Form of Warrant to purchase shares of BarkBox, Inc. common stock dated April 1, 2016
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE ACT), OR THE SECURITIES LAWS OF ANY STATE AND, EXCEPT AND PURSUANT TO THE PROVISIONS OF ARTICLE 4 BELOW, MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAW OR, IN THE OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM REGISTRATION.
WARRANT TO PURCHASE COMMON STOCK
Company: Barkbox, Inc., a Delaware corporation (the Company)
Number of Shares: [______]
Class of Stock: Common Stock, $0.0001 par value per share (the Common Stock)
Exercise Price: $3.32 (the Exercise Price)
Issue Date: April 1st, 2016
Term: See Section 5.1
THIS WARRANT CERTIFIES THAT, [_________] (Holder) is entitled to purchase up to [______] ([____]) fully paid and nonassessable shares of Common Stock (the Shares), at the Exercise Price, all as set forth herein, subject to the provisions and upon the terms and conditions set forth in this Warrant.
ARTICLE 1. VESTING.
1.1 This Warrant may be exercised by the Holder in accordance with Section 2 below and subject to the following condition:
1.1.1 For so long as the Holder is providing services to the Company , whether pursuant to the Consulting Agreement or otherwise (Services), the Shares (in each case as adjusted from time to time pursuant to the provisions of this Warrant) shall become exercisable (vest) in accordance with the Vesting Schedule attached hereto as Exhibit A.
ARTICLE 2. EXERCISE.
2.1 Method of Exercise. To the extent exercisable, this Warrant may be exercised by Holder by delivering a duly executed Notice of Exercise in substantially the form attached as Appendix 1 hereto to the principal office of the Company. Unless Holder is exercising the net exercise right set forth in Section 2.2, Holder shall also deliver to the Company a check or wire transfer (to an account designated by the Company), for the aggregate Exercise Price for the Shares being purchased.
2.2 Net Exercise. In lieu of exercising this Warrant as specified in Section 2.1 for cash, Holder may elect to receive shares equal to the value of this Warrant to the extent exercisable (or the portion thereof being exercised) by surrendering this Warrant at the principal office of the Company and the Company shall issue to such Holder a number of Shares computed using the following formula:
|X =||The number of Shares to be issued to Holder.|
|Y =||The number of Shares purchasable under this Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being cancelled (at the date of such calculation).|
|A =||The fair market value of one (1) Share (as determined pursuant to Section 2.3).|
|B =||The Exercise Price.|
2.3 Fair Market Value. If the Common Stock is traded in a public market, the fair market value of each Share shall be the closing price of a share of Common Stock reported for the business day immediately before Holder delivers its Notice of Exercise to the Company (or in the instance where the Warrant is exercised immediately prior to the effectiveness of the Companys initial public offering, the price to public per share price specified in the final prospectus relating to such offering). If the Common Stock is not traded in a public market, then the Board of Directors of the Company shall determine fair market value in its reasonable good faith judgment.
2.4 Delivery of Certificate and New Warrant. Promptly after Holder exercises or net exercises this Warrant and, if applicable, the Company receives payment of the aggregate Exercise Price, the Company shall deliver to Holder certificates for the Shares acquired and, if this Warrant has not been fully exercised or net exercised and has not expired, a new Warrant representing the Shares not so acquired.
2.5 Replacement of Warrants. On receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of loss, theft or destruction, on delivery of an indemnity agreement reasonably satisfactory in form and amount to the Company or, in the case of mutilation, on surrender and cancellation of this Warrant, the Company shall execute and deliver, in lieu of this Warrant, a new warrant of like tenor.
2.6 Treatment of Warrant Upon Acquisition of Company.
(a) Acquisition. For the purpose of this Warrant, Acquisition means any transaction or series of related transactions involving: (i) the sale, lease, exclusive license, or other disposition of all or substantially all of the assets of the Company (ii) any merger or consolidation of the Company into or with another person or entity (other than a merger or consolidation effected exclusively to change the Companys domicile), or any other corporate reorganization, in which the stockholders of the Company in their capacity as such immediately prior to such merger, consolidation or reorganization, own less than a majority of the Companys (or the surviving or successor entitys) outstanding voting power immediately after such merger, consolidation or reorganization; or (iii) any sale or other transfer by the stockholders of the Company of shares representing at least a majority of the Companys then-total outstanding combined voting power.
