Item 5. Other Information
Item 5. Other Information
On June 1, 2023, our Board of Directors approved the amendment and restatement of the Company’s fourth amended and restated bylaws, as amended (the “Fifth Amended and Restated Bylaws”), effective immediately. The amendments to the bylaws include the following:
• Changes to reflect the universal proxy rules promulgated by the U.S. Securities and Exchange Commission, including the addition of provisions:
◦ requiring that any Special Meeting Request relating to director nominations include the information required by Rule 14a-19 under the Exchange Act, and be accompanied by a written consent of each proposed nominee to being named as a nominee in any proxy statement relating to the special meeting of stockholders and that, in connection with such a Special Meeting Request, the requesting stockholders provide reasonable evidence to the
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Company, not later than five business days prior to the date of the applicable special meeting of stockholders, that the solicitation requirement of Rule 14a-19 under the Exchange Act has been satisfied;
◦ establishing a stockholder’s compliance with Rule 14a-19 under the Exchange Act as a prerequisite for such stockholder to nominate a person for election as a director at a meeting of stockholders under the advance notice procedures in the Fifth Amended and Restated Bylaws, requiring that such stockholder’s notice to the Company of any such nomination include the information required by Rule 14a-19 and be accompanied by the nominee’s consent to being named in any proxy statement relating to the applicable meeting of stockholders and requiring that such stockholder provide reasonable evidence, not later than five business days after such stockholder files a definitive proxy statement in connection with such meeting, of such stockholder’s having satisfied the solicitation requirement of Rule 14a-19 under the Exchange Act; and
◦ providing for a stockholder’s nomination of a candidate for election as a director pursuant to a Special Meeting Request or under the advance notice provisions of the Fifth Amended and Restated Bylaws to be disregarded in any case in which the solicitation in support of the nominee was not conducted in compliance with Rule 14a-19 under the Exchange Act;
• A requirement that any stockholder directly or indirectly soliciting proxies from other stockholders must use a proxy card color other than white, with the white proxy card being reserved for exclusive use by our Board of Directors;
• An update to the advance notice bylaw provisions to require a stockholder to include all information that would be required to be disclosed pursuant to Item 404 of Regulation S-K with respect to any related party transactions if the stockholder were the “registrant” for the purposes of such rule and the proposed nominee were a director or executive officer of such registrant; and
• Removal of the requirement to make a list of stockholders available in connection with a stockholder meeting to align with the corresponding provision of the Delaware General Corporation Law.
The foregoing description of the Company’s Fifth Amended and Restated Bylaws is a summary and is qualified in all respects to the text of the Fifth Amended and Restated Bylaws, a copy of which is filed herewith as Exhibit 3.2.
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Item 6. Exhibits
Exhibit No. Description
2.1 Agreement and Plan of Merger, dated July 25, 2018, by and among SUPERVALU INC., SUPERVALU Enterprises, Inc., the Registrant and Jedi Merger Sub, Inc. (incorporated by reference to the Registrant’s Current Report on Form 8-K, filed on July 26, 2018).
2.2 First Amendment to Agreement and Plan of Merger, dated as of October 10, 2018, by and among United Natural Foods, Inc., Jedi Merger Sub, Inc., SUPERVALU INC. and SUPERVALU Enterprises, Inc. (incorporated by reference to Registrant’s Current Report on Form 8-K, filed on October 10, 2018).
3.1 Certificate of Incorporation of the Registrant, as amended (restated for SEC filing purposes only) (incorporated by reference to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended January 31, 2015).
3.2* Fifth Amended and Restated Bylaws of the Registrant.
10.1** Second Amended and Restated United Natural Foods, Inc. 2020 Equity Incentive Plan, effective as of March 3, 2023 (incorporated by reference to the Registrant's Quarterly Report on Form 10-Q for the quarter ended January 28, 2023).
10.2** United Natural Foods, Inc. Annual Incentive Plan, as further amended (incorporated by reference to the Registrant's Quarterly Report on Form 10-Q for the quarter ended January 28, 2023).
10.3* ** Addendum to Consulting Agreement, effective as of April 12, 2023, by and among the Registrant and Eric Dorne.
31.1* Certification of CEO pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
31.2* Certification of CFO pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32.1* Certification of CEO pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
32.2* Certification of CFO pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
101* The following materials from the United Natural Foods, Inc.’s Quarterly Report on Form 10-Q for the quarterly period ended April 29, 2023, formatted in Inline XBRL (Extensible Business Reporting Language): (i) Condensed Consolidated Balance Sheets, (ii) Condensed Consolidated Statements of Operations, (iii) Condensed Consolidated Statements of Comprehensive Income, (iv) Condensed Consolidated Statements of Stockholders’ Equity, (v) Condensed Consolidated Statements of Cash Flows, and (vi) Notes to Condensed Consolidated Financial Statements.
104 The cover page from our Quarterly Report on Form 10-Q for the third quarter of fiscal 2023, filed with the SEC on June 7, 2023, formatted in Inline XBRL (included as Exhibit 101).
______________________________________________
* Filed herewith.
** Denotes a management contract or compensatory plan or arrangement.
* * *
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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 thereunto duly authorized.
UNITED NATURAL FOODS, INC.
/s/ JOHN W. HOWARD
John W. Howard
Chief Financial Officer
(Principal Financial Officer and duly authorized officer)
Dated: June 7, 2023
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Text extracted from the filing as submitted to EDGAR. Formatting, tables and exhibits are simplified for reading; the original document is authoritative for anything you rely on.