APRN Blue Apron Holdings Inc

 

Exhibit (a)(1)(E)

 

This announcement is neither an offer to purchase nor a solicitation of an offer to sell Shares (as defined below) and the provisions herein are subject in their entirety to the provisions of the Offer (as defined below). The Offer is being made only by the Offer to Purchase, dated October 13, 2023 (the “Offer to Purchase”) and the related Letter of Transmittal, as each may be amended or supplemented from time to time, and is being made to all holders of Shares. THE OFFER IS NOT BEING MADE TO (NOR WILL TENDERS BE ACCEPTED FROM OR ON BEHALF OF) THE HOLDERS OF SHARES IN ANY JURISDICTION IN WHICH THE MAKING OF THE OFFER OR ACCEPTANCE THEREOF WOULD NOT BE IN COMPLIANCE WITH THE LAWS OF SUCH JURISDICTION. IN THOSE JURISDICTIONS WHERE APPLICABLE LAWS OR REGULATIONS REQUIRE THE OFFER TO BE MADE BY A LICENSED BROKER OR DEALER, THE OFFER SHALL BE DEEMED TO BE MADE ON BEHALF OF PURCHASER (AS DEFINED BELOW) BY ONE OR MORE REGISTERED BROKERS OR DEALERS LICENSED UNDER THE LAWS OF SUCH JURISDICTION TO BE DESIGNATED BY PURCHASER.

 

Notice of Offer to Purchase

 

All Outstanding Shares of Class A Common Stock

 

of

 

Blue Apron Holdings, Inc.

 

at

 

$13.00 per share, net in cash, without interest and less any applicable tax withholding

 

by

 

Basil Merger Corporation

 

a wholly owned subsidiary

 

of

 

Wonder Group, Inc.

 

Basil Merger Corporation, a Delaware corporation (“Purchaser”) and a wholly owned subsidiary of Wonder Group, Inc., a Delaware corporation (“Wonder”), is offering to purchase all of the issued and outstanding shares of Class A common stock, par value $0.0001 per share (the “Shares”), of Blue Apron Holdings, Inc., a Delaware corporation (“Blue Apron”), which constitute all of the issued and outstanding shares of capital stock of Blue Apron, at a purchase price of $13.00 per Share (the “Offer Price”), net to the stockholder in cash, without interest and less any applicable tax withholding, upon the terms and subject to the conditions set forth in the Offer to Purchase and in the related Letter of Transmittal (which, together with the Offer to Purchase, as each may be amended or supplemented from time to time, collectively constitute the “Offer”).

 

Tendering stockholders who are holders of record of their Shares and who tender directly to Computershare Trust Company, N.A., the depositary and paying agent for the Offer (the “Depositary”), will not be obligated to pay brokerage fees or commissions or, except as otherwise provided in Section 6 of the Letter of Transmittal, stock transfer taxes with respect to the purchase of Shares by Purchaser pursuant to the Offer. Stockholders who hold their Shares through a broker, dealer, commercial bank, trust company or other nominee should consult such broker, dealer, commercial bank, trust company or other nominee as to whether it charges any service fees or commissions.

 

 

THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT ONE MINUTE PAST 11:59 P.M., EASTERN TIME, ON NOVEMBER 9, 2023, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED.

 

The Offer is being made pursuant to an Agreement and Plan of Merger, dated September 28, 2023 (as it may be amended from time to time, the “Merger Agreement”), by and among Blue Apron, Wonder and Purchaser, pursuant to which, after consummation of the Offer and subject to the satisfaction or waiver of certain conditions, Purchaser will merge with and into Blue Apron pursuant to Section 251(h) of the General Corporation Law of the State of Delaware, as amended (the “DGCL”), upon the terms and subject to the conditions set forth in the Merger Agreement, with Blue Apron continuing as the surviving corporation (the “Surviving Corporation”) and becoming a wholly owned subsidiary of Wonder (the “Merger”). At the effective time of the Merger (the “Effective Time”), each Share issued and outstanding immediately prior to the Effective Time (other than (i) Shares held in the treasury of Blue Apron or by any wholly owned subsidiary of Blue Apron immediately prior to the Effective Time, (ii) Shares irrevocably accepted for purchase in the Offer by Purchaser, (iii) Shares held by Wonder, Purchaser or any other wholly owned subsidiary of Wonder immediately prior to the Effective Time or (iv) Shares issued and outstanding immediately prior to the Effective Time that are held by a holder or beneficially by a “beneficial owner” (as defined in Section 262(a) of the DGCL) who is entitled to demand and properly demands appraisal rights of such Shares pursuant to, and who is complying with, the provisions of Section 262 of the DGCL (until such time as such holder effectively withdraws, fails to perfect or otherwise loses such holder’s appraisal rights under the DGCL with respect to such shares, at which time such shares shall cease to be dissenting shares) shall be converted into the right to receive an amount in cash equal to the Offer Price, without interest and less any applicable tax withholding, from Purchaser.

 

The Offer and the Merger are not subject to any financing condition. The obligation of Purchaser to accept for payment and pay for Shares validly tendered (and not properly withdrawn) pursuant to the Offer is subject to the satisfaction of the conditions set forth in Section 15 of the Offer to Purchase (collectively, the “Offer Conditions”), including the Minimum Condition (as defined below).

 

The “Minimum Condition” means that there have been validly tendered in the Offer and not validly withdrawn immediately prior to the Expiration Time that number of Shares that, when added to the number of Shares, if any, then owned by Wonder, Purchaser or any other wholly owned subsidiary of Wonder, would represent at least one share more than one-half of all Shares then outstanding.

 

The term “Expiration Time” means one minute past 11:59 P.M., Eastern Time, on November 9, 2023, unless the expiration of the Offer is extended to a subsequent date in accordance with the terms of the Merger Agreement, in which case the term “Expiration Time” means such subsequent time on such subsequent date. A subsequent offering period for the Offer is not contemplated, but, if, pursuant to the Merger Agreement, we decide to, or are required to, extend the Offer as described below, you will have an additional period of time to tender your Shares.

