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): March 15, 2023
Purple Innovation, Inc.
(Exact Name of Registrant as Specified in its Charter)
| Delaware | 001-37523 | 47-4078206 | ||
| (State of Incorporation) | (Commission File Number) |
(IRS Employer |
| 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
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communication 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-commencements 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(s) | Name of each exchange on which registered | ||
| The Stock Market LLC | ||||
| N/A | The Stock Market 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 ☐
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 5.02 DEPARTURE OF DIRECTORS OR CERTAIN OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF CERTAIN OFFICERS; COMPENSATORY ARRANGEMENTS OF CERTAIN OFFICERS
On March 19, 2022, the Company and Robert T. DeMartini, the Company’s Chief Executive Officer, entered an amended and restated employment agreement (the “Amended and Restated Employment Agreement”) appointing Mr. DeMartini as chief executive officer. Under the Amended and Restated Employment Agreement, the Company agreed that Mr. DeMartini’s compensation, among other things, included restricted stock units subject to 0.5 million shares of the Company’s Class A common stock and stock options to purchase 0.5 million shares of Class A common stock, for which one third of each of the restricted stock units and options would vest on each annual anniversary of the grant date, provided Mr. DeMartini remains in continuous employment with the Company. The initial grant date occurred on March 25, 2022 (the “Initial Grant”). On April 8, 2022, the Company rescinded and cancelled from the Initial Grant 0.4 million of the restricted stock units and 0.4 million of the stock options, for no consideration and with Mr. DeMartini’s consent, so that the Initial Grant would not exceed the annual limit on shares of Class A common stock underlying awards granted to a single participant as set forth in the Company’s 2017 Equity Incentive Plan (the “Plan”), leaving the Initial Grant at 0.1 million of each of the restricted stock units and stock options.
On June 2, 2022, the Board adopted an amendment to Section 5(f) of the Plan, subject to shareholder approval of the amendment, to set the annual limit on shares subject to equity awards granted to individual participants at 1.5 million shares and to increase the annual limit of payable cash under equity awards to an individual participant to $7.5 million. This amendment is subject to shareholder approval and the Board plans to recommend the amendment at the upcoming annual meeting of shareholders. Also on June 2, 2022, the Company granted to Mr. DeMartini restricted stock units subject to 0.1 million shares of Class A common stock and stock options to purchase 0.1 million shares of Class A common stock (the “Reissued Grant”), making the total of the Initial Grant and Reissued Grant 0.2 million of each of the restricted stock units and stock options. The Company also conditionally granted restricted stock units subject to 0.3 million shares of Class A common stock and stock options to purchase 0.3 million shares of Class A common stock (the “Conditional Reissued Grant”). The Conditional Reissued Grant is conditioned on shareholder approval of the Company’s proposed amendments to Section 5(f) of the Plan.
On March 15, 2023, the Company and Mr. DeMartini entered into amended and restated grant agreements relating to the Initial Grant, Reissued Grant and Conditional Reissued Grant (collectively the “Amended and Restated Grant Agreements”), revising the vesting schedule of the awards included in each grant. The amended and restated grant agreements provide that (i) 0.10 million of the restricted stock units and 0.10 million of the options included in the Initial Grant will vest in full on March 25, 2023, (ii) 0.06 million of the restricted stock units and 0.06 million of the options included in the Reissued Grant will vest on March 25, 2023, (iii) the remaining 0.04 million of the restricted stock units and 0.04 million of the options included in the Reissued Grant will vest on March 25, 2024, (iv) 0.13 million of the restricted stock units and 0.13 million of the options included in the Conditional Reissued Grant, subject to shareholder approval of the amendment to the Plan described above, also will vest on March 15, 2024; and (v) the remainder of the restricted stock units and options included in the Conditional Reissued Grant will vest in full on March 25, 2025. The amendments reflect the vesting intended in the Amended and Restated Employment Agreement and will result in an acceleration of stock-based compensation expense of approximately $0.8 million into the first quarter of 2023 from other future periods over the previous vesting period.
