Freshpet, Inc. (Form: S-1/A, Received: 10/02/2014 12:12:49)

As filed with the Securities and Exchange Commission on October 2, 2014

Registration No. 333-198724

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

AMENDMENT NO. 1

FORM S-1

REGISTRATION STATEMENT

UNDER THE SECURITIES ACT OF 1933

FRESHPET, INC.

(Exact name of registrant as specified in its charter)

Delaware

2047

20-1884894

(State or other jurisdiction of

incorporation or organization)

(Primary Standard Industrial

Classification Code Number)

(I.R.S. Employer

Identification Number)

400 Plaza Drive, 1st Floor

Secaucus, New Jersey 07094

(201) 520-4000

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

Richard Kassar

Chief Financial Officer

400 Plaza Drive, 1st Floor

Secaucus, New Jersey 07094

(201) 520-4000

(Name, address, including zip code, and telephone number, including area code, of agent for service)

Copies of all communications, including communications sent to agent for service, should be sent to:

Christian O. Nagler, Esq.

Andrew M. Herman, Esq.

Kirkland & Ellis LLP

601 Lexington Avenue

New York, New York 10022

(212) 446-4800

Marc D. Jaffe, Esq.

Senet S. Bischoff, Esq.

Latham & Watkins LLP

885 Third Avenue

New York, New York 10022

(212) 906-1200

Approximate date of commencement of proposed sale to the public:

As soon as practicable after this Registration Statement becomes effective.

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box: ¨

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities act registration statement number of the earlier effective registration statement for the same offering. ¨

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

Large accelerated filer ¨

Accelerated filer ¨

Non-accelerated filer x

(Do not check if a

smaller reporting company)

Smaller reporting company ¨

CALCULATION OF REGISTRATION FEE



Title of Each Class of Securities to be Registered	Proposed Maximum Aggregate Offering Price(1)(2)	Amount of Registration Fee(3)
Common Stock, $0.001 par value per share	$100,000,000	$12,880

(1)	Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended.

(2)	Includes the offering price of any additional shares of common stock that the underwriters have the option to purchase.

(3)	The Registrant previously paid $12,880 of the Registration Fee in connection with the initial filing of its Registration Statement on September 12, 2014.

The registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.

Explanatory Note

This Amendment No. 1 to the Registration Statement on Form S-1 of Freshpet, Inc. is being filed solely for the purpose of filing Exhibits 5.1, 10.5, 23.2, 99.1, 99.2, 99.3 and 99.4 hereto. No changes have been made to Part I of the Registration Statement. Accordingly, Part I has been omitted from this amendment.

PART II—INFORMATION NOT REQUIRED IN PROSPECTUS

Item 13. Other Expenses of Issuance and Distribution.

The following table sets forth all costs and expenses, other than the underwriting discounts payable by us, in connection with the offer and sale of the common stock being registered. All amounts shown are estimates except for the Securities and Exchange Commission (“SEC”) registration fee and the Financial Industry Regulatory Authority, Inc. (“FINRA”) filing fee.


	Amount
SEC registration fee	$	19,488
FINRA filing fee		25,657
Nasdaq Listing fee		150,000
Printing expenses		300,000
Accounting fees and expenses		550,000
Legal fees and expenses		1,000,000
Transfer Agent and Registrar fees and expenses		6,000
Miscellaneous expenses		950,000

Total	$	3,001,145

Item 14. Indemnification of Officers and Directors.

Section 102(b)(7) of the DGCL allows a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its 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. Our Certificate of Incorporation will provide for this limitation of liability.

Section 145 of the DGCL (“Section 145”), provides 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 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 illegal. 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 against the expenses 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 him and incurred by him 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 him under Section 145.

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Our Certificate of Incorporation will provide that we must indemnify our directors and officers to the fullest extent authorized by the DGCL and must also pay expenses incurred in defending any such proceeding in advance of its final disposition upon delivery of an undertaking, by or on behalf of an indemnified person, to repay all amounts so advanced if it should be determined ultimately that such person is not entitled to be indemnified under this section or otherwise.