 

The Board of Directors of Blue Apron (the “Blue Apron Board”) unanimously (i) determined and declared that the Offer, the Merger and the other transactions contemplated by the Merger Agreement, on the terms and conditions set forth in the Merger Agreement (collectively, the “Transactions”), are advisable, and in the best interests of, Blue Apron and its stockholders, (ii) resolved that Blue Apron was authorized to enter into and is authorized to perform its obligations under the Merger Agreement, providing for the consummation of the Transactions, (iii) resolved that the Merger Agreement and the Merger will be effected as soon as practicable following the consummation of the Offer and will be governed by and effected under Section 251(h) and the other relevant provisions of the DGCL and (iv) recommended that Blue Apron’s stockholders accept the Offer and tender their Shares pursuant to the Offer.

 

Descriptions of the reasons for the Blue Apron Board’s recommendation and approval of the Offer are set forth in Blue Apron’s Solicitation/Recommendation Statement on Schedule 14D-9 (the “Schedule 14D-9”), which is being mailed to Blue Apron stockholders together with the Offer materials (including the Offer to Purchase and the related Letter of Transmittal). Stockholders should carefully read the information set forth in the Schedule 14D-9, including the information set forth in Item 4 thereof under the sub-headings “Recommendation of the Company Board,” “Background of the Offer and the Merger and “Reasons for the Recommendation.”

 

 

The Merger Agreement contains provisions that govern the circumstances under which Purchaser is required or permitted to extend the Offer. Specifically, the Merger Agreement provides that (a) Purchaser may, in its sole discretion, extend the scheduled Expiration Time for one or more periods (not to exceed 10 business days each); provided, however that in no event shall Purchaser be permitted to extend the Offer beyond one minute after 11:59 p.m. Eastern time, on the day that is the Outside Date (as defined below), without the prior written approval of the Company and (b) Purchaser shall extend the scheduled expiration of the Offer (i) as required by applicable law (including for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”)); (ii) if, at the then-scheduled Expiration Time any of the Offer Conditions has not been satisfied (and Parent or Purchaser has not waived such condition in accordance with the terms of the Merger Agreement), Purchaser will extend the Offer for one or more periods not to exceed 10 business days if and to the extent requested by Blue Apron; and (iii) if, as of the then-scheduled Expiration Time, the Outside Date would have otherwise occurred but shall have been extended pursuant to the Merger Agreement as a result of any action brought by Blue Apron to specifically enforce the terms or provisions of the Merger Agreement, Purchaser shall extend the Offer until one minute after 11:59 p.m., Eastern time, on the day that is the Outside Date as it may be so extended pursuant to the terms of the Merger Agreement. In no event shall Purchaser be required to extend the Offer beyond one minute after 11:59 p.m., Eastern time, on the day that is the Outside Date, as it may be extended pursuant to the terms of the Merger Agreement, without the prior written approval of the Company. The “Outside Date” means February 28, 2024.

 

If the Offer is consummated, Purchaser will not seek the approval of Blue Apron’s remaining stockholders before effecting the Merger. Wonder, Purchaser and Blue Apron have agreed to take all necessary and appropriate action to effect the Merger as soon as practicable following the consummation (within the meaning of Section 251(h)(6) of the DGCL) of the Offer without a vote of the holders of the Shares in accordance with Section 251(h) of the DGCL.

 

Purchaser expressly reserves the right to waive, in its sole discretion, in whole or in part, any Offer Condition or modify the terms of the Offer, in any manner not inconsistent with the Merger Agreement, except that Blue Apron’s prior written approval is required for Purchaser to, and for Wonder to permit Purchaser to: (i) change the form of consideration payable in the Offer; (ii) decrease the Offer Price; (iii) decrease the maximum number of Shares sought to be purchased in the Offer or otherwise change the Offer so that it is for fewer than all of the outstanding shares of Blue Apron; (iv) extend or otherwise change the Expiration Time, except to the extent permitted in or required by the Merger Agreement; (v) terminate the Offer, except as otherwise provided in the Merger Agreement; (vi) provide any “subsequent offering period” (or any extension thereof) within the meaning of Rule 14d-11 promulgated under the Securities and Exchange Act of 1934, as amended (the “Exchange Act”); (vii) amend, change or waive the Minimum Condition, the Legal Restraint Condition (as defined in the Offer to Purchase) or the Company Material Adverse Effect Condition (as defined in the Offer to Purchase); (viii) amend, modify or supplement any Offer Condition or the terms of the Offer in any manner adverse to holders of Shares or that would, individually or in the aggregate, reasonably be expected to prevent or delay the consummation of the Offer or prevent, delay or impair the ability of Wonder or the Purchaser to consummate the Offer, the Merger or the other Transactions; or (ix) impose any condition to the Offer other than the Offer Conditions.

 

Any extension, delay, termination or amendment of the Offer will be followed as promptly as practicable by a public announcement thereof, and such announcement in the case of an extension will be made no later than 9:00 a.m., Eastern Time, on the business day after the previously scheduled Expiration Time. Without limiting the manner in which Purchaser may choose to make any public announcement, Purchaser intends to make announcements regarding the Offer by issuing a press release and making any appropriate filing with the SEC.

 

Purchaser is not providing for guaranteed delivery procedures. Therefore, Blue Apron stockholders must allow sufficient time for the necessary tender procedures to be completed during normal business hours of The Depository Trust Company (“DTC”), which end earlier than the Expiration Time. Normal business hours of DTC are between 8:00 a.m. and 5:00 p.m., Eastern Time, Monday through Friday. Blue Apron stockholders must tender their Shares in accordance with the procedures set forth in the Offer to Purchase and the related Letter of Transmittal prior to the Expiration Time. Tenders received by the Depositary after the Expiration Time will be disregarded and of no effect.