The foregoing summaries of the Amended and Restated Grant Agreements do not purport to be complete and are subject to, and qualified in their entirety by, the full text of the Amended and Restated Grant Agreements, copies of which are attached as Exhibits 10.1, 10.2, 10.3, 10.4, 10.5 and 10.6 to this report and are incorporated by reference herein.
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ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS
EXHIBIT INDEX
2
SIGNATURE
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.
| Dated: March 21, 2023 | PURPLE INNOVATION, INC. | |
| By: | /s/ Bennett Nussbaum | |
| Bennett Nussbaum | ||
| Interim Chief Financial Officer | ||
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Exhibit 10.1
Purple Innovation, Inc.
2017 EQUITY INCENTIVE PLAN
Amended and Restated Restricted Share Unit Agreement
Purple Innovation, Inc., a Delaware corporation (the “Company”), hereby grants to Participant identified below, as of the below Date of Grant, the right to receive shares of Class A Common Stock, par value $0.0001 per share, in an amount equal to the Number of Shares specified below on the terms and conditions contained in this Amended and Restated Restricted Share Unit Agreement and the Company’s 2017 Equity Incentive Plan (the “Plan”) and 2019 Long-Term Equity Incentive Plan (the “LTIP”), copies of which have been provided to Participant. Any capitalized term used but not defined in this Agreement shall have the meaning given to the term in the Plan or LTIP as they currently exist or may hereafter be amended.
| 1. | Name of Participant: Robert T. DeMartini |
| 2. | Number of Shares: 111,470 units (the “Restricted Share Units”) representing an equal number of shares of Class A Common Stock of Purple Innovation, Inc. |
| 3. | Date of Grant: March 25, 2022 |
| 4. | Vesting Period: Except as provided in Sections 5 and 6 of this Agreement, the shares to be issued under this Agreement shall vest on March 25, 2023 (the “Vesting Period”). Vesting during the Vesting Period is subject to the Participant continuing to be employed by the Company. Subject to this Agreement and the Plan, the shares to be distributed under this Agreement shall be issued and distributed as soon as administratively practicable after the restriction is lifted upon vesting (the “Distributed Shares”) during the Vesting Period. |
| 5. | Termination of Employment: Except as described in this Section and Section 6 of this Agreement, in the event Participant’s employment is terminated prior to the end of the Vesting Period, Participant’s rights to vesting that has not occurred shall be immediately and irrevocably forfeited; provided, however, if Participant’s termination occurs on or after March 15, 2023 by reason of involuntary termination by the Company without Cause on or within twelve months after a Change in Control then, subject to Section 6, one hundred percent (100%) of Participant’s Restricted Share Units shall vest and become payable upon such termination of employment. |
| 6. | Change in Control: In the event of a Change in Control, as defined by the parties Amended and Restated Employment Agreement, the Company may make any adjustments to the Restricted Share Units, the Vesting Period or any other terms and conditions of this Agreement in accordance with Section 12 of the Plan. |
| 7. | Income Taxes: Participant is solely liable and responsible for any federal and state income or other taxes applicable upon the distribution to Participant of any Distributed Shares or other payments under this Agreement, the Company has no duty or obligation to minimize the tax consequences of this grant, vesting or distributions under this Agreement to the Participant and will not be liable to Participant for any adverse tax consequences to Participant in connection with this Agreement, and Participant acknowledges that he or she should consult Participant’s own tax advisor regarding the applicable tax consequences. Upon the distribution of Distributed Shares, Participant shall promptly pay to the Company in cash, or in previously acquired shares of the Company common stock having a fair market value equal to the amount of all applicable taxes required by the Company to be withheld or collected upon the distribution of the Distributed Shares. In the alternative, prior to vesting, Participant may direct the Company to withhold from the Distributed Shares otherwise to be distributed the number of shares having a fair market value equal to the amount of all applicable taxes required by the Company to be withheld upon the distribution of the Distributed Shares. Participant acknowledges that no shares will be distributed to Participant, notwithstanding any vesting, unless and until Participant has satisfied any obligation for withholding taxes as provided in this Agreement. |
