Purple Innovation, Inc. (Form: 8-K, Received: 02/14/2023 08:55:59)

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): February 13, 2023

PURPLE INNOVATION, INC.

(Exact name of registrant as specified in its charter)

Delaware		001-37523		47-4078206
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

4100 North Chapel Ridge Rd., Suite 200,
Lehi, Utah		84043
(Address of principal executive offices)		(Zip Code)

Registrant’s telephone number, including area code: (801) 756-2600

N/A

(Former name or former address, if changed since last report.)

Securities registered or to be registered pursuant to Section 12(b) of the Act:

Title of Each Class	Trading Symbol(s)	Name of Each Exchange on Which Registered
Class A Common Stock, par value $0.0001 per share	PRPL	The NASDAQ Stock Market LLC
Proportional Representation Preferred Linked Stock, par value $0.0001 per share	N/A	The NASDAQ Stock Market LLC

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:

☐	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))

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 ☐

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 1.01. Entry into a Material Definitive Agreement.

The information set forth in Item 3.03 of this Current Report is incorporated into this Item 1.01 by reference.

Item 3.03. Material Modification to Rights of Security Holders.

On February 14, 2023, the Special Committee (the “Special Committee”) of the board of directors (the “Board”) of Purple Innovation, Inc., a Delaware corporation (the “Company”) designated a new series of preferred stock, par value $0.0001 per share, of the Company, to be designated the “Proportional Representation Preferred Linked Stock” (“PRPLS”), initially consisting of 1,500,000 shares, and declared a dividend of one one-hundredth (0.01) of a share of PRPLS on each share of the Company’s Class A common stock, $0.0001 par value per share (“Class A Common Stock”), and Class B common stock, $0.0001 par value per share (together with the Class A Common Stock, the “Common Stock”), outstanding as of the close of business on February 24, 2023 (the “Record Date”) and following the Record Date, each time the Company issues any shares of Common Stock, the Company will, at the same time, issue (each, a “Subsequent Issuance”) for each share of Common Stock so issued one one-hundredth (0.01) of a share of PRPLS to the stockholder to which such share of Common Stock is issued (the share of Common Stock with respect to which a fractional share of a PRPLS was issued, whether pursuant to the initial dividend or a Subsequent Issuance, is hereinafter referred to as the “Associated Share of Common Stock”).

Each PRPLS will be evidenced by the certificate for the Associated Share of Common Stock registered in the name of the holder of the Associated Share of Common Stock (or, in the case of uncertificated shares of Common Stock, by the book-entry account that evidences record ownership of such shares) (which certificates or book entries for the Associated Share Common Stock will be deemed also to be certificates or book entries for such PRPLS), and not by separate certificates (or book entries). The surrender for transfer of any certificate representing the Associated Share of Common Stock (or, in the case of uncertificated shares of Common Stock, the effectuation of a book-entry transfer of such shares of Common Stock) will also constitute the transfer of the PRPLS associated with such shares of Common Stock, and PRPLS will be transferable only in connection with the transfer of the underlying shares of Common Stock.

Each PRPLS generally will vote together with the Common Stock in the election of directors and related matters, and carry 10,000 votes each. PRPLS holders can allocate all, none, or a portion of their votes to each director nominee up for election at each meeting of the stockholders of the Company.

The Special Committee designated the new series of PRPLS and declared a dividend of such stock to protect against any coercive or abusive takeover tactics, and to help ensure that the Company’s stockholders are not deprived of the opportunity to realize the full and fair value of their investment.

The foregoing description of the PRPLS does not purport to be complete and is qualified in its entirety by reference to the Certificate of Designation of Proportional Representation Preferred Linked Stock (“Certificate of Designation”), which is filed as Exhibit 3.1 to this Current Report and is incorporated herein by reference.

Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

In connection with the adoption of the PRPLS described in Item 3.03 of this Current Report, the Special Committee approved a Certificate of Designation, which designates the rights, preferences, powers and privileges of the PRPLS. The information set forth in Item 3.03 of this Current Report is incorporated into this Item 5.03 by reference.

The Certificate of Designation was filed with the Delaware Secretary of State and became effective on February 14, 2023. A copy of the Certificate of Designation has been filed as Exhibit 3.1 to this Current Report and is incorporated herein by reference.

Item 7.01. Regulation FD Disclosure.

On February 14, 2023, the Special Committee issued a press release announcing the adoption of the Certificate of Designation. A copy of the press release is furnished as Exhibit 99.1 to this Current Report and incorporated herein by reference.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits:

Exhibit No.		Description
3.1		Certificate of Designation of Proportional Representation Preferred Linked Stock of the Company, dated February 14, 2023
99.1		Press Release issued by the Company on February 14, 2023
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.

	PURPLE INNOVATION, INC.

Date: February 14, 2023	By:	/s/ Casey K. McGarvey
		Name:	Casey K. McGarvey
		Title:	Chief Legal Officer, Secretary

Exhibit 3.1

CERTIFICATE OF DESIGNATION

PROPORTIONAL REPRESENTATION PREFERRED LINKED STOCK

PURPLE INNOVATION, INC.

Pursuant to Section 151 of the
General Corporation Law of the State of Delaware

The undersigned hereby certifies that the following resolution was duly adopted by a special committee of the board of directors of Purple Innovation, Inc., a Delaware corporation (the “Corporation”), on February 13, 2023:

RESOLVED, that pursuant to the authority vested in the board of directors of the Corporation (the “Board”) by the Corporation’s Second Amended and Restated Certificate of Incorporation, as amended (the “Charter”), and delegated to the Special Committee (the “Special Committee”) of the Board, the Special Committee hereby creates, authorizes and provides for the issue of a series of Preferred Stock, par value $0.0001 per share, of the Corporation, to be designated “Proportional Representation Preferred Linked Stock” (hereinafter referred to as the “PRPLS”), initially consisting of 1,500,000 shares, hereby fixes and herein states and expresses such designations, powers, preferences and relative and other special rights and the qualifications, limitations and restrictions thereof, as follows:

Section 1. Designation and Amount. The shares of such series shall be designated as “Proportional Representation Preferred Linked Stock,” and the number of shares constituting such series shall be 1,500,000. Such number of shares may be increased or decreased by resolution of the Board; provided, however, that no decrease shall reduce the number of shares of PRPLS to a number less than the number of shares then outstanding.

Section 2. Issuance and Transfer. On February 13, 2023, the Board declared a dividend (the “Initial Dividend”) of one one-hundredth (0.01) of a share of PRPLS on each share of the Corporation’s Class A common stock, $0.0001 par value per share (“Class A Common Stock”), and Class B common stock, $0.0001 par value per share (together with the Class A Common Stock, the “Common Stock”) outstanding on February 24, 2023 (the “Record Date”) and following the Record Date, each time the Corporation issues any shares of Common Stock, the Corporation shall, at the same time, issue (each, a “Subsequent Issuance”) for each share of Common Stock so issued one one-hundredth (0.01) of a share of PRPLS to the stockholder to which such share of Common Stock is issued (the share of Common Stock with respect to which a fractional share of a PRPLS was issued, whether pursuant to the Initial Dividend or a Subsequent Issuance, is hereinafter referred to as the “Associated Share of Common Stock”).

Each PRPLS shall be evidenced by the certificate for the Associated Share of Common Stock registered in the name of the holder of the Associated Share of Common Stock (or, in the case of uncertificated shares of Common Stock, by the book-entry account that evidences record ownership of such shares) (which certificates or book entries for the Associated Share Common Stock shall be deemed also to be certificates or book entries for such PRPLS), and not by separate certificates (or book entries). The surrender for transfer of any certificate representing the Associated Share of Common Stock (or, in the case of uncertificated shares of Common Stock, the effectuation of a book-entry transfer of such shares of Common Stock) shall also constitute the transfer of the PRPLS associated with such shares of Common Stock, and PRPLS shall be transferable only in connection with the transfer of the underlying shares of Common Stock.

Certificates representing the Associated Shares of Common Stock shall bear a legend substantially in the following form:

This certificate also evidences and entitles the holder hereof to one one-hundredth (0.01) of a share of PRPLS for each share of Common Stock evidenced by this certificate. With respect to any book-entry shares of Common Stock, such legend shall be included in a notice to the record holder of such shares to the extent required by applicable law. With respect to certificated shares of Common Stock containing the foregoing legend, or any notice of the foregoing legend delivered to record holders of book-entry share, the PRPLS associated with such shares of Common Stock represented by certificates or registered in book-entry form shall be evidenced by such certificates alone, or such registration in book-entry form alone, and registered holders of such shares of Common Stock shall also be the registered holders of the associated PRPLS, and the transfer of any of such shares of Common Stock represented by such certificates or book-entries shall also constitute the transfer of the PRPLS associated with the shares of Common Stock represented by such certificates or book entries. In the event the Company purchases or acquires any shares of Common Stock after the Record Date, any PRPLS associated with such shares shall be deemed cancelled and retired and no longer outstanding.

Section 3. No Dividends and Distributions. No dividends shall be paid or payable by the Corporation with respect to any PRPLS.

Section 4. Voting Rights. The holders of shares of PRPLS shall have the following voting rights and powers:

(a) Subject to the provision for adjustment hereinafter set forth, each share of PRPLS shall entitle the holders thereof to 10,000 votes in any election of (or stockholder vote on the removal of) directors of the Corporation and the holder thereof shall be entitled to allocate such votes among the nominees for election as directors on a cumulative basis as follows: the holder shall be entitled to allocate all, none or such portion of such votes to each nominee to be voted upon for election as a director; provided that in no event shall the total number of votes allocated by a holder among all the nominees with respect to a single share of PRPLS exceed 10,000 in the aggregate. Except as set forth herein with respect to the Preferred Stock Directors, the holders of shares of PRPLS and the holders of shares of Common Stock shall vote collectively as one class with respect to the election of directors.

(b) If, in connection with the removal or one more directors pursuant to Section 5.4 of the Company’s Charter other than for cause, the number of votes cast against the removal of one or more of such directors would be sufficient to elect such director(s) if an election were being held to elect such director(s) at such time (each such director as to whom sufficient votes to so elect such director were cast, a “Preferred Stock Director”), then the holders of the PRPLS shall thereafter be entitled, voting separately as a class, to elect a number of directors equal to the number of Preferred Stock Directors and, to the fullest extent permitted by applicable law, each of the Preferred Stock Directors shall be deemed to have at the time of removal been immediately elected by the holders of the PRPLS and shall thereafter be subject to removal (with or without cause) and reelection by the holders of the PRPLS, voting separately as class, on a cumulative basis.

(c) Except as set forth in this Section 4, Section 10 or as otherwise required by law, holders of PRPLS shall have no voting rights and their consent shall not be required for taking any corporate action.

Section 5. Adjustments. In the event the Corporation at any time after the Record Date (i) declares any dividend on Common Stock payable in shares of Common Stock, (ii) subdivides the outstanding Common Stock or (iii) combines the outstanding Common Stock into a smaller number of shares, then in each such (w) case the number of PRPLS to be issued in each Subsequent Issuance, (x) the number of votes per share to which holders of shares of PRPLS are entitled, (y) the amount of the per share PRPLS Liquidation Preference and (z) the amount of the per share redemption price for the PRPLS shall each be adjusted by multiplying such number or amount in effect immediately prior to such event by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.

Section 6. Reacquired Shares. Any shares of PRPLS purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired and cancelled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued shares of Preferred Stock and may be reissued as part of a new series of Preferred Stock to be created by resolution or resolutions of the Board, subject to the conditions and restrictions on issuance set forth herein.

Section 7. Liquidation, Dissolution or Winding Up.

(a) Upon any liquidation (voluntary or otherwise), dissolution or winding up of the Corporation, no distribution shall be made to the holders of shares of capital stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the PRPLS unless, prior thereto, the holders of shares of PRPLS shall have received $0.10 per share (the “PRPLS Liquidation Preference”). Following the payment of the full amount of the PRPLS Liquidation Preference, no additional distributions shall be made to the holders of shares of PRPLS.

(b) In the event, however, that there are not sufficient assets available to permit payment in full of the PRPLS Liquidation Preference and the liquidation preferences of all other series of Preferred Stock, if any, which rank on a parity with the PRPLS, then such remaining assets shall be distributed ratably to the holders of such parity shares in proportion to their respective liquidation preferences.

Section 8. Redemption. The shares of PRPLS shall, at the option of the Corporation exercisable solely by the affirmative vote of two-thirds of the entire Board, be redeemable at a redemption price of $0.10 per share in cash. In the event that the Corporation redeems any PRPLS, all of the outstanding PRPLS shall be redeemed at the same time and upon such redemption the provisions of this Certificate of Designation shall be immediately and automatically be terminated and of no further force and effect.

Section 9. Ranking. The PRPLS shall rank senior to the Corporations Series A Junior Participating Preferred Stock and junior to all other series of the Corporation’s Preferred Stock as to the payment of dividends and the distribution of assets, whether or not upon the dissolution, liquidation or winding up of the Corporation, unless the terms of any such series provides otherwise.

Section 10. Amendment. This Certificate of Designation shall not be amended in any manner (whether by merger, consolidation, conversion or otherwise) which would alter or change the powers, preferences or special rights of the PRPLS without the affirmative vote of the holders of two-thirds of the outstanding shares of PRPLS, voting separately as a class.

Section 11. Fractional Shares. All references in this Certificate of Designation to shares of PRPLS shall refer to whole shares of PRPLS, except where otherwise expressly noted. Notwithstanding the foregoing, PRPLS may be issued in fractions of a share that entitle the holder, in proportion to such holder’s fractional shares, to exercise voting rights, receive dividends, participate in distributions and have the benefit of all other rights of holders of PRPLS.

Section 12. Severability. To the extent that any provision (or part thereof) of this Certificate of Designation is found to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of any other provision (or part thereof) of this Certificate of Designation, and following any determination by a court of competent jurisdiction that any provision of this Certificate of Designation is invalid or unenforceable, this Certificate of Designation shall contain only such provisions (or part thereof) (i) as were in effect immediately prior to such determination and (ii) were not so determined to be invalid or unenforceable.

IN WITNESS WHEREOF, the Corporation has caused this Certificate of Designation to be duly executed as of the date first written above.

PURPLE INNOVATION, INC.

By:	/s/ Casey K. McGarvey
	Name:	Casey K. McGarvey
	Title:	Chief Legal Officer, Secretary

Exhibit 99.1

Purple Special Committee Takes Action to Protect Rights of All Shareholders in Face of Coliseum Capital Management’s Effort to Gain Control of the Company

Issues Cumulative Voting Preferred Stock to Provide Purple Shareholders with the Ability to Obtain Proportional Representation on Company’s Board of Directors

LEHI, Utah, Feb. 14, 2023 -- Purple Innovation, Inc. (NASDAQ: PRPL) ("Purple" or the “Company”), a comfort innovation company known for creating the "World's First No Pressure® Mattress," today announced that the Special Committee of its Board of Directors (the “Board”) has declared a dividend of one new Proportional Representation Preferred Linked Stock (“PRPLS”) for each 100 shares of Purple common stock (“Common Stock”) owned by Purple’s shareholders. Each PRPLS will vote together with the Common Stock in the election of directors, and related matters, and carry 10,000 votes each.

Holders of PRPLS will be entitled to allocate their votes among the nominees in director elections on a cumulative basis. PRPLS holders can allocate all, none, or a portion of their votes to each director nominee up for election at the Company’s meetings of shareholders. As an example, shareholders who collectively own 30% of Purple’s Common Stock will be able to use the voting rights associated with their PRPLS to effectively elect approximately 30% of the members of the Board.

“The purpose of the PRPLS is to protect all shareholders and treat them equally,” said Paul J. Zepf, Purple Innovation’s Chairman of the Board. “Purple shareholders will have the opportunity for proportional representation on the Purple Board of Directors. By cumulating their PRPLS votes for certain director nominees, public shareholders can support the election of directors they believe will act independently to represent the interests of all shareholders in the boardroom, roughly in proportion to their collective ownership in the Company.”

The Board noted that a single stockholder, Coliseum Capital Management, LLC (“Coliseum”), owns approximately 45% of the Common Stock. On February 13, Coliseum provided notice to the Company that it intends to nominate a slate of five director candidates for election to the Board, which currently has seven members. Prior to the issuance of the PRPLS, Coliseum might have been able to single-handedly nominate and elect all of the directors on the Board, including the five nominees Coliseum has selected.

With the issuance of PRPLS, all shareholders, including those not affiliated with Coliseum, will be able to cumulate their PRPLS votes on director candidates they feel will best represent the interests of all shareholders. This will help ensure that all shareholders receive ongoing independent representation on the Board. The PRPLS enable shareholders who are not affiliated with Coliseum to choose and elect as many as 55% of the directors on the Purple Board.

The Company is issuing one-one hundredth PRPLS for each share of Common Stock held as of the close of business on February 24, 2023. The PRPLS will trade with the Common Stock and any new issuance of Common Stock will automatically include a proportionate number of PRPLS. The PRPLS are redeemable at any time by an affirmative vote of two-thirds of the members of the Board.

PRPLS will not have any dividend rights and will be entitled to only a limited payment upon any liquidation, dissolution or winding up in priority to any payments on the Common Stock but will not otherwise participate in any liquidating distributions.

A copy of the Certificate of Designation of the PRPLS and a summary of their terms will be filed on a Form 8-K with the U.S. Securities and Exchange Commission.

Purple shareholders are not required to take any action at this time.

Spotlight Advisors LLC is serving as strategic advisor and Sidley Austin LLP and Morris, Nichols, Arsht & Tunnell LLP are acting as legal advisors to the Special Committee of the Board of Purple.

About Purple

Purple is a digitally-native vertical brand with a mission to help people feel and live better through innovative comfort solutions. We design and manufacture a variety of innovative, premium, branded comfort products, including mattresses, pillows, cushions, frames, sheets and more. Our products are the result of over 30 years of innovation and investment in proprietary and patented comfort technologies and the development of our own manufacturing processes. Our proprietary gel technology, Hyper-Elastic Polymer®, underpins many of our comfort products and provides a range of benefits that differentiate our offerings from other competitors' products. We market and sell our products through our direct-to-consumer online channels, traditional retail partners, third-party online retailers and our owned retail showrooms. For more information on Purple, visit purple.com.

Additional Information

The Company intends to file a definitive proxy statement on Schedule 14A, an accompanying WHITE proxy card and other relevant documents with the U.S. Securities and Exchange Commission (the “SEC”) in connection with the solicitation of proxies from the Company’s shareholders for the Company’s 2023 annual meeting of shareholders (the “2023 Annual Meeting”). SHAREHOLDERS OF THE COMPANY ARE STRONGLY ENCOURAGED TO READ THE COMPANY’S DEFINITIVE PROXY STATEMENT (INCLUDING ANY AMENDMENTS OR SUPPLEMENTS THERETO) AND ALL OTHER DOCUMENTS FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BEFORE MAKING ANY VOTING OR INVESTMENT DECISION BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. Shareholders may obtain a copy of the definitive proxy statement, an accompanying WHITE proxy card, any amendments or supplements to the definitive proxy statement and other documents filed by the Company with the SEC at no charge at the SEC’s website at www.sec.gov. Copies will also be available at no charge in the “SEC Filings” section of the Company’s Investor Relations website at https://investors.purple.com/sec-filings/default.aspx or by contacting the Company’s Investor Relations department at ir@purple.com, as soon as reasonably practicable after such materials are electronically filed with, or furnished to, the SEC.

Participants in the Solicitation

The Company, its directors and certain of its executive officers are participants in the solicitation of proxies from the Company’s shareholders in connection with matters to be considered at the 2023 Annual Meeting. Information regarding the direct and indirect interests, by security holdings or otherwise, of the Company’s directors and executive officers is included in the Company’s Proxy Statement on Schedule 14A for its 2022 annual meeting of shareholders, filed with the SEC on April 1, 2022, the Company’s Annual Report on Form 10-K for the year ended December 31, 2021, filed with the SEC on March 1, 2022 (as amended on March 16, 2022), and in the Company’s Current Reports on Form 8-K filed with the SEC from time to time. Changes to the direct or indirect interests of the Company’s directors and executive officers are set forth in SEC filings on Initial Statements of Beneficial Ownership on Form 3 or Statements of Change in Ownership on Form 4. These documents are available free of charge as described above.

Forward Looking Statements

Certain statements made in this release that are not historical facts are “forward-looking statements” within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995. Statements based on historical data are not intended and should not be understood to indicate the Company’s expectations regarding future events. Forward-looking statements provide current expectations or forecasts of future events or determinations. These forward-looking statements are not guarantees of future performance, conditions or results, and involve a number of known and unknown risks, uncertainties, assumptions and other important factors, many of which are outside the Company’s control, that could cause actual results or outcomes to differ materially from those discussed in the forward-looking statements. Factors that could influence the realization of forward-looking statements include the risk factors outlined in the “Risk Factors” section of our Annual Report on Form 10-K filed with the SEC on March 1, 2022, as amended by our Annual Report on Form 10-K/A Amendment No. 1 filed with the SEC on March 16, 2022 and in our other filings with the SEC. Many of these risks and uncertainties have been, and will be, exacerbated by the COVID–19 pandemic and any worsening of the global business and economic environment as a result. The Company does not undertake any obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.

No Offer or Solicitation

This release is not a proxy statement or solicitation of a proxy, consent or authorization with respect to any securities and shall not constitute an offer to sell or a solicitation of an offer to buy any securities nor shall there be any sale of securities in any state or jurisdiction in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of the Securities Act.

Investor Contact:

Brendon Frey, ICR

brendon.frey@icrinc.com

203-682-8200

Media Contact:

Longacre Square Partners

Dan Zacchei / Joe Germani

purple@longacresquare.com