 

 

For purposes of the Offer, Purchaser will be deemed to have accepted for payment, and thereby purchased, Shares validly tendered to Purchaser (and not properly withdrawn) as, if and when Purchaser gives oral or written notice to the Depositary of Purchaser’s acceptance for payment of such Shares pursuant to the Offer. Upon the terms and subject to the conditions of the Offer, payment for Shares accepted for payment pursuant to the Offer will be made by deposit of the Offer Price for such Shares with the Depositary, which will receive payments from Purchaser and transmit such payments to tendering stockholders whose Shares have been accepted for payment. If Purchaser extends the Offer, is delayed in its acceptance of Shares for payment or is unable to accept Shares for payment pursuant to the Offer for any reason, then, without prejudice to Purchaser’s rights under the Offer, the Depositary may retain tendered Shares on Purchaser’s behalf, and such Shares may not be withdrawn except to the extent that tendering stockholders are entitled to withdrawal rights as described in Section 4 of the Offer to Purchase. However, Purchaser’s ability to delay the payment for Shares that it has accepted for payment is limited by Rule 14e-1(c) under the Exchange Act, which requires Purchaser to pay the consideration offered or return the securities deposited by or on behalf of stockholders promptly after the termination or withdrawal of the Offer. Under no circumstances will interest be paid on the Offer Price for the Shares accepted for payment in the Offer, including by reason of any extension of the Offer or any delay in making payment for the Shares.

 

In all cases, Purchaser will pay for Shares validly tendered and accepted for payment pursuant to the Offer only after timely receipt by the Depositary of (i) to the extent the Shares are not already held with the Depositary, the certificates evidencing such Shares (the “Share Certificates”) or confirmation of a book-entry transfer of such Shares into the Depositary’s account at DTC (such a confirmation, a “Book-Entry Confirmation”) pursuant to the procedures set forth in Section 3 of the Offer to Purchase, (ii) the Letter of Transmittal, properly completed and duly executed, with any required signature guarantees (or, in the case of a book-entry transfer or a tender through DTC’s Automated Tender Offer Program, an Agent’s Message (as defined in the Offer to Purchase) in lieu of the Letter of Transmittal) and (iii) any other documents required by the Letter of Transmittal or the Depositary, in each case prior to the Expiration Time. Accordingly, tendering stockholders may be paid at different times depending upon when the Share Certificates and Letter of Transmittal, or Book-Entry Confirmations and Agent’s Message, in each case, are actually received by the Depositary.

 

Shares tendered pursuant to the Offer may be withdrawn at any time prior to the Expiration Time. Thereafter, tenders are irrevocable, except that if Purchaser has not accepted your Shares for payment within 60 days of commencement of the Offer, you may withdraw them at any time after December 12, 2023, the 60th day after commencement of the Offer, until Purchaser accepts your Shares for payment.

 

For a withdrawal of Shares to be effective, the Depositary must timely receive a written notice of withdrawal at one of its addresses set forth on the back cover of the Offer to Purchase. Any notice of withdrawal must specify the name of the person who tendered the Shares to be withdrawn, the number of Shares to be withdrawn and the names in which the Share Certificates are registered, if different from the person who tendered such Shares. The signature(s) on the notice of withdrawal must be guaranteed by an Eligible Institution (as defined in the Offer to Purchase), unless such Shares have been tendered for the account of an Eligible Institution. If Shares have been tendered pursuant to the procedures for book-entry transfer as set forth in Section 3 of the Offer to Purchase, any notice of withdrawal must specify the name and number of the account at DTC to be credited with the withdrawn Shares. If Share Certificates representing the Shares to be withdrawn have been delivered or otherwise identified to the Depositary, then, prior to the physical release of such Share Certificates, the name of the holder(s) of record and the serial numbers shown on such Share Certificates must also be furnished to the Depositary.

 

Withdrawals of tenders of Shares may not be rescinded and any Shares properly withdrawn will be deemed not validly tendered for purposes of the Offer. Withdrawn Shares may, however, be retendered by following one of the procedures for tendering Shares described in Section 3 of the Offer to Purchase at any time prior to the Expiration Time.

 

 

All questions as to the validity, form, eligibility (including time of receipt) and acceptance for payment of any tender of Shares will be determined by Purchaser in its sole discretion, which determination will be final and binding on all parties, subject to the rights of holders of Shares to challenge such determination with respect to their Shares in a court of competent jurisdiction and any subsequent judgment of any such court. Purchaser reserves the absolute right to reject any and all tenders determined by the Purchaser not to be in proper form or the acceptance for payment of which may, in Purchaser’s opinion, be unlawful. Purchaser also reserves the absolute right to waive any defect or irregularity in the tender of any Shares of any particular stockholder, whether or not similar defects or irregularities are waived in the case of other stockholders. No tender of Shares will be deemed to have been validly made until all defects and irregularities have been cured or waived to Purchaser’s satisfaction. None of Purchaser, Wonder or any of their respective affiliates or assigns, the Depositary, Okapi Partners LLC (the “Information Agent”) or any other person will be under any duty to give any notification of any defects or irregularities in tenders or incur any liability for failure to give any such notification. Subject to the terms of the Merger Agreement and the rights of holders of Shares to challenge any interpretation with respect to their Shares in a court of competent jurisdiction and any subsequent judgment of any such court, Purchaser’s interpretation of the terms and conditions of the Offer (including the Letter of Transmittal and the instructions thereto) will be final and binding.

 

The information required to be disclosed by paragraph (d)(1) of Rule 14d-6 of the General Rules and Regulations under the Exchange Act is contained in the Offer to Purchase and is incorporated herein by reference.

 

Blue Apron has provided Purchaser with its stockholder list and security position listings for the purpose of disseminating the Offer to Purchase, the related Letter of Transmittal and other materials related to the Offer to holders of Shares. The Offer to Purchase, the related Letter of Transmittal and other materials related to the Offer, including the Schedule 14D-9, will be mailed to record holders of Shares whose names appear on Blue Apron’s stockholder list and will be furnished for subsequent transmittal to beneficial owners of Shares to brokers, dealers, commercial banks, trust companies and other nominees whose names, or the names of whose nominees, appear on Blue Apron’s stockholder list or, if applicable, who are listed as participants in a clearing agency’s security position listing.