| 8. | Policies & Guidelines: This Agreement, the Restricted Share Units, the Distributed Shares, and any equivalent replacement securities shall be subject to the Company’s clawback policy and equity ownership guidelines approved by the Board of Directors as they may be amended from time to time. |
| 9. | Restrictions. Participant’s rights in any Restricted Share Units, Distributed Shares, or any equivalent securities covered by this Agreement shall be subject to the following restrictions before and after the above Vesting Period: (a) Until any Distributed Shares are distributed to Participant under Section 4, neither Participant nor anyone claiming through Participant shall have any rights as a shareholder under this Agreement, including the right to vote or to receive dividends, stock dividends or other non-cash distributions; and (b) Participant may not transfer, sell, assign, or pledge the right to receive the Restricted Share Units or Distributed Shares, other than by will or the laws of descent and distribution, or as otherwise permitted by the Committee pursuant to the Plan, and any such attempted transfer shall be void. |
The Participant hereby acknowledges receipt of a copy of the Plan as presently in effect. The text and all of the terms and provisions of the Plan are incorporated herein by reference, and this grant is subject to these terms and provisions in all respects. This grant also is subject to Participant’s compliance with all other agreements between Participant and the Company, including but not limited to those agreements entered into at the beginning of Participant’s employment.
PURPLE INNOVATION, INC.
| By: | /s/ Casey McGarvey | 03/15/2023 | |
| Casey McGarvey | Dated | ||
| Corporate Secretary | |||
| Agreed to and Accepted by: | |||
| By: | /s/ Robert T. DeMartini | 03/15/2023 | |
| Robert T. DeMartini | Dated | ||
Exhibit 10.2
Purple Innovation, Inc.
2017 EQUITY INCENTIVE PLAN
Amended and Restated Option Grant Agreement
This Amended and Restated Option Grant Agreement evidences the grant of a Nonqualified Stock Option (the “Grant”), pursuant to the provisions of the Purple Innovation, Inc. 2017 Equity Incentive Plan (the “Plan”) to the individual whose name appears below (the “Participant”), covering the specific number of shares of stock set forth below, pursuant to the provisions of the Plan and on the following express terms and conditions (capitalized terms not otherwise defined herein shall have the meaning ascribed thereto in the Plan):
| 1. | Name of Participant: Robert T. DeMartini |
| 2. | Grant. The option to purchase 111,470 shares of Class A Common Stock of Purple Innovation, Inc. (the “Company”). The grant date of the Grant is March 25, 2022 (the “Grant Date”). |
| 3. | Exercise Price per Share. The exercise price of the Grant shall be the greater of (i) the closing price of the Company’s Common Shares on the Grant Date or (ii) the trailing thirty (30) day volume weighted average price of the Company’s Common Shares determined as of the Grant Date. |
| 4. | Vesting and Exercisability: The Grant shall vest on March 25, 2023 (the “Vesting Period”). Vesting during the Vesting Period is subject to the Participant continuing to be employed by the Company. |
| 5. | Change in Control: Notwithstanding the foregoing, upon a Change in Control, as defined by the parties Amended and Restated Employment Agreement, the options issued under the Grant that are then outstanding shall vest as provided in the Plan. |
| 6. |
Clawback: The Grant is subject to any Company clawback policy as may be adopted or amended from time to time. |
| 7. |
Exercise: With respect to the Grant, the Exercise Price shall be payable, at the Participant’s election (A) in cash; (B) if there is a public market for the Common Shares at the time of exercise, by means of a broker-assisted “cashless exercise” pursuant to which the Company is delivered a copy of irrevocable instructions to a stockbroker to sell the Common Shares otherwise deliverable upon the exercise of the option and to deliver promptly to the Company an amount equal to the Exercise Price or (C) by a “net exercise” method whereby the Company withholds from the delivery of the Common Shares for which such option was exercised that number of Common Shares having a Fair Market Value equal to the aggregate Exercise Price for the Common Shares for which such option was exercised. Any fractional Common Shares shall be settled in cash.
