UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 14, 2021
Blue Apron Holdings, Inc.
(Exact Name of Registrant as Specified in its Charter)
| Delaware | 001-38134 | 81-4777373 | ||
|
(State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
|
28 Liberty Street
New York, New York |
10005 | |
| (Address of Principal Executive Offices) | (Zip Code) |
(347) 719-4312
(Registrant’s telephone number, including area code)
N/A
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of Each Class | Trading Symbol | Name of Exchange on Which Registered | ||
| Class A Common Stock, $0.0001 par value per share | APRN | New York Stock Exchange LLC |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company x
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 13(a) of the Exchange Act. ¨
Item 3.03. Material Modification to Rights of Security Holders.
The information set forth in Item 5.03 below is incorporated by reference into this Item 3.03.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Amendment to Restated Certificate of Incorporation
As described in Item 5.07 of this Current Report on Form 8-K, at the 2021 Annual Meeting of Stockholders (the “Annual Meeting”) of Blue Apron Holdings, Inc. (the “Company”) on June 14, 2021, the Company’s stockholders voted on and approved an amendment to the Company’s Restated Certificate of Incorporation, as amended (the “Declassification Amendment”), to declassify the Company’s Board of Directors (the “Board”). The Declassification Amendment provides that directors will thereafter be elected to one-year terms of office beginning at the Company’s 2022 annual meeting of stockholders, such that at the Company’s 2024 annual meeting of stockholders there will be a single class of directors subject to annual election for one-year terms. The Declassification Amendment was previously approved and adopted by the Board, subject to stockholder approval. The Declassification Amendment was filed with the Secretary of State of the State of Delaware on June 14, 2021. The foregoing description of the Declassification Amendment is qualified in its entirety by reference to the Declassification Amendment, a copy of which is filed with this Current Report on Form 8-K as Exhibit 3.1 and is incorporated herein by reference.
Amendment to Amended and Restated By-laws
On June 14, 2021, the Board approved and adopted effective as of June 15, 2021 an amendment to the Amended and Restated By-Laws of the Company (the “Bylaw Amendment”) to provide for majority voting in uncontested elections of directors. The Bylaw Amendment will apply to the election of directors starting with the Company’s 2022 annual meeting of stockholders.
Under the Bylaw Amendment, in an uncontested election, a director nominee may be elected only upon the affirmative vote of a majority of the total votes cast, which means that the number of votes cast “for” a director’s election exceeds the number of votes cast “against” that director’s election. Votes cast do not include abstentions or shares as to which a stockholder gives no authority or discretion, including “broker non-votes.” Prior to the adoption of the Bylaw Amendment, members of the Board were elected by a plurality of votes cast, whether or not the election was contested. The Company’s Amended and Restated By-Laws, as amended by the Bylaw Amendment, will retain plurality voting for contested director elections.
Under the Bylaw Amendment, the Board shall nominate for election or reelection as director only those candidates who tender an irrevocable resignation that will be effective upon (i) in an uncontested election, the failure to receive the required vote at a meeting of the stockholders at which such director faces election or reelection, and (ii) Board acceptance of such resignation. If the director nominee fails to receive a sufficient number of votes for reelection at the meeting, the Nominating and Corporate Governance Committee will recommend to the Board whether to accept or reject the resignation, or whether other action should be taken. The Board will act on the Nominating and Corporate Governance Committee’s recommendation within 90 days from the date of the certification of the election results.
The foregoing description of the Bylaw Amendment is qualified in its entirety by reference to the Bylaw Amendment, a copy of which is filed with this Current Report on Form 8-K as Exhibit 3.2 and is incorporated herein by reference.
Item 5.07. Submission of Matters to a Vote of Security Holders.
The Company held its Annual Meeting on June 14, 2021, where the proposals listed below were submitted to a vote of the Company’s stockholders. The proposals are described further in the Company’s definitive proxy statement for the Annual Meeting. At the Annual Meeting:
1. The stockholders voted to elect each of the two Class I director nominees, Linda F. Kozlowski and Barry Salzberg, to hold office until the Company’s 2024 annual meeting of stockholders.
2. The stockholders voted to ratify the appointment of Ernst & Young LLP as the Company’s independent registered public accounting firm for the fiscal year ended December 31, 2021
3. The stockholders voted to approve an amendment to the Company’s restated certificate of incorporation, as amended, to declassify its board of directors.