 

The exchange of Shares for cash pursuant to the Offer or the Merger will be a taxable transaction for U.S. federal income tax purposes. A U.S. Holder (as defined in the Offer to Purchase) who sells Shares pursuant to the Offer or receives cash in exchange for Shares pursuant to the Merger generally will recognize capital gain or loss for U.S. federal income tax purposes in an amount equal to the difference, if any, between (i) the amount of cash received and (ii) the U.S. Holder’s adjusted tax basis in the Shares sold pursuant to the Offer or converted pursuant to the Merger. See Section 5 of the Offer to Purchase for a more detailed discussion of the U.S. federal income tax treatment of the Offer and the Merger. You are urged to consult with your own tax advisor as to the particular tax consequences to you of the Offer and the Merger in light of your particular circumstances (including the application and effect of any U.S. federal, state, local or non-U.S. income and other tax laws).

 

The Offer to Purchase and the related Letter of Transmittal contain important information, and Blue Apron’s stockholders should read both carefully and in their entirety before making a decision with respect to the Offer.

 

Questions or requests for assistance may be directed to the Information Agent at the address and telephone number set forth below. Copies of the Offer to Purchase, the related Letter of Transmittal and other materials related to the Offer may be obtained at no cost to Blue Apron’s stockholders from the Information Agent. Additionally, copies of the Offer to Purchase, the related Letter of Transmittal and any other materials related to the Offer are available free of charge at www.sec.gov. Stockholders may also contact their brokers, dealers, commercial banks, trust companies or other nominees for assistance. Neither Wonder nor Purchaser will pay any fees or commissions to any broker, dealer, commercial bank, trust company or to any other person (other than to the Depositary and the Information Agent) in connection with the solicitation of tenders of Shares pursuant to the Offer.

 

The Information Agent for the Offer is:

 

 

 

1212 Avenue of the Americas, 17^th Floor 

New York, NY 10036
Banks and Brokerage Firms Please Call: 1 (212) 297-0720
Shareholders and All Others Call Toll-Free: 1 (844) 343-2625
Via Email: info@okapipartners.com

 

October 13, 2023

 

 

 

Exhibit (d)(3)

 

CONFIDENTIAL

 

August 1, 2023

 

Wonder Group, Inc.

399 Jefferson Road

Parsipanny, NJ 07054

Attention: Marc Lore

 

Ladies and Gentlemen:

 

In connection with your consideration of a possible negotiated transaction (a “Transaction”) involving Blue Apron Holdings, Inc. (collectively with its predecessor companies and its and their respective subsidiaries, affiliates and divisions, the “Company”) and Wonder Group, Inc. (“you”), you have requested, and the Company is prepared to make available to you, certain information concerning the Company. As a condition to such information being furnished to you and your Representatives (as hereinafter defined), you agree to treat any information concerning the Company and its business, operations, assets and liabilities (whether prepared by the Company, its Representatives or otherwise and irrespective of the form of communication) which has been or is now or in the future furnished to you or to your Representatives by or on behalf of the Company (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions as hereinafter set forth. “Representatives” shall mean, with respect to any person, such person’s directors, officers, employees, agents, attorneys, accountants, consultants and financial advisors, including, in the case of the Company, Jefferies Group LLC (“Jefferies”).

 

The term “Evaluation Material” shall be deemed to include any summaries, notes, analyses, reports, compilations, studies, interpretations, memoranda or other documents (regardless of the form thereof) prepared by you or your Representatives which contain, reflect or are based upon or derived from, in whole or in part, any information furnished to you or your Representatives pursuant hereto. The term “Evaluation Material” does not include information that: (i) is or becomes generally available to and known by the public other than as a result of disclosure directly or indirectly by you or your Representatives; (ii) was within your possession prior to it being furnished to you by or on behalf of the Company pursuant hereto (or pursuant to a prior confidentiality arrangement), provided that the source of such information was not, to your knowledge at the time of disclosure, bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to such information; or (iii) becomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not, to your knowledge at the time of disclosure, bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to such information.

 

 

You hereby agree that you and your Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible Transaction between the Company and you and not for any other purpose and that you and your Representatives will keep confidential and not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that (a) you may make any disclosure of such information to which the Company gives its prior written consent; and (b) subject to the last sentence of this paragraph, any of such information may be disclosed to your Representatives who (i) need to know such information for the sole purpose of evaluating a possible Transaction, (ii) are informed of the existence and terms of this letter agreement and (iii) agree in writing to keep such information confidential in accordance with the terms hereof or otherwise have a fiduciary or other obligation to keep such information confidential. In any event, you shall be responsible for any breach of this letter agreement by any of your Representatives as if they were parties hereto, and you agree, at your sole expense, to take all reasonable measures (including but not limited to court proceedings) to restrain your Representatives from prohibited or unauthorized use or disclosure of the Evaluation Material. It is understood and agreed that the Company may, in its discretion, from time to time upon notice to you, require that you refrain from disclosing certain Evaluation Material to certain of your Representatives, in which case you shall refrain from disclosing such Evaluation Material to such Representatives.

 

In addition, you agree that, without the prior written consent of the Company, neither you nor your Representatives will disclose to any other person the existence of this letter agreement, the fact that the Evaluation Material has been made available to you or your Representatives, that discussions or negotiations are taking place concerning a possible transaction involving the Company or any of the terms, conditions or other facts with respect thereto (including the status thereof) (collectively, “Transaction Information”), provided that you may make such disclosure if you have received the written opinion of your outside counsel that such disclosure must be made by you in order that you not commit a violation of any law, rule, regulation or stock exchange requirement (in which case you agree to disclose only that portion of the Transaction Information which such counsel advises you is legally required to be disclosed and to give the Company at least 24 hours advance notice of such planned disclosure, with a copy of the proposed text of the disclosure). The term “person” as used in this letter agreement shall be broadly interpreted to include the media and any governmental representative, entity or authority, corporation, company, partnership, joint venture, group, limited liability company, other entity or individual.