(b) Treatment of Warrant at Acquisition. In the event of an Acquisition, if the fair market value of one Share as determined in accordance with Section 2.3 above would be greater than the Warrant Price in effect on such date immediately prior to such Acquisition, and Holder has not exercised this Warrant pursuant to Sections 2.1 and/or 2.2 above as to all Shares, then this Warrant shall automatically be deemed to be exercised pursuant to Section 2.2 above as to all vested Shares, effective immediately prior to and contingent upon the consummation of such Acquisition. In connection with such exercise pursuant to Section 2.2 above, Holder shall be deemed to have made each of the representations and warranties in the Notice of Exercise as the date thereof and the Company shall promptly notify the Holder of the number of Shares (or such other securities) issued upon exercise. In the event of an Acquisition where the fair market value of one Share as determined in accordance with Section 2.3 above would be less than the Warrant Price in effect immediately prior to such Acquisition, then this Warrant will expire immediately prior to the consummation of such Acquisition.
ARTICLE 3. ADJUSTMENTS TO THE SHARES.
3.1 Stock Dividends, Splits, Combinations, Etc. If the Company declares or pays a dividend on the Shares payable in Common Stock or other securities, then upon exercise of this Warrant, for each Share acquired, Holder shall receive, without cost to Holder, the total number and kind of securities to which Holder would have been entitled had Holder owned the Shares of record as of the date the dividend occurred. If the Company subdivides the Shares by reclassification or otherwise into a greater number of shares or takes any other action which increases the amount of stock into which the Shares are convertible, the number of shares purchasable hereunder shall be proportionately increased and the Exercise Price shall be proportionately decreased. If the outstanding shares of the Company are combined or consolidated, by reclassification or otherwise, into a lesser number of shares, the Exercise Price shall be proportionately increased and the number of Shares shall be proportionately decreased.
3.2 Reclassification, Exchange or Substitution, Etc. Upon any reclassification, exchange, substitution, or other event that results in a change of the number and/or class of the securities issuable upon exercise or net exercise of this Warrant, Holder shall be entitled to receive, upon exercise or net exercise of this Warrant, the number and kind of securities and property that Holder would have received for the Shares if this Warrant had been exercised immediately before such reclassification, exchange, substitution, or other event. The Company or its successor shall promptly issue to Holder an amendment to this Warrant setting forth the number and kind of such new securities or other property issuable upon exercise or net exercise of this Warrant as a result of such reclassification, exchange, substitution or other event that results in a change of the number and/or class of securities issuable upon exercise or net exercise of this Warrant.
3.3 Merger or Consolidation. Upon any capital reorganization of the Companys capital stock (other than a subdivision, combination, reclassification or exchange of shares provided for elsewhere in this Section 3) or a merger or consolidation of the Company with or into another corporation, then as a part of such reorganization, merger or consolidation, provision shall be made so that Holder shall thereafter be entitled to receive upon the exercise or net exercise of this Warrant, the number and kind of securities and property of the Company, or of the successor corporation resulting from such reorganization, merger or consolidation, to which that Holder would have received for the Shares if this Warrant had been exercised immediately before such reorganization, merger or consolidation.
3.4 Fractional Shares. No fractional Shares shall be issuable upon exercise or net exercise of this Warrant and the number of Shares to be issued shall be rounded down to the nearest whole Share. If a fractional share interest arises upon any exercise or net exercise of the Warrant, the Company shall eliminate such fractional share interest by paying Holder an amount in cash computed by multiplying the fractional interest by the fair market value of a full Share (as determined pursuant to Section 2.3).
3.5 Certificate as to Adjustments. Upon each adjustment of the Exercise Price, the Company shall promptly notify Holder in writing, and, at the Companys expense, promptly compute such adjustment, and furnish Holder with a certificate of its Chief Financial Officer or other officer setting forth such adjustment and the facts upon which such adjustment is based. The Company shall furnish Holder a certificate setting forth the Exercise Price in effect upon the date thereof and the series of adjustments leading to such Exercise Price.