We intend to enter into indemnification agreements with each of our current directors and officers. These agreements will require us to indemnify these individuals to the fullest extent permitted under Delaware law against liabilities that may arise by reason of their service to us, and to advance expenses incurred as a result of any proceeding against them as to which they could be indemnified.

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, provision of our Certificate of Incorporation, our Bylaws, agreement, vote of stockholders or disinterested directors or otherwise.

We maintain standard policies of insurance that provide coverage (1) to our directors and officers against loss rising from claims made by reason of breach of duty or other wrongful act and (2) to us with respect to indemnification payments that we may make to such directors and officers.

The proposed form of underwriting agreement to be filed as Exhibit 1.1 to this Registration Statement provides for indemnification to our directors and officers by the underwriters against certain liabilities.

Item 15. Recent Sales of Unregistered Securities

We sold 2,472,518 shares of Series C Preferred Stock to existing stockholders in the time period since January 1, 2011 in exchange for an aggregate of $17,550,974. In the time period since January 1, 2011, we issued to directors, officers, employees and contractors options to purchase an aggregate of 2,187,739 shares of common stock with exercise prices of $7.10 per share pursuant to the 2010 Plan. In the time period since January 1, 2011, upon the exercise of stock options, we have issued 7,952 shares of common stock to certain officers, directors, employees and contractors in exchange for an aggregate of $49,889. No underwriters were used in connection with the transactions. The sale of such securities was exempt from registration pursuant to Section 4(a)(2) of the Securities Act as transactions by an issuer not involving a public offering and/or Rule 506 promulgated under the Securities Act. All of the purchasers in these transactions represented to us in connection with their purchase that they were acquiring the shares for investment and not distribution, and that they could bear the risks of the investment and could hold the securities for an indefinite period of time. Such purchasers received written disclosures that the securities had not been registered under the Securities Act and that any resale must be made pursuant to a registration or an available exemption from such registration. All of the foregoing securities are deemed restricted securities for the purposes of the Securities Act.

Item 16. Exhibits

(1)

Exhibits :

The exhibit index attached hereto is incorporated herein by reference.

(2)

Financial Statement Schedules :

No financial statement schedules are provided because the information called for is not required or is shown in the financial statements or the notes thereto.

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Item 17. Undertakings

(a)	The undersigned registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreements certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.

(b)

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 Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment 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.

(c)	The undersigned Registrant hereby undertakes that:

(1)

For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be a part of this registration statement as of the time it was declared effective.

(2)

For purposes of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus 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.

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Secaucus, State of New Jersey, on October 2, 2014.


FRESHPET, INC.

By:		/s/ Richard Kassar
		Name: Richard Kassar Title: Chief Financial Officer

* * * *

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons on October 2, 2014 in the capacities indicated.


Signature		Title

* Richard Thompson		Chief Executive Officer and Director (Principal Executive Officer)

/s/ Richard Kassar Richard Kassar		Chief Financial Officer and Director (Principal Accounting and Financial Officer)

* Charles A. Norris		Director

* J. David Basto		Director

* Jonathan S. Marlow		Director

* Christopher Harned		Director

* Daryl Brewster		Director

* Brian McInerney		Director

* Steven Gilbert		Director

* Scott Morris		Director


* By		/s/ Richard Kassar
		Richard Kassar
		Attorney-in-Fact

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EXHIBIT INDEX


Exhibit No.		Description

1.1*		Form of Underwriting Agreement

3.1**		Second Amended and Restated Certificate of Incorporation

3.2**		Certificate of Amendment to the Second Amended and Restated Certificate of Incorporation

3.3**		Certificate of Amendment to the Second Amended and Restated Certificate of Incorporation

3.4**		Certificate of Amendment to the Second Amended and Restated Certificate of Incorporation