 

You agree that neither you nor any of your Representatives will disclose Evaluation Material or Transaction Information to any potential debt or equity financing source without the prior written consent of the Company. In the event the Company provides such consent with respect to any potential financing source, such potential financing source shall be considered your Representative for all purposes of this letter agreement. Whether or not any such consent is granted, you agree that you will not, directly or indirectly, require, instruct or encourage any financial institutions or financing sources, including any financial advisor, or any legal or other advisory firms, not to be retained by any other person in connection with any potential transaction with the Company and, if requested, you agree to consent to any such retention, and to waive any actual or alleged conflict that may arise from any existing or past relationship with you, in connection with any potential transaction with the Company. You further agree that neither you nor any of your Representatives will enter into any exclusivity, lock-up, dry-up or other agreement, arrangement or understanding, whether written or oral, with any potential debt financing source which could reasonably be expected to limit, restrict, restrain or otherwise impair in any manner, directly or indirectly, the ability of such debt financing source to serve as a debt financing source to any other person considering any transaction with the Company; provided that you may retain an exclusive team at such institutions or sources under a customary “tree” arrangement.

 

 

In the event that you or any of your Representatives are required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material, you shall provide the Company with prompt written notice of any such request or requirement so that the Company may seek, at the Company's expense, a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you or any of your Representatives are nonetheless, in the written opinion of your outside counsel, legally required to disclose Evaluation Material to any tribunal or other entity or else stand liable for contempt or suffer other censure or penalty, you or your Representatives may, without liability hereunder, disclose to such tribunal or other entity only that portion of the Evaluation Material which such counsel advises you is legally required to be disclosed, provided that you exercise your reasonable best efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by cooperating with the Company, at the Company's expense, to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material by such tribunal or other entity.

 

If you decide that you do not wish to proceed with a Transaction, you will promptly inform the Company of that decision. In that case, or at any time upon the request of the Company for any reason, you will promptly (and in no event later than five business days after such request) deliver to the Company or destroy all Evaluation Material (and all copies thereof) furnished to you or your Representatives by or on behalf of the Company pursuant hereto and you and your Representatives shall not retain any copies, extracts or other reproductions in whole or in part of such material. In the event of such a decision or request, you agree that all Evaluation Material prepared by you or your Representatives shall be destroyed and no copy thereof (including that stored in any computer, electronic or similar device or otherwise stored in electronic or digital format) shall be retained and such destruction shall, upon the Company’s written request, be certified in writing to the Company by an authorized officer supervising such destruction. Notwithstanding the foregoing, (a) you may retain data or electronic records containing Evaluation Material for the purposes of backup, recovery, contingency planning or business continuity planning so long as such data or records, to the extent not permanently deleted or overwritten in the ordinary course of business, are not accessible in the ordinary course of business and are not accessed except as required for backup, recovery, contingency planning or business continuity purposes (it being understood that, if such data or records are restored or otherwise become accessible, they must be permanently deleted) and (b) your legal department may retain one copy of Evaluation Material to the extent required for compliance with applicable laws. Notwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of confidentiality and other obligations hereunder, and any copies of Evaluation Material retained pursuant to this paragraph shall remain subject to your obligations of confidentiality and other obligations with respect thereto so long as such copies are retained.

 

 

You understand and acknowledge that neither the Company nor any of its Representatives (including, without limitation, Jefferies), or any of their respective directors, officers, stockholders, partners, owners, employees, affiliates or agents makes any representation or warranty, express or implied, including as to the accuracy or completeness of any of the Evaluation Material. You agree that neither the Company nor any of its Representatives (including, without limitation, Jefferies), or any of their respective directors, officers, stockholders, partners, owners, employees, affiliates or agents shall have any liability to you or to any of your Representatives or any other person relating to or resulting from the use of any of the Evaluation Material or any errors therein or omissions therefrom, and you agree that the Company has no duty to disclose any Evaluation Material or other information to you or your Representatives. Only those representations or warranties which are made in a final definitive agreement regarding a Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.

 

To the extent that any Evaluation Material may include materials that are subject to the attorney-client privilege, the work product doctrine or any other applicable privilege, you and the Company understand and agree that you and the Company have a commonality of interest with respect to the matters related thereto and it is your and the Company’s desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, the work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection under the attorney-client privilege, the work product doctrine or other applicable privilege shall remain entitled to such protection thereunder, under this letter agreement and under the joint defense doctrine.

 

In addition, you hereby acknowledge that you are aware (and that prior to their receipt of any Evaluation Material your Representatives who are apprised of a possible transaction have been or will be advised such that they will be aware) that the United States and other applicable securities laws prohibit any person who has material, non-public information about a company obtained directly or indirectly from that company from purchasing or selling securities of such company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.

 

You agree that all communications regarding a possible Transaction regarding the Company, all requests for additional information, facility tours or management meetings and all discussions or questions regarding procedures with respect to a possible Transaction, will be submitted or directed to Jefferies and not to the Company. Without the express prior written consent of the Company, you agree that you will not, directly or indirectly, contact or communicate with any officer, employee, agent, supplier, licensor, licensee or other business partner of the Company, in each case except for any contact or communication in the ordinary course of business that is unrelated to a possible Transaction.