Holders of the Company’s Class A common stock are entitled to one vote per share and holders of the Company’s Class B common stock are entitled to ten votes per share. Holders of Class A common stock and Class B common stock voted together as a single class on all matters submitted to a vote of stockholders at the Annual Meeting.
The Company’s inspector of elections certified the following vote tabulations:
Proposal One: Election of Class I Directors.
| Nominee | For | Withheld | Broker Non-Votes | |||||||||
| Linda F. Kozlowski | 35,364,440.545020 | 1,711,321.945373 | 4,911,825 | |||||||||
| Barry Salzberg | 36,969,626.545020 | 106,135.945373 | 4,911,825 | |||||||||
Proposal Two: Ratification of the Appointment of Our Independent Registered Public Accounting Firm.
| For | Against | Abstain | Broker Non-Votes | |||||||
| 41,907,331.883946 | 58,953 | 21,302.606447 | – |
Proposal Three: Approval of an Amendment to our Restated Certificate of Incorporation, as Amended, to Declassify our Board of Directors.
| For | Against | Abstain | Broker Non-Votes | |||||||
| 36,927,106.714520 | 60,848 | 87,807.775873 | 4,911,825 |
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
| Exhibit | Description |
| 3.1 | Certificate of Amendment to Restated Certificate, as amended |
| 3.2 | Amendment to Amended and Restated By-Laws |
| 104 |
Cover Page Interactive Data File (embedded within the Inline
XBRL document)
|
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| BLUE APRON HOLDINGS, INC. | |||
| Date: June 14, 2021 | By: | /s/ Meredith L. Deutsch | |
| Meredith L. Deutsch | |||
| General Counsel and Corporate Secretary | |||
Exhibit 3.1
CERTIFICATE OF AMENDMENT
TO
RESTATED CERTIFICATE OF INCORPORATION
OF
BLUE APRON HOLDINGS, INC.
Pursuant to Section 242
of the General Corporation Law of the State of Delaware
Blue Apron Holdings, Inc., a corporation duly organized and existing under the General Corporation Law of the State of Delaware (the “Corporation”), does hereby certify that:
1. The Restated Certificate of Incorporation of the Corporation (as heretofore amended, the “Restated Certificate”) is hereby amended by deleting Section 3 and 4 of Article TENTH, and inserting the following in lieu thereof:
“3. Classes of Directors and Terms of Office. Subject to the rights of holders of any series of Preferred Stock to elect directors, the Board of Directors shall be and is divided into three classes, designated Class I, Class II and Class III. For so long as there are three classes of directors, each class shall consist, as nearly as may be possible, of one-third of the total number of directors constituting the entire Board of Directors. Notwithstanding the foregoing, subject to the rights of holders of any series of Preferred Stock to elect directors, commencing with the 2022 annual meeting of stockholders, the directors shall be divided into two classes, with the successors of the directors whose terms expire at that meeting being elected for a one-year term expiring at the 2023 annual meeting of stockholders; commencing with the 2023 annual meeting of stockholders, there shall be a single class of directors, with the successors of the directors whose terms expire at that meeting being elected for a one-year term expiring at the 2024 annual meeting of stockholders; and commencing with the 2024 annual meeting of stockholders and at each annual meeting of stockholders thereafter, all directors shall be elected for one-year terms expiring at the next annual meeting of stockholders; provided, that the term of each director shall continue until the election and qualification of his or her successor and be subject to his or her earlier death, resignation or removal. For the avoidance of doubt, the directors elected at the 2021 annual meeting of stockholders will serve for a term expiring at the 2024 annual meeting of stockholders; the directors who were elected at the 2020 annual meeting of stockholders will serve for a term expiring at the 2023 annual meeting; and the directors who were elected at the 2019 annual meeting of stockholders will serve for a term expiring at the 2022 annual meeting; provided, that the term of each director shall continue until the election and qualification of his or her successor and be subject to his or her earlier death, resignation or removal.
4. [Reserved.]”
2. The Restated Certificate is hereby amended by deleting Section 7 of Article TENTH, and inserting the following in lieu thereof:
“7. Removal. Subject to the rights of holders of any series of Preferred Stock, for so long as the Board of Directors is classified, directors of the Corporation may be removed only for cause and only by the affirmative vote of the holders of at least sixty-six and two-thirds percent (66-2/3%) of the votes which all the stockholders would be entitled to cast in any annual election of directors or class of directors. At any time that the Board of Directors is no longer classified, directors of the Corporation may be removed with or without cause by the affirmative vote of the holders of at least sixty-six and two-thirds percent (66-2/3%) of the votes which all the stockholders would be entitled to cast in any annual election of directors.”
3. The Restated Certificate is hereby amended by deleting Section 8 of Article TENTH, and inserting the following in lieu thereof:
“8. Vacancies. Subject to the rights of holders of any series of Preferred Stock, any vacancy or newly created directorship in the Board of Directors, however occurring, shall be filled only by vote of a majority of the directors then in office, although less than a quorum, or by a sole remaining director and shall not be filled by the stockholders. A person elected to fill a vacancy or newly created directorship shall hold office until the next annual meeting of stockholders and until his or her successor shall be duly elected and qualified; provided, however that notwithstanding the foregoing, until the 2024 annual meeting of stockholders, a director elected to fill a vacancy or newly created directorship shall hold office until the next election of the class for which such director shall have been chosen, subject to the election and qualification of a successor and to such director’s earlier death, resignation or removal.”
4. The foregoing amendments were duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, this Certificate of Amendment has been executed by a duly authorized officer of the Corporation on this 14th day of June, 2021.
| /s/ Meredith L. Deutsch | |
| Meredith L. Deutsch | |
| Secretary |
Exhibit 3.2
AMENDMENT TO THE
AMENDED AND RESTATED BY-LAWS
OF
BLUE APRON HOLDINGS, INC.
(effective as of June 15, 2021)
Section 1.9 of Article I of the Amended and Restated By-laws of the Blue Apron Holdings, Inc. a Delaware corporation, is hereby amended and restated to read in its entirety as follows:
“1.9 Action at Meeting. When a quorum is present at any meeting, except as otherwise provided by law, the Certificate of Incorporation or these By-laws, any matter, including the election of directors, to be voted upon by the stockholders at such meeting shall be decided by the vote of the holders of shares of stock having a majority in voting power of the votes cast by the holders of all of the shares of stock present or represented at the meeting and voting affirmatively or negatively on such matter (or if there are two or more classes or series of stock entitled to vote as separate classes, then in the case of each such class or series, the holders of a majority in voting power of the shares of stock of that class or series present or represented at the meeting and voting affirmatively or negatively on such matter). Notwithstanding the foregoing, if, as of a date that is 14 days in advance of the date the Corporation files its definitive proxy statement for any such meeting of stockholders (regardless of whether or not thereafter revised or supplemented) with the Securities and Exchange Commission, the number of nominees exceeds the number of directors to be elected (a “Contested Election”), the directors shall be elected by the vote of a plurality of the votes cast by the stockholders entitled to vote on the election. In order for any incumbent director to become a nominee of the Board of Directors for further service on the Board of Directors, such person must submit an irrevocable resignation, contingent on (i) in an election that is not a Contested Election, that person’s election as director not receiving a majority in voting power of the votes cast by the holders of all of the shares of stock present or represented at the meeting and voting affirmatively or negatively on such election, and (ii) acceptance of that resignation by the Board of Directors. In the event an incumbent director fails to receive a majority in voting power of the votes cast by the holders of all of the shares of stock present or represented at the meeting and voting affirmatively or negatively on such election in an election that is not a Contested Election, the Nominating and Corporate Governance Committee, or such other committee designated by the Board of Directors pursuant to these By-laws, shall make a recommendation to the Board of Directors as to whether to accept or reject the resignation of such incumbent director, or whether other action should be taken. The Board of Directors shall act on the resignation, taking into account the committee’s recommendation, and publicly disclose (by a press release and filing an appropriate disclosure with the Securities and Exchange Commission) its decision regarding the resignation and, if such resignation is rejected, the rationale behind the decision within ninety (90) days following certification of the election results. The committee in making its recommendation and the Board of Directors in making its decision each may consider any factors and other information that they consider appropriate and relevant. If the Board of Directors accepts a director’s resignation pursuant to this Section 1.9, or if a nominee for director is not elected and the nominee is not an incumbent director, then the Board of Directors may fill the resulting vacancy in accordance with these By-laws and the Certificate of Incorporation.”