|
| 8. | Expiration/Termination of Option: This option shall have a term of five years. For the avoidance of doubt, to the extent not expired, terminated or cancelled earlier in accordance with the terms of Plan, the Grant shall expire on March 25, 2027. The provisions of Section 7 of the Plan regarding death, Disability, Retirement and termination of employment (with and without Cause) shall apply. |
The Participant hereby acknowledges receipt of a copy of the Plan as presently in effect. The text and all of the terms and provisions of the Plan are incorporated herein by reference, and this option is subject to these terms and provisions in all respects. At any time when the Participant wishes to exercise this option, in whole or in part, the Participant shall submit to the Company a written notice of exercise, specifying the exercise date and the number of Common Shares to be exercised. Upon exercise, the Participant shall remit to the Company the exercise price in cash or in such other form as permitted under the Plan, plus an amount sufficient to satisfy the required withholding tax obligation of the Company, if any, that arises in connection with such exercise.
| PURPLE INNOVATION, INC. | |||
| By: | /s/Casey McGarvey | 03/15/2023 | |
| Casey McGarvey | Dated | ||
| Corporate Secretary | |||
| Agreed to and Accepted by: | |||
| By: | /s/ Robert T. DeMartini | 03/15/2023 | |
| Robert T. DeMartini | Dated | ||
Exhibit 10.3
Purple
Innovation, Inc.
2017 EQUITY INCENTIVE PLAN
Amended and Restated Restricted Share Unit Agreement
(Reissued)
Purple Innovation, Inc., a Delaware corporation (the “Company“), hereby grants to Participant identified below, as of the below Date of Grant, the right to receive shares of Class A Common Stock, par value $0.0001 per share, in an amount equal to the Number of Shares specified below on the terms and conditions contained in this Amended and Restated Restricted Share Unit Agreement and the Company’s 2017 Equity Incentive Plan (the “Plan“) and 2019 Long-Term Equity Incentive Plan (the “LTIP”), copies of which have been provided to Participant. Any capitalized term used but not defined in this Agreement shall have the meaning given to the term in the Plan or LTIP as they currently exist or may hereafter be amended.
| 1. | Name of Participant: Robert T. DeMartini |
| 2. | Number of Shares: 93,530 units (the “Restricted Share Units”) representing an equal number of shares of Class A Common Stock of Purple Innovation, Inc. |
| 3. | Date of Grant: June 2, 2022 |
| 4. | Vesting Period: Except as provided in Sections 5 and 6 of this Agreement, the shares to be issued under this Agreement shall be subject to vesting of 55,196 units on March 25, 2023 and the balance of 38,334 units on March 25, 2024 (the “Vesting Period”). Vesting during the Vesting Period is subject to the Participant continuing to be employed by the Company. Subject to this Agreement and the Plan, the shares to be distributed under this Agreement shall be issued and distributed as soon as administratively practicable after the restriction is lifted upon vesting (the “Distributed Shares”) during the Vesting Period. |
| 5. | Termination of Employment: Except as described in this Section and Section 6 of this Agreement, in the event Participant’s employment is terminated prior to the end of the Vesting Period, Participant’s rights to vesting that has not occurred shall be immediately and irrevocably forfeited; provided, however, if Participant’s termination occurs on or after March 15, 2023 by reason of involuntary termination by the Company without Cause on or within twelve months after a Change in Control then, subject to Section 6, one hundred percent (100%) of Participant’s Restricted Share Units shall vest and become payable upon such termination of employment. |
| 6. | Change in Control: In the event of a Change in Control, as defined by the parties Amended and Restated Employment Agreement, the Company may make any adjustments to the Restricted Share Units, the Vesting Period or any other terms and conditions of this Agreement in accordance with Section 12 of the Plan. |