 

 

In consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of two (2) years from the date hereof, neither you nor any of your affiliates will, directly or indirectly, solicit to employ or hire (as an employee, independent contractor or otherwise) any Restricted Employee (as defined below) so long as they are employed by the Company and for a period of twelve (12) months after termination of employment; provided, however, that the foregoing shall not prohibit you from (i) making general solicitations of employment through job advertisements or similar notices not targeted at any Restricted Employee or (ii) engaging any recruiting firm or similar organization to identify or solicit persons for employment on your behalf, or soliciting the employment of any employee who is identified by any such recruiting firm or organization, as long as such recruiting firm or organization is not instructed to target any Company employees. For purposes of this letter agreement, “Restricted Employee” means any employee of the Company (a) who has a title of vice president or higher, (b) who participates in any discussions or negotiations with you or any of your Representatives regarding a Transaction, (c) with whom you or any of your Representatives have contact or communications in connection with a Transaction, or (d) who is otherwise identified to you or any of your Representatives in connection with a Transaction.

 

In consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of two (2) years from the date of this letter agreement, unless you shall have been specifically invited in advance in writing by the Company, neither you nor any of your affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “1934 Act”)) nor any of your Representatives acting on your behalf will in any manner, directly or indirectly: (i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way advise, assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (a) any acquisition of any securities (or beneficial ownership thereof) or assets of the Company, or any rights to acquire any such securities (including derivative securities representing the right to vote or economic benefit of any such securities) or assets; (b) any tender or exchange offer, merger or other business combination involving the Company; (c) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company; or (d) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the Company; (ii) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to any securities of the Company; (iii) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company; (iv) take any action which might force the Company to make a public announcement regarding any of the types of matters set forth in (i) above; or (v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. You also agree during such period not to request the Company (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence). Notwithstanding the foregoing, if at any time the Company publicly announces that it has entered into with a third party a written definitive agreement for the acquisition (by way of merger, tender offer or otherwise) of more than 50% of the outstanding capital stock of the Company or all or substantially all of the Company’s consolidated assets, then the restrictions set forth in this paragraph shall terminate and cease to be of any further force or effect. You represent and warrant that neither you nor any of your affiliates owns, of record or beneficially, any voting securities of the Company, or any securities convertible into or exercisable for any such voting securities.

 

 

You understand and agree that no contract or agreement providing for any Transaction (or other transaction) shall be deemed to exist between you and the Company unless and until a final definitive agreement has been executed and delivered, and you hereby waive, in advance, any claims (including, without limitation, claims for breach of contract) in connection with any Transaction (or other transaction) unless and until you and the Company shall have entered into a final definitive agreement. You also agree that unless and until a final definitive agreement regarding a Transaction between the Company and you has been executed and delivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this letter agreement or any other written or oral expression with respect to such Transaction, except for the matters specifically agreed to herein. You further acknowledge and agree that the Company reserves the right, in its sole discretion, to reject any and all proposals made by you or any of your Representatives with regard to a Transaction, and to terminate discussions and negotiations at any time and for any reason or no reason. You further understand that (i) the Company and its Representatives shall be free to conduct any process for any Transaction (or other transaction), if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a preliminary or definitive agreement without prior notice to you or any other person); (ii) any procedures relating to such process, Transaction or other transaction may be changed at any time without notice to you or any other person; and (iii) you shall not have any claims whatsoever against the Company, its Representatives or any of their respective directors, officers, stockholders, owners, partners, employees, affiliates or agents arising out of or relating to any Transaction (or other transaction) (other than those as against the parties to a final definitive agreement with you in accordance with the terms thereof) nor, unless a final definitive agreement is entered into with you, against any third party with whom a Transaction (or other transaction) is entered into. For the purposes of this paragraph, the term “definitive agreement” shall not include this letter agreement, an executed letter of intent or any other preliminary written agreement, nor does it include any written or oral acceptance by the Company of any offer or bid on your part.

 

You acknowledge and agree that (i) as between the Company, on the one hand, and you and your Representatives, on the other hand, the Company retains all right, title and interest in, to and under the Evaluation Material and all physical, electronic, virtual or other embodiments thereof and (ii) the Company has not granted you any license, copyright or similar right with respect to any of the Evaluation Material.

 

You recognize and acknowledge the competitive value and confidential nature of the Evaluation Material and that irreparable damage will result to the Company if information contained therein or derived therefrom is disclosed to any third party except as herein provided or is used for any purpose other than the evaluation of a possible Transaction. You further understand and agree that money damages would not be a sufficient remedy for any breach of this letter agreement by you or any of your Representatives and that the Company shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach, without the posting of any bond or other security. Such remedies shall not be deemed to be the exclusive remedies for a breach by you or any of your Representatives of this letter agreement but shall be in addition to all other remedies available at law or equity to the Company. In the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines that you have or any of your Representatives has breached this letter agreement, then you shall be liable for and pay to the Company promptly the reasonable legal fees and disbursements incurred by the Company in connection with such litigation, including any appeal therefrom.

 

 

This letter agreement is for the benefit of the Company, its Representatives (including, without limitation, Jefferies) and their respective directors, officers, stockholders, partners, owners, employees, affiliates and agents, and shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the principles of conflicts of law thereof. You hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the Delaware Court of Chancery and any state appellate court within the State of Delaware (or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware) for any actions, suits or proceedings arising out of or relating to this letter agreement or the transactions contemplated hereby (and you agree not to commence any action, suit or proceeding relating thereto except in such courts), and further agree that service of any process, summons, notice or document by U.S. registered mail to your address set forth above shall be effective service of process for any action, suit or proceeding brought against you in any such court. You hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this letter agreement or the transactions contemplated hereby, in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware (or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware), and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.

 

The rights of the Company under this letter agreement may be assigned in whole or in part to any purchaser of the Company (or any purchaser of all or a majority of its capital stock or consolidated assets), which purchaser shall be entitled to enforce this letter agreement or rights hereunder to the same extent and in the same manner as the Company shall have been entitled to enforce this letter agreement. You may not assign your rights or obligations under this letter agreement to any person without the prior written consent of the Company. Subject to the foregoing, this letter agreement shall be binding on the respective successors and permitted assigns of the parties hereto.

 

This letter agreement contains the entire agreement between you and the Company concerning the subject matter hereof. No provision in this letter agreement can be waived, modified or amended except by the written agreement of the Company and you, which written agreement shall specifically refer to the provision being waived, modified or amended and explicitly effectuate such waiver, modification or amendment. It is understood and agreed that no failure or delay by the Company in exercising any right, power or privilege under this letter agreement shall operate as a waiver thereof, nor shall any single or partial exercise thereof (or any modification or waiver in any particular circumstance) preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this letter agreement.

 

 

This letter agreement also constitutes notice to you that the Company has engaged Wilmer Cutler Pickering Hale and Dorr LLP (“WilmerHale”) as its legal counsel in connection with the potential transaction, and you hereby (i) consent to the continued representation of the Company by WilmerHale in relation to the potential transaction notwithstanding the fact that WilmerHale may have represented, or may currently or in the future represent, you and/or any of your affiliates or Representatives with respect to unrelated matters and (ii) waive any actual or alleged conflict that may arise from WilmerHale’s representation of the Company in connection with the potential transaction. In addition, you hereby acknowledge that your consent and waiver under this paragraph is voluntary and informed, and that you have obtained independent legal advice with respect to this consent and waiver.

 

The term of this letter agreement is three (3) years from the date of its execution. This letter agreement may be executed in two or more counterparts, each of which shall be deemed to be an original of this letter agreement and all of which, taken together, shall be deemed to constitute one and the same instrument. No such counterpart need contain the signatures of all parties to this letter agreement and the exchange of signed counterparts by each of the parties, including exchange by facsimile transmission or other electronic means, shall constitute effective execution and delivery of this letter agreement.

 

*         *         *        *         *

 

 

Please confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon this letter agreement shall become a binding agreement between you and the Company.

 

	Very truly yours,
	BLUE APRON HOLDINGS, INC.
	By:	/s/ Meredith Deutsch
	Name:	Meredith Deutsch
	Title:	General Counsel

 

 

Accepted and agreed as of the date first written above:

 

WONDER GROUP, INC.

 

By:	/s/ Stephanie Brensilver
Name:	Stephanie Brensilver
Title:	General Counsel

 

 

Exhibit (d)(4)

 

CONFIDENTIAL

 

August 10, 2023

 

Blue Apron Holdings, Inc.

28 Liberty Street

New York, NJ 10005

Attention: Meredith Deutsch

 

Reference is made to the letter agreement dated August 1, 2023 (the “Agreement”) by and between Blue Apron Holdings, Inc. (collectively with its predecessor companies and its and their respective subsidiaries, affiliates and divisions, the “Company”) and Wonder Group, Inc. (“Wonder” and collectively with the Company, the “Parties” and each individually, a “Party”) containing certain confidentiality, standstill and other obligations as set forth therein. Capitalized terms not defined herein shall have the meanings ascribed to them in the Agreement.

 

Wonder and the Company wish to amend the Agreement in accordance with the terms of this letter agreement. In consideration of the foregoing, Wonder and the Company hereby agree to amend and restate the Agreement as follows:

 

The fourth paragraph of the Agreement is amended and restated in its entirety as follows:

 

In addition, you agree that, without the prior written consent of the Company, neither you nor your Representatives will disclose to any other person the existence of this letter agreement, the fact that the Evaluation Material has been made available to you or your Representatives, that discussions or negotiations are taking place concerning a possible transaction involving the Company or any of the terms, conditions or other facts with respect thereto (including the status thereof) (collectively, “Transaction Information”), provided that you may make such disclosure if you have received the written opinion of your outside counsel that such disclosure must be made by you in order that you not commit a violation of any law, rule, regulation or stock exchange requirement (in which case you agree to disclose only that portion of the Transaction Information which such counsel advises you is legally required to be disclosed and to give the Company at least 24 hours advance notice of such planned disclosure, with a copy of the proposed text of the disclosure). Except as otherwise required by law or applicable stock exchange requirement, the Company will not (except to the Company’s Representatives) identify you by name or identifiable description as being involved in discussions or negotiations concerning a possible Transaction, except as may be required by the second paragraph immediately following this paragraph, mutatis mutandis.

 

 

The 13^th paragraph of the Agreement is amended and restated in its entirety as follows:

 

In consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of two (2) years from the date of this letter agreement, unless you shall have been specifically invited in advance in writing by the Company, neither you nor any of your affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “1934 Act”)) nor any of your Representatives acting on your behalf will in any manner, directly or indirectly: (i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way advise, assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (a) any acquisition of any securities (or beneficial ownership thereof) or assets of the Company, or any rights to acquire any such securities (including derivative securities representing the right to vote or economic benefit of any such securities) or assets; (b) any tender or exchange offer, merger or other business combination involving the Company; (c) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company; or (d) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the Company; (ii) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to any securities of the Company; (iii) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company; (iv) take any action which might force the Company to make a public announcement regarding any of the types of matters set forth in (i) above; or (v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. You also agree during such period not to request the Company (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence) without the prior invitation of the Company’s Board of Directors or chief executive officer. Notwithstanding anything to the contrary in this paragraph: (x) nothing shall prevent a private communication to the Company’s Board of Directors or chief executive officer so long as such private communication would not reasonably be expected to require a public disclosure under applicable law or the listing requirements of the primary securities exchange on which the Company’s securities are listed, other than to the extent required in a proxy statement or Schedule 14D-9 filed by the Company with respect to an acquisition or merger transaction (provided that the contents, subject and existence of any such communications shall constitute Transaction Information hereunder) and (y) if at any time the Company publicly announces that it has entered into with a third party a written definitive agreement for the acquisition (by way of merger, tender offer or otherwise) of more than 50% of the outstanding capital stock of the Company or all or substantially all of the Company’s consolidated assets, then the restrictions set forth in this paragraph shall terminate and cease to be of any further force or effect. You represent and warrant that neither you nor any of your affiliates owns, of record or beneficially, any voting securities of the Company, or any securities convertible into or exercisable for any such voting securities.

