As
filed with the Securities and Exchange Commission on August 14, 2024
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
Under
The Securities Act of 1933
BARFRESH
FOOD GROUP INC.
(Exact
name of registrant as specified in its charter)
Delaware |
|
27-1994406 |
(State
or other jurisdiction of
incorporation
or organization) |
|
(I.R.S.
Employer
Identification
Number) |
3600
Wilshire Boulevard, Suite 1720
Los
Angeles, California |
|
90010 |
(Address
of Principal Executive Offices) |
|
(Zip
Code) |
Barfresh
Food Group Inc. First Amended and Restated 2023 Equity Incentive Plan
Barfresh
Food Group Inc. 2024 Employee Stock Purchase Plan
(Full
title of the plan)
Riccardo
Delle Coste, Chief Executive Officer
3600
Wilshire Blvd., Suite 1720
Los
Angeles, California 90010
(310)
598-7113
(Name,
address and telephone number of agent for service)
Copies
to:
Fay
Matsukage
Doida
Crow Legal LLC
7979
East Tufts Avenue, Suite 1750
Denver,
Colorado 80237
(720)
306-1001
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large
accelerated filer |
☐ |
|
Accelerated
filer |
☐ |
Non-accelerated
filer |
☐ |
|
Smaller
reporting company |
☒ |
|
|
|
Emerging
growth company |
☐ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
REGISTRATION
OF ADDITIONAL SHARES PURSUANT TO GENERAL INSTRUCTION E
Pursuant
to General Instruction E of Form S-8, Barfresh Food Group Inc. (the “Registrant”) is filing this Registration
Statement with the Securities and Exchange Commission (the “SEC”) to register 650,000 additional shares of
common stock under the Registrant’s First Amended and Restated 2023 Equity Incentive Plan, pursuant to the provision of that plan
providing for an increase in the number of shares initially reserved for issuance under such plan. This Registration Statement hereby
incorporates by reference the contents of the Registrant’s registration statement on Form S-8 filed with the SEC on August 14,
2023 (Registration No. 333-273971).
PART
I
INFORMATION
REQUIRED IN THE PROSPECTUS
The
information specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this Registration Statement on Form S-8 (the “Registration
Statement”) in accordance with the provisions of Rule 428 under the Securities Act and the introductory note to Part I of Form
S-8. The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the equity benefit
plans covered by this Registration Statement as specified by Rule 428(b)(1) under the Securities Act.
PART
II
INFORMATION
REQUIRED IN REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
Barfresh
Food Group Inc. (the “Registrant”) hereby incorporates by reference into this Registration Statement the following
documents previously filed with the Securities and Exchange Commission (the “SEC”):
|
(1) |
The
Registrant’s Annual Report on Form 10-K (File No. 001-41228) for the fiscal year ended December 31, 2023 filed with the SEC
on March 22, 2024, and Quarterly Reports on Form 10-Q (File No. 001-41228) for the quarter ended March 31, 2024 filed with the SEC
on May 15, 2024 and the quarter ended June 30, 2024 filed with the SEC on August 14, 2024. |
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(2) |
The
Registrant’s Current Reports on Form 8-K filed on May 15, 2024, June 26, 2024, and August 14, 2024 (other than information
furnished rather than filed). |
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(3) |
The
description of the Registrant’s Common Stock contained in Exhibit 4.20 to the Registrant’s Annual Report on Form 10-K
(File No. 001-41228) for the fiscal year ended December 31, 2019 filed with the SEC on April 13, 2020, including any amendment or
report filed for the purpose of updating such description. |
All
documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”) on or after the date of this Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement that indicates that all securities offered have been sold or that deregisters all securities
then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date
of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed
in accordance with the rules of the SEC shall not be deemed incorporated by reference into this Registration Statement. Any statement
contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for
purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also
is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item
4. Description of Securities.
Not
applicable.
Item
5. Interests of Named Experts and Counsel.
None.
Item
6. Indemnification of Directors and Officers.
Section
102(b)(7) of the Delaware General Corporation Law (DGCL) allows a corporation to provide in its certificate of incorporation that a director
of the corporation will not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except where the director breached the duty of loyalty, failed to act in good faith, engaged in intentional misconduct
or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law
or obtained an improper personal benefit. The Registrant’s certificate of incorporation provides for this limitation of liability.
Section
145 of the DGCL, provides, among other things, that a Delaware corporation may indemnify any person who was, is or is threatened to be
made, party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of such corporation), by reason of the fact that such person is or was an officer, director,
employee or agent of such corporation or is or was serving at the request of such corporation as a director, officer, employee or agent
of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such
person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests
and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful. A Delaware
corporation may indemnify any persons who were or are a party to any threatened, pending or completed action or suit by or in the right
of the corporation by reason of the fact that such person is or was a director, officer, employee or agent of another corporation or
enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection
with the defense or settlement of such action or suit, provided such person acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the corporation’s best interests, provided further that no indemnification is permitted without
judicial approval if the officer, director, employee or agent is adjudged to be liable to the corporation. Where an officer or director
is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against
the expenses (including attorneys’ fees) which such officer or director has actually and reasonably incurred.
Section
145 further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee
or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another
corporation or enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising
out of his or her status as such, whether or not the corporation would otherwise have the power to indemnify such person under Section
145.
The
Registrant’s bylaws provide that the Registrant must indemnify and advance expenses to its directors and officers to the full extent
authorized by the DGCL.
The
indemnification rights set forth above shall not be exclusive of any other right which an indemnified person may have or hereafter acquire
under any statute, any provision of the Registrant’s certificate of incorporation, bylaws, agreement, vote of stockholders or disinterested
directors or otherwise. Notwithstanding the foregoing, the Registrant shall not be obligated to indemnify a director or officer in respect
of a proceeding (or part thereof) instituted by such director or officer, unless such proceeding (or part thereof) has been authorized
by the Registrant’s board of directors pursuant to the applicable procedure outlined in the Registrant’s bylaws.
Section
174 of the DGCL provides, among other things, that a director, who willfully or negligently approves of an unlawful payment of dividends
or an unlawful stock purchase or redemption, may be held jointly and severally liable for such actions. A director who was either absent
when the unlawful actions were approved or dissented at the time may avoid liability by causing his or her dissent to such actions to
be entered in the books containing the minutes of the meetings of the Registrant’s board of directors at the time such action occurred
or immediately after such absent director receives notice of the unlawful acts.
The
Registrant currently maintains and expects to continue to maintain standard policies of insurance that provide coverage (1) to its directors
and officers against loss rising from claims made by reason of breach of duty or other wrongful act and (2) to us with respect to indemnification
payments that the Registrant may make to such directors and officers.
These
provisions may discourage stockholders from bringing a lawsuit against the Registrant’s directors for breach of their fiduciary
duty. These provisions also may have the effect of reducing the likelihood of derivative litigation against directors and officers, even
though such an action, if successful, might otherwise benefit the Registrant and its stockholders. Furthermore, a stockholder’s
investment may be adversely affected to the extent the Registrant pays the costs of settlement and damage awards against officers and
directors pursuant to these indemnification provisions.
The
Registrant believes that these provisions, the insurance, and the indemnity agreements are necessary to attract and retain talented and
experienced officers and directors.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
The
Registrant has filed the exhibits listed on the accompanying Exhibit Index of this Registration Statement.
EXHIBIT
INDEX
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Incorporated
by Reference |
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Filed
or |
Exhibit
Number |
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Exhibit
Description |
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Form |
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File
No. |
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Exhibit |
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Filing
Date |
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Furnished
Herewith |
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4.1 |
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Certificate of Incorporation of Moving Box Inc. dated February 25, 2010 |
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S-1 |
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333-168738 |
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3.1 |
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August
11, 2010 |
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4.2 |
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Amended and Restated Bylaws of Barfresh Food Group Inc. |
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8-K |
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001-41228 |
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3.1 |
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August
4, 2014 |
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4.3 |
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Certificate of Amendment of Certificate of Incorporation dated February 13, 2012 |
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8-K |
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001-41228 |
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3.1 |
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February
17, 2012 |
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4.4 |
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Certificate of Amendment of Certificate of Incorporation dated December 17, 2021 |
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8-K |
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001-41228 |
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3.1 |
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December
29, 2021 |
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4.5 |
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Barfresh Food Group Inc. First Amended and Restated 2023 Equity Incentive Plan |
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X |
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4.6 |
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Form of Incentive Stock Option Agreement granted under the Barfresh Food Group Inc. 2023 Equity Incentive Plan |
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S-8 |
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333-273971 |
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4.6 |
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August
14, 2023 |
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4.7 |
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Form of Non-Qualified Stock Option Agreement granted under the Barfresh Food Group Inc. 2023 Equity Incentive Plan |
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S-8 |
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333-273971 |
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4.7 |
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August
14, 2023 |
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4.8 |
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Form of Restricted Stock Unit Agreement granted under the Barfresh Food Group Inc. 2023 Equity Incentive Plan |
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S-8 |
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333-273971 |
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4.8 |
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August
14, 2023 |
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4.9 |
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Barfresh Food Group Inc. 2024 Employee Stock Purchase Plan |
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X |
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5.1 |
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Opinion of Doida Crow Legal LLC |
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X |
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23.1 |
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Consent of Eide Bailly LLP, independent registered public accounting firm |
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X |
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23.2 |
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Consent of Doida Crow Legal LLC (included in Exhibit 5.1 hereto) |
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X |
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24.1 |
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Power of Attorney (included on the signature page hereto) |
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X |
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107 |
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Filing fee table |
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X |
Item
9. Undertakings.
|
A. |
The
undersigned Registrant hereby undertakes: |
|
(1) |
To
file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: |
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act;
(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) that, 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 Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective Registration Statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement; provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii)
do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in this 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. |
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.
C.
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 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 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.
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-8 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, State of California, on this 14th day of August, 2024.
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BARFRESH
FOOD GROUP INC. |
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By: |
/s/
Riccardo Delle Coste |
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Riccardo
Delle Coste |
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Chief
Executive Officer |
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Riccardo Delle Coste and
Lisa Roger, and each of them, as his or her true and lawful attorney-in-fact and agent with full power of substitution and resubstitution,
for such person in any and all capacities, to sign any and all amendments to this Registration Statement (including post-effective amendments)
on Form S-8, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact, proxy, and agent 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 for all intents and purposes as such person might or could do in
person, hereby ratifying and confirming all that any said attorney-in-fact, proxy and agent, or any substitute of any of them, may lawfully
do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities
and on the dates indicated:
Signature |
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Title |
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Date |
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/s/
Riccardo Delle Coste |
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Chief
Executive Officer and Director |
|
August
14, 2024 |
Riccardo
Delle Coste |
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(Principal
Executive Officer) |
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/s/
Lisa Roger |
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Chief
Financial Officer |
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August
14, 2024 |
Lisa
Roger |
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(Principal
Financial and Accounting Officer) |
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/s/
Steven Lang |
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Director |
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August
14, 2024 |
Steven
Lang |
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/s/
Arnold Tinter |
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Director |
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August
14, 2024 |
Arnold
Tinter |
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/s/
Joseph M. Cugine |
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Director |
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August
14, 2024 |
Joseph
M. Cugine |
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/s/
Isabelle Ortiz-Cochet |
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Director |
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August
14, 2024 |
Isabelle
Ortiz-Cochet |
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/s/
Alexander H. Ware |
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Director |
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August
14, 2024 |
Alexander
H. Ware |
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/s/
Justin Borus |
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Director |
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August
14, 2024 |
Justin
Borus |
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Exhibit 4.5
BARFRESH FOOD GROUP INC.
FIRST AMENDED AND RESTATED 2023 EQUITY INCENTIVE
PLAN
1. PURPOSE. The
Barfresh Food Group Inc. First Amended and Restated 2023 Equity Incentive Plan has two complementary purposes: (a) to attract and retain
outstanding individuals to serve as officers, Employees, Directors, and Consultants to the Company and its Affiliates, and (b) to increase
stockholder value. The Plan will provide participants with incentives to increase stockholder value by offering the opportunity to acquire
shares of the Company’s Common Stock or receive monetary payments based on the value of such Common Stock, on the potentially favorable
terms that this Plan provides.
2. EFFECTIVE DATE.
The Plan became effective upon its adoption by the Board of Directors of the Company on March 15, 2023, and was approved by the stockholders
of the Company on June 13, 2023.
3. DEFINITIONS. Capitalized
terms used in this Plan have the following meanings:
(a) “Affiliate” means
any entity that, directly or through one or more intermediaries, is controlled by, controls, or is under common control with, the Company
within the meaning of Code Sections 414(b) or (c), provided that, in applying such provisions, the phrase “at least fifty percent
(50%)” shall be used in place of “at least eighty percent (80%)” each place it appears therein; and provided further
that for Options and Stock Appreciation Rights an “Affiliate” shall be an entity with respect to which the Common Stock will
qualify as “service recipient stock” within the meaning of Section 409A.
(b) “Award” means a
grant of Options (as defined in Section 3(s) hereof), Stock Appreciation Rights (as defined in Section 3(bb) hereof), Performance Share
Awards (as defined in Section 3(v) hereof), Restricted Stock (as defined in Section 3(x) hereof), and/or Restricted Stock Units (as defined
in Section 3(y) hereof).
(c) “Award Agreement”
means a written agreement, contract, certificate or other instrument or document evidencing the terms and conditions of an individual
Award granted under the Plan which may, in the discretion of the Company, be transmitted electronically to any Participant. Each Award
Agreement shall be subject to the terms and conditions of the Plan.
(d) “Board” means the
Board of Directors of the Company.
(e) “Cause” means:
(i) With respect to any
Employee or Consultant, unless the applicable Award Agreement states otherwise: (A) If the Employee or Consultant is party to an employment
or service agreement with the Company or its Affiliates and such agreement provides for definition of Cause, the definition contained
therein; or (B) if no such agreement exists, or if such agreement does not define Cause: (1) the commission of, or plea of guilty or no
contest to, a felony or a crime involving moral turpitude or the commission of any other act involving willful malfeasance or material
fiduciary breach with respect to the Company or an Affiliate; (2) conduct that brings or is reasonably likely to bring the Company or
an Affiliate negative publicity or into public disgrace, embarrassment, or disrepute; (3) gross negligence or willful misconduct with
respect to the Company or an Affiliate; (4) material violation of state or federal securities laws; or (5) material violation of the Company’s
written policies or codes of conduct, including written policies related to discrimination, harassment, performance of illegal or unethical
activities, and ethical misconduct.
(ii) With respect to any
Director, unless the applicable Award Agreement states otherwise, a determination by a majority of the disinterested Board members that
the Director has engaged in any of the following: (A) malfeasance in office; (B) gross misconduct or neglect; (C) false or fraudulent
misrepresentation including the Director’s appointment; (D) willful conversion of corporate funds; or (E) repeated failure to participate
in Board meetings on a regular basis despite having received proper notice of the meetings in advance.
The Committee, in its
absolute discretion, shall determine the effect of all matters and questions relating to whether a Participant has been discharged for
Cause.
(f) “Change of Control”
shall mean the occurrence of any one or more of the following:
(i) The sale, lease, transfer,
conveyance or other disposition, in one or a series of related transactions, of substantially all of the assets of the Company to any
person; or
(ii) Any person becomes
the beneficial owner (except that a person shall be deemed to have beneficial ownership of all Shares that any such Person has the right
to acquire, whether such right is exercisable immediately or only after the passage of time) directly or indirectly of more than fifty
percent (50%) of the total voting power of the voting stock of the Company, including by way of merger, consolidation or otherwise; or
(iii) A change in the
composition of the Board such that individuals who, as of the beginning of any period of twenty-four (24) months determined on a rolling
basis (the “measurement date”), constitute the Board (the “Incumbent Board”) cease for any reason to constitute
a majority of the Board; provided, however, that any individual who becomes a member of the Board subsequent to the measurement
date, whose election, or nomination for election by the Company’s stockholders, was approved by a vote of a majority of those individuals
then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board; but, provided
further, that any such individual whose initial assumption of Board membership occurs as a result of either an actual or threatened
election contest with respect to the election or removal of Directors of the Board or other actual or threatened solicitation of proxies
or consents by or on behalf of a person other than the Board shall not be so considered as a member of the Incumbent Board.
(iv) Notwithstanding the
foregoing, (A) if any payment or benefit pursuant to an Award is “nonqualified deferred compensation” under Code Section 409A
to which an exception to Code Section 409A does not apply, and the payment or benefit of such Award is triggered by a Change in Control,
the events described above shall not constitute a Change in Control with respect to such nonqualified deferred compensation unless the
event constitutes a change in ownership or effective control of the Company, or a change in the ownership of a substantial portion of
the assets of the Company, as described in Code Section 409A; and (B) for the avoidance of doubt, a Change of Control shall not be deemed
to have occurred as a result of a sale or other disposition of any Affiliate (or any Affiliate’s assets) by which a Participant
may be employed.
Barfresh Food Group Inc. First Amended and Restated 2023 Equity Incentive Plan – page 2 |
(f) “Code” means the
Internal Revenue Code of 1986, as amended. Any reference to a specific provision of the Code includes any successor provision and the
regulations promulgated under such provision.
(g) “Committee” means
the Compensation Committee of the Board (or a successor committee with similar authority) or if no such committee is named by the Board,
than it shall mean the Board.
(h) “Common Stock” means
the Common Stock of the Company, par value $0.000001 per share, or any such other securities of the Company into which such common stock
shall be changed by reason of a recapitalization, merger, consolidation, split-up, combination, exchange of shares, or similar transaction;
provided, however, that such other securities shall, for Options and Stock Appreciation Rights, always constitute “service recipient
stock” within the meaning of Code Section 409A.
(i) “Company” means
Barfresh Food Group Inc., a Delaware corporation, or any successor thereto.
(j) “Consultant” means
any individual or entity which performs bona fide services to the Company or an Affiliate, other than as an Employee or Director, and
who may be offered securities registerable pursuant to a registration statement on Form S-8 under the Securities Act.
(k) “Continuous Service”
means that the Participant’s service with the Company or an Affiliate, whether as an Employee, Consultant or Director, is not interrupted
or terminated. The Participant’s Continuous Service shall not be deemed to have terminated merely because of a change in the capacity
in which the Participant renders service to the Company or an Affiliate as an Employee, Consultant or Director or a change in the entity
for which the Participant renders such service, provided that there is no interruption or termination of the Participant’s
Continuous Service; provided further that if any Award is subject to Section 409A of the Code, this sentence shall only be given
effect to the extent consistent with Section 409A of the Code. For example, a change in status from an Employee of the Company to a Director
of an Affiliate will not constitute an interruption of Continuous Service. The Committee or its delegate, in its sole discretion, may
determine whether Continuous Service shall be considered interrupted in the case of any leave of absence approved by that party, including
sick leave, military leave or any other personal or family leave of absence. The Committee or its delegate, in its sole discretion, may
determine whether a Company transaction, such as a sale or spin-off of a division or subsidiary that employs a Participant, shall be deemed
to result in a termination of Continuous Service for purposes of affected Awards, and such decision shall be final, conclusive and binding.
(l) “Director” means
a member of the Board.
(m) “Disability” means,
unless the applicable Award Agreement says otherwise, that the Participant is unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment; provided, however, for purposes of determining the term of
an incentive stock option pursuant to Section 7(e) hereof, the term Disability shall have the meaning ascribed to it under Section 22(e)(3)
of the Code. The determination of whether an individual has a Disability shall be determined under procedures established by the Committee.
Except in situations where the Committee is determining Disability for purposes of the term of an incentive stock option pursuant to Section
7(e) hereof within the meaning of Section 22(e)(3) of the Code, the Committee may rely on any determination that a Participant is disabled
for purposes of benefits under any long-term disability plan maintained by the Company or any Affiliate in which a Participant participates.
Barfresh Food Group Inc. First Amended and Restated 2023 Equity Incentive Plan – page 3 |
(n) “Employee” means
any person, including an officer or Director, employed by the Company or an Affiliate; provided, that for purposes of determining
eligibility to receive Incentive Stock Options, an Employee shall mean an employee of the Company or a parent or subsidiary corporation
within the meaning of Section 424 of the Code. Mere service as a Director or payment of a director’s fee by the Company or an Affiliate
shall not be sufficient to constitute “employment” by the Company or an Affiliate.
(o) “Exchange Act” means
the Securities Exchange Act of 1934, as amended from time to time. Any reference to a specific provision of the Exchange Act shall be
deemed to include any successor provision thereto.
(p) “Fair Market Value”
means, as of any date, the value of the Common Stock as determined below. If the Common Stock is listed on any established stock exchange
or a national market system, including without limitation, the New York Stock Exchange or the Nasdaq Stock Market, the Fair Market Value
shall be the closing price of a share of Common Stock (or if no sales were reported the closing price on the date immediately preceding
such date) as quoted on such exchange or system on the day of determination, as reported in the Wall Street Journal. In the absence
of an established market for the Common Stock, the Fair Market Value shall be determined in good faith by the Committee and such determination
shall be conclusive and binding on all persons.
(q) “Good Reason” means,
unless the applicable Award Agreement states otherwise:
(i) If an Employee or
Consultant is a party to an employment or service agreement with the Company or its Affiliates and such agreement provides for a definition
of Good Reason, the definition contained therein; or
(ii) If no such agreement
exists or if such agreement does not define Good Reason, the occurrence of one or more of the following without the Participant’s
express written consent, which circumstances are not remedied by the Company within thirty (30) days of its receipt of a written notice
from the Participant describing the applicable circumstances (which notice must be provided by the Participant within ninety (90) days
of the Participant’s knowledge of the applicable circumstances): (A) any material, adverse change in the Participant’s duties,
responsibilities, authority, title, status or reporting structure; (B) a material reduction in the Participant’s base salary or
bonus opportunity; or (C) a geographical relocation of the Participant’s principal office location by more than fifty (50) miles.
(r) “Issued Shares”
means, collectively, all outstanding Shares issued pursuant to an Award and all Option Shares.
(s) “Option” means the
right to purchase Shares at a stated price upon and during a specified time. “Options” may either be “incentive stock
options” which meet the requirements of Code Section 422, or “nonqualified stock options” which do not meet the requirements
of Code Section 422.
Barfresh Food Group Inc. First Amended and Restated 2023 Equity Incentive Plan – page 4 |
(t) “Option Shares”
mean outstanding Shares that were issued to a Participant upon the exercise of an Option.
(u) “Participant” means
an officer or other Employee, Director or Consultant of the Company or its Affiliates, or an individual that the Company or an Affiliate
has engaged to become an officer or Employee, or a Consultant who provides services to the Company or its Affiliates, including a non-employee
Director of the Board, whom the Committee designates to receive an Award.
(v) “Performance Share Award”
means the right to receive actual shares of Common Stock or share units to the extent the Company, Subsidiary, Affiliate or other business
unit and/or Participant achieves certain goals that the Committee establishes over a period of time the Committee designates.
(w) “Plan” means this
Barfresh Food Group Inc. First Amended and Restated 2023 Equity Incentive Plan, as amended from time to time.
(x) “Restricted Stock”
means Shares that are subject to a risk of forfeiture and/or restrictions on transfer (including but not limited to stock grants with
the recipient having the right to make an election under Section 83(b) of the Code), which may lapse upon the achievement or partial achievement
of performance goals during a specified period and/or upon the completion of a period of service or upon the occurrence of other events,
as determined by the Committee.
(y) “Restricted Stock Unit”
means the right to receive a Share, or a cash payment, the amount of which is equal to the Fair Market Value of a Share, which is subject
to a risk of forfeiture which may lapse upon the achievement or partial achievement of performance goals during a specified period and/or
upon the completion of a period of service or upon the occurrence of other events, as determined by the Committee.
(z) “Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations thereunder.
(aa) “Share” means a
share of Common Stock.
(bb) “Stock Appreciation Right”
or “SAR” means the right of a Participant to receive cash, and/or Shares with a Fair Market Value, equal to the excess of
the Fair Market Value of a Share over the grant price.
(cc) “Subsidiary” means
any corporation in an unbroken chain of corporations beginning with the Company if each of the corporations (other than the last corporation
in the chain) owns stock possessing more than fifty percent (50%) of the total combined voting power of all classes of stock in one of
the other corporations in the chain.
(dd) “10% Owner-Employee”
means an employee who, at the time an incentive stock option is granted, owns (directly or indirectly, within the meaning of Code Section
424(d)) more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or of any Subsidiary.
Barfresh Food Group Inc. First Amended and Restated 2023 Equity Incentive Plan – page 5 |
4. ADMINISTRATION.
(a) Committee Administration.
The Committee has full authority to administer this Plan, including the authority to (i) interpret the provisions of this Plan, (ii) prescribe,
amend and rescind rules and regulations relating to this Plan, (iii) correct any defect, supply any omission, or reconcile any inconsistency
in any Award or agreement covering an Award in the manner and to the extent it deems desirable to carry this Plan into effect, and (iv)
make all other determinations necessary or advisable for the administration of this Plan. All actions or determinations of the Committee
are made in its sole discretion and will be final and binding on any person with an interest therein. If at any time the Committee is
not in existence, the Board shall administer the Plan and references to the Committee in the Plan shall mean the Board.
(b) Delegation to Committees
or Officers. To the extent applicable law permits, the Board may delegate to another committee of the Board or to one or more officers
of the Company, or the Committee may delegate to a sub-committee, any or all of the authority and responsibility of the Committee. If
the Board or Committee has made such a delegation, then all references to the Committee in this Plan include such committee, sub-committee
or one or more officers to the extent of such delegation.
(c) No Liability. No member
of the Committee, and no individual or officer to whom a delegation under subsection (b) has been made, will be liable for any act done,
or determination made, by the individual in good faith with respect to the Plan or any Award. The Company will indemnify and hold harmless
such individual to the maximum extent that the law and the Company’s bylaws permit.
(d) Non-Uniform Treatment. The
Committee’s determinations under the Plan need not be uniform and may be made by it selectively among persons who are eligible to
receive, or actually receive, Awards. Without limiting the generality of the foregoing, the Committee shall be entitled to make non-uniform
and selective determinations, amendments and adjustments, and to enter into non-uniform and selective Award Agreements.
(e) Acceleration of Exercisability
and Vesting. The Committee shall have the power to accelerate the time at which an Award may first be exercised or the time during
which an Award or any part thereof will vest in accordance with the Plan, notwithstanding the provisions in the Award stating the time
at which it may first be exercised or the time during which it will vest.
5. DISCRETIONARY GRANTS
OF AWARDS. Subject to the terms of this Plan and applicable law, the Committee has full power and authority to: (a) designate
from time to time the Participants to receive Awards under this Plan; (b) determine the type or types of Awards to be granted to each
Participant; (c) determine the number of Shares with respect to which an Award relates; and (d) determine any terms and conditions of
any Award including but not limited to permitting the delivery to the Company of Shares or the relinquishment of an appropriate number
of vested Shares under an exercisable Option in satisfaction of part of all of the exercise price of, or withholding taxes with respect
to, an Award or payment through a “net exercise” procedure established by the Company such that, without the payment of any
funds, the Participant may exercise the Option and receive the net number of Shares. Method of payment, in the case of an incentive stock
option, shall be determined at the time of grant. Awards may be granted either alone or in addition to, in tandem with, or in substitution
for any other Award (or any other award granted under another plan of the Company or any Affiliate). The Committee’s designation
of a Participant in any year will not require the Committee to designate such person to receive an Award in any other year.
Barfresh Food Group Inc. First Amended and Restated 2023 Equity Incentive Plan – page 6 |
6. SHARES RESERVED UNDER
THIS PLAN.
(a) Plan Reserve. An aggregate
of one million three hundred thousand (1,300,000) Shares are initially reserved for issuance under this Plan, all of which may be issued
as any form of Award. Beginning January 1, 2025 and continuing on January 1 of each year through January 1, 2033, the number of shares
available for issuance shall be increased by an amount equal to ten percent (10%) of the number of shares issued during the immediately
preceding completed fiscal year.
(b) Replenishment of Shares Under
this Plan. If an Award lapses, expires, terminates or is cancelled without the issuance of Shares or payment of cash under the Award,
then the Shares subject to or reserved for in respect of such Award, or the Shares to which such Award relates, may again be used for
new Awards as determined under subsection (a), including issuance pursuant to incentive stock options. If Shares are issued under any
Award and the Company subsequently reacquires them pursuant to rights reserved upon the issuance of the Shares, then such Shares may be
used for new Awards under this Plan as determined under subsection (a), but excluding issuance pursuant to incentive stock options. Notwithstanding
anything to the contrary contained herein: Shares subject to an Award under the Plan shall not again be made available for issuance or
delivery under the Plan if such Shares are (i) Shares tendered in payment of an Option, (ii) Shares delivered or withheld by the Company
to satisfy any tax withholding obligation, or (iii) Shares covered by a stock-settled Stock Appreciation Right or other Awards that were
not issued upon the settlement of the Award.
7. OPTIONS.
(a) Determinations by Committee.
Subject to the terms of this Plan, the Committee will determine all terms and conditions of each Option, including but not limited to:
(i) Whether the Option
is an incentive stock option or a nonqualified stock option; provided that in the case of an incentive stock option, if the aggregate
Fair Market Value (determined at the time of grant) of the Shares with respect to which such option and all other incentive stock options
issued under this Plan (and under all other incentive stock option plans of the Company or any Affiliate that is required to be included
under Code Section 422) are first exercisable by the Participant during any calendar year exceeds $100,000, such Option automatically
shall be treated as a nonqualified stock option to the extent this limit is exceeded. Only employees of the Company or a Subsidiary are
eligible to be granted incentive stock options;
(ii) The number of Shares
subject to the Option;
(iii) The exercise price
per Share, which may not be less than the Fair Market Value of a Share as determined on the date of grant; provided that an incentive
stock option granted to a 10% Owner-Employee must have an exercise price that is at least one hundred ten percent (110%) of the Fair Market
Value of a Share on the date of grant;
(iv) The terms and conditions
of exercise; and
(v) The termination date,
except that each Option must terminate no later than the tenth (10th) anniversary of the date of grant and each incentive stock option
granted to any 10% Owner-Employee must terminate no later than the fifth (5th) anniversary of the date of grant.
In all other respects, the terms of any incentive
stock option should comply with the provisions of Code Section 422 except to the extent the Committee determines otherwise.
Barfresh Food Group Inc. First Amended and Restated 2023 Equity Incentive Plan – page 7 |
(b) Termination of Continuous
Service. Unless otherwise provided in an Award Agreement or in an employment agreement the terms of which have been approved by the
Committee, in the event an Option holder’s Continuous Service terminates (other than upon the Option holder’s death or Disability),
the Option holder may exercise his/her Option (to the extent that the Option holder was entitled to exercise such Option as of the date
of termination) but only within such period of time ending on the earlier of (i) the date three months following the termination of the
Option holder’s Continuous Service or (ii) the expiration of the term of the Option as set forth in the Award Agreement; provided
that, if the termination of Continuous Service is by the Company for Cause, all outstanding Options (whether or not vested) shall immediately
terminate and cease to be exercisable. If, after termination, the Option holder does not exercise his/her Option within the time specified
in the Award Agreement, the Option shall terminate.
(c) Disability of Option Holder.
Unless otherwise provided in an Award Agreement, in the event that an Option holder’s Continuous Service terminates as a result
of the Option holder’s Disability, the Option holder may exercise his/her Option (to the extent that the Option holder was entitled
to exercise such Option as of the date of termination), but only within such period of time ending on the earlier of (i) the date 12 months
following such termination or (ii) the expiration of the term of the Option as set forth in the Award Agreement. If, after termination,
the Option holder does not exercise his/her Option within the time specified herein or in the Award Agreement, the Option shall terminate.
(d) Death of Option Holder. Unless
otherwise provided in an Award Agreement, in the event an Option holder’s Continuous Service terminates as a result of the Option
holder’s death, then the Option may be exercised (to the extent the Option holder was entitled to exercise such Option as of the
date of death) by the Option holder’s estate, by a person who acquired the right to exercise the Option by bequest or inheritance
or by a person designated to exercise the Option upon the Option holder’s death, but only within the period ending on the earlier
of (i) the date 12 months following the date of death or (ii) the expiration of the term of such Option as set forth in the Award Agreement.
If, after the Option holder’s death, the Option is not exercised within the time specified herein or in the Award Agreement, the
Option shall terminate.
8. STOCK APPRECIATION RIGHTS.
Subject to the terms of this Plan, the Committee will determine all terms and conditions of each SAR, including but not limited to:
(a) The number of Shares to which
the SAR relates;
(b) The grant price, provided that
the grant price shall not be less than the Fair Market Value of the Shares subject to the SAR as determined on the date of grant;
(c) The terms and conditions of
exercise or maturity;
(d) The term, provided that an SAR
must terminate no later than the tenth (10th) anniversary of the date of grant; and
(e) Whether the SAR will be settled
in cash, Shares or a combination thereof.
Barfresh Food Group Inc. First Amended and Restated 2023 Equity Incentive Plan – page 8 |
9. PERFORMANCE SHARE AWARDS.
Subject to the terms of this Plan, the Committee will determine all terms and conditions of each Performance Share Award, including but
not limited to:
(a) The number of Shares or stock-denominated
units to which the Performance Share Award relates;
(b) The terms and conditions of
each Award, including, without limitation, the selection of the performance goals that must be achieved for the Participant to realize
all or a portion of the benefit provided under the Award; and
(c) Whether all or a portion of
the Shares subject to the Award will be issued to the Participant, without regard to whether the performance goals have been attained,
in the event of the Participant’s death, Disability, retirement or other circumstance.
10. RESTRICTED STOCK AND
RESTRICTED STOCK UNIT AWARDS. Subject to the terms of this Plan, the Committee will determine all terms and conditions of each
award of Restricted Stock or Restricted Stock Units, including but not limited to:
(a) The number of Shares or Restricted
Stock Units to which such Award relates;
(b) The period of time over which,
and/or the criteria or conditions that must be satisfied so that, the risk of forfeiture and/or restrictions on transfer imposed on the
Restricted Stock or Restricted Stock Units will lapse;
(c) Whether all or a portion of
the Restricted Shares or Restricted Stock Units will be released from a right of repurchase and/or be paid to the Participant in the event
of the Participant’s death, Disability, retirement or other circumstance;
(d) With respect to awards of Restricted
Stock, the manner of registration of certificates for such Shares, and whether to hold such Shares in escrow pending lapse of the risk
of forfeiture, right of repurchase and/or restrictions on transfer or to issue such Shares with an appropriate legend referring to such
restrictions;
(e) With respect to awards of Restricted
Stock, whether dividends paid with respect to such Shares will be immediately paid or held in escrow or otherwise deferred and whether
such dividends shall be subject to the same terms and conditions as the Award to which they relate; and
(f) With respect to awards of Restricted
Stock Units, whether to credit dividend equivalent units equal to the amount of dividends paid on a Share and whether such dividend equivalent
units shall be subject to the same terms and conditions as the Award to which they relate.