ARTICLE 4. COVENANTS OF THE COMPANY.
4.1 Notice of Certain Events. If the Company proposes at any time (a) to declare any dividend or distribution upon any of its stock, whether in cash, property, stock, or other securities and whether or not a regular cash dividend; (b) to effect any reclassification or recapitalization of any of its stock; or (c) to consummate any Acquisition, or to liquidate, dissolve or wind up, then, in connection with each such event, the Company shall give Holder: (1) at least three (3) days prior written notice of the date on which a record will be taken for such dividend, distribution, or subscription rights (and specifying the date on which the holders of Common Stock will be entitled thereto) or for determining rights to vote, if any, in respect of the matters referred to in (a) above; and (2) in the case of the matters referred to in (b) and (c) above at least three (3) days prior written notice of the date when the same will take place (and specifying the date on which the holders of Common Stock will be entitled to exchange their Common Stock for securities or other property deliverable upon the occurrence of such event).
4.2 No Stockholder Rights or Liabilities. Except as provided in this Warrant, Holder will not have any rights as a stockholder of the Company until the exercise of this Warrant. Absent an affirmative action by Holder to purchase the Shares, Holder shall not have any liability as a stockholder of the Company.
4.3 Closing of Books. The Company will at no time close its transfer books against the transfer of this Warrant or of any Shares issued or issuable upon the exercise of this Warrant in any manner which interferes with the timely exercise of this Warrant.
ARTICLE 5. MISCELLANEOUS.
5.1 Term. This Warrant is exercisable in whole or in part at any time and from time to time on or before the earlier of 11:59 pm Pacific Time on the three-month anniversary of the cessation of Services .
5.2 Legends. This Warrant and the Shares shall be imprinted with a legend in substantially the following form:
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE ACT), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAW OR, IN THE OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM REGISTRATION.
5.3 Market Stand off Agreement. Holder hereby agrees that it will not, without the prior written consent of the Company, during the period commencing on the date of the final prospectus relating to the initial public offering of the capital stock of the Company and ending on the date specified by the Company and any managing underwriter (such period not to exceed one hundred eighty (180) days, or such other period as may be requested by the Company or an underwriter to accommodate regulatory restrictions on (1) the publication or other distribution of research reports and (2) analyst recommendations and opinions, including, but not limited to, the restrictions contained in FINRA Rule 2711(f)(4) or NYSE Rule 472(f)(4), or any successor provisions or amendments thereto) (i) lend; offer; pledge; sell; contract to sell; sell any option or contract to purchase; purchase any option or contract to sell; grant any option, right, or warrant to purchase; or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable, directly or indirectly, for Common Stock held immediately before the effective date of the registration statement for such offering or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash, or otherwise.
5.4 Transfers. This Warrant and the Shares issuable upon exercise of this Warrant may not be transferred or assigned in whole or in part without compliance with applicable federal and state securities laws by the transferor and the transferee (including, without limitation, the delivery of investment representation letters and legal opinions reasonably satisfactory to the Company, as reasonably requested by the Company). After compliance with
all restrictions on transfer set forth in this Section 5.4, and within a reasonable time after the Companys receipt of an executed Assignment Form in the form attached hereto, the transfer shall be recorded on the books of the Company upon the surrender of this Warrant, properly endorsed, to the Company at its principal offices, and the payment to the Company of all transfer taxes and other governmental charges imposed on such transfer. In the event of a partial transfer, the Company shall issue to the new holders one or more appropriate new warrants.
5.5 Notices. All notices and other communications from the Company to Holder, or vice versa, shall be deemed delivered and effective (a) when given personally, (b) when sent, if sent by electronic mail or facsimile during normal business hours of the recipient, and if not sent during normal business hours, then on the recipients next business day or (c) when mailed by first-class registered or certified mail, postage prepaid, at such address as may have been furnished to the Company or Holder, as the case may be, in writing by the Company or such Holder from time to time. Effective upon receipt of the fully executed Warrant, all notices to Holder shall be addressed as set forth on the signature page hereto until the Company receives notice of a change of address in connection with a transfer or otherwise. Notice to the Company shall be addressed as set forth on the signature page hereto until Holder receives notice of a change in address.
5.6 Waiver. This Warrant and any term hereof may be changed, waived, discharged or terminated only by an instrument in writing signed by the party against which enforcement of such change, waiver, discharge or termination is sought.
5.7 Counterparts. This Warrant may be executed in counterparts, all of which together shall constitute one and the same agreement.
5.8 Governing Law. This Warrant shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to its principles regarding conflicts of law.
[Remainder of Page Intentionally Left Blank]
221 Canal Street, 6th Floor
New York, NY 10013
SIGNATURE PAGE TO COMMON STOCK WARRANT
With respect to [____] of the Shares, 4.16667% of such Shares (i.e., [____] shares) shall become exercisable at the completion of each successive month of service to the Company by the Holder following October 12, 2015.
With respect to [____]of the Shares, such Shares shall become exercisable in full on the date that is ninety (90) days following the employment start date of the Companys full-time director of wholesale.
With respect to [____]of the Shares, such Shares shall become exercisable in full upon creation of a branded BarkMade product portfolio for the Company, approved by the Companys management in its sole discretion.
With respect to [____] of the Shares, such Shares shall become exercisable in full upon the Company entering into a retail and distribution agreement with a national retailer acceptable to the Company for the sale of BarkMade products on or before September 30, 2016 (for the avoidance of doubt, if the Company enters into such an agreement after September 30, 2016, none of these [____] Shares shall become exercisable).
With respect to [____] of the Shares, such Shares shall become exercisable in full upon the Companys receipt of an aggregate of $4 million in gross revenues from BarkMade products and/or purchase orders received for the purchase of BarkMade products, all on or before March 31, 2017 (for the avoidance of doubt, if the Company does not reach $4 million in gross revenues from BarkMade products and/or purchase order for the purchase of BarkMade products on or before March 31, 2017, none of these [____] Shares shall become exercisable).
With respect to [____] of the Shares, such Shares shall become exercisable in full upon the Company entering into a distribution agreement for the sale and distribution of BarkMade products outside the United States and Canada.
NOTICE OF EXERCISE
Holder elects to purchase ___________ of the Shares pursuant to the terms of the attached Warrant, and tenders payment of the purchase price of the shares in full.
Holder elects to net exercise the attached Warrant into Shares in the manner specified in Section 2.2 of the Warrant. This net exercise is exercised for _____________________ of the Shares covered by the Warrant.
[Strike above paragraph that does not apply.]
Please issue a certificate or certificates representing the shares in the name specified below:
By its execution below and for the benefit of the Company, Holder hereby represents, warrants and covenants as follows:
Holder is purchasing the Shares for its own account for investment only, and not with a view to, or for sale in connection with, any distribution of the Shares in violation of the Securities Act of 1933 (the Securities Act), or any rule or regulation under the Securities Act.
Holder has had such opportunity as Holder has deemed adequate to obtain from representatives of the Company such information as is necessary to permit Holder to evaluate the merits and risks of its investment in the Company.
Holder has sufficient experience in business, financial and investment matters to be able to evaluate the risks involved in the purchase of the Shares and to make an informed investment decision with respect to such purchase.
Holder can afford a complete loss of the value of the Shares and is able to bear the economic risk of holding such Shares for an indefinite period.
Holder understands that (i) the Shares have not been registered under the Securities Act and are restricted securities within the meaning of Rule 144 under the Securities Act, (ii) the Shares cannot be sold, transferred or otherwise disposed of unless they are
subsequently registered under the Securities Act or an exemption from registration is then available; (iii) in any event, the exemption from registration under Rule 144 will not be available for at least one (1) year and even then will not be available unless a public market then exists for the Common Stock, adequate information concerning the Company is then available to the public, and other terms and conditions of Rule 144 are complied with; and (iv) there is now no registration statement on file with the Securities and Exchange Commission with respect to any stock of the Company and the Company has no obligation or current intention to register the Shares under the Securities Act.
|[NAME OF HOLDER]|
(To assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase Shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
NOTE: The signature to this Assignment Form must correspond with the name as it appears on the face of the Warrant. Officers of corporations and those acting in a fiduciary or other representative capacity should provide proper evidence of authority to assign the foregoing Warrant.