3.5**		Certificate of Amendment to the Second Amended and Restated Certificate of Incorporation

3.6*		Certificate of Amendment to the Second Amended and Restated Certificate of Incorporation

3.7**		Bylaws

3.8*		Form of Third Amended and Restated Certificate of Incorporation

3.9*		Form of Amended and Restated Bylaws

4.1**		Warrant Agreement, dated as of October 5, 2007, between the Company and City National Bank, a national banking association

5.1		Opinion of Kirkland & Ellis LLP

10.1**		Amended and Restated Credit Agreement, dated as of April 12, 2013, among the Company, the several banks and other lenders from time to time parties to thereto and OneWest Bank, FSB, as administrative agent for the lenders

10.2**		First Amendment to Amended and Restated Credit Agreement, dated as of May 7, 2013, among the Company, the several banks and other lenders from time to time parties thereto and OneWest Bank, FSB, as administrative agent for the lenders

10.3**		Second Amendment to Amended and Restated Credit Agreement, dated as of July 2, 2013, among the Company, the several banks and other lenders from time to time parties thereto and OneWest Bank, FSB, as administrative agent for the lenders

10.4**		Third Amendment to Amended and Restated Credit Agreement, dated as of September 30, 2013, among the Company, the several banks and other lenders from time to time parties thereto and OneWest Bank, FSB, as administrative agent for the lenders

10.5		Fourth Amendment to Amended and Restated Credit Agreement, dated as of May 28, 2014, among the Company, the several banks and other lenders from time to time parties thereto and OneWest Bank N.A.

10.6**		Amended and Restated Loan and Security Agreement, dated as of December 23, 2010, by and between the Company and City National Bank, a national banking association, as lender

10.7**		Amendment Number One to Amended and Restated Loan and Security Agreement, dated as of February 9, 2012, by and between the Company and City National Bank, a national banking association, as lender

10.8**		Amendment Number Two to Amended and Restated Loan and Security Agreement, dated as of May 2, 2012, by and between the Company and City National Bank, a national banking association, as lender

10.9**		Amendment Number Three to Amended and Restated Loan and Security Agreement, dated as of June 8, 2012, by and between the Company and City National Bank, a national banking association, as lender

10.10**		Amendment Number Four to Amended and Restated Loan and Security Agreement, dated as of May 3, 2013, by and between the Company and City National Bank, a national banking association, as lender

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Exhibit No.		Description

10.11**		Amendment Number Five to Amended and Restated Loan and Security Agreement, dated as of March 14, 2014, by and between the Company and City National Bank, a national banking association, as lender

10.12**		Amendment Number Six to Amended and Restated Loan and Security Agreement, dated as of September 4, 2014, by and between the Company and City National Bank, a national banking association, as lender

10.13*		Form of Freshpet, Inc. 2014 Omnibus Incentive Plan

10.14*		Form of Restricted Stock Agreement Pursuant to the Freshpet, Inc. 2014 Omnibus Incentive Plan

10.15*		Form of Restricted Stock Unit Agreement Pursuant to the Freshpet, Inc. 2014 Omnibus Incentive Plan

10.16*		Form of Incentive Stock Option Agreement Pursuant to the Freshpet, Inc. 2014 Omnibus Incentive Plan

10.17*		Form of Nonqualified Stock Option Agreement Pursuant to the Freshpet, Inc. 2014 Omnibus Incentive Plan

10.18*		Form of Stock Appreciation Rights Agreement Pursuant to the Freshpet, Inc. 2014 Omnibus Incentive Plan

10.19*		Form of Freshpet, Inc. Non-Employee Director Compensation Policy

10.20**		Employment Agreement between Richard Thompson and Freshpet, Inc., dated as of December 23, 2010

10.21**		Employment Agreement between Scott Morris and Freshpet, Inc. dated as of October 25, 2006

10.22**		Amendment to Employment Agreement between Scott Morris and Freshpet, Inc. dated as of January 6, 2009

10.23**		Employment Agreement between Cathal Walsh and Freshpet, Inc. dated as of October 25, 2006

10.24**		Amendment to Employment Agreement between Cathal Walsh and Freshpet, Inc. dated as of January 6, 2009

10.25*		Form of Indemnification Agreement between Freshpet, Inc. and each of its directors and executive officers

10.26*		Form of Second Amended and Restated Stockholders Agreement

10.27**		Amended and Restated Fee and Reimbursement Agreement among Freshpet, Inc. and the other parties thereto dated as of April 15, 2013

10.28**		Amendment No. 1 to the Amended and Restated Fee and Reimbursement Agreement among Freshpet, Inc. and the other parties thereto dated as of October 9, 2013

10.29**		Amendment No. 2 to the Amended and Restated Fee and Reimbursement Agreement among Freshpet, Inc. and the other parties thereto dated as of April 7, 2014

10.30*		Distribution Agreement between Tyson Foods, Inc. and Freshpet, Inc. dated as of January 6, 2009

10.31*		Amendment to the Distribution Agreement between Tyson Foods, Inc. and Freshpet, Inc. dated as of August 8, 2014

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Exhibit No.		Description

10.32*		$1.5 Million Stockholder Note

10.33*		Form of Selldown Agreement

21.1**		List of Subsidiaries

23.1**		Consent of KPMG LLP

23.2		Consent of Kirkland & Ellis LLP (included in Exhibit 5.1)

24.1**		Power of Attorney (included on the signature page of this Registration Statement)

99.1		Consent of Lawrence S. Coben

99.2		Consent of Walter N. George

99.3		Consent of Robert C. King

99.4		Consent of Craig D. Steeneck

*	To be filed.

**	Previously filed.

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Exhibit 5.1

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601 Lexington Avenue

New York, New York 10022

(212) 446-4800

(212) 446-4900 (facsimile)

www.kirkland.com

October 2, 2014

Freshpet, Inc.

400 Plaza Drive, 1st Floor

Secaucus, New Jersey 07094

Ladies and Gentlemen:

We are acting as special counsel to Freshpet, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing of a Registration Statement on Form S-1, originally filed with the Securities and Exchange Commission (the “Commission”) on September 12, 2014 (File No. 333-198724), under the Securities Act of 1933, as amended (the “Act”) (such Registration Statement, as amended or supplemented, is hereinafter referred to as the “Registration Statement”), relating to the proposed registration by the Company of up to 11,979,167 shares of common stock, par value $0.001 per share, of the Company (“Common Stock”), including shares of Common Stock issued pursuant to the underwriters’ option to purchase additional shares, if any. The shares of Common Stock to be sold by the Company identified in the Registration Statement are referred to herein as the “Shares” and the issuance of the Shares is referred to herein as the “Issuance.”

In that connection, we have examined originals, or copies certified or otherwise identified to our satisfaction, of such documents, corporate records and other instruments as we have deemed necessary for the purposes of this opinion, including (i) the Third Amended and Restated Certificate of Incorporation (the “Restated Charter”) of the Company in the form to be filed as Exhibit 3.8 to the Registration Statement and to be filed with the Secretary of State of the State of Delaware prior to the sale of the Shares; (ii) the Amended and Restated Bylaws (the “Bylaws”) of the Company in the form to be filed as Exhibit 3.9 to the Registration Statement; (iii) the form of Underwriting Agreement in the form to be filed as Exhibit 1.1 to the Registration Statement (the “Underwriting Agreement”); (iv) draft resolutions of the board of directors with respect to the Issuance (the “Resolutions”); and (v) the Registration Statement.

For purposes of this opinion, we have assumed the authenticity of all documents submitted to us as originals, the conformity to the originals of all documents submitted to us as copies and the authenticity of the originals of all documents submitted to us as copies. We have also assumed the legal capacity of all natural persons, the genuineness of the signatures of persons signing all documents in connection with which this opinion is rendered, the authority of such persons signing on behalf of the parties thereto and the due authorization, execution and delivery of all documents by the parties thereto other than the Company. We have not

Chicago Hong Kong Houston London Los Angeles Munich Palo Alto San Francisco Shanghai Washington, D.C.

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independently established or verified any facts relevant to the opinion expressed herein, but have relied upon statements and representations of officers and other representatives of the Company and others as to factual matters.

Based upon and subject to the foregoing qualifications, assumptions and limitations and the further limitations set forth below, we are of the opinion that, when (i) the Resolutions and Bylaws are adopted by the board of directors and stockholders of the Company, as applicable, (ii) the final Underwriting Agreement is duly executed and delivered by the parties thereto, (iii) the Restated Charter is validly adopted and filed with the Secretary of State of the State of Delaware, and (iv) the Registration Statement becomes effective under the Act, the Shares will be duly authorized and validly issued, fully paid and nonassessable.

Our opinions expressed above are subject to the qualifications that we express no opinion as to the applicability of, compliance with, or effect of any laws except the General Corporation Law of the State of Delaware.

We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Registration Statement. We also consent to the reference to our firm under the heading “Legal Matters” in the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.

We do not find it necessary for the purposes of this opinion, and accordingly we do not purport to cover herein, the application of the securities or “Blue Sky” laws of the various states to the Issuance.

This opinion is limited to the specific issues addressed herein, and no opinion may be inferred or implied beyond that expressly stated herein. We assume no obligation to revise or supplement this opinion should the General Corporation Law of the State of Delaware be changed by legislative action, judicial decision or otherwise.

This opinion is furnished to you in connection with the filing of the Registration Statement.

Sincerely,

/s/ KIRKLAND & ELLIS LLP

KIRKLAND & ELLIS LLP

Exhibit 10.5

Execution Version

FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT

This FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “ Amendment ”), dated as of May 28, 2014 (the “ Fourth Amendment Effective Date ”), among (1) FRESHPET, INC. (formerly known as Professor Connor’s, Inc.), a Delaware corporation (the “ Borrower ”), (2) the several banks and other lenders from time to time parties to this Agreement (the “ Lenders ”) and (3) ONEWEST BANK N.A. (formerly known as OneWest Bank, FSB) (“ OneWest Bank ”), as administrative agent for the Lenders (in such capacity, the “ Agent ”).

RECITALS

A. The Borrower, the Agent and the Lenders are party to that certain Amended and Restated Credit Agreement, dated as of April 15, 2013 as amended by (i) that certain First Amendment to Amended and Restated Credit Agreement, dated as of May 7, 2013, (ii) that certain Second Amendment to Amended and Restated Credit Agreement, dated as of July 3, 2013 and (iii) that certain Third Amendment to Amended and Restated Credit Agreement, dated as of September 30, 2013 (as the same may be further amended, restated or modified from time to time, the “ Credit Agreement ”) pursuant to which the Lenders have made available to the Borrower a revolving loan facility in the maximum principal amount of $70,000,000. Capitalized terms used herein and not defined shall have the meanings ascribed to them in the Credit Agreement. The Borrower, the Agent and the Lenders have agreed to make certain changes to the Credit Agreement as set forth herein.

NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, the parties hereto hereby agree as follows:

SECTION 1. Amendments to Credit Agreement . The Credit Agreement is hereby amended as follows:

(a) On and after the Fourth Amendment Effective Date, all references in the Credit Agreement to (i) the Borrower shall be a reference to Freshpet, Inc., a Delaware corporation (formerly known as Professor Connor’s, Inc.) and (ii) OneWest Bank shall be a reference to OneWest Bank N.A.(formerly known as OneWest Bank FSB).

(b) Notwithstanding anything to the contrary in Section 2.16(a)(ii) of the Credit Agreement, in connection with this Amendment only, the Borrower shall be permitted to exercise the increase request option in a minimum principal amount of $2,500,000.

(c) On the signature page to the Credit Agreement for OneWest Bank, the reference to its Revolving Loan Commitment is hereby deleted and replaced with the following: “Revolving Loan Commitment: “$42,500,000”.

(d) Schedule 1.1(a) of the Credit Agreement is hereby deleted in its entirety and replaced with Schedule 1.1(a) , attached hereto.

SECTION 2. Conditions Precedent to Second Amendment Effective Date . This Amendment shall become effective upon receipt by the Agent of the following conditions precedent, in each case in form and substance satisfactory to the Agent:

(a)

This Amendment, duly executed by the Borrower, the Majority Lenders and the Agent;

(b)

(i) Amendments to (A) the Equity Contribution Agreement, and (B) each Shareholder Guarantee (other than for Richard Thompson), in each case, increasing the amounts covered thereby by an aggregate amount of $2,500,000, and reaffirming the obligations under such Equity Contribution Agreement or Shareholder Guarantee; and (ii) a Liquidity Compliance Certificate completed and duly executed by the Mid-Ocean Entities and each Shareholder Guarantor.

(c)

A modification to the Plant Mortgage reflecting the increased Revolving Loan Commitment of $70,000,000, duly executed and notarized by the Borrower and in recordable form; and an endorsement to the title policy issued to the Agent, reflecting the increased Revolving Loan Commitment of $70,000,000.

(d)

An amendment to the Subordination Agreement, duly executed by the Senior Lender and the Borrower.

(e)

A Commitment Increase Notice for the Revolving Commitment Increase of $2,500,000, duly executed by the Borrower.

(f)

An Increased Commitment Letter for the Revolving Commitment Increase of $2,500,000, duly executed by OneWest Bank.

SECTION 3. Reference To And Effect On The Credit Agreement And The Other Loan Documents . Upon the effectiveness of this Amendment, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents to “the Credit Agreement,” “thereunder,” “thereof,” “therein” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement, as amended hereby.

(a) Except as specifically amended herein or in any other amendment executed in connection herewith, the Credit Agreement and all other Loan Documents are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed.

(b) The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Agent or the Lenders under the Credit Agreement or any other Loan Documents, nor constitute a waiver of any provision of the Credit Agreement or any other Loan Documents.

SECTION 4. Representations And Warranties . The Borrower represents and warrants to the Agent and the Lenders as follows: (i) it has all requisite power and authority under applicable law and under its organizational documents to execute, deliver and perform this Amendment, and to perform the Credit Agreement as amended hereby; (ii) all actions, waivers and consents (corporate,

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regulatory and otherwise) necessary or appropriate for it to execute, deliver and perform this Amendment, and to perform the Credit Agreement as amended hereby, have been taken and/or received; (iii) this Amendment, and the Credit Agreement, as amended by this Amendment, constitute the legal, valid and binding obligation of it enforceable against it in accordance with the terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law); (iv) the execution, delivery and performance of this Amendment, and the performance of the Credit Agreement, as amended hereby, will not violate in any material respect any Requirement of Law applicable to any of the Loan Parties or material Contractual Obligation of any of the Loan Parties, and will not result in, or require, the creation or imposition of any Lien on any of its properties or revenues pursuant to any such Requirement of Law or such material Contractual Obligation, except as permitted by to the Loan Documents; and (v) after giving effect to this Amendment, no Default or Event of Default has occurred and is continuing.

SECTION 5. Execution In Counterparts . This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment electronically shall be effective as delivery of a manually executed counterpart of this Amendment.

SECTION 6. Governing Law . This Amendment and the rights and obligations of the parties under this Amendment shall be governed by, and construed and interpreted in accordance with, the law of the State of New York (without reference to its choice of law rules).

[SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.


FRESHPET, INC. (formerly known as Professor Connor’s, Inc.), a Delaware corporation

By: