicate
or preclude the takeover, or otherwise.
In
addition, our certificate of incorporation grants our board of directors broad power to establish the rights and preferences of authorized
and unissued shares of preferred stock. The issuance of shares of preferred stock could decrease the amount of earnings and assets available
for distribution to holders of shares of common stock. The issuance also may adversely affect the rights and powers, including voting
rights, of those holders and may have the effect of delaying, deterring or preventing a change in control of our company.
Prohibition
on Cumulative Voting. Our certificate of incorporation does not provide for cumulative voting in the election of directors.
Authorized
but Unissued Shares. Our authorized but unissued shares of Common Stock and Preferred Stock are available for future issuance
without shareholder approval. The existence of authorized but unissued shares of Common Stock and Preferred Stock could render more difficult
or discourage an attempt to obtain control of us by means of a proxy contest, tender offer, merger or otherwise.
Limitations
on Liability and Indemnification of Officers and Directors. Our certificate of incorporation limits or eliminates the personal
liability of directors to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director, except in
the cases of breach of the duty of loyalty to the Company or its stockholders; acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; the unlawful payment of dividends, or unlawful stock purchases or redemptions; transactions
from which the director derived an improper personal benefit; or actions by or in the right of the Company. Our certificate of incorporation
include provisions that require us to indemnify, to the fullest extent allowable under the DGCL, our directors or officers against monetary
damages for actions taken as a director or officer of our company, or for serving at our request as a director or officer or another
position at another corporation or enterprise, as the case may be. Our certificate of incorporation also provide that we must indemnify
and advance reasonable expenses to our directors and officers, subject to our receipt of an undertaking from the indemnified party as
may be required under the DGCL. We are also expressly authorized to carry directors’ and officers’ insurance to protect our
company, our directors, officers and certain employees for some liabilities.
The
limitation of liability and indemnification provisions under the DGCL and in our certificate of incorporation and bylaws may discourage
stockholders from bringing a lawsuit against directors for breach of their fiduciary duties. These provisions may also have the effect
of reducing the likelihood of derivative litigation against directors and officers, even though such an action, if successful, might
otherwise benefit us and our stockholders. However, these provisions do not limit or eliminate our rights, or those of any stockholder,
to seek non-monetary relief such as injunction or rescission in the event of a breach of a director’s fiduciary duties. Moreover,
the provisions do not alter the liability of directors under the federal securities laws.
Transfer
Agent
The
transfer agent for our Common Stock is Securities Transfer Corporation, located at 2901 Dallas Parkway, Suite 380, Plano, Texas and its
telephone number is (469) 633-0101.
DESCRIPTION
OF DEBT SECURITIES
The
debt securities will be our direct unsecured general obligations. The debt securities will be either senior debt securities or subordinated
debt securities. The debt securities will be issued under one or more separate indentures the forms of which are filed as exhibits to
the registration statement of which this prospectus forms a part. Senior debt securities will be issued under a senior indenture. Subordinated
debt securities will be issued under a subordinated indenture. Each of the senior indenture and the subordinated indenture is referred
to as an indenture.
The
applicable prospectus supplement and/or other offering materials will describe the material terms of the debt securities offered through
that prospectus supplement as well as any general terms described in this section that will not apply to those debt securities. To the
extent the applicable prospectus supplement or other offering materials relating to an offering of debt securities are inconsistent with
this prospectus, the terms of that prospectus supplement or other offering materials will supersede the information in this prospectus.
The
prospectus supplement relating to any series of debt securities that we may offer will contain the specific terms of the debt securities.
These terms may include the following:
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● |
the
title and principal aggregate amount of the debt securities; |
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● |
whether
the debt securities will be senior, subordinated or junior subordinated; |
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whether
the debt securities will be secured or unsecured; |
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● |
whether
the debt securities are convertible or exchangeable into other securities; |
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● |
the
percentage or percentages of principal amount at which such debt securities will be issued; |
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● |
the
interest rate(s) or the method for determining the interest rate(s); |
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● |
the
dates on which interest will accrue or the method for determining dates on which interest will accrue and dates on which interest
will be payable; |
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the
person to whom any interest on the debt securities will be payable; |
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the
places where payments on the debt securities will be payable; |
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the
maturity date; |
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redemption
or early repayment provisions; |
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authorized
denominations; |
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form;
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amount
of discount or premium, if any, with which such debt securities will be issued; |
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● |
whether
such debt securities will be issued in whole or in part in the form of one or more global securities; |
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the
identity of the depositary for global securities; |
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whether
a temporary security is to be issued with respect to such series and whether any interest payable prior to the issuance of definitive
securities of the series will be credited to the account of the persons entitled thereto; |
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● |
the
terms upon which the beneficial interests in a temporary global security may be exchanged in whole or in part for beneficial interests
in a definitive global security or for individual definitive securities; |
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● |
any
covenants applicable to the particular debt securities being issued; |
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any
defaults and events of default applicable to the particular debt securities being issued; |
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● |
the
guarantors of each series, if any, and the extent of the guarantees (including provisions relating to seniority, subordination, security
and release of the guarantees), if any; |
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● |
any
applicable subordination provisions for any subordinated debt securities; |
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any
restriction or condition on the transferability of the debt securities; |
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the
currency, currencies, or currency units in which the purchase price for, the principal of and any premium and any interest on, such
debt securities will be payable; |
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● |
the
time period within which, the manner in which and the terms and conditions upon which we or the purchaser of the debt securities
can select the payment currency; |
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the
securities exchange(s) on which the securities will be listed, if any; |
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whether
any underwriter(s) will act as market maker(s) for the securities; |
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the
extent to which a secondary market for the securities is expected to develop; |
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our
obligations or right to redeem, purchase or repay debt securities under a sinking fund, amortization or analogous provision; |
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provisions
relating to covenant defeasance and legal defeasance; |
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provisions
relating to satisfaction and discharge of the indenture; |
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provisions
relating to the modification of the indenture both with and without consent of holders of debt securities issued under the indenture;
|
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the
law that will govern the indenture and debt securities; and |
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additional
terms not inconsistent with the provisions of the indenture. |
General
We
may sell the debt securities, including original issue discount securities, at par or at a substantial discount below their stated principal
amount. Unless we inform you otherwise in a prospectus supplement, we may issue additional debt securities of a particular series without
the consent of the holders of the debt securities of such series outstanding at the time of issuance. Any such additional debt securities,
together with all other outstanding debt securities of that series, will constitute a single series of securities under the applicable
indenture. In addition, we will describe in the applicable prospectus supplement material U.S. federal income tax considerations and
any other special considerations for any debt securities we sell which are denominated in a currency or currency unit other than U.S.
dollars. Unless we inform you otherwise in the applicable prospectus supplement, the debt securities will not be listed on any securities
exchange.
We
expect most debt securities to be issued in fully registered form without coupons and in denominations of $1,000 and integral multiples
thereof. Subject to the limitations provided in the indenture and in the prospectus supplement, debt securities that are issued in registered
form may be transferred or exchanged at the corporate office of the trustee or the principal corporate trust office of the trustee, without
the payment of any service charge, other than any tax or other governmental charge payable in connection therewith.
If
specified in the applicable prospectus supplement, certain of our subsidiaries will guarantee the debt securities. The particular terms
of any guarantee will be described in the related prospectus supplement.
Governing
Law
The
Indentures and the debt securities will be construed in accordance with and governed by the laws of the State of Delaware.
DESCRIPTION
OF WARRANTS
We
may issue warrants to purchase our debt or equity securities. Warrants may be issued independently or together with any other securities
and may be attached to, or separate from, such securities. Each series of warrants will be issued under a separate warrant agreement
to be entered into between us and a warrant agent. The terms of any warrants to be issued and a description of the material provisions
of the applicable warrant agreement will be set forth in the applicable prospectus supplement.
The
applicable prospectus supplement will describe the following terms of any warrants in respect of which this prospectus is being delivered:
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the
title of such warrants; |
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● |
the
aggregate number of such warrants; |
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● |
the
price or prices at which such warrants will be issued; |
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● |
the
currency or currencies in which the price of such warrants will be payable; |
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● |
the
securities purchasable upon exercise of such warrants; |
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● |
the
price at which and the currency or currencies in which the securities purchasable upon exercise of such warrants may be purchased;
|
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● |
the
date on which the right to exercise such warrants shall commence and the date on which such right shall expire; |
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● |
if
applicable, the minimum or maximum amount of such warrants which may be exercised at any one time; |
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● |
if
applicable, the designation and terms of the securities with which such warrants are issued and the number of such warrants issued
with each such security; |
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● |
if
applicable, the date on and after which such warrants and the related securities will be separately transferable; |
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● |
information
with respect to book-entry procedures, if any; |
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● |
if
applicable, a discussion of any material United States federal income tax considerations; and |
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● |
any
other terms of such warrants, including terms, procedures and limitations relating to the exchange and exercise of such warrants. |
DESCRIPTION
OF RIGHTS
We
may issue rights to purchase debt securities, preferred stock, common stock or warrants. These rights may be issued independently or
together with any other security offered hereby and may or may not be transferable by the shareholder receiving the rights in such offering.
The applicable prospectus supplement may add, update or change the terms and conditions of the rights as described in this prospectus.
The
applicable prospectus supplement will describe the specific terms of any offering of rights for which this prospectus is being delivered,
including the following:
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●
|
the
price, if any, per right; |
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● |
the
exercise price payable for debt securities, preferred stock, common stock, or warrants upon the exercise of the rights; |
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● |
the
number of rights issued or to be issued to each shareholder; |
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● |
the
number and terms of debt securities, preferred stock, common stock, or warrants which may be purchased per right; |
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● |
the
extent to which the rights are transferable; |
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● |
any
other terms of the rights, including the terms, procedures and limitations relating to the exchange and exercise of the rights; |
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● |
the
date on which the holder’s ability to exercise the rights shall commence, and the date on which the rights shall expire; |
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● |
the
extent to which the rights may include an over-subscription privilege with respect to unsubscribed securities; and |
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● |
if
applicable, the material terms of any standby underwriting or purchase arrangement entered into by us in connection with the offering
of such rights. |
Holders
may exercise rights as described in the applicable prospectus supplement. Upon receipt of payment and the rights certificate properly
completed and duly executed at the corporate trust office of the rights agent or any other office indicated in the prospectus supplement,
we will, as soon as practicable, forward the applicable securities purchased upon exercise of the rights. If less than all of the rights
issued in any rights offering are exercised, we may offer any unsubscribed securities directly to persons other than shareholders, to
or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby arrangements with
one or more underwriters or other purchasers, pursuant to which the underwriters or other purchasers may be required to purchase any
securities remaining unsubscribed for after such offering, as described in the applicable prospectus supplement.
The
description in the applicable prospectus supplement of any rights that we may offer will not necessarily be complete and will be qualified
in its entirety by reference to the applicable rights certificate, which will be filed with the SEC.
DESCRIPTION
OF UNITS
As
specified in the applicable prospectus supplement, we may issue units consisting of one or more warrants, rights, debt securities, shares
of preferred stock, shares of common stock or any combination of such securities. The applicable supplement will describe:
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● |
the
terms of the units and of the warrants, rights, debt securities, preferred stock and common stock comprising the units, including
whether and under what circumstances the securities comprising the units may be traded separately; |
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● |
a
description of the terms of any unit agreement governing the units; and |
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● |
a
description of the provisions for the payment, settlement, transfer or exchange of the units. |
FORMS
OF SECURITIES
Each
debt security, warrant, right and unit will be represented either by a certificate issued in definitive form to a particular investor
or by one or more global securities representing the entire issuance of securities. Certificated securities in definitive form and global
securities will be issued in registered form. Definitive securities name you or your nominee as the owner of the security, and in order
to transfer or exchange these securities or to receive payments other than interest or other interim payments, you or your nominee must
physically deliver the securities to the trustee, registrar, paying agent or other agent, as applicable. Global securities name a depositary
or its nominee as the owner of the debt securities, warrants or units represented by these global securities. The depositary maintains
a computerized system that will reflect each investor’s beneficial ownership of the securities through an account maintained by
the investor with its broker/dealer, bank, trust company or other representative, as we explain more fully below.
Registered
Global Securities
We
may issue the registered debt securities, warrants, rights and units in the form of one or more fully registered global securities that
will be deposited with a depositary or its nominee identified in the applicable prospectus supplement and registered in the name of that
depositary or nominee. In those cases, one or more registered global securities will be issued in a denomination or aggregate denominations
equal to the portion of the aggregate principal or face amount of the securities to be represented by registered global securities. Unless
and until it is exchanged in whole for securities in definitive registered form, a registered global security may not be transferred
except as a whole by and among the depositary for the registered global security, the nominees of the depositary or any successors of
the depositary or those nominees.
If
not described below, any specific terms of the depositary arrangement with respect to any securities to be represented by a registered
global security will be described in the prospectus supplement relating to those securities. We anticipate that the following provisions
will apply to all depositary arrangements.
Ownership
of beneficial interests in a registered global security will be limited to persons, called participants, that have accounts with the
depositary or persons that may hold interests through participants. Upon the issuance of a registered global security, the depositary
will credit, on its book-entry registration and transfer system, the participants’ accounts with the respective principal or face
amounts of the securities beneficially owned by the participants. Any dealers, underwriters or agents participating in the distribution
of the securities will designate the accounts to be credited. Ownership of beneficial interests in a registered global security will
be shown on, and the transfer of ownership interests will be effected only through, records maintained by the depositary, with respect
to interests of participants, and on the records of participants, with respect to interests of persons holding through participants.
The laws of some states may require that some purchasers of securities take physical delivery of these securities in definitive form.
These laws may impair your ability to own, transfer or pledge beneficial interests in registered global securities.
So
long as the depositary, or its nominee, is the registered owner of a registered global security, that depositary or its nominee, as the
case may be, will be considered the sole owner or holder of the securities represented by the registered global security for all purposes
under the applicable indenture, warrant agreement or unit agreement. Except as described below, owners of beneficial interests in a registered
global security will not be entitled to have the securities represented by the registered global security registered in their names,
will not receive or be entitled to receive physical delivery of the securities in definitive form and will not be considered the owners
or holders of the securities under the applicable indenture, warrant agreement, rights agreement or unit agreement. Accordingly, each
person owning a beneficial interest in a registered global security must rely on the procedures of the depositary for that registered
global security and, if that person is not a participant, on the procedures of the participant through which the person owns its interest,
to exercise any rights of a holder under the applicable indenture, warrant agreement, rights agreement or unit agreement. We understand
that under existing industry practices, if we request any action of holders or if an owner of a beneficial interest in a registered global
security desires to give or take any action that a holder is entitled to give or take under the applicable indenture, warrant agreement,
rights agreement or unit agreement, the depositary for the registered global security would authorize the participants holding the relevant
beneficial interests to give or take that action, and the participants would authorize beneficial owners owning through them to give
or take that action or would otherwise act upon the instructions of beneficial owners holding through them.
Principal,
premium, if any, and interest payments on debt securities, and any payments to holders with respect to warrants, rights or units, represented
by a registered global security registered in the name of a depositary or its nominee will be made to the depositary or its nominee,
as the case may be, as the registered owner of the registered global security. None of Barfresh, the trustees, the warrant agents, the
rights agents, the unit agents or any other agent of Barfresh, agent of the trustees or agent of the warrant agents, rights agents or
unit agents will have any responsibility or liability for any aspect of the records relating to payments made on account of beneficial
ownership interests in the registered global security or for maintaining, supervising or reviewing any records relating to those beneficial
ownership interests.
We
expect that the depositary for any of the securities represented by a registered global security, upon receipt of any payment of principal,
premium, interest or other distribution of underlying securities or other property to holders on that registered global security, will
immediately credit participants’ accounts in amounts proportionate to their respective beneficial interests in that registered
global security as shown on the records of the depositary. We also expect that payments by participants to owners of beneficial interests
in a registered global security held through participants will be governed by standing customer instructions and customary practices,
as is now the case with the securities held for the accounts of customers in bearer form or registered in “street name,”
and will be the responsibility of those participants.
If
the depositary for any of these securities represented by a registered global security is at any time unwilling or unable to continue
as depositary or ceases to be a clearing agency registered under the Exchange Act, and a successor depositary registered as a clearing
agency under the Exchange Act is not appointed by us within 90 days, we will issue securities in definitive form in exchange for the
registered global security that had been held by the depositary. Any securities issued in definitive form in exchange for a registered
global security will be registered in the name or names that the depositary gives to the relevant trustee, warrant agent, unit agent
or other relevant agent of ours or theirs. It is expected that the depositary’s instructions will be based upon directions received
by the depositary from participants with respect to ownership of beneficial interests in the registered global security that had been
held by the depositary.
PLAN
OF DISTRIBUTION
We
may sell the securities in one or more of the following ways (or in any combination) from time to time:
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● |
through
underwriters or dealers; |
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● |
directly
to a limited number of purchasers or to a single purchaser; |
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● |
through
agents; |
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● |
through
a combination of any such methods; or |
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|
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● |
through
any other methods described in a prospectus supplement. |
The
prospectus supplement will state the terms of the offering of the securities, including:
| |
● |
the
name or names of any underwriters, dealers or agents; |
| |
|
|
| |
● |
the
purchase price of such securities and the proceeds to be received by Barfresh, if any; |
| |
|
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● |
any
underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation; |
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● |
any
public offering price; |
| |
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|
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● |
any
discounts or concessions allowed or reallowed or paid to dealers; and |
| |
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|
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● |
any
securities exchanges on which the securities may be listed. |
Any
public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
If
we use underwriters in the sale, the securities may be acquired by the underwriters for their own account or as selling agent and may
be resold from time to time in one or more transactions, including:
| |
● |
negotiated
transactions, |
| |
|
|
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● |
at
a fixed public offering price or prices, which may be changed, |
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|
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● |
at
market prices prevailing at the time of sale, |
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|
|
| |
● |
at
prices related to prevailing market prices or |
| |
|
|
| |
● |
at
negotiated prices. |
Unless
otherwise stated in a prospectus supplement, the obligations of the underwriters to purchase any securities will be conditioned on customary
closing conditions and the underwriters will be obligated to purchase all of such series of securities, if any are purchased.
We
may sell the securities through agents from time to time. The prospectus supplement will name any agent involved in the offer or sale
of the securities and any commissions we pay to them. Generally, any agent will be acting on a best efforts basis for the period of its
appointment.
We
may authorize underwriters, dealers or agents to solicit offers by certain purchasers to purchase the securities from us at the public
offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a
specified date in the future. The contracts will be subject only to those conditions set forth in the prospectus supplement, and the
prospectus supplement will set forth any commissions we pay for solicitation of these contracts.
Underwriters
and agents may be entitled under agreements entered into with us to indemnification by us against certain civil liabilities, including
liabilities under the Securities Act, or to contribution with respect to payments which the underwriters or agents may be required to
make. Underwriters and agents may be customers of, engage in transactions with, or perform services for us and its affiliates in the
ordinary course of business.
Each
series of securities will be a new issue of securities and will have no established trading market other than the common stock, which
is quoted on the Nasdaq Capital Market. Any underwriters to whom securities are sold for public offering and sale may make a market in
the securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice.
The securities, other than the common stock, may or may not be listed on a national securities exchange.
LEGAL
OPINIONS
The
validity of the securities in respect of which this prospectus is being delivered will be passed on for us by Doida Crow Legal LLC, Denver,
Colorado 80237.
EXPERTS
The
financial statements incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2022
have been so incorporated in reliance on the report of Eide Bailly LLP, an independent registered public accounting firm, given on the
authority of said firm as experts in auditing and accounting.
LIMITATION
ON LIABILITY AND DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Our
directors and officers are indemnified by our bylaws against amounts actually and necessarily incurred by them in connection with the
defense of any action, suit or proceeding in which they are a party by reason of being or having been directors or officers of the company.
Our articles of incorporation provide that none of our directors or officers shall be personally liable for damages for breach of any
fiduciary duty as a director or officer involving any act or omission of any such director or officer. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to such directors, officers and controlling persons pursuant to the foregoing
provisions, or otherwise, we have 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 us of expenses incurred or paid by such director, officer or controlling person in the successful defense of any
action, lawsuit or proceeding, is asserted by such director, officer or controlling person in connection with the securities being registered,
we will, unless in the opinion of 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.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus and any subsequent prospectus supplements do not contain all of the information in the registration statement. We have omitted
from this prospectus some parts of the registration statement as permitted by the rules and regulations of the SEC. Statements in this
prospectus concerning any document we have filed as an exhibit to the registration statement or that we otherwise filed with the SEC
are not intended to be comprehensive and are qualified in their entirety by reference to these filings. In addition, we file annual,
quarterly and current reports, proxy statements and other information with the SEC. The SEC also maintains a website that contains reports,
proxy and information statements and other information that we file electronically with the SEC, including us. The SEC’s website
can be found at http://www.sec.gov. In addition, we make available on or through our website copies of these reports as soon as reasonably
practicable after we electronically file or furnished them to the SEC. Our website can be found at http://www.barfresh.com. The content
contained in, or that can be accessed through, our website is not a part of this prospectus.
INFORMATION
INCORPORATED BY REFERENCE
The
SEC allows us to “incorporate by reference” in this prospectus certain information we have filed and will file with the SEC,
which means that we may disclose important information in this prospectus by referring you to the document that contains the information.
The information incorporated by reference is considered to be an integral part of this prospectus, and information that we file later
with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below:
| |
● |
our
Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the SEC on March 2, 2023; |
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| |
● |
our
Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2023, June 30, 2023, and September 30, 2023 filed with the
SEC on April 27, 2023, August 14, 2023, and October 26, 2023, respectively; |
| |
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| |
● |
our
Current Reports on Form 8-K for April 27, 2023, May 3, 2023, June 13, 2023, June 14, 2023, August 14, 2023, and October 26, 2023
filed with the SEC on April 27, 2023, May 5, 2023, June 16, 2023, June 21, 2023, August 14, 2023, and October 26, 2023, respectively; |
| |
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|
| |
● |
the
description of our common stock which is included in our Form 8-A12B filed with the SEC on January 14, 2022, including any amendment
or report filed for the purpose of updating that description; and |
| |
|
|
| |
● |
all
documents filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act on or after the date of this
prospectus and before we stop offering the securities covered by this prospectus and any accompanying prospectus supplement. |
Notwithstanding
the foregoing, information and documents that we elect to furnish, but not file, or have furnished, but not filed, with the SEC in accordance
with SEC rules and regulations is not incorporated into this prospectus and does not constitute a part hereof.
You
may access these filings on our website at www.barfresh.com. The information on our website is not incorporated by reference and
is not considered part of this prospectus. Also, upon written or oral request, at no cost we will provide to each person, including any
beneficial owner, to whom a prospectus is delivered, a copy of any or all of the information that has been incorporated by reference
in the prospectus but not delivered with the prospectus. Inquiries should be directed to:
Barfresh
Food Group Inc.
3600
Wilshire Boulevard, Suite 1720
Los
Angeles, CA 90010
(469)
598-7113
$5,000,000
BARFRESH
FOOD GROUP INC.
Common
Stock, Preferred Stock, Warrants, Rights
Debt
Securities and Units
PROSPECTUS
,
2023
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
Set
forth below is an estimate (except in the case of the SEC registration fee) of the amount of fees and expenses to be incurred in connection
with the issuance and distribution of the offered securities registered hereby, other than underwriting discounts and commission, if
any, incurred in connection with the sale of the offered securities. All such amounts will be borne by Barfresh Food Group Inc., a Delaware
corporation (the “Company”).
| |
|
AMOUNT |
|
| SEC
Registration Fee |
|
$ |
|
|
| FINRA
Filing Fees |
|
|
|
(1) |
| Legal
Fees and Expenses |
|
|
|
(1) |
| Accounting
Fees and Expenses |
|
|
|
(1) |
| Trustees’
Fees and Expenses |
|
|
|
(1) |
| Warrant
Agent Fees and Expenses |
|
|
|
(1) |
| Printing
Expenses |
|
|
|
(1) |
| Miscellaneous
Expenses |
|
|
|
(1) |
| Total
|
|
$ |
|
(1) |
| (1) |
These
fees will be calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time. |
Item
15. Indemnification of Directors and Officers.
Section
145 of the Delaware General Corporation Law provides that a corporation may indemnify directors and officers as well as other employees
and individuals against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with any threatened, pending or completed actions, suits or proceedings in which such person is
made a party by reason of such person being or having been a director, officer, employee or agent of the corporation. Section 145 of
the Delaware General Corporation Law also provides that expenses (including attorneys’ fees) incurred by a director or officer
in defending an action may be paid by a corporation in advance of the final disposition of an action if the director or officer undertakes
to repay the advanced amounts if it is determined such person is not entitled to be indemnified by the corporation. The Delaware General
Corporation Law provides that Section 145 is not exclusive of other rights to which those seeking indemnification may be entitled under
any bylaw, agreement, vote of shareholders or disinterested directors or otherwise. The provision does not affect directors’ responsibilities
under any other laws, such as the federal securities laws. The Company’s Certificate of Incorporation provides for such indemnification
to the fullest extent of Section 145 and states that the indemnification is not exclusive of other rights of those seeking indemnification
may be entitled.
Section
102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director
of the corporation shall not be personally liable to the corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its shareholders,
(ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for unlawful
payments of dividends or unlawful stock repurchases, redemptions or other distributions, or (iv) for any transaction from which the director
derived an improper personal benefit. The Company’s Certificate of Incorporation provides for such limitation of liability.
The
Company has entered into agreements with its directors and executive officers, that require the Company to indemnify such persons to
the fullest extent permitted by law, against expenses, judgments, fines, settlements and other amounts incurred (including attorneys’
fees), and advance expenses if requested by such person, in connection with investigating, defending, being a witness in, participating,
or preparing for any threatened, pending, or completed action, suit, or proceeding or any alternative dispute resolution mechanism, or
any inquiry, hearing or investigation (collectively, a “Proceeding”), relating to any event or occurrence that takes place
either prior to or after the execution of the indemnification agreement, related to the fact that such person is or was a director or
officer of the Company, or while a director or officer is or was serving at the request of the Company as a director, officer, employee,
trustee, agent or fiduciary of another foreign or domestic corporation, partnership, joint venture, employee benefit plan, trust or other
enterprise, or was a director, officer, employee or agent of a foreign or domestic corporation that was a predecessor corporation of
the Company or of another enterprise at the request of such predecessor corporation, or related to anything done or not done by such
person in any such capacity, whether or not the basis of the Proceeding is alleged action in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a director, officer, employee, or agent of the Company. Indemnification is
prohibited on account of any Proceeding in which judgment is rendered against such persons for an accounting of profits made from the
purchase or sale by such persons of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange
Act of 1934, as amended, or similar provisions of any federal, state or local laws. The indemnification agreements also set forth certain
procedures that apply in the event of a claim for indemnification thereunder.
The
Company maintains insurance on behalf of any person who is or was a director, officer or employee of the Company, or is or was serving
at the request of the Company as a director, officer, employee or agent of another company, partnership, joint venture, trust or other
enterprise against liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether
or not the Company would have the power to indemnify him against liability under the provisions of this section.
The
right of any person to be indemnified is subject always to the right of the Company by its board of directors, in lieu of such indemnity,
to settle any such claim, action, suit or proceeding at the expense of the Company by the payment of the amount of such settlement and
the costs and expenses incurred in connection therewith.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the
Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Securities and Exchange
Commission, 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 of expenses incurred or paid by a director,
officer or controlling person in a successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, we will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to the 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.
At
present, there is no pending litigation or proceeding involving any of our directors, officers or employees as to which indemnification
is sought, nor are we aware of any threatened litigation or proceeding that may result in claims for indemnification.
Item
16. Exhibits.
The
following is a list of all exhibits filed as a part of this registration statement on Form S-3, including those incorporated herein by
reference.
Exhibit
No. |
|
Exhibit
Description |
| 1.1* |
|
Form
of Underwriting Agreement |
| |
|
|
| 3.1 |
|
Certificate of Incorporation of Moving Box Inc. dated February 25, 2010 (incorporated by reference to Exhibit 3.1 to the registrant’s registration statement on Form S-1 (File No. 333-168738) filed with the Commission on August 11, 2010). |
| |
|
|
| 3.2 |
|
Certificate of Amendment of Certificate of Incorporation dated February 13, 2012 (incorporated by reference to Exhibit 3.1 to the registrant’s current report on Form 8-K (File No. 333-168738) filed with the Commission on February 17, 2012). |
| |
|
|
| 3.3 |
|
Certificate of Amendment of Certificate of Incorporation dated February 16, 2012 (incorporated by reference to Exhibit 3.2 to the registrant’s current report on Form 8-K (File No. 333-168738) filed with the Commission on February 17, 2012). |
| |
|
|
| 3.4 |
|
Certificate of Amendment of Certificate of Incorporation dated December 17, 2021 (incorporated by reference to Exhibit 3.1 to the registrant’s current report on Form 8-K (File No. 000-55131) filed with the Commission on December 29, 2021). |
| |
|
|
| 3.5 |
|
Certificate of Amendment of Certificate of Incorporation dated August 1, 2022 (incorporated by reference to Exhibit 3.1 to the registrant’s current report on Form 8-K (File No. 001-41228) filed with the Commission on August 2, 2022).
|
| 3.6 |
|
Amended and Restated Bylaws of Barfresh Food Group Inc. (incorporated by reference to Exhibit 3.1 to the registrant’s current report on Form 8-K (File No. 000-55131) filed with the Commission on August 4, 2014). |
| |
|
|
| 4.1* |
|
Form
of Senior Indenture |
| |
|
|
| 4.2* |
|
Form
of Senior Note |
| |
|
|
| 4.3* |
|
Form
of Subordinated Indenture |
| |
|
|
| 4.4* |
|
Form
of Subordinated Note |
| |
|
|
| 4.5* |
|
Form
of Warrant Agreement |
| |
|
|
| 4.6* |
|
Form
of Rights Agreement |
| |
|
|
| 4.7* |
|
Form
of Unit Agreement |
| |
|
|
| 5.1 |
|
Opinion of Doida Crow Legal LLC |
| |
|
|
| 23.1 |
|
Consent
of Independent Registered Public Accounting Firm. |
| |
|
|
| 23.2 |
|
Consent of Doida Crow Legal LLC (included in Exhibit 5.1) |
| |
|
|
| 24.1 |
|
Power of Attorney (included in signature page) |
| |
|
|
| 25.1** |
|
Statement
of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of Trustee under the Senior Indenture |
| |
|
|
| 25.2** |
|
Statement
of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of Trustee under the Subordinated Indenture |
| |
|
|
| 107 |
|
Filing
Fee Table |
| * |
To
be filed by amendment to this registration statement or as an exhibit to a report filed pursuant to Section 13(a), 13(c) or 15(d)
of the Exchange Act. |
| ** |
To
be filed separately pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, as amended, and the appropriate rules and regulations
thereunder. |
Item
17. 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 193, as amended (the “Securities Act”);
(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 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;
provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii), and (a)(1)(iii) above do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 (“Exchange Act”) that are incorporated by reference
in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is a part of 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.
(5)
That, for the purpose of determining liability under the Securities Act to any purchaser:
(A)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of
the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof. 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 effective date, 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 effective date.
(6)
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 communications that is an offer in the offering made by the undersigned registrant to the purchaser.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of
the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) 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.
(h)
Insofar as indemnification for liabilities arising under the Securities Act 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.
(j)
The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to
act under subsection (a) of Section 310 of the Trust Indenture Act (the “Act”) in accordance with the rules and regulations
prescribed by the SEC under Section 305(b)(2) of the Act.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized in the City of Los Angeles, California on October 26, 2023.
| |
Barfresh
Food Group Inc. |
| |
|
| |
By: |
/s/
Riccardo Delle Coste |
| |
|
Riccardo
Delle Coste |
| |
|
President
and Chief Executive Officer |
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Riccardo Delle Coste and Lisa
Roger, and each of them, as attorneys-in-fact and agents, with full power of substitution and resubstitution, for him/her and in his/her
name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration
Statement and to sign any and all additional registration statements relating to the Registration Statement and filed pursuant to Rule
462(b) of the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents or his substitute or their substitutes,
full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as
fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents or his substitute or their substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in
their respective capacities on October 26, 2023.
| Name |
|
Title |
| |
|
|
| /s/
Riccardo Delle Coste |
|
President,
Chief Executive Officer and Chairman (Principal Executive Officer) |
| Riccardo
Delle Coste |
|
|
| |
|
|
| /s/
Lisa Roger |
|
Chief
Financial Officer (Principal Financial Officer) |
| Lisa
Roger |
|
|
| |
|
|
| /s/
Steven Lang |
|
Director |
| Steven
Lang |
|
|
| |
|
|
| /s/
Arnold Tinter |
|
Director |
| Arnold
Tinter |
|
|
| |
|
|
| /s/
Joseph M. Cugine |
|
Director
|
| Joseph
M. Cugine |
|
|
| |
|
|
| /s/
Isabelle Ortiz-Cochet |
|
Director |
| Isabelle
Ortiz-Cochet |
|
|
| |
|
|
| /s/
Alexander H. Ware |
|
Director |
| Alexander
H. Ware |
|
|
| |
|
|
| /s/
Justin Borus |
|
Director |
| Justin
Borus |
|
|
EXHIBIT
INDEX
Exhibit
No. |
|
Exhibit
Description |
| 1.1* |
|
Form
of Underwriting Agreement |
| |
|
|
| 3.1 |
|
Certificate of Incorporation of Moving Box Inc. dated February 25, 2010 (incorporated by reference to Exhibit 3.1 to the registrant’s registration statement on Form S-1 (File No. 333-168738) filed with the Commission on August 11, 2010). |
| |
|
|
| 3.2 |
|
Certificate of Amendment of Certificate of Incorporation dated February 13, 2012 (incorporated by reference to Exhibit 3.1 to the registrant’s current report on Form 8-K (File No. 333-168738) filed with the Commission on February 17, 2012). |
| |
|
|
| 3.3 |
|
Certificate of Amendment of Certificate of Incorporation dated February 16, 2012 (incorporated by reference to Exhibit 3.2 to the registrant’s current report on Form 8-K (File No. 333-168738) filed with the Commission on February 17, 2012). |
| |
|
|
| 3.4 |
|
Certificate of Amendment of Certificate of Incorporation dated December 17, 2021 (incorporated by reference to Exhibit 3.1 to the registrant’s current report on Form 8-K (File No. 000-55131) filed with the Commission on December 29, 2021). |
| |
|
|
| 3.5 |
|
Certificate of Amendment of Certificate of Incorporation dated August 1, 2022 (incorporated by reference to Exhibit 3.1 to the registrant’s current report on Form 8-K (File No. 001-41228) filed with the Commission on August 2, 2022).
|
| 3.6 |
|
Amended and Restated Bylaws of Barfresh Food Group Inc. (incorporated by reference to Exhibit 3.1 to the registrant’s current report on Form 8-K (File No. 000-55131) filed with the Commission on August 4, 2014). |
| |
|
|
| 4.1* |
|
Form
of Senior Indenture |
| |
|
|
| 4.2* |
|
Form
of Senior Note |
| |
|
|
| 4.3* |
|
Form
of Subordinated Indenture |
| |
|
|
| 4.4* |
|
Form
of Subordinated Note |
| |
|
|
| 4.5* |
|
Form
of Warrant Agreement |
| |
|
|
| 4.6* |
|
Form
of Rights Agreement |
| |
|
|
| 4.7* |
|
Form
of Unit Agreement |
| |
|
|
| 5.1 |
|
Opinion of Doida Crow Legal LLC |
| |
|
|
| 23.1 |
|
Consent of Independent Registered Public Accounting Firm. |
| |
|
|
| 23.2 |
|
Consent of Doida Crow Legal LLC (included in Exhibit 5.1) |
| |
|
|
| 24.1 |
|
Power of Attorney (included in signature page) |
| |
|
|
| 25.1** |
|
Statement
of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of Trustee under the Senior Indenture |
| |
|
|
| 25.2** |
|
Statement
of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of Trustee under the Subordinated Indenture |
| |
|
|
| 107 |
|
Filing Fee Table |
| * |
To
be filed by amendment to this registration statement or as an exhibit to a report filed pursuant to Section 13(a), 13(c) or 15(d)
of the Exchange Act. |
| ** |
To
be filed separately pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, as amended, and the appropriate rules and regulations
thereunder. |
Exhibit
5.1
7979
E. Tufts Avenue● Suite 1750 ● Denver, Colorado 80237
Phone:
720.306.1001 ● E-Mail: info@doidacrow.com ● Web: www.doidacrow.com
October
26, 2023
Barfresh
Food Group Inc.
3600
Wilshire Blvd., Suite 1720
Los
Angeles, CA 90010
Re:
Barfresh Food Group Inc.
Gentlemen:
We
have acted as special counsel to Barfresh Food Group Inc., a Delaware corporation (the “Company”), in connection with the
preparation and filing by the Company of a registration statement on Form S-3 (including the Offering Prospectus constituting part thereof
(the “Prospectus”)) to which this opinion letter has been filed as an exhibit (the “Registration Statement”),
relating to the offer and sale from time to time, pursuant to Rule 415 under the Securities Act of 1933, as amended (the “Securities
Act”), by the Company of (i) shares of the Company’s common stock, par value $0.000001 per share (the “Common Stock”),
(ii) shares of the Company’s preferred stock, par value $0.000001 per share (the “Preferred Stock”), (iii) debt securities
consisting of senior notes, subordinated notes or debentures (the “Debt Securities”), (iv) warrants to purchase Common Stock,
Preferred Stock and/or Debt Securities (“Warrants”), (v) rights to purchase Common Stock, Preferred Stock, Debt Securities
and Warrants (“Rights”), and (vi) units consisting of a combination of Common Stock, Preferred Stock, Debt Securities, Warrants
or Rights (the “Units”). The Common Stock, Preferred Stock, Debt Securities, Warrants, Rights, and Units, plus any additional
Common Stock, Preferred Stock, Warrants, Rights and Units that may be registered pursuant to any subsequent registration statement that
the Company may hereafter file with the Commission pursuant to Rule 462(b) under the Securities Act in connection with the offering by
the Company contemplated by the Registration Statement are collectively referred to herein as the “Securities.” The Securities
being registered for sale by the Company are for a maximum aggregate offering price of $5,000,000. Such Securities may be offered
and sold from time to time pursuant to Rule 415 under the Securities Act, at which time it is contemplated that the Offering Prospectus
included in the Registration Statement will be supplemented in the future by one or more supplements (each, a “Prospectus Supplement”).
In
rendering our opinions set forth below, we have reviewed such corporate documents and records of the Company, such certificates of public
officials and such other matters as we have deemed necessary or appropriate for purposes of this opinion letter. As to facts material
to the opinions expressed herein, we have relied upon oral and written statements and representations of officers and other representatives
of the Company. We also have assumed (a) the authenticity of all documents submitted to us as originals; (b) the conformity to the originals
of all documents submitted to us as copies; (c) the genuineness of all signatures; (d) the legal capacity of natural persons; and (e)
the truth, accuracy and completeness of the information, factual matters, representations and warranties contained in all of such documents.
Barfresh Food Group Inc. |
October 26, 2023 |
Page 2 |
Based
upon such examination, and subject to the further assumptions, qualifications and limitations contained herein, it is our opinion that:
1.
The Common Stock to be sold by the Company (including any Common Stock duly issued upon (i) the exercise of duly issued Warrants or Rights
and receipt by the Company of any additional consideration payable upon such conversion, exchange or exercise, or (ii) the exchange or
conversion of Debt Securities or Preferred Stock which are exchangeable or convertible into Common Stock), upon issuance and delivery
of certificates (or book-entry notation if uncertificated) for such Common Stock against payment therefor of such lawful consideration
as the Company’s Board of Directors (the “Board”) (or a duly authorized committee thereof) may determine, will be validly
issued, fully paid and non-assessable.
2.
The Preferred Stock to be sold by the Company (including any Preferred Stock duly issued upon (i) the exercise of duly issued Warrants
or Rights and receipt by the Company of any additional consideration payable upon such conversion, exchange or exercise, or (ii) the
exchange or conversion of Debt Securities that are exchangeable for or convertible into Preferred Stock), upon issuance and delivery
of certificates (or book-entry notation if uncertificated) for such Preferred Stock against payment therefor of such lawful consideration
as the Company’s Board (or a duly authorized committee thereof) may determine, will be validly issued, fully paid and non-assessable.
3.
The Debt Securities (including any Debt Securities duly issued upon the exercise of Warrants or Rights and receipt by the Company of
any additional consideration payable upon such exercise) upon due execution and delivery of an indenture relating thereto on behalf of
the Company and the trustee named therein, and upon authentication by such trustee and due execution and delivery on behalf of the Company
in accordance with the indenture and any supplemental indenture relating thereto, upon issuance and delivery of certificates (or book-entry
notation if uncertificated) for such Debt Securities against payment therefor of such lawful consideration as the Board (or a duly authorized
committee thereof) may determine, will be validly issued and will constitute valid and legally binding obligations of the Company.
4.
The Warrants, upon due execution and delivery of a warrant agreement relating thereto on behalf of the Company and the warrant agent
named therein and due authentication of the Warrants by such warrant agent, and upon their issuance and delivery of certificates (or
book-entry notation if uncertificated) for such Warrants against payment therefor of such lawful consideration as the Board (or a duly
authorized committee thereof) may determine, will be validly issued and will constitute valid and legally binding obligations of the
Company.
5.
The Rights, upon due execution and delivery of a rights agreement relating thereto on behalf of the Company and the rights agent named
therein and due authentication of the Rights by such rights agent, and upon their issuance and delivery of certificates (or book-entry
notation if uncertificated) for such Rights against payment therefor of such lawful consideration as the Board (or a duly authorized
committee thereof) may determine, will be validly issued and will constitute valid and legally binding obligations of the Company.
6.
The Units, upon due execution and delivery of a unit agreement relating thereto on behalf of the Company, and upon their issuance and
delivery of certificates (or book-entry notation if uncertificated) for such Units against payment therefor of such lawful consideration
as the Board (or a duly authorized committee thereof) may determine, to the extent that such Units constitute Common Stock or Preferred
Stock, will be validly issued, fully paid and non-assessable, and to the extent such Units constitute Debt Securities and Warrants, will
be validly issued and will constitute valid and legally binding obligations of the Company.
Barfresh Food Group Inc. |
October 26, 2023 |
Page 3 |
In
rendering the foregoing opinions, we have assumed that: (i) the Registration Statement, and any amendments thereto, shall have become
effective under the Securities Act and will remain effective at the time of issuance of any Securities thereunder); (ii) a Prospectus
Supplement describing each class or series of Securities offered pursuant to the Registration Statement, to the extent required by applicable
law and relevant rules and regulations of the Securities and Exchange Commission (the “Commission”), will be timely filed
with the Commission; (iii) the definitive terms of each class or series of Securities shall have been established in accordance with
resolutions duly adopted by the Board (or an authorized committee thereof) (each, a “Board Action”), the Company’s
Certificate of Incorporation, as amended, (the “Certificate”) and applicable law; (iv) the Company will issue and deliver
the Securities in the manner contemplated by the Registration Statement, the Prospectuses, the applicable Prospectus Supplement and any
applicable underwriting agreement; (v) the total number of shares of Common Stock issuable (including upon conversion, exchange or exercise
of any other Security) will not exceed the total number of shares of Common Stock, that the Company is then authorized to issue under
its Certificate; (vi) the Board Action authorizing the Company to issue, offer and sell the Securities will have been adopted by the
Board (or an authorized committee thereof) and will be in full force and effect at all times at which the Securities are offered or sold
by the Company; and (vii) all Securities will be issued in compliance with applicable federal and state securities laws.
With
respect to any Securities consisting of Debt Securities, we have further assumed that: (i) such Debt Securities shall have been issued
pursuant to an indenture (individually, and as supplemented from time to time, an “Indenture”) between the Company and a
trustee to be identified in the applicable Prospectus Supplement (the “Trustee”); (ii) such Indenture shall have been duly
authorized, executed and delivered on behalf of the Company; (iii) all terms of such Debt Securities not provided for in such Indenture
shall have been established in accordance with the provisions of the Indenture and reflected in appropriate documentation approved by
us and, if applicable, executed and delivered by the Company and the Trustee; (iv) such Debt Securities shall have been duly executed,
authenticated, issued and delivered in accordance with the provisions of such Indenture; (v) such Debt Securities, as executed and delivered,
do not violate any law applicable to the Company or result in a default under or breach of any agreement or instrument binding upon the
Company; and (vi) such Debt Securities, as executed and delivered, comply with all requirements and restrictions, if any, applicable
to the Company, whether imposed by any court or governmental or regulatory body having jurisdiction over the Company.
With
respect to any Securities consisting of Warrants, we have further assumed that (i) such Warrants shall have been issued pursuant to a
warrant agreement (individually, a “Warrant Agreement”) between the Company and a warrant agent to be identified in the applicable
Prospectus Supplement (the “Warrant Agent”); (ii) such Warrant Agreement shall have been duly authorized, executed and delivered
on behalf of the Company; (iii) all terms of such Warrants shall have been established in accordance with the provisions of such Warrant
Agreement(s); (iv) such Warrants shall have been duly executed, issued and delivered in accordance with the provisions of such Warrant
Agreement(s); (v) such Warrants and the related Warrant Agreement(s), as executed and delivered, do not violate any law applicable to
the Company or result in a default under or breach of any agreement or instrument binding upon the Company; and (vi) such Warrants and
the related Warrant Agreement(s), as executed and delivered, comply with all requirements and restrictions, if any, applicable to the
Company, in any case whether imposed by any court or governmental or regulatory body having jurisdiction over the Company.
Barfresh Food Group Inc. |
October 26, 2023 |
Page 4 |
With
respect to any Securities consisting of Rights, we have further assumed that (i) such Rights shall have been issued pursuant to a rights
agreement (individually, a “Rights Agreement”) between the Company and a rights agent to be identified in the applicable
Prospectus Supplement (the “Rights Agent”); (ii) such Rights Agreement shall have been duly authorized, executed and delivered
on behalf of the Company; (iii) all terms of such Rights shall have been established in accordance with the provisions of such Rights
Agreement(s); (iv) such Rights shall have been duly executed, issued and delivered in accordance with the provisions of such Rights Agreement(s);
(v) such Rights and the related Rights Agreement(s), as executed and delivered, do not violate any law applicable to the Company or result
in a default under or breach of any agreement or instrument binding upon the Company; and (vi) such Rights and the related Rights Agreement(s),
as executed and delivered, comply with all requirements and restrictions, if any, applicable to the Company, in any case whether imposed
by any court or governmental or regulatory body having jurisdiction over the Company.
To
the extent that the obligations of the Company under an Indenture may be dependent on such matters, we further have assumed for purposes
of this opinion letter that the Trustee under each Indenture (i) is duly organized, validly existing and in good standing under the laws
of its jurisdiction of organization; (ii) is duly qualified to engage in activities contemplated by such Indenture; (iii) has duly authorized,
executed and delivered such Indenture and such Indenture constitutes the legally valid and binding obligation of such Trustee enforceable
against such Trustee in accordance with its terms; (iv) is in compliance, with respect to acting as a trustee under such Indenture, with
all applicable laws and regulations; and (v) has the requisite organizational and legal power and authority to perform its obligations
under such Indenture.
To
the extent that the obligations of the Company under any Warrant or Warrant Agreement may be dependent on such matters, we further have
assumed for purposes of this opinion letter that the Warrant Agent under each Warrant Agreement (i) is duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization; (ii) is duly qualified to engage in the activities contemplated
by such Warrant Agreement; (iii) has duly authorized, executed and delivered such Warrant Agreement and such Warrant Agreement constitutes
the legally valid and binding obligation of such Warrant Agent enforceable against such Warrant Agent in accordance with its terms; (iv)
is in compliance, with respect to acting as a Warrant Agent under such Warrant Agreement, with all applicable laws and regulations; and
(v) has the requisite organizational and legal power and authority to perform its obligations under such Warrant Agreement.
To
the extent that the obligations of the Company under any Rights or Rights Agreement may be dependent on such matters, we further have
assumed for purposes of this opinion letter that the Rights Agent under each Rights Agreement (i) is duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization; (ii) is duly qualified to engage in the activities contemplated
by such Rights Agreement; (iii) has duly authorized, executed and delivered such Rights Agreement and such Rights Agreement constitutes
the legally valid and binding obligation of such Rights Agent enforceable against such Rights Agent in accordance with its terms; (iv)
is in compliance, with respect to acting as a Rights Agent under such Rights Agreement, with all applicable laws and regulations; and
(v) has the requisite organizational and legal power and authority to perform its obligations under such Rights Agreement.
Barfresh Food Group Inc. |
October 26, 2023 |
Page 5 |
We
express no opinion with respect to the enforceability of: (i) provisions relating to choice of law, choice of venue, jurisdiction or
waivers of jury trial, or (ii) any waiver of any usury defense, or to the extent enforceability of any provisions may be limited by bankruptcy,
insolvency, reorganization, moratorium, or other similar laws relating to or affecting creditors’ rights generally and by general
equitable principles (regardless of whether such enforceability is considered in a proceeding at law or in equity). This opinion letter
is rendered as of the date hereof, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed
herein or any subsequent changes in applicable law that may come to our attention, and we have assumed that no change in the facts stated
or assumed herein or in applicable law after the date hereof will affect adversely our ability to render an opinion letter after the
date hereof (i) containing the same legal conclusions set forth herein and (ii) subject only to such (or fewer) assumptions, limitations
and qualifications as are contained herein.
We
express no opinion herein as to the law of any state or jurisdiction other than the laws of the State of Delaware, applicable statutory
provisions of the Delaware General Corporation Law (Title 8, Chapter 1 of the Delaware Code), including interpretations thereof in published
decisions of the Delaware courts and applicable provisions of the Delaware Constitution, and the federal laws of the United States of
America. We are not rendering any opinion as to compliance with any federal or state antifraud law, rule, or regulation relating to securities,
or to the sale or issuance thereof.
We
hereby consent to the filing of this opinion letter with the Commission as Exhibit 5.1 to the Registration Statement and to the reference
to our firm therein and in the Prospectuses and any Prospectus Supplement under the caption “Legal Opinions.” In giving such
consent, we do not thereby admit that this firm is within the category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the Commission thereunder.
| Very
truly yours, |
|
| |
|
| /s/
Doida Crow Legal LLC |
|
| |
|
| Doida
Crow Legal LLC |
|
Exhibit
23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
have issued our report dated March 2, 2023, with respect to the consolidated financial statements of Barfresh Food Group Inc. included
in the Annual Report on Form 10-K for the year ended December 31, 2022, which is incorporated by reference in this Registration Statement.
We consent to the incorporation by reference of the aforementioned report in this Registration Statement.
| /s/
EIDE BAILLEY LLP |
|
| |
|
| Denver,
Colorado |
|
| October
26, 2023 |
|
Exhibit
107
Calculation
of Filing Fee Table
Form
S-3
(Form
Type)
Barfresh
Food Group Inc.
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered and Carry Forward Securities
| | |
Security Type | |
Fee Calculation or Carry Forward Rule | |
Amount Registered | | |
Proposed Maximum Offering Price Per Unit | | |
Maximum Aggregate Offering Price | | |
Fee Rate | | |
Amount of Registration Fee | |
| | |
| |
| |
| | |
| | |
| | |
| | |
| |
| Fees to be Paid | |
Unallocated (Universal) Shelf | |
457(o) | |
| | (1) | |
| | (2) | |
$ | 5,000,000 | (2) | |
| 0.00014760 | | |
$ | 738.00 | (3) |
| | |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | |
| Carry Forward Securities | |
none | |
N/A | |
| | | |
| | | |
| | | |
| | | |
| | |
| | |
Total Offering Amounts | | |
| | | |
$ | 5,000,000 | | |
| 0.00014760 | | |
$ | 738.00 | (3) |
| | |
Total Fees Previously Paid | | |
| | | |
| | | |
| | | |
| — | |
| | |
Total Fee Offsets | | |
| | | |
| | | |
| | | |
| — | |
| | |
Net Fee Due | | |
| | | |
| | | |
| | | |
$ | 738.00 | |
| (1) |
There
are being registered hereunder such indeterminate number or amount of debt securities, common stock, preferred stock, warrants, rights
to purchase any of the foregoing, and units, consisting of some or all of these securities in any combination, as may from time to
time be issued by Barfresh Food Group Inc. (the “Registrant”) at indeterminate prices, which together shall have an aggregate
initial offering price not to exceed $5,000,000. This registration statement also covers an indeterminate number of securities
that may be issuable upon conversion, redemption, exchange, exercise or settlement of any securities registered hereunder, including
under any applicable antidilution provisions. |
| |
|
| (2) |
The
proposed maximum aggregate offering price per class of security will be determined from time to time by the Registrant in connection
with the issuance by the Registrant of the securities registered hereunder and is not specified as to each class of security pursuant
to Instruction 2.A.iii.b. to the Calculation of Filing Fee Tables and Related Disclosure on Item 16(b) of Form S-3 under the Securities
Act of 1933, as amended (the “Securities Act”). |
| |
|
| (3) |
Estimated
solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act. The aggregate maximum
offering price of all securities issued pursuant to this registration statement will not exceed $5,000,000. |
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