| 7. | Income Taxes: Participant is solely liable and responsible for any federal and state income or other taxes applicable upon the distribution to Participant of any Distributed Shares or other payments under this Agreement, the Company has no duty or obligation to minimize the tax consequences of this grant, vesting or distributions under this Agreement to the Participant and will not be liable to Participant for any adverse tax consequences to Participant in connection with this Agreement, and Participant acknowledges that he or she should consult Participant’s own tax advisor regarding the applicable tax consequences. Upon the distribution of Distributed Shares, Participant shall promptly pay to the Company in cash, or in previously acquired shares of the Company common stock having a fair market value equal to the amount of all applicable taxes required by the Company to be withheld or collected upon the distribution of the Distributed Shares. In the alternative, prior to vesting, Participant may direct the Company to withhold from the Distributed Shares otherwise to be distributed the number of shares having a fair market value equal to the amount of all applicable taxes required by the Company to be withheld upon the distribution of the Distributed Shares. Participant acknowledges that no shares will be distributed to Participant, notwithstanding any vesting, unless and until Participant has satisfied any obligation for withholding taxes as provided in this Agreement. |
| 8. | Policies & Guidelines: This Agreement, the Restricted Share Units, the Distributed Shares, and any equivalent replacement securities shall be subject to the Company’s clawback policy and equity ownership guidelines approved by the Board of Directors as they may be amended from time to time. |
| 9. | Restrictions. Participant’s rights in any Restricted Share Units, Distributed Shares, or any equivalent securities covered by this Agreement shall be subject to the following restrictions before and after the above Vesting Period: (a) Until any Distributed Shares are distributed to Participant under Section 4, neither Participant nor anyone claiming through Participant shall have any rights as a shareholder under this Agreement, including the right to vote or to receive dividends, stock dividends or other non-cash distributions; and (b) Participant may not transfer, sell, assign, or pledge the right to receive the Restricted Share Units or Distributed Shares, other than by will or the laws of descent and distribution, or as otherwise permitted by the Committee pursuant to the Plan, and any such attempted transfer shall be void. |
The Participant hereby acknowledges receipt of a copy of the Plan as presently in effect. The text and all of the terms and provisions of the Plan are incorporated herein by reference, and this grant is subject to these terms and provisions in all respects. This grant also is subject to Participant’s compliance with all other agreements between Participant and the Company, including but not limited to those agreements entered into at the beginning of Participant’s employment.
PURPLE INNOVATION, INC.
| By: | /s/ Casey McGarvey | 03/15/2023 | |
| Corporate Secretary | Dated | ||
| Casey McGarvey |
Agreed to and Accepted by:
| By: | /s/ Robert T. DeMartini | 03/15/2023 | |
| Robert T. DeMartini | Dated |
Exhibit 10.4
Purple Innovation, Inc.
2017 EQUITY INCENTIVE PLAN
Amended and Restated Option Grant Agreement
(Reissued)
This Amended and Restated Option Grant Agreement evidences the grant of a Nonqualified Stock Option (the “Grant”) to the individual whose name appears below (the “Participant”), covering the specific number of shares of stock set forth below, on the terms and conditions contained in this Amended and Restated Option Grant Agreement, the Company’s 2017 Equity Incentive Plan (the “Plan”), and 2019 Long-Term Equity Incentive Plan (the “LTIP”), copies of which have been provided to Participant. Any capitalized term used but not defined in this Agreement shall have the meaning given to the term in the Plan or LTIP as they currently exist or may hereafter be amended.
| 1. | Name of Participant: Robert T. DeMartini |
| 2. | Grant. The option to purchase 93,530 shares of Class A Common Stock of Purple Innovation, Inc. (the “Company”). The grant date of the Grant is June 2, 2022 (the “Grant Date”). |
| 3. | Exercise Price per Share. The exercise price of the Grant shall be the greater of (i) $6.82 or (ii) the trailing thirty (30) day volume weighted average price of the Company’s Common Shares determined as of the Grant Date. |
| 4. | Vesting and Exercisability: The Grant shall be subject to vesting of 55,196 shares on March 25, 2023 and the balance of 38,334 shares on March 25, 2024 (the “Vesting Period”). Vesting during the Vesting Period is subject to the Participant continuing to be employed by the Company. |
| 5. | Change in Control: Notwithstanding the foregoing, upon a Change in Control, as defined by the parties Amended and Restated Employment Agreement, the options issued under the Grant that are then outstanding shall vest as provided in the Plan. |
| 6. |
Clawback: The Grant is subject to any Company clawback policy as may be adopted or amended from time to time. |
| 7. | Exercise: With respect to the Grant, the Exercise Price shall be payable, at the Participant’s election (A) in cash; (B) if there is a public market for the Common Shares at the time of exercise, by means of a broker-assisted “cashless exercise” pursuant to which the Company is delivered a copy of irrevocable instructions to a stockbroker to sell the Common Shares otherwise deliverable upon the exercise of the option and to deliver promptly to the Company an amount equal to the Exercise Price or (C) by a “net exercise” method whereby the Company withholds from the delivery of the Common Shares for which such option was exercised that number of Common Shares having a Fair Market Value equal to the aggregate Exercise Price for the Common Shares for which such option was exercised. Any fractional Common Shares shall be settled in cash. |
| 8. | Expiration/Termination of Option: This option shall have a term of five years. For the avoidance of doubt, to the extent not expired, terminated or cancelled earlier in accordance with the terms of Plan, the Grant shall expire on March 25, 2027. The provisions of Section 7 of the Plan regarding death, Disability, Retirement and termination of employment (with and without Cause) shall apply. |
The Participant hereby acknowledges receipt of a copy of the Plan as presently in effect. The text and all of the terms and provisions of the Plan are incorporated herein by reference, and this option is subject to these terms and provisions in all respects. At any time when the Participant wishes to exercise this option, in whole or in part, the Participant shall submit to the Company a written notice of exercise, specifying the exercise date and the number of Common Shares to be exercised. Upon exercise, the Participant shall remit to the Company the exercise price in cash or in such other form as permitted under the Plan, plus an amount sufficient to satisfy the required withholding tax obligation of the Company, if any, that arises in connection with such exercise.
| PURPLE INNOVATION, INC. | |||
| By: | /s/Casey McGarvey | 03/15/2023 | |
| Casey McGarvey | Dated | ||
| Corporate Secretary | |||
| Agreed to and Accepted by: | |||
| By: | /s/ Robert T. DeMartini | 03/15/2023 | |
| Robert T. DeMartini | Dated | ||
Exhibit 10.5
Purple Innovation, Inc.
2017 EQUITY INCENTIVE PLAN
Amended and Restated Restricted Share Unit Agreement
(Reissued Excess Subject to Approval)
Subject to shareholder approval of proposed amendments to Section 5(f) of the Company’s 2017 Equity Incentive Plan (the “Plan”), Purple Innovation, Inc., a Delaware corporation (the “Company”), hereby grants to Participant identified below, as of the date of shareholder approval, the right to receive shares of Class A Common Stock, par value $0.0001 per share, in an amount equal to the Number of Shares specified below on the terms and conditions contained in this Amended and Restated Restricted Share Unit Agreement, the Company’s Plan, and 2019 Long-Term Equity Incentive Plan (the “LTIP”), copies of which have been provided to Participant. Any capitalized term used but not defined in this Agreement shall have the meaning given to the term in the Plan or LTIP as they currently exist or may hereafter be amended.
| 1. | Name of Participant: Robert T. DeMartini |
| 2. | Number of Shares: 295,000 units (the “Restricted Share Units”) representing an equal number of shares of Class A Common Stock of Purple Innovation, Inc. |
| 3. | Date of Grant: June 2, 2022; provided that the entitlement to the shares subject to the Restricted Share Units awarded hereby (to the extent vested as provided herein) shall not be in legal effect until the effective date of shareholder approval of proposed amendments to Section 5(f) of the Plan (the “Shareholder Approval Condition”). |
| 4. | Vesting Period: Except as provided in Sections 5 and 6 of this Agreement, the shares to be issued under this Agreement shall be subject to vesting of 128,333 shares on March 25, 2024 and the balance of 166,667 shares on March 25, 2025 (the “Vesting Period”); provided that any such vesting shall not be deemed to occur in each case until the satisfaction of the Shareholder Approval Condition. Vesting during the Vesting Period is subject to the Participant continuing to be employed by the Company. Subject to this Agreement and the Plan, the shares to be distributed under this Agreement shall be issued and distributed as soon as administratively practicable after the restriction is lifted upon vesting (the “Distributed Shares”) during the Vesting Period. |
| 5. | Termination of Employment: Except as described in this Section and Section 6 of this Agreement, in the event Participant’s employment is terminated prior to the end of the Vesting Period, Participant’s rights to vesting that has not occurred shall be immediately and irrevocably forfeited; provided, however, if Participant’s termination occurs on or after March 15, 2023 by reason of involuntary termination by the Company without Cause on or within twelve months after a Change in Control then, subject to Section 6, one hundred percent (100%) of Participant’s Restricted Share Units shall vest and become payable upon such termination of employment. |
| 6. | Change in Control: In the event of a Change in Control, as defined by the parties Amended and Restated Employment Agreement, the Company may make any adjustments to the Restricted Share Units, the Vesting Period or any other terms and conditions of this Agreement in accordance with Section 12 of the Plan. |
| 7. | Income Taxes: Participant is solely liable and responsible for any federal and state income or other taxes applicable upon the distribution to Participant of any Distributed Shares or other payments under this Agreement, the Company has no duty or obligation to minimize the tax consequences of this grant, vesting or distributions under this Agreement to the Participant and will not be liable to Participant for any adverse tax consequences to Participant in connection with this Agreement, and Participant acknowledges that he or she should consult Participant’s own tax advisor regarding the applicable tax consequences. Upon the distribution of Distributed Shares, Participant shall promptly pay to the Company in cash, or in previously acquired shares of the Company common stock having a fair market value equal to the amount of all applicable taxes required by the Company to be withheld or collected upon the distribution of the Distributed Shares. In the alternative, prior to vesting, Participant may direct the Company to withhold from the Distributed Shares otherwise to be distributed the number of shares having a fair market value equal to the amount of all applicable taxes required by the Company to be withheld upon the distribution of the Distributed Shares. Participant acknowledges that no shares will be distributed to Participant, notwithstanding any vesting, unless and until Participant has satisfied any obligation for withholding taxes as provided in this Agreement. |
| 8. | Policies & Guidelines: This Agreement, the Restricted Share Units, the Distributed Shares, and any equivalent replacement securities shall be subject to the Company’s clawback policy and equity ownership guidelines approved by the Board of Directors as they may be amended from time to time. |
| 9. | Restrictions. Participant’s rights in any Restricted Share Units, Distributed Shares, or any equivalent securities covered by this Agreement shall be subject to the following restrictions before and after the above Vesting Period: (a) Until any Distributed Shares are distributed to Participant under Section 4, neither Participant nor anyone claiming through Participant shall have any rights as a shareholder under this Agreement, including the right to vote or to receive dividends, stock dividends or other non-cash distributions; and (b) Participant may not transfer, sell, assign, or pledge the right to receive the Restricted Share Units or Distributed Shares, other than by will or the laws of descent and distribution, or as otherwise permitted by the Committee pursuant to the Plan, and any such attempted transfer shall be void. |
The Participant hereby acknowledges receipt of a copy of the Plan as presently in effect. The text and all of the terms and provisions of the Plan are incorporated herein by reference, and this grant is subject to these terms and provisions in all respects. This grant also is subject to Participant’s compliance with all other agreements between Participant and the Company, including but not limited to those agreements entered into at the beginning of Participant’s employment.
| PURPLE INNOVATION, INC. | |||
| By: | /s/ Casey McGarvey | 03/15/2023 | |
| Casey McGarvey | Dated | ||
| Corporate Secretary | |||
| Agreed to and Accepted by: | |||
| By: | /s/ Robert T. DeMartini | 03/15/2023 | |
| Robert T. DeMartini | Dated | ||
Exhibit 10.6
Purple Innovation, Inc.
2017 EQUITY INCENTIVE PLAN
Amended and Restated Option Grant Agreement
(Reissued Excess Subject to Approval)
Subject to shareholder approval of proposed amendments to Section 5(f) of the Company’s 2017 Equity Incentive Plan (the “Plan”), this Amended and Restated Option Grant Agreement evidences the grant of a Nonqualified Stock Option (the “Grant”) to the individual whose name appears below (the “Participant”), covering the specific number of shares of stock set forth below, on the terms and conditions contained in this Amended and Restated Option Grant Agreement, the Company’s Plan, and 2019 Long-Term Equity Incentive Plan (the “LTIP”), copies of which have been provided to Participant. Any capitalized term used but not defined in this Agreement shall have the meaning given to the term in the Plan or LTIP as they currently exist or may hereafter be amended.
| 1. | Name of Participant: Robert T. DeMartini |
| 2. | Grant. The option to purchase 295,000 shares of Class A Common Stock of Purple Innovation, Inc. (the “Company”). The grant date is June 2, 2022 (the “Grant Date”); provided that the entitlement to exercise the Nonqualified Stock Option awarded hereby (to the extent vested as provided herein) shall not be in legal effect until the effective date of shareholder approval of proposed amendments to Section 5(f) of the Plan (the “Shareholder Approval Condition”). |
| 3. | Exercise Price per Share. The exercise price of the Grant shall be the greater of (i) $6.82 or (ii) the trailing thirty (30) day volume weighted average price of the Company’s Common Shares determined as of the Grant Date. |
| 4. | Vesting and Exercisability: The Grant shall be subject to vesting of 128,333 shares on March 25, 2024 and the balance of 166,667 shares on March 25, 2025 (the “Vesting Period”); provided that any such vesting shall not be deemed to occur in each case until the satisfaction of the Shareholder Approval Condition. Vesting during the Vesting Period is subject to the Participant continuing to be employed by the Company. |
| 5. | Change in Control: Notwithstanding the foregoing, upon a Change in Control, as defined by the parties Amended and Restated Employment Agreement, the options issued under the Grant that are then outstanding shall vest as provided in the Plan. |
| 6. | Clawback: The Grant is subject to any Company clawback policy as may be adopted or amended from time to time.
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| 7. | Exercise: With respect to the Grant, the Exercise Price shall be payable, at the Participant’s election (A) in cash; (B) if there is a public market for the Common Shares at the time of exercise, by means of a broker-assisted “cashless exercise” pursuant to which the Company is delivered a copy of irrevocable instructions to a stockbroker to sell the Common Shares otherwise deliverable upon the exercise of the option and to deliver promptly to the Company an amount equal to the Exercise Price or (C) by a “net exercise” method whereby the Company withholds from the delivery of the Common Shares for which such option was exercised that number of Common Shares having a Fair Market Value equal to the aggregate Exercise Price for the Common Shares for which such option was exercised. Any fractional Common Shares shall be settled in cash.
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| 8. | Expiration/Termination of Option: This option shall have a term of five years. For the avoidance of doubt, to the extent not expired, terminated or cancelled earlier in accordance with the terms of Plan, the Grant shall expire on March 25, 2027. The provisions of Section 7 of the Plan regarding death, Disability, Retirement and termination of employment (with and without Cause) shall apply. |
The Participant hereby acknowledges receipt of a copy of the Plan as presently in effect. The text and all of the terms and provisions of the Plan are incorporated herein by reference, and this option is subject to these terms and provisions in all respects. At any time when the Participant wishes to exercise this option, in whole or in part, the Participant shall submit to the Company a written notice of exercise, specifying the exercise date and the number of Common Shares to be exercised. Upon exercise, the Participant shall remit to the Company the exercise price in cash or in such other form as permitted under the Plan, plus an amount sufficient to satisfy the required withholding tax obligation of the Company, if any, that arises in connection with such exercise.
PURPLE INNOVATION, INC.
| By: | /s/ Casey McGarvey | 03/15/2023 | |
| Casey McGarvey | Dated | ||
| Corporate Secretary |
Agreed to and Accepted by:
| By: | /s/ Robert T. DeMartini | 03/15/2023 | |
| Robert T. DeMartini | Dated |