Barfresh Food Group Inc. First Amended and Restated 2023 Equity Incentive Plan – page 9 |
11. TRANSFERABILITY.
Except as set forth in Section 15 hereof, each award granted under this plan is not transferable other than by will or the laws of descent
and distribution, or to a revocable trust, or as permitted by Rule 701 of the Securities Act.
12. TERMINATION AND AMENDMENT.
(a) Term. Subject to the
right of the Board or Committee to terminate the Plan earlier pursuant to Section 12(b), the Plan shall terminate on, and no Awards may
be granted after the tenth (10th) anniversary of the Plan’s effective date.
(b) Termination and Amendment.
The Board or Committee may amend, alter, suspend, discontinue or terminate this Plan at any time, provided that:
(i) the Board must approve
any amendment of this Plan to the extent the Company determines such approval is required by: (a) action of the Board, (b) applicable
corporate law, or (c) any other applicable law or rule of a self-regulatory organization;
(ii) stockholders must
approve any of the following Plan amendments: (a) an amendment to materially increase any number of Shares specified in Section 6(a) (except
as permitted by Section 14(a)) or expand the class of individuals eligible to receive an Award to the extent required by the Code, the
Company’s bylaws or any other applicable law, (b) any other amendment if required by applicable law or the rules of any self-regulatory
organization, or (c) an amendment that would diminish the protections afforded by Section 12(e); provided, that such stockholder
approval may be obtained within 12 months of the approval of such amendment by the Board or Committee.
(c) Amendment, Modification or
Cancellation of Awards. Except as provided in subsection (e) and subject to the restrictions of this Plan, the Committee may modify
or amend an Award or waive any restrictions or conditions applicable to an Award (including relating to the exercise, vesting or payment
thereof), and the Committee may modify the terms and conditions applicable to any Award (including the terms of the Plan), and the Committee
may cancel any Award, provided that the Participant (or any other person as may then have an interest in such Award as a result of the
Participant’s death or the transfer of an Award) must consent in writing if any such action would adversely affect the rights of
the Participant (or other interested party) under such Award. Notwithstanding the foregoing, the Committee need not obtain Participant
(or other interested party) consent for the amendment, modification or cancellation of an Award pursuant to the provisions of Section
14(a), or the amendment or modification of an Award to the extent deemed necessary to comply with any applicable law, the listing requirements
of any principal securities exchange or market on which the Shares are then traded, or to preserve favorable accounting treatment of any
Award for the Company.
(d) Survival of Committee Authority
and Awards. Notwithstanding the foregoing, the authority of the Committee to administer this Plan and modify or amend an Award, and
the authority of the Board or Committee to amend this Plan, shall extend beyond the date of this Plan’s termination. In addition,
termination of this Plan will not affect the rights of Participants with respect to Awards previously granted to them, and all unexpired
Awards will continue in full force and effect after termination of this Plan except as they may lapse or be terminated by their own terms
and conditions.
Barfresh Food Group Inc. First Amended and Restated 2023 Equity Incentive Plan – page 10 |
(e) Repricing Prohibited.
Notwithstanding anything in this Plan to the contrary, neither the Committee nor any other person may decrease the exercise price of any
Option or the grant price of any SAR nor take any action that would result in a deemed decrease of the exercise price or grant price of
an Option or SAR under Code Section 409A, after the date of grant, except in accordance with Section 1.409A-1(b)(5)(v)(D) of the Treasury
Regulations (26 C.F.R.), or in connection with a transaction which is considered the grant of a new Option or SAR for purposes of Section
409A of the Code, provided that the new exercise price or grant price is not less than the Fair Market Value of a Share on the new grant
date.
(f) Foreign Participation.
To assure the viability of Awards granted to Participants employed or residing in foreign countries, the Committee may provide for such
special terms as it may consider necessary or appropriate to accommodate differences in local law, tax policy or custom. Moreover, the
Committee may approve such supplements to, or amendments, restatements or alternative versions of this Plan as it determines is necessary
or appropriate for such purposes. Any such amendment, restatement or alternative versions that the Committee approves for purposes of
using this Plan in a foreign country will not affect the terms of this Plan for any other country.
13. TAXES.
(a) Withholding. In the event
the Company or any Affiliate is required to withhold any foreign, Federal, state or local taxes or other amounts in respect of any income
recognized by a Participant as a result of the grant, vesting, payment or settlement of an Award or disposition of any Shares acquired
under an Award, the Company may deduct (or require an Affiliate to deduct) from any payments of any kind otherwise due the Participant
cash, or with the consent of the Committee, Shares otherwise deliverable or vesting under an Award, to satisfy such tax obligations. Alternatively,
the Company may require such Participant to pay to the Company, in cash, promptly on demand, or make other arrangements satisfactory to
the Company regarding the payment to the Company of the aggregate amount of any such taxes and other amounts required to be withheld.
If Shares are deliverable upon exercise or payment of an Award, the Committee may permit a Participant to satisfy all or a portion of
the foreign, Federal, state and local withholding tax obligations arising in connection with such Award by electing to (a) have the Company
withhold Shares otherwise issuable under the Award, (b) tender back Shares received in connection with such Award, or (c) deliver other
previously owned Shares. If an election is provided, the election must be made on or before the date as of which the amount of tax to
be withheld is determined and otherwise as the Company requires. In any case, the Company may defer making payment or delivery under any
Award if any such tax may be pending unless and until indemnified to its satisfaction.
(b) No Guarantee of Tax Treatment.
Notwithstanding any provisions of the Plan, the Company does not guarantee to any Participant or any other person with an interest in
an Award that any Award intended to be exempt from Code Section 409A shall be so exempt, nor that any Award intended to comply with Code
Section 409A shall so comply, nor that any Award designated as an incentive stock option within the meaning of Code Section 422 qualifies
as such, and neither the Company nor any Affiliate shall indemnify, defend or hold harmless any individual with respect to the tax consequences
of any such failure.
Barfresh Food Group Inc. First Amended and Restated 2023 Equity Incentive Plan – page 11 |
14. ADJUSTMENT PROVISIONS;
CHANGE OF CONTROL.
(a) Adjustment Upon Changes in
Shares. In the event of changes in the outstanding Common Stock or in the capital structure of the Company by reason of any stock
or extraordinary cash dividend, stock split, reverse stock split, an extraordinary corporate transaction such as any recapitalization,
reorganization, merger, consolidation, combination, exchange, or other relevant change in capitalization occurring after the grant date
of any Award, Awards granted under the Plan and any Award Agreements, the exercise price of Option and Stock Appreciation Rights, the
performance goals to which Performance Share Awards are subject, the maximum number of shares of Common Stock subject to all Awards stated
in Section 6 will be equitably adjusted or substituted, as to the number, price or kind of a share of Common Stock or other consideration
subject to such Awards to the extent necessary to preserve the economic intent of such Award. In the case of adjustments made pursuant
to this Section 14(a), unless the Committee specifically determines that such adjustment is in the best interests of the Company or its
Affiliates, the Committee shall, in the case of incentive stock options, ensure that any adjustments under this Section 14(a) will not
constitute a modification, extension or renewal of the incentive stock options within the meaning of Section 424(h)(3) of the Code and
in the case of non-qualified stock options, ensure that any adjustments under this Section 14(a) will not constitute a modification of
such non-qualified stock options within the meaning of Section 409A of the Code. Any adjustments made under this Section 14(a) shall be
made in a manner which does not adversely affect the exemption provided pursuant to Rule 16b-3 under the Exchange Act. The Company shall
give each Participant notice of an adjustment hereunder and, upon notice, such adjustment shall be conclusive and binding for all purposes.
(b) Change in Control where Awards
not Assumed, Continued or Substituted. Upon the occurrence of a Change in Control, and except with respect to any Awards assumed by
the surviving entity, continued by the continuing entity or otherwise equitably converted or substituted in connection with the Change
in Control in a manner approved by the Committee or the Board: (i) outstanding Options, SARs, and other Awards in the nature of rights
that may be exercised shall become fully exercisable, (ii) time-based vesting restrictions on outstanding Awards shall lapse, and (iii)
the target payout opportunities attainable under all outstanding Performance Share Award shall be deemed to have been fully earned as
of the date of the Change in Control based upon an assumed achievement of all relevant performance goals at the “target” level
as provided in the applicable Award Agreement and, subject to compliance with Code Section 409A, there shall be a pro rata payout to Participants
within thirty (30) days following the date of the Change in Control based upon the length of time within the performance period that has
elapsed prior to the date of the Change in Control. Any Awards shall thereafter continue or lapse in accordance with the other provisions
of the Plan and the Award Agreement. To the extent that this provision causes incentive stock options to exceed the dollar limitation
set forth in Code Section 422, the excess Options shall be non-qualified stock options.
(c) Change in Control where Awards
Assumed, Continued or Substituted. With respect to Awards assumed by the surviving entity, continued by the continuing entity or otherwise
equitably converted or substituted in connection with a Change in Control: if within two (2) years after the effective date of the Change
in Control, a Participant’s employment is terminated without Cause or the Participant resigns for Good Reason, then (i) all of that
Participant’s outstanding Options, SARs and other Awards in the nature of rights that may be exercised shall become fully exercisable,
(ii) all time-based vesting restrictions on his/her outstanding Awards shall lapse, and (iii) the payout opportunities attainable under
all of such Participant’s outstanding Performance Share Awards shall be earned based on actual performance through the end of the
performance period, and there shall be a pro rata payout to the Participant within thirty (30) days after the amount earned has been determined
based upon the length of time within the performance period that has elapsed prior to the date of termination. To the extent that this
provision cause incentive stock options to exceed the dollar limitation set forth in Code Section 422, the excess Options shall be non-qualified
stock options.
Barfresh Food Group Inc. First Amended and Restated 2023 Equity Incentive Plan – page 12 |
(d) Termination, Amendment and
Modification of Change in Control Provisions. Notwithstanding any other provision of this Plan or any Award Agreement provision to
the contrary, the provisions of this Section 14 may not be terminated, amended, or modified on or after the date of a Change in Control
to affect adversely any Award granted under the Plan prior to the Change in Control without the prior written consent of the Participant
to whom the Award was made; except that no action shall be permitted under this Section 14 that would impermissibly accelerate or postpone
payment of an Award subject to Code Section 409A.
(e) Parachute Payment Limitation.
(i) Except as may be set
forth in a written agreement by and between the Company and the holder of an Award, in the event that the Company’s auditors determine
that any payment or transfer by the Company under the Plan to or for the benefit of a Participant (a “Payment”) would be nondeductible
by the Company for federal income tax purposes because of the provisions concerning “excess parachute payments” in Code Section
280G, then the aggregate present value of all Payments shall be reduced (but not below zero) to the Reduced Amount (defined herein). For
purposes of this Section 14(d), the “Reduced Amount” shall be the amount, expressed as a present value, which maximizes the
aggregate present value of the Payments without causing any Payment to be nondeductible by the Company because of Code Section 280G.