 

The 17^th paragraph of the Agreement is amended and restated in its entirety as follows:

 

This letter agreement is for the benefit of the Parties and their Representatives (including, in the case of the Company, Jefferies) and the respective directors, officers, stockholders, partners, owners, employees, affiliates and agents of each of the Parties and their Representatives, and shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the principles of conflicts of law thereof. The Parties hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the Delaware Court of Chancery and any state appellate court within the State of Delaware (or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware) for any actions, suits or proceedings arising out of or relating to this letter agreement or the transactions contemplated hereby (and the Parties agree not to commence any action, suit or proceeding relating thereto except in such courts), and further agree that service of any process, summons, notice or document by U.S. registered mail to, with respect to the Company to: 28 Liberty Street, New York, NJ 10005, Attention: Meredith Deutsch, and with respect to Wonder, as set forth in the Agreement, shall be effective service of process for any action, suit or proceeding brought against such Party in any such court. Each Party hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this letter agreement or the transactions contemplated hereby, in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware (or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware), and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.

 

 

Except as specifically modified by this letter agreement, all terms and conditions of the Agreement shall remain in full force and effect, unmodified in any way. The parties hereto agree that all references to “this letter agreement” in the Agreement shall hereinafter refer to the Agreement, as amended by this letter agreement. Paragraph 21 of the Agreement is hereby incorporated by reference.

 

[Remainder of Page Intentionally Left Blank]

 

 

CONFIDENTIAL

 

Please confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon this letter agreement shall become a binding agreement between the Company and Wonder.

 

	Very truly yours,
	WONDER GROUP, INC.
	By:	/s/ Stephanie Brensilver
	Name:	Stephanie Brensilver
	Title:	General Counsel

 

 

Accepted and agreed as of the date first written above:

 

BLUE APRON HOLDINGS, INC.

 

By:	/s/  Meredith L. Deutsch
Name:	Meredith L. Deutsch
Title:	General Counsel

 

 

Exhibit (d)(5)

 

September 21, 2023

 

STRICTLY CONFIDENTIAL

 

Blue Apron Holdings, Inc.

28 Liberty Street

New York, New York 10005

Attention: Linda Findley

 

Subject: Exclusivity Agreement

 

Ladies and Gentlemen:

 

In connection with a possible negotiated transaction between Wonder Group, Inc. (“Wonder”) and Blue Apron Holdings, Inc. (“Blue Apron” and, such potential transaction, the “Proposed Transaction”), Wonder and Blue Apron are entering into this letter agreement in consideration of the substantial time and resources Wonder plans to devote to investigate, negotiate and enter into a definitive agreement with respect to the Proposed Transaction.

 

1.

Blue Apron hereby agrees that, for the period beginning on the date hereof and continuing until the earlier of (a) the execution of a definitive agreement with respect to the Proposed Transaction, (b) Wonder informing Blue Apron that Wonder is no longer interested in proceeding with the Proposed Transaction on the terms set forth in that certain revised, non-binding proposal, dated September 19, 2023, from Wonder to Blue Apron (the “Indicative Proposal”), and (c) 11:59 p.m., Eastern time, on September 28, 2023 (such period, the “Exclusivity Period”), Blue Apron will negotiate exclusively with Wonder and will not, and will cause its subsidiaries and its controlled affiliates, and will direct its, its subsidiaries’ and its controlled affiliates’ respective directors, officers, employees, agents, advisors, attorneys and other representatives who are or may become aware of the Proposed Transaction (the foregoing persons identified in this Section 1, collectively, “Blue Apron Representatives”) not to, directly or indirectly, (i) except with respect to Wonder and its subsidiaries and its affiliates and each of its and their directors, officers, partners, principals, members, employees, financial advisors, counsel, consultants, accountants and other representatives (collectively, “Wonder Representatives”), initiate, knowingly solicit or encourage, or negotiate any proposal or offer (whether publicly or otherwise) for any acquisition of Blue Apron or all or any material portion of Blue Apron’s assets or any material portion of the equity interest in Blue Apron (other than purchase and sales of Blue Apron’s publicly traded stock occurring in the ordinary course of business), pursuant to a merger, consolidation, or other business combination, sale of shares of capital stock, sale of assets, tender offer or exchange offer, joint venture, license, reorganization, recapitalization, dissolution or similar transaction, including any single or multi-step transaction or series of related transactions (each of the foregoing with respect to a third- party other than Wonder, an “Alternative Transaction”), (ii) provide material non-public information relating to Blue Apron or any subsidiary or affiliate thereof in connection with an Alternative Transaction (provided that, for clarity, the provision of information to FreshRealm, Inc. pursuant to existing contractual obligations (and subject to confidentiality obligations) shall be deemed to be permitted under this Agreement), or (iii) enter into any contract, agreement or arrangement concerning or relating to an Alternative Transaction.

 

 

2.

During the Exclusivity Period, if Blue Apron or any Blue Apron Representative receives any bona fide inquiry, offer or proposal relating to an Alternative Transaction, Blue Apron or such Blue Apron Representative shall notify Wonder thereof promptly and, in any event, within twenty-four (24) hours of receipt of any such inquiry, offer or proposal. Notwithstanding anything else herein, the Company may respond to any unsolicited inquiry, proposal, offer or expression of interest regarding a possible Alternative Transaction solely to indicate that the Company is unable to respond as a result of its contractual obligations (without further disclosing any of the terms hereof, or the identity of Wonder).

 

3.

Nothing herein obligates either Wonder or Blue Apron to continue any discussions or negotiations or enter into any definitive agreement with the other party. Except as expressly set forth herein or as set forth in the confidentiality agreement, dated as of August 1, 2023 (as amended), between Wonder and Blue Apron, unless and until a definitive agreement between Wonder and Blue Apron regarding the Proposed Transaction has been executed and delivered (or except as expressly provided in any binding written agreement that Wonder and Blue Apron enter into in the future), (a) neither Wonder nor Blue Apron will be under any legal obligation of any kind regarding the Proposed Transaction by virtue of this letter agreