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Share Name | Share Symbol | Market | Type |
---|---|---|---|
Chewy Inc | NYSE:CHWY | NYSE | Common Stock |
Price Change | % Change | Share Price | High Price | Low Price | Open Price | Shares Traded | Last Trade | |
---|---|---|---|---|---|---|---|---|
-0.11 | -0.67% | 16.27 | 16.57 | 16.06 | 16.40 | 7,706,010 | 01:00:00 |
Delaware | | | 90-1020167 |
(State or other jurisdiction of incorporation or organization) | | | (I.R.S. Employer Identification No.) |
Large accelerated filer | | | ☒ | | | Accelerated filer | | | ☐ |
Non-accelerated filer | | | ☐ | | | Smaller reporting company | | | ☐ |
| | | | Emerging growth company | | | ☐ |
• | our Annual Report on Form 10-K for the year ended January 29, 2023, filed with the SEC on March 22, 2023 (including the portions of our Definitive Proxy Statement on Schedule 14A, filed with the SEC on June 2, 2023 and incorporated by reference in our Form 10-K); |
• | our Quarterly Report on Form 10-Q for the period ended April 30, 2023, filed on May 31, 2023 and our Quarterly Report on Form 10-Q for the period ended July 30, 2023, filed on August 30, 2023; |
• | our Current Reports on Form 8-K, filed with the SEC on February 1, 2023, April 12, 2023, May 5, 2023 and July 20, 2023; and |
• | the description of our capital stock contained in our Registration Statement on Form 8-A, filed with the SEC on June 11, 2019, as amended by the description of our capital stock contained in Exhibit 4.1 to our Annual Report on Form 10-K for the year ended January 29, 2023 filed with the SEC on March 22, 2023, and any amendment or report filed for the purpose of updating such description. |
• | repaying or refinancing debt; |
• | funding investments in, or extensions of credit to, our subsidiaries; |
• | financing acquisitions; |
• | working capital; and |
• | redeeming or repurchasing outstanding securities. |
• | 1,500,000,000 shares are designated as Class A common stock; |
• | 395,000,000 shares are designated as Class B common stock; and |
• | 5,000,000 shares are designated as preferred stock. |
• | the offering price at which we will issue the preferred stock; |
• | the title, designation of number of shares and stated value of the preferred stock; |
• | the dividend rate or method of calculation, the payment dates for dividends and the place or places where the dividends will be paid, whether dividends will be cumulative or noncumulative, and, if cumulative, the dates from which dividends will begin to cumulate; |
• | any conversion or exchange rights; |
• | whether the preferred stock will be subject to redemption and the redemption price and other terms and conditions relative to the redemption rights; |
• | any liquidation rights; |
• | any sinking fund provisions; |
• | any voting rights; and |
• | any other rights, preferences, privileges, limitations and restrictions that are not inconsistent with the terms of our amended and restated certificate of incorporation, as amended, restated or otherwise modified prior to such offering. |
• | all prior dividend periods of the other series of preferred stock that pay dividends on a cumulative basis; or |
• | the immediately preceding dividend period of the other series of preferred stock that pays dividends on a noncumulative basis. |
• | as otherwise stated in the applicable prospectus supplement; |
• | as otherwise stated in the certificate of designations establishing the series; or |
• | as required by applicable law. |
• | the title of the warrants; |
• | the total number of warrants; |
• | the price or prices at which we will issue the warrants; |
• | the currency or currencies investors may use to pay for the warrants; |
• | the designation and terms of the underlying securities purchasable upon exercise of the warrants; |
• | the price at which and the currency or currencies, including composite currencies, in which investors may purchase the underlying securities purchasable upon exercise of the warrants; |
• | the date on which the right to exercise the warrants will commence and the date on which the right will expire; |
• | information with respect to book-entry procedures, if any; |
• | if applicable, the minimum or maximum amount of warrants that may be exercised at any one time; |
• | if applicable, the designation and terms of the underlying securities with which the warrants are issued and the number of warrants issued with each underlying security; |
• | if applicable, the date on and after which the warrants and the related underlying securities will be separately transferable; |
• | if applicable, a discussion of material U.S. federal income tax considerations; |
• | the identity of the warrant agent; |
• | the procedures and conditions relating to the exercise of the warrants; and |
• | any other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. |
• | directly to purchasers, including through a specific bidding, auction or other process; |
• | to or through agents; |
• | to or through underwriters; |
• | to or through dealers; or |
• | through a combination of these methods. |
• | a block trade in which a broker-dealer will attempt to sell as agent, but may position or resell a portion of the block, as principal, in order to facilitate the transaction; |
• | an over-the-counter distribution in accordance with the rules of NYSE; |
• | through trading plans entered into pursuant to Rule 10b5-1 under the Exchange Act that are in place at the time of an offering pursuant to this prospectus and any applicable prospectus supplement hereto that provide for periodic sales of their securities on the basis of parameters described in such trading plans; |
• | distribution to employees, members, limited partners or stockholders of a selling stockholder; |
• | delayed delivery arrangements; |
• | at prices prevailing at the time of sale or at prices related to such prevailing market prices, including sales made directly on a national securities exchange or sales made through a market maker other than on an exchange or other similar offerings through sales agents; |
• | one or more underwritten offerings; |
• | in “at-the-market” offerings; |
• | purchases by a broker-dealer, as principal, and resale by the broker-dealer for its account; |
• | ordinary brokerage transactions and transactions in which a broker solicits purchasers; or |
• | privately negotiated transactions; |
• | by pledge to secured debt and other obligations; |
• | through a combination of any of the above methods of sale; or |
• | any other method permitted pursuant to applicable law. |
• | enter into transactions with a broker-dealer or affiliate thereof in connection with which such broker-dealer or affiliate will engage in short sales of securities pursuant to this prospectus, in which case such broker-dealer or affiliate may use our and/or the selling stockholders’ Class A common stock received from us and/or the selling stockholders to close out its short positions; |
• | sell securities short and redeliver such securities to close out our and/or the selling stockholders’ short positions; |
• | enter into option or other types of transactions that require us and/or the selling stockholders to deliver our and/or the selling stockholders’ Class A common stock to a broker-dealer or an affiliate thereof, who will then resell or transfer our and/or the selling stockholders’ Class A common stock under this prospectus; or |
• | loan or pledge our and/or the selling stockholders’ Class A common stock to a broker-dealer or an affiliate thereof, who may sell the loaned shares or, in an event of default in the case of a pledge, sell the pledged shares pursuant to this prospectus. |
• | the name or names of any underwriters or agents and the amounts of securities underwritten or purchased by each of them, if any; |
• | the public offering price or purchase price of the securities and the proceeds to be received by us or the selling stockholders, as the case may be, from the sale; |
• | any delayed delivery arrangements; |
• | any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation; |
• | any discounts or concessions allowed or reallowed or paid to dealers or agents; |
• | any option under which underwriters may purchase additional shares of our and/or the selling stockholders’ Class A common stock from us and/or the selling stockholders; and |
• | any securities exchange on which the securities may be listed. |
• | at a fixed price or prices, which may be changed; |
• | at market prices prevailing at the time of sale; |
• | at prices related to the prevailing market prices; or |
• | at negotiated prices. |
Item 14. | Other Expenses of Issuance and Distribution |
SEC registration fee | | | (1)(2) |
FINRA filing fee | | | $ (2) |
NYSE filing fee | | | (2) |
Accounting fees and expenses | | | (2) |
Legal fees and expenses | | | (2) |
Rating agency Fees | | | (2) |
Printing expenses | | | (2) |
Transfer agent, depositary and registrar fees and expenses | | | (2) |
Miscellaneous expenses | | | (2) |
Total | | | $ (2) |
(1) | Under SEC Rules 456(b) and 457(r), the SEC registration fee will be paid at the time of any particular offering of securities under this registration statement, and is therefore not currently determinable. |
(2) | The amount of these expenses is not currently known. |
Item 15. | Indemnification of Directors and Officers |
Item 16. | Exhibits |
(a) | Exhibits. |
Item 17. | Undertakings |
(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(i) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
(ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Filing Fee Tables” or “Calculation of Registration Fee” table, as applicable, in the effective registration statement; |
(iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
(2) | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
(4) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
(i) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
(ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference in the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
(5) | That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: |
(i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
(ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
(iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
(iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(6) | The undersigned registrant undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) 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. |
(7) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions described under Item 15 above, or otherwise, the registrant has been advised that in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such issue. |
Exhibit Number | | | Description |
1.1 | | | Form of Underwriting Agreement relating to Class A common stock, preferred stock, depositary shares, warrants, securities purchase contracts and units* |
| | Amended and Restated Certificate of Incorporation of the Company (incorporated herein by reference to the Company’s Current Report on Form 8-K filed by the Company on June 18, 2019) | |
| | Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the Company (incorporated herein by reference to the Company’s Current Report on Form 8-K filed by the Company on July 20, 2023). | |
| | Amended and Restated Bylaws of the Company (incorporated herein by reference to the Company’s Current Report on Form 8-K filed by the Company on April 12, 2023) | |
4.1 | | | Form of Certificate of Designation relating to preferred stock* |
4.2 | | | Form of Deposit Agreement, including the form of depositary receipt* |
4.3 | | | Form of Warrant Agreement, including the form of Warrant Certificate* |
4.4 | | | Form of Securities Purchase Contract* |
4.5 | | | Form of Unit Agreement* |
| | Opinion of Kirkland & Ellis LLP | |
| | Consent of Deloitte & Touche LLP | |
| | Consent of Kirkland & Ellis LLP (included in their opinion filed as Exhibit 5.1) | |
| | Powers of Attorney (included on signature page) | |
| | Filing Fee Table |
* | To be filed, if necessary, as an exhibit to a post-effective amendment to this registration statement or as an exhibit to a Current Report on Form 8-K and incorporated by reference herein. |
| | Chewy, Inc. | ||||
| | | | |||
| | By: | | | /s/ Stacy Bowman | |
| | | | Stacy Bowman | ||
| | | | Interim Chief Financial Officer and Chief Accounting Officer | ||
| | | | (Principal Financial Officer and Principal Accounting Officer) |
Signature | | | Title | | | Date |
| | | | |||
/s/ Sumit Singh | | | Chief Executive Officer and Director (Principal Executive Officer) | | | September 15, 2023 |
Sumit Singh | | |||||
| | | | |||
/s/ Stacy Bowman | | | Interim Chief Financial Officer and Chief Accounting Officer (Principal Financial Officer and Principal Accounting Officer) | | | September 15, 2023 |
Stacy Bowman | | |||||
| | | | |||
/s/ Raymond Svider | | | Chairman of the Board of Directors | | | September 15, 2023 |
Raymond Svider | | |||||
| | | | |||
/s/ Fahim Ahmed | | | Director | | | September 15, 2023 |
Fahim Ahmed | | |||||
| | | | |||
/s/ Mathieu Bigand | | | Director | | | September 15, 2023 |
Mathieu Bigand | | |||||
| | | | |||
/s/ Marco Castelli | | | Director | | | September 15, 2023 |
Marco Castelli | | |||||
| | | | |||
/s/ Michael Chang | | | Director | | | September 15, 2023 |
Michael Chang | | |||||
| | | | |||
/s/ Kristine Dickson | | | Director | | | September 15, 2023 |
Kristine Dickson | | |||||
| | | | |||
/s/ David Leland | | | Director | | | September 15, 2023 |
David Leland | | |||||
| | | | |||
/s/ James Nelson | | | Director | | | September 15, 2023 |
James Nelson | |
Signature | | | Title | | | Date |
| | | | |||
/s/ Martin H. Nesbitt | | | Director | | | September 15, 2023 |
Martin H. Nesbitt | | |||||
| | | | |||
/s/ Lisa Sibenac | | | Director | | | September 15, 2023 |
Lisa Sibenac | | |||||
| | | | |||
/s/ James A. Star | | | Director | | | September 15, 2023 |
James A. Star | |
|
||
601 Lexington Avenue
New York, NY 10022
United States
+1 212 446 4800
www.kirkland.com
|
Facsimile:
+1 212 446 4900
|
Re: |
Chewy, Inc.
Registration Statement on Form S-3ASR |
(i) |
the Registration Statement, and any amendments thereto (including post-effective amendments), will be effective and will comply with all applicable laws at the time
the Securities are offered or issued as contemplated by the Registration Statement;
|
(ii) |
a prospectus supplement or term sheet (the “Prospectus Supplement”) will
have been prepared and filed with the Commission, along with any exhibits necessary under the rules and regulations of the Commission, describing the Securities offered thereby and will comply with all applicable laws;
|
(iii) |
the Securities will be issued and sold in compliance with applicable federal and state securities laws and in the manner and for the consideration stated in the
Registration Statement and the applicable Prospectus Supplement;
|
(iv) |
the Securities will be issued and sold in the form and containing the terms set forth in the Registration Statement, the applicable Prospectus Supplement and the
applicable Governing Document, as relevant;
|
(v) |
the Securities offered, as well as the terms of the applicable Governing Document, as will be executed and delivered, will not violate any law applicable to the
Company or result in a default under or breach of any agreement or instrument binding upon the Company;
|
(vi) |
the Company will have obtained any legally required consents, approvals, authorization and other orders of the Commission and any other regulatory authorities
necessary to issue and sell the Securities being offered and to execute and deliver the applicable Governing Document;
|
(vii) |
the Securities offered, as well as the terms of the applicable Governing Document, as will be executed and delivered, will comply with all requirements and
restrictions, if any, applicable to the Company, whether imposed by any court or governmental or regulatory body having jurisdiction over the Company;
|
(viii) |
a definitive distribution, purchase, underwriting, sales agency or similar agreement (each, a “Purchase Agreement”) with respect to any Securities offered or issued will have been duly authorized and validly executed and delivered by the Company and the other parties thereto;
|
(ix) |
any Securities issuable upon conversion, exchange or exercise of any Security being offered or issued will be duly authorized, created, and, if appropriate, reserved
for issuance upon such conversion, exchange or exercise by all necessary corporate or organizational action; and
|
(x) |
the certificates, if any, representing the Securities will have been duly authorized and validly executed and delivered by the Company and the other parties thereto.
|
Very truly yours,
|
|
/s/ Kirkland & Ellis LLP
|
|
KIRKLAND & ELLIS LLP
|
Security Type
|
Security Class Title
|
Fee Calculation or Carry Forward Rule
|
Amount Registered
|
Proposed Maximum Offering Price Per Unit
|
Maximum Aggregate Offering Price
|
Fee Rate
|
Amount of Registration Fee
|
Carry Forward Form Type
|
Carry Forward File Number
|
Carry Forward Initial Effective Date
|
Filing Fee Previously Paid In Connection with Unsold Securities to be Carried Forward
|
|
Newly Registered Securities
|
||||||||||||
Fees to Be
Paid
|
Equity
|
Class A Common Stock, par value $0.01 per share(1)
|
Rule 456(b) and Rule 457(r) (2)
|
(3)
|
(3)
|
(3)
|
(2)
|
(2)
|
||||
Equity
|
Preferred Stock(1)
|
Rule 456(b) and Rule 457(r) (2)
|
(3)
|
(3)
|
(3)
|
(2)
|
(2)
|
|||||
Equity
|
Depositary Shares(1)
|
Rule 456(b) and Rule 457(r) (2)
|
(3)
|
(3)
|
(3)
|
(2)
|
(2)
|
|||||
Other
|
Warrants(1)
|
Rule 456(b) and Rule 457(r) (2)
|
(3)
|
(3)
|
(3)
|
(2)
|
(2)
|
|||||
Other
|
Securities Purchase Contracts(1)
|
Rule 456(b) and Rule 457(r) (2)
|
(3)
|
(3)
|
(3)
|
(2)
|
(2)
|
|||||
Other
|
Units(1)
|
Rule 456(b) and Rule 457(r) (2)
|
(3)
|
(3)
|
(3)
|
(2)
|
(2)
|
|||||
Fees Previously Paid
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
|||||
Carry Forward Securities
|
||||||||||||
Carry Forward Securities
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
|||
Total Offering Amounts
|
N/A
|
N/A
|
||||||||||
Total Fees Previously Paid
|
N/A
|
|||||||||||
Total Fee Offsets
|
N/A
|
|||||||||||
Net Fee Due
|
N/A
|
(1) |
Separate consideration may or may not be received for securities that are issuable on exercise, conversion, settlement or exchange of other securities.
|
(2) |
In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, Chewy, Inc. (the “Registrant”) is deferring payment of all of the registration fees. Registration fees will be paid subsequently on a “pay as you
go” basis. The Registrant will calculate the registration fee applicable to an offer of securities pursuant to this Registration Statement based on the fee payment rate in effect on the date of such fee payment.
|
(3) |
An indeterminate aggregate initial offering price and number or amount of the securities of each identified class is being registered as may from time to time be issued at indeterminate prices, including securities that may be issued
upon exercise, conversion, settlement or exchange of, any securities offered hereunder.
|
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