(ii) If the Company’s
auditors determine that any Payment would be nondeductible by the Company because of Code Section 280G, then the Company shall promptly
give the Participant notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount, and the Participant
may then elect, in his or her sole discretion, which and how much of the Payments shall be eliminated or reduced (as long as after such
election the aggregate present value of the Payments equals the Reduced Amount) and shall advise the Company in writing of his or her
election within ten (10) days of receipt of notice. If no such election is made by the Participant within such ten (10) day period, then
the Company may elect which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate
present value of the Payments equals the Reduced Amount) and shall notify the Participant promptly of such election. For purposes of this
Section 14(d), present value shall be determined in accordance with Code Section 280G(d)(4). All determinations made by the Company’s
auditors under this Section 14(d) shall be binding upon the Company and the Participant and shall be made within sixty (60) days of the
date when a Payment becomes payable or transferable. As promptly as practicable following such determination and the elections hereunder,
the Company shall pay or transfer to or for the benefit of the Participant such amounts as are then due to him or her under the Plan and
shall promptly pay or transfer to or for the benefit of the Participant in the future such amounts as become due to him or her under the
Plan.
Barfresh Food Group Inc. First Amended and Restated 2023 Equity Incentive Plan – page 13 |
(iii) Except to the extent
such payment was made in connection with a Change of Control, as a result of uncertainty in the application of Code Section 280G at the
time of an initial determination by the Company’s auditors hereunder, it is possible that Payments will have been made by the Company
that should not have been made (an “Overpayment”) or that additional Payments that will not have been made by the Company
could have been made (an “Underpayment”), consistent in each case with the calculation of the Reduced Amount hereunder. In
the event that the Company’s auditors, based upon the assertion of a deficiency by the Internal Revenue Service against the Company
or the Participant that the auditors believe has a high probability of success, determine that an Overpayment has been made, such Overpayment
shall be treated for all purposes as a loan to the Participant which he or she shall repay to the Company, together with interest at the
applicable federal rate provided in Code Section 7872(f)(2); provided, however, that no amount shall be payable by the Participant to
the Company if and to the extent that such payment would not reduce the amount subject to taxation under Code Section 4999. In the event
that the auditors determine that an Underpayment has occurred, such Underpayment shall promptly be paid or transferred by the Company
to or for the benefit of the Participant, together with interest at the applicable federal rate provided in Code Section 7872(f)(2).
(iv) For purposes of this
Section 14(d), the term “Company” shall include affiliated corporations to the extent determined by the auditors in accordance
with Code Section 280G(d)(5).
15. STOCK TRANSFER RESTRICTIONS.
(a) Restrictions on Transfer.
Except for designations of Beneficiaries by Participants or as otherwise provided otherwise in an Award Agreement, Awards and Shares that
have not been issued or as to which any applicable restriction, performance or deferral period has not lapsed, may not be sold, assigned,
transferred, pledged, alienated, attached, or otherwise encumbered (and any such purported sale, assignment, transfer, pledge, alienation,
attachment or other encumbrance shall be void and unenforceable against the Company or any Affiliate), other than by will or the laws
of descent and distribution, and such Award may be exercised during the life of the Participant only by the Participant or the Participant’s
legal guardian or legal representative; provided, however, that the Committee may (but shall not be required to) permit other transfers
(other than transfers for value) where the Committee concludes that such transferability is otherwise appropriate and desirable, taking
into account any factors deemed relevant by the Committee, including without limitation, state or federal tax or securities laws applicable
to transferable Awards. In addition to the foregoing, a Participant is prohibited from transferring Options to a third party financial
institution without approval of the Company’s stockholders.
(b) Adjustments for Changes in
Capital Structure. If, as a result of any reorganization, recapitalization, reclassification, stock dividend, stock split, reverse
stock split or other similar change in the outstanding Shares of the Company, the outstanding Shares are increased or decreased or are
exchanged for a different number or kind of shares of the Company’s stock, the restrictions contained in this Section 15 shall apply
with equal force to additional and/or substitute securities, if any, received by Participant in exchange for, or by virtue of his or her
ownership of, Issued Shares.
Barfresh Food Group Inc. First Amended and Restated 2023 Equity Incentive Plan – page 14 |
16. MISCELLANEOUS.
(a) Other Terms and Conditions.
The grant of any Award under this Plan may also be subject to other provisions (whether or not applicable to the Award awarded to any
other Participant) as the Committee determines appropriate, subject to any limitations imposed in the Plan.
(b) Code Section 409A. The
Plan is intended to comply with Section 409A of the Code to the extent subject thereto, and, accordingly, to the maximum extent permitted,
the Plan shall be interpreted and administered to be in compliance therewith. Any payments described in the Plan that are due within the
“short-term deferral period” as defined in Section 409A of the Code shall not be treated as deferred compensation unless applicable
laws require otherwise. Notwithstanding anything to the contrary in the Plan, to the extent required to avoid accelerated taxation and
tax penalties under Section 409A of the Code, amounts that would otherwise be payable and benefits that would otherwise be provided pursuant
to the Plan during the six (6) month period immediately following the Participant’s termination of Continuous Service shall instead
be paid on the first payroll date after the six-month anniversary of the Participant’s separation from service (or the Participant’s
death, if earlier). Notwithstanding the foregoing, neither the Company nor the Committee shall have any obligation to take any action
to prevent the assessment of any additional tax or penalty on any Participant under Section 409A of the Code and neither the Company nor
the Committee will have any liability to any Participant for such tax or penalty.
(c) Employment or Service.
The issuance of an Award shall not confer upon a Participant any right with respect to continued employment or service with the Company
or any Affiliate, or the right to continue as a consultant or director. Unless determined otherwise by the Committee, for purposes of
the Plan and all Awards, the following rules shall apply:
(i) a Participant who
transfers employment between the Company and any Affiliate, or between Affiliates, will not be considered to have terminated employment;
(ii) a Participant who
ceases to be a consultant, advisor or non-employee director because he or she becomes an employee of the Company or an Affiliate shall
not be considered to have ceased service with respect to any Award until such Participant’s termination of employment with the Company
and its Affiliates;
(iii) a Participant who
ceases to be employed by the Company or an Affiliate of the Company and immediately thereafter becomes a non-employee director of the
Company or any Affiliate, or a consultant to the Company or any Affiliate, shall not be considered to have terminated employment until
such Participant’s service as a director of, or consultant to, the Company and its Affiliates has ceased; and
(iv) a Participant employed
by an Affiliate will be considered to have terminated employment when such entity ceases to be an Affiliate of the Company.
Notwithstanding the foregoing, with respect to an
Award subject to Code Section 409A, a Participant shall be considered to have terminated employment (where termination of employment triggers
payment of the Award) upon the date of his separation from service within the meaning of Code Section 409A.
Barfresh Food Group Inc. First Amended and Restated 2023 Equity Incentive Plan – page 15 |
(d) Section 16. It is the
intent of the Company that the Plan satisfy, and be interpreted in a manner that satisfies, the applicable requirements of Rule 16b-3
as promulgated under Section 16 of the Exchange Act so that Participants will be entitled to the benefit of Rule 16b-3, or any other rule
promulgated under the Exchange Act, and will not be subject to short-swing profit liability under Section 16 of the Exchange Act. Accordingly,
if the operation of any provision of the Plan would conflict with the intent expressed in this Section 16(d), such provision to the extent
possible shall be interpreted and/or deemed amended so as to avoid such conflict.
(e) No Fractional Shares.
No fractional Shares or other securities may be issued or delivered pursuant to this Plan, and the Committee may determine whether cash,
other securities or other property will be paid or transferred in lieu of any fractional Shares or other securities, or whether such fractional
Shares or other securities or any rights to fractional Shares or other securities will be canceled, terminated or otherwise eliminated.
(f) Unfunded Plan. This Plan
is unfunded and does not create, and should not be construed to create, a trust or separate fund with respect to this Plan’s benefits.
This Plan does not establish any fiduciary relationship between the Company and any Participant. To the extent any person holds any rights
by virtue of an Award granted under this Plan, such rights are no greater than the rights of the Company’s general unsecured creditors.
(g) Requirements of Law.
The granting of Awards under this Plan and the issuance of Shares in connection with an Award are subject to all applicable laws, rules
and regulations and to such approvals by any governmental agencies or national securities exchanges as may be required. Notwithstanding
any other provision of this Plan or any award agreement, the Company has no liability to deliver any Shares under this Plan or make any
payment unless such delivery or payment would comply with all applicable laws and the applicable requirements of any securities exchange
or similar entity. In such event, the Company may substitute cash for any Share(s) otherwise deliverable hereunder without the consent
of the Participant or any other person.
(h) Governing Law. This Plan,
and all agreements under this Plan, shall be construed in accordance with and governed by the laws of the State of Delaware, without reference
to any conflict of law principles. Any legal action or proceeding with respect to this Plan, any Award or any award agreement, or for
recognition and enforcement of any judgment in respect of this Plan, any Award or any award agreement, may only be brought and determined
in a court sitting in the State of California, County of Los Angeles.
(i) Limitations on Actions.
Any legal action or proceeding with respect to this Plan, any Award or any Award agreement, must be brought within one year (365 days)
after the day the complaining party first knew or should have known of the events giving rise to the complaint.
(j) Construction. Whenever
any words are used herein in the masculine, they shall be construed as though they were used in the feminine in all cases where they would
so apply; and wherever any words are used in the singular or plural, they shall be construed as though they were used in the plural or
singular, as the case may be, in all cases where they would so apply. Titles of sections are for general information only, and the Plan
is not to be construed with reference to such titles.
(k) Severability. If any
provision of this Plan or any award agreement or any Award (i) is or becomes or is deemed to be invalid, illegal or unenforceable in any
jurisdiction, or as to any person or Award, or (ii) would disqualify this Plan, any award agreement or any Award, then such provision
should be construed or deemed amended to conform to applicable laws, or if it cannot be so construed or deemed amended without, in the
determination of the Committee, materially altering the intent of this Plan, award agreement or Award, then such provision should be stricken
as to such jurisdiction, person or Award, and the remainder of this Plan, such award agreement and such Award will remain in full force
and effect.
[End of Document]
Barfresh Food Group Inc. First Amended and Restated 2023 Equity Incentive Plan – page 16 |
C E R T I F I C A T I O N
On behalf of the Company, the undersigned hereby certifies
that this Barfresh Food Group Inc. First Amended and Restated 2023 Equity Incentive Plan has been approved by the Board of Directors of
the Company on March 12, 2024 and by the stockholders of the Company on June 25, 2024.
|
BARFRESH FOOD GROUP INC. |
|
|
|
|
By: |
/s/ Riccardo Delle Coste |
|
Name: |
Riccardo Delle Coste |
|
Title: |
Chief Executive Officer |
Barfresh Food Group Inc. First Amended and Restated 2023 Equity Incentive Plan – page 17 |
Exhibit
4.9
BARFRESH
FOOD GROUP INC.
2024
EMPLOYEE STOCK PURCHASE PLAN
Section
1. PURPOSE
The
purpose of the Plan is to provide an opportunity for Employees of Barfresh Food Group Inc., a Delaware corporation (“Barfresh”)
and its Participating Subsidiaries (collectively Barfresh and its Participating Subsidiaries shall be referred to as the “Company”),
to purchase Common Stock of Barfresh and thereby to have an additional incentive to contribute to the prosperity of the Company. It is
the intention of the Company that the Plan (excluding any sub-plans thereof except as expressly provided in the terms of such sub-plan)
qualify as an “Employee Stock Purchase Plan” under Section 423 of the U.S. Internal Revenue Code of 1986, as amended
(the “Code”), and the Plan shall be administered in accordance with this intent. In addition, the Plan authorizes
the grant of options pursuant to sub-plans or special rules adopted by the Committee designed to achieve other business objectives in
the determination of the Committee, which sub-plans shall not be required to comply with the requirements of Section 423 of the Code
or all of the specific provisions of the Plan, including but not limited to terms relating to eligibility, Subscription Periods or Purchase
Price.
Section
2. DEFINITIONS
|
(a) |
“Applicable
Law” shall mean the legal requirements relating to the administration of an employee stock purchase plan under applicable
U.S. state corporate laws, U.S. federal and applicable state securities laws, the Code, any stock exchange rules or regulations and
the applicable laws of any other country or jurisdiction, as such laws, rules, regulations and requirements shall be in place from
time to time. |
|
(b) |
“Board”
shall mean the Board of Directors of Barfresh. |
|
(c) |
“Code”
shall mean the Internal Revenue Code of 1986, as such is amended from time to time, and any reference to a section of the Code shall
include any successor provision of the Code. |
|
(d) |
“Commencement
Date” shall mean the last Trading Day prior to June 1 for the Subscription Period commencing on June 1 and the last Trading
Day prior to December 1 for the Subscription Period commencing on December 1. |
|
(e) |
“Committee”
shall mean the Compensation Committee of the Board or the subcommittee, officer or officers designated by the Compensation Committee
in accordance with Section 15 of the Plan (to the extent of the duties and responsibilities delegated by the Compensation Committee
of the Board). |
|
(f) |
“Common
Stock” shall mean the common stock of Barfresh, par value $.000001 per share, or any securities into which such Common
Stock may be converted. |
|
(g) |
“Compensation”
shall mean the total compensation paid by the Company to an Employee with respect to a Subscription Period, including salary, commissions,
overtime, shift differentials, bonus payments, and all or any portion of any item of compensation considered by the Company to be
part of the Employee’s regular earnings, but excluding items not considered by the Company to be part of the Employee’s
regular earnings. Items excluded from the definition of “Compensation” include but are not limited to such items as relocation
bonuses, expense reimbursements, certain bonuses paid in connection with mergers and acquisitions, recruitment and referral bonuses,
income realized as a result of participation in any stock option, restricted stock, restricted stock unit, stock purchase or similar
equity plan maintained by Barfresh or a Participating Subsidiary, and tuition and other reimbursements. The Committee shall have
the authority to determine and approve all forms of pay to be included in the definition of Compensation and may change the definition
on a prospective basis. |
|
(h) |
“Effective
Date” shall mean April 1, 2024. |
|
(i) |
“Employee”
shall mean an individual classified as an employee (within the meaning of Code Section 3401(c) and the regulations thereunder) by
Barfresh or a Participating Subsidiary on Barfresh’s or such Participating Subsidiary’s payroll records during the relevant
participation period. Individuals classified as independent contractors, consultants, advisers, or members of the Board are not considered
“Employees.” |
|
(j) |
“Enrollment
Period” shall mean, with respect to a given Subscription Period, that period beginning on the first (1st) day of May and
November and ending on the fifteenth (15th) day of May and November during which Employees may elect to participate in
order to purchase Common Stock at the end of that Subscription Period in accordance with the terms of this Plan. The duration and
timing of Enrollment Periods may be changed or modified by the Committee. |
|
(k) |
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended from time to time, and any reference to a section of the
Exchange Act shall include any successor provision of the Exchange Act. |
|
(l) |
“Market
Value” on a given date of determination (e.g., a Commencement Date or Purchase Date, as appropriate) shall mean the value
of Common Stock determined as follows: (i) if the Common Stock is listed on any established stock exchange (not including an automated
quotation system), its Market Value shall be the closing sales price for a share of the Common Stock (or the closing bid, if no sales
were reported) on the date of determination as quoted on such exchange on which the Common Stock has the highest average trading
volume, as reported in The Wall Street Journal or such other source as the Committee deems reliable, or (ii) if the Common
Stock is listed on a national market system and the highest average trading volume of the Common Stock occurs through that system,
its Market Value shall be the average of the high and the low selling prices reported on the date of determination, as reported in
The Wall Street Journal or such other source as the Committee deems reliable, or (iii) if the Common Stock is regularly quoted
by a recognized securities dealer but selling prices are not reported, its Market Value shall be the average of the mean of the closing
bid and asked prices for the Common Stock on the date of such determination, as reported in The Wall Street Journal or such
other source as the Committee deems reliable, or, (iv) in the absence of an established market for the Common Stock, the Market Value
thereof shall be determined in good faith by the Board. |
|
(m) |
“Offering
Price” shall mean the Market Value of a share of Common Stock on the Commencement Date for a given Subscription Period. |
|
(n) |
“Participant”
shall mean a participant in the Plan as described in Section 5 of the Plan. |
|
(o) |
“Participating
Subsidiary” shall mean a Subsidiary that has been designated by the Committee in its sole discretion as eligible to participate
in the Plan with respect to its Employees. |
|
(p) |
“Plan”
shall mean this 2024 Employee Stock Purchase Plan, including any sub-plans or appendices hereto. |
|
(q) |
“Purchase
Date” shall mean the last Trading Day of each Subscription Period. |
|
(r) |
“Purchase
Price” shall have the meaning set out in Section 8(b). |
|
(s) |
“Securities
Act” shall mean the U.S. Securities Act of 1933, as amended from time to time, and any reference to a section of the Securities
Act shall include any successor provision of the Securities Act. |
|
(t) |
“Stockholder”
shall mean a record holder of shares entitled to vote such shares of Common Stock under Barfresh’s by-laws. |
|
(u) |
“Subscription
Period” shall mean a period of approximately six (6) months at the end of which an option granted pursuant to the Plan
shall be exercised. The Plan shall be implemented by a series of Subscription Periods of approximately six (6) months duration, with
new Subscription Periods commencing on each June 1 and December 1 occurring on or after the Effective Date and ending on the last
Trading Day in the six (6) month period ending on the following May 31 and November 30, respectively. The duration and timing of
Subscription Periods may be changed or modified by the Committee. |
|
(v) |
“Subsidiary”
shall mean any entity treated as a corporation (other than Barfresh) in an unbroken chain of corporations beginning with Barfresh,
within the meaning of Code Section 424(f), whether or not such corporation now exists or is hereafter organized or acquired by Barfresh
or a Subsidiary. |
|
(w) |
“Trading
Day” shall mean a day on which U.S. national stock exchanges and the NASDAQ National Market System are open for trading
and the Common Stock is being publicly traded on one or more of such markets. |
Section
3. ELIGIBILITY
|
i. |
Any
Employee employed by Barfresh or by any Participating Subsidiary on a Commencement Date shall be eligible to participate in the Plan
with respect to the Subscription Period first following such Commencement Date, provided that the Committee may establish administrative
rules requiring that employment commence some minimum period (not to exceed 30 days) prior to a Commencement Date to be eligible
to participate with respect to such Subscription Period. The Committee may also determine that a designated group of highly compensated
Employees is ineligible to participate in the Plan so long as the excluded category fits within the definition of “highly compensated
employee” in Code Section 414(q). |
|
ii. |
No
Employee may participate in the Plan, except through a sub-plan that is not designed to qualify under Code section 423, if immediately
after an option is granted the Employee owns or is considered to own (within the meaning of Code Section 424(d)) shares of Common
Stock, including Common Stock which the Employee may purchase by conversion of convertible securities or under outstanding options
granted by Barfresh or its Subsidiaries, possessing five percent (5%) or more of the total combined voting power or value of all
classes of stock of Barfresh or of any of its Subsidiaries. All Employees who participate in the Plan shall have the same rights
and privileges under the Plan, except for differences that may be mandated by local law and that are consistent with Code Section
423(b)(5); provided that individuals participating in a sub-plan adopted pursuant to Section 16 which is not designed to qualify
under Code section 423 need not have the same rights and privileges as Employees participating in the Code section 423 Plan. No Employee
may participate in more than one Subscription Period at a time. |
Section
4. SUBSCRIPTION PERIODS
The
Plan shall generally be implemented by a series of six (6) month Subscription Periods with new Subscription Periods commencing on each
June 1 and December 1 and ending on the last Trading Day in the six (6) month periods ending on the following November 30 and May 31,
respectively, or on such other date as the Committee shall determine, and continuing thereafter until the Plan is terminated pursuant
to Section 14 hereof. The first Subscription Period shall commence on June 1, 2024 and shall end on the last Trading Day on or before
November 30, 2024. The Committee shall have the authority to change the frequency and/or duration of Subscription Periods (including
the commencement dates thereof) with respect to future Subscription Periods if such change is announced at least thirty (30) days prior
to the scheduled occurrence of the first Commencement Date to be affected thereafter.
Section
5. PARTICIPATION
|
(a) |
An
Employee who is eligible to participate in the Plan in accordance with its terms on a Commencement Date shall automatically receive
an option in accordance with Section 8(a) and may become a Participant by completing and submitting, on or before the date prescribed
by the Committee with respect to a given Subscription Period, a completed payroll deduction authorization and Plan enrollment form
provided by Barfresh or its Participating Subsidiaries or by following an electronic or other enrollment process as prescribed by
the Committee. An eligible Employee may authorize payroll deductions at the rate of any whole percentage of the Employee’s
Compensation, not to be less than two percent (2%) and not to exceed twenty-five percent (25%) of the Employee’s Compensation
(or such other percentages as the Committee may establish from time to time before a Commencement Date) of such Employee’s
Compensation on each payday during the Subscription Period. All payroll deductions will be held in a general corporate account or
a trust account. No interest shall be paid or credited to the Participant with respect to such payroll deductions. Barfresh shall
maintain or cause to be maintained a separate bookkeeping account for each Participant under the Plan and the amount of each Participant’s
payroll deductions shall be credited to such account. A Participant may not make any additional payments into such account, unless
payroll deductions are prohibited under Applicable Law, in which case the provisions of Section 5(b) of the Plan shall apply. |
|
(b) |
Notwithstanding
any other provisions of the Plan to the contrary, in locations where local law prohibits payroll deductions, an eligible Employee
may elect to participate through contributions to his or her account under the Plan in a form acceptable to the Committee. In such
event, any such Employees shall be deemed to be participating in a sub-plan, unless the Committee otherwise expressly provides that
such Employees shall be treated as participating in the Plan. All such contributions will be held in a general corporate account
or a trust account. No interest shall be paid or credited to the Participant with respect to such contributions. |
|
(c) |
Under
procedures and at times established by the Committee, a Participant may withdraw from the Plan during a Subscription Period, by completing
and filing a new payroll deduction authorization and Plan enrollment form with the Company or by following electronic or other procedures
prescribed by the Committee. If a Participant withdraws from the Plan during a Subscription Period, his or her accumulated payroll
deductions will be refunded to the Participant without interest, his or her right to participate in the current Subscription Period
will be automatically terminated and no further payroll deductions for the purchase of Common Stock will be made during the Subscription
Period. Any Participant who wishes to withdraw from the Plan during a Subscription Period, must complete the withdrawal procedures
prescribed by the Committee before the last forty-eight (48) hours of such Subscription Period, subject to any changes to the rules
established by the Committee pertaining to the timing of withdrawals, limiting the frequency with which Participants may withdraw
and re-enroll in the Plan and may impose a waiting period on Participants wishing to re-enroll following withdrawal. |
|
(d) |
A
Participant may not increase his or her rate of contribution through payroll deductions or otherwise during a given Subscription
Period. A Participant may decrease his or her rate of contribution through payroll deductions one time only as of August 1 or March
1 during a given Subscription Period by filing a new payroll deduction authorization and Plan enrollment form or by following electronic
or other procedures prescribed by the Committee in the 10 business days prior to the effective date of the change. If a Participant
has not followed such procedures to change the rate of contribution, the rate of contribution shall continue at the originally elected
rate throughout the Subscription Period and future Subscription Periods; unless the Committee reduces the maximum rate of contribution
provided in Section 5(a) and a Participant’s rate of contribution exceeds the reduced maximum rate of contribution, in which
case the rate of contribution shall continue at the reduced maximum rate of contribution. Notwithstanding the foregoing, to the extent
necessary to comply with Section 423(b)(8) of the Code for a given calendar year, the Committee may reduce a Participant’s
payroll deductions to zero percent (0%) at any time during a Subscription Period scheduled to end during such calendar year. Payroll
deductions shall re-commence at the rate provided in such Participant’s enrollment form at the beginning of the first Subscription
Period which is scheduled to end in the following calendar year, unless terminated by the Participant as provided in Section 5(c). |
Section
6. TERMINATION OF EMPLOYMENT
In
the event any Participant terminates employment with Barfresh and its Participating Subsidiaries for any reason (including death) prior
to the expiration of a Subscription Period, the Participant’s participation in the Plan shall terminate and all amounts credited
to the Participant’s account shall be paid to the Participant or, in the case of death, to the Participant’s heirs or estate,
without interest. Whether a termination of employment has occurred shall be determined by the Committee. If a Participant’s termination
of employment occurs within 30 days prior to the Purchase Date of the Subscription Period then in progress, his or her option for the
purchase of shares of Common Stock will be exercised on such Purchase Date in accordance with Section 9 as if such Participant were still
employed by the Company. Following the purchase of shares on such Purchase Date, the Participant’s participation in the Plan shall
terminate and all amounts credited to the Participant’s account shall be paid to the Participant or, in the case of death, to the
Participant’s heirs or estate, without interest. The Committee may also establish rules regarding when leaves of absence or changes
of employment status will be considered to be a termination of employment, including rules regarding transfer of employment among Participating
Subsidiaries, Subsidiaries and Barfresh, and the Committee may establish termination-of-employment procedures for this Plan that are
independent of similar rules established under other benefit plans of Barfresh and its Subsidiaries; provided that such procedures are
not in conflict with the requirements of Section 423 of the Code.
Section
7. STOCK
Subject
to adjustment as set forth in Section 11, the maximum number of shares of Common Stock which may be issued pursuant to the Plan shall
be one million four hundred thousand (1,400,000) shares. Notwithstanding the above, subject to adjustment as set forth in Section 11,
the maximum number of shares that may be purchased by any Employee in a given Subscription Period shall be one hundred thousand (100,000)
shares of Common Stock. If, on a given Purchase Date, the number of shares with respect to which options are to be exercised exceeds
either maximum, the Committee shall make, as applicable, such adjustment or pro rata allocation of the shares remaining available for
purchase in as uniform a manner as shall be practicable and as it shall determine to be equitable.
Section
8. OFFERING
|
(a) |
On
the Commencement Date relating to each Subscription Period, each eligible Employee, whether or not such Employee has elected to participate
as provided in Section 5(a), shall be granted an option to purchase that number of whole shares of Common Stock (as adjusted as set
forth in Section 11) not to exceed one hundred thousand (100,000) shares (or such lower number of shares as determined by the Committee),
which may be purchased with the payroll deductions accumulated on behalf of such Employee during each Subscription Period at the
purchase price specified in Section 8(b) below, subject to the additional limitation that no Employee participating in the Plan shall
be granted an option to purchase Common Stock under the Plan, except through a sub-plan that is not designed to qualify under Code
section 423, if such option would permit his or her rights to purchase stock under all employee stock purchase plans (described in
Section 423 of the Code) of Barfresh and its Subsidiaries to accrue at a rate which exceeds U.S. twenty-five thousand dollars (U.S.
$25,000) of the Market Value of such Common Stock (determined at the time such option is granted) for each calendar year in which
such option is outstanding at any time. For purposes of the Plan, an option is “granted” on a Participant’s
Commencement Date. An option will expire upon the earliest to occur of (i) the termination of a Participant’s participation
in the Plan or such Subscription Period (ii) the beginning of a subsequent Subscription Period in which such Participant is participating;
or (iii) the termination of the Subscription Period. This Section 8(a) shall be interpreted so as to comply with Code Section 423(b)(8). |
|
(b) |
The
Purchase Price under each option shall be with respect to a Subscription Period the lower of (i) a percentage (not less than eighty-five
percent (85%)) established by the Committee (“Designated Percentage”) of the Offering Price, or (ii) the Designated
Percentage of the Market Value of a share of Common Stock on the Purchase Date on which the Common Stock is purchased; provided that
the Purchase Price may be adjusted by the Committee pursuant to Sections 11 or 12 in accordance with Section 424(a) of the Code.
The Committee may change the Designated Percentage with respect to any future Subscription Period, but not to below eighty-five percent
(85%), and the Committee may determine with respect to any prospective Subscription Period that the option price shall be the Designated
Percentage of the Market Value of a share of the Common Stock on the Purchase Date. |
Section
9. PURCHASE OF STOCK
Unless
a Participant withdraws from the Plan as provided in Section 5(c) or except as provided in Sections 7, 12 or 14(b), upon the expiration
of each Subscription Period, a Participant’s option shall be exercised automatically for the purchase of that number of whole shares
of Common Stock which the accumulated payroll deductions credited to the Participant’s account at that time shall purchase at the
applicable price specified in Section 8(b). Notwithstanding the foregoing, Barfresh or its Participating Subsidiary may make such provisions
and take such action as it deems necessary or appropriate for the withholding of taxes and/or social insurance which Barfresh or its
Participating Subsidiary determines is required by Applicable Law. Each Participant, however, shall be responsible for payment of all
individual tax liabilities arising under the Plan. The shares of Common Stock purchased upon exercise of an option hereunder shall be
considered for tax purposes to be sold to the Participant on the Purchase Date. During his or her lifetime, a Participant’s option
to purchase shares of Common Stock hereunder is exercisable only by him or her.
Section
10. PAYMENT AND DELIVERY
As
soon as practicable after the exercise of an option, Barfresh shall deliver or cause to have delivered to the Participant a record of
the Common Stock purchased and the balance of any amount of payroll deductions credited to the Participant’s account not used for
the purchase, except as specified below. The Committee may permit or require that shares be deposited directly with a broker designated
by the Committee or to a designated agent of the Company, and the Committee may utilize electronic or automated methods of share transfer.
The Committee may require that shares be retained with such broker or agent for a designated period of time and/or may establish other
procedures to permit tracking of disqualifying dispositions of such shares. Barfresh or its Participating Subsidiary shall retain the
amount of payroll deductions used to purchase Common Stock as full payment for the Common Stock and the Common Stock shall then be fully
paid and non-assessable. No Participant shall have any voting, dividend, or other Stockholder rights with respect to shares subject to
any option granted under the Plan until the shares subject to the option have been purchased and delivered to the Participant as provided
in this Section 10. The Committee may in its discretion direct Barfresh to retain in a Participant’s account for the subsequent
Subscription Period any payroll deductions which are not sufficient to purchase a whole share of Common Stock or to return such amount
to the Participant. Any other amounts left over in a Participant’s account after a Purchase Date shall be returned to the Participant
without interest.
Section
11. RECAPITALIZATION
Subject
to any required action by the Stockholders of Barfresh, if there is any change in the outstanding shares of Common Stock because of a
merger, consolidation, spin-off, reorganization, recapitalization, dividend in property other than cash, stock split, reverse stock split,
stock dividend, liquidating dividend, combination or reclassification of the Common Stock (including any such change in the number of
shares of Common Stock effected in connection with a change in domicile of Barfresh), or any similar equity restructuring transaction
(as that term is used in Accounting Standards Codification 718), the number of securities covered by each option under the Plan which
has not yet been exercised and the number of securities which have been authorized and remain available for issuance under the Plan,
as well as the maximum number of securities which may be purchased by a Participant in a Subscription Period, and the price per share
covered by each option under the Plan which has not yet been exercised, shall be equitably adjusted by the Board, and the Board shall
take any further actions which may be necessary or appropriate under the circumstances. The Board’s determinations under this Section
11 shall be conclusive and binding on all parties.
Section
12. MERGER, LIQUIDATION, OTHER CORPORATE TRANSACTIONS
|
(a) |
In
the event of the proposed liquidation or dissolution of Barfresh, the Subscription Period will terminate immediately prior to the
consummation of such proposed transaction, unless otherwise provided by the Board in its sole discretion, and all outstanding options
shall automatically terminate and the amounts of all payroll deductions will be refunded without interest to the Participants. |
|
(b) |
In
the event of a proposed sale of all or substantially all of the assets of Barfresh, or the merger or consolidation or similar combination
of Barfresh with or into another entity, then in the sole discretion of the Board, (1) each option shall be assumed or an equivalent
option shall be substituted by the successor corporation or parent or subsidiary of such successor entity, (2) a date established
by the Board on or before the date of consummation of such merger, consolidation, combination or sale shall be treated as a Purchase
Date, and all outstanding options shall be exercised on such date, (3) all outstanding options shall terminate and the accumulated
payroll deductions will be refunded without interest to the Participants, or (4) outstanding options shall continue unchanged. |
Section
13. TRANSFERABILITY
Neither
payroll deductions credited to a Participant’s bookkeeping account nor any rights to exercise an option or to receive shares of
Common Stock under the Plan may be voluntarily or involuntarily assigned, transferred, pledged, or otherwise disposed of in any way,
and any attempted assignment, transfer, pledge, or other disposition shall be null and void and without effect. If a Participant in any
manner attempts to transfer, assign or otherwise encumber his or her rights or interests under the Plan, other than as permitted by the
Code, such act shall be treated as an election by the Participant to discontinue participation in the Plan pursuant to Section 5(c).
Section
14. AMENDMENT OR TERMINATION OF THE PLAN
|
(a) |
The
Plan shall continue from the Effective Date until December 31, 2030, unless it is terminated in accordance with Section 14(b). |
|
(b) |
The
Board may, in its sole discretion, insofar as permitted by law, terminate or suspend the Plan, or revise or amend it in any respect
whatsoever, and the Committee may revise or amend the Plan consistent with the exercise of its duties and responsibilities as set
forth in the Plan or any delegation under the Plan, except that, without approval of the Stockholders, no such revision or amendment
shall increase the number of shares subject to the Plan, other than an adjustment under Section 11 of the Plan, or make other changes
for which Stockholder approval is required under Applicable Law. Upon a termination or suspension of the Plan, the Board may in its
discretion (i) return without interest, the payroll deductions credited to Participants’ accounts to such Participants or (ii)
set an earlier Purchase Date with respect to a Subscription Period then in progress. |
Section
15. ADMINISTRATION
|
(a) |
The
Board has appointed the Compensation Committee of the Board to administer the Plan (the “Committee”), who will
serve for such period of time as the Board may specify and whom the Board may remove at any time. The Committee will have the authority
and responsibility for the day-to-day administration of the Plan, the authority and responsibility specifically provided in this
Plan and any additional duty, responsibility and authority delegated to the Committee by the Board, which may include any of the
functions assigned to the Board in this Plan. The Committee may delegate to a sub-committee or to an officer or officers of Barfresh
the day-to-day administration of the Plan. The Committee shall have full power and authority to adopt, amend and rescind any rules
and regulations which it deems desirable and appropriate for the proper administration of the Plan, to construe and interpret the
provisions and supervise the administration of the Plan, to make factual determinations relevant to Plan entitlements and to take
all action in connection with administration of the Plan as it deems necessary or advisable, consistent with the delegation from
the Board. Decisions of the Committee shall be final and binding upon all Participants. Any decision reduced to writing and signed
by all of the members of the Committee shall be fully effective as if it had been made at a meeting of the Committee duly held. The
Company shall pay all expenses incurred in the administration of the Plan. |
|
(b) |
In
addition to such other rights of indemnification as they may have as members of the Board or officers or employees of the Company,
members of the Board and of the Committee shall be indemnified by the Company against all reasonable expenses, including attorneys’
fees, actually and necessarily incurred in connection with the defense of any action, suit or proceeding, or in connection with any
appeal therein, to which they or any of them may be a party by reason of any action taken or failure to act under or in connection
with the Plan, or any right granted under the Plan, and against all amounts paid by them in settlement thereof (provided such settlement
is approved by independent legal counsel selected by the Company) or paid by them in satisfaction of a judgment in any such action,
suit or proceeding, except in relation to matters as to which it shall be adjudged in such action, suit or proceeding that such person
is liable for gross negligence, bad faith or intentional misconduct in duties; provided, however, that within sixty (60) days after
the institution of such action, suit or proceeding, such person shall offer to the Company, in writing, the opportunity at its own
expense to handle and defend the same. |
Section
16. SECURITIES LAWS REQUIREMENTS
|
(a) |
No
option granted under the Plan may be exercised to any extent unless the shares to be issued upon such exercise under the Plan are
covered by an effective registration statement pursuant to the Securities Act and the Plan is in material compliance with all applicable
provisions of law, domestic or foreign, including, without limitation, the Securities Act, the Exchange Act, the rules and regulations
promulgated thereunder, applicable state and foreign securities laws and the requirements of any stock exchange upon which the Shares
may then be listed, subject to the approval of counsel for the Company with respect to such compliance. If on a Purchase Date in
any Subscription Period hereunder, the Plan is not so registered or in such compliance, options granted under the Plan which are
not in material compliance shall not be exercised on such Purchase Date, and the Purchase Date shall be delayed until the Plan is
subject to such an effective registration statement and such compliance, except that the Purchase Date shall not be delayed more
than twelve (12) months and the Purchase Date shall in no event be more than twenty-seven (27) months from the Commencement Date
relating to such Subscription Period. If, on the Purchase Date of any offering hereunder, as delayed to the maximum extent permissible,
the Plan is not registered and in such compliance, options granted under the Plan which are not in material compliance shall not
be exercised and all payroll deductions accumulated during the Subscription Period (reduced to the extent, if any, that such deductions
have been used to acquire shares of Common Stock) shall be returned to the Participants, without interest. The provisions of this
Section 16 shall comply with the requirements of Section 423(b)(5) of the Code to the extent applicable. |
|
(b) |
As
a condition to the exercise of an option, Barfresh may require the person exercising such option to represent and warrant at the
time of any such exercise that the Shares are being purchased only for investment and without any present intention to sell or distribute
such Shares if, in the opinion of counsel for Barfresh, such a representation is required by any of the aforementioned applicable
provisions of law. |
Section
17. GOVERNMENTAL REGULATIONS
This
Plan and Barfresh’s obligation to sell and deliver shares of its stock under the Plan shall be subject to the approval of any governmental
authority required in connection with the Plan or the authorization, issuance, sale, or delivery of stock hereunder.
Section
18. NO ENLARGEMENT OF EMPLOYEE RIGHTS
Nothing
contained in this Plan shall be deemed to give any Employee or other individual the right to be retained in the employ or service of
Barfresh or any Participating Subsidiary or to interfere with the right of Barfresh or Participating Subsidiary to discharge any Employee
or other individual at any time, for any reason or no reason, with or without notice.
Section
19. GOVERNING LAW
This
Plan shall be governed by applicable laws of the State of Delaware and applicable federal law.
Section
20. EFFECTIVE DATE
This
Plan shall be effective on the Effective Date, subject to approval of the Stockholders of Barfresh within twelve (12) months before or
after its date of adoption by the Board.
Section
21. REPORTS
Individual
accounts shall be maintained for each Participant in the Plan. Statements of account shall be made available to Participants at least
annually, which statements shall set forth the amounts of payroll deductions, the Purchase Price, the number of shares of Common Stock
purchased and the remaining cash balance, if any.
Section
22. DESIGNATION OF BENEFICIARY FOR OWNED SHARES
With
respect to shares of Common Stock purchased by the Participant pursuant to the Plan and held in an account maintained by Barfresh or
its assignee on the Participant’s behalf, the Participant may be permitted to file a written designation of beneficiary, who is
to receive any shares and cash, if any, from the Participant’s account under the Plan in the event of such Participant’s
death subsequent to the end of a Subscription Period but prior to delivery to him or her of such shares and cash. In addition, a Participant
may file a written designation of a beneficiary who is to receive any cash from the Participant’s account under the Plan in the
event of such Participant’s death prior to the Purchase Date of a Subscription Period. If a Participant is married and the designated
beneficiary is not the spouse, spousal consent shall be required for such designation to be effective, to the extent required by local
law. The Participant (and if required under the preceding sentence, his or her spouse) may change such designation of beneficiary at
any time by written notice. Subject to local legal requirements, in the event of a Participant’s death, Barfresh or its assignee
shall deliver any shares of Common Stock and/or cash to the designated beneficiary. Subject to local law, in the event of the death of
a Participant and in the absence of a beneficiary validly designated who is living at the time of such Participant’s death, Barfresh
shall deliver such shares of Common Stock and/or cash to the executor or administrator of the estate of the Participant, or if no such
executor or administrator has been appointed (to the knowledge of Barfresh), Barfresh in its sole discretion, may deliver (or cause its
assignee to deliver) such shares of Common Stock and/or cash to the spouse, or to any one or more dependents or relatives of the Participant,
or if no spouse, dependent or relative is known to Barfresh, then to such other person as Barfresh may determine. The provisions of this
Section 22 shall in no event require Barfresh to violate local law, and Barfresh shall be entitled to take whatever action it reasonably
concludes is desirable or appropriate in order to transfer the assets allocated to a deceased Participant’s account in compliance
with local law.
Section
23. ADDITIONAL RESTRICTIONS OF RULE 16b-3.
The
terms and conditions of options granted hereunder to, and the purchase of shares of Common Stock by, persons subject to Section 16 of
the Exchange Act shall comply with the applicable provisions of Rule 16b-3. This Plan shall be deemed to contain, and such options shall
contain, and the shares of Common Stock issued upon exercise thereof shall be subject to, such additional conditions and restrictions,
if any, as may be required by Rule 16b-3 to qualify for the maximum exemption from Section 16 of the Exchange Act with respect to Plan
transactions.
Section
24. NOTICES
All
notices or other communications by a Participant to Barfresh or the Committee under or in connection with the Plan shall be deemed to
have been duly given when received in the form specified by Barfresh or the Committee at the location, or by the person, designated by
Barfresh for the receipt thereof.
Exhibit
5.1
![](https://www.sec.gov/Archives/edgar/data/1487197/000149315224032227/ex5-1_001.jpg)
7979
E. Tufts Avenue, Ste. 1750, Denver, CO 80237
Phone:
720.306.1001 ● E-Mail: info@doidacrow.com ● Web: www.doidacrow.com
August
14, 2024
Barfresh
Food Group Inc.
3600
Wilshire Boulevard, Suite 1720
Los
Angeles, California 90010
Re:
Registration Statement on Form S-8
Ladies
and Gentlemen:
This
opinion is furnished to you in connection with the Registration Statement on Form S-8 (the “Registration Statement”)
to be filed by Barfresh Food Group Inc., a Delaware corporation (the “Company”), with the Securities and Exchange
Commission (the “Commission”) on or about the date hereof, covering the registration under the Securities Act of 1933,
as amended, of an aggregate of 2,050,000 shares (the “Shares”) of the Company’s common stock, par value $0.000001
per share (“Common Stock”), consisting of (i) 650,000 shares of Common Stock reserved for future issuance under the
Company’s First Amended and Restated 2023 Equity Incentive Plan, and (ii) 1,400,000 shares of Common Stock that may be issued pursuant
to the Company’s 2024 Employee Stock Purchase Plan (collectively, the “Shares”). As the Company’s legal
counsel, we have reviewed the actions proposed to be taken by the Company in connection with the issuance and sale of the Shares to be
issued under such plan.
We
have examined such instruments, documents, certificates and records, and such questions of law, as we have considered necessary or appropriate
for the basis of our opinions hereinafter expressed. In such examination, we have assumed (i) the authenticity of original documents
and the genuineness of all signatures; (ii) the conformity to the originals of all documents submitted to us as copies; (iii) the truth,
accuracy and completeness of the information, representations and warranties contained in the instruments, documents, certificates and
records we have reviewed; (iv) that the Registration Statement, and any amendments thereto, will have become effective under the Securities
Act; and (v) the legal capacity and competency of all natural persons. As to any facts material to the opinions expressed herein that
were not independently established or verified, we have relied upon oral or written statements and representations of officers and other
representatives of the Company.
Based
upon the foregoing, and subject to the qualifications set forth below, it is our opinion that the Shares, when issued and sold in the
manner referred to in the applicable Plan and pursuant to the applicable agreements that accompany the Plans, will be legally and validly
issued, fully paid and nonassessable.
We
express no opinion as to any matter relating to the laws of any jurisdiction other than the federal laws of the United States of America
and the General Corporation Law of the State of Delaware.
We
consent to the use of this opinion as an exhibit to the Registration Statement, and further consent to the use of our name wherever appearing
in the Registration Statement and any amendments thereto. In giving such consent, we do not thereby admit that we are in 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 22, 2024, 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, 2023, 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 |
|
August
14, 2024 |
|
Exhibit 107
Calculation of Filing Fee Tables
FORM S-8
(Form Type)
Barfresh Food Group Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
Security Type |
|
Security
Class
Title |
|
Fee
Calculation
or Carry
Forward
Rule |
|
Amount
Registered(1) |
|
|
Maximum
Offering
Price Per
Share |
|
|
Maximum Aggregate Offering Price |
|
Fee Rate |
|
Amount of Registration Fee |
|
Equity |
|
Common Stock, par value $0.000001 per share |
|
Rules 457(c) and (h) |
|
|
650,000 |
(2) |
|
$ |
3.45 |
(3) |
$ |
2,242,500 |
|
147.60 per $1,000,000 |
|
$ |
330.99 |
|
Equity |
|
Common Stock, par value $0.000001 per share |
|
Rules 457(c) and (h) |
|
|
1,400,000 |
(3) |
|
|
3.45 |
|
|
4,830,000 |
|
|
|
|
712.91 |
|
|
|
Total Offering Amounts |
|
|
|
|
|
$ |
7,072,500 |
|
|
|
$ |
1,043.90 |
|
|
|
Total Fee Offsets |
|
|
|
|
|
|
|
|
|
— |
|
|
|
Net Fee Due |
|
|
|
|
|
|
|
|
|
|
$ |
1,043.90 |
|
(1) |
Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this registration statement (the “Registration Statement”) shall also cover any additional shares of the Registrant’s common stock, par value $0.000001 per share (“Common Stock”) that become issuable under the Registrant’s First Amended and Restated 2023 Equity Incentive Plan (the “2023 Plan”) or the Registrant’s 2024 Employee Stock Purchase Plan (the “2024 ESPP”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration or conversion of the Registrant’s Common Stock that increases the number of outstanding shares of Common Stock. |
|
|
(2) |
Represents an additional 650,000 shares of Common Stock reserved and available for issuance under the 2023 Plan as of the date of this Registration Statement. As of the date hereof, 86,873 shares of Common Stock are subject to outstanding restricted stock awards, and 438,515 shares of Common Stock are subject to outstanding performance share awards under the 2023 Plan. |
|
|
(3) |
Represents 1,400,000 shares of Common Stock reserved and available for issuance under the 2024 ESPP as of the date of this Registration Statement. |
|
|
(4) |
Pursuant to Rule 457(c)
and 457(h) under the Securities Act, and solely for the purpose of calculating the registration fee, the proposed maximum offering
price per share is $1.94, which is the average of the high and low prices of shares of Common Stock on The Nasdaq Capital Market
on August 8, 2024 (such date being within five business days of the date that this Registration Statement was filed with the
U.S. Securities and Exchange Commission (the “SEC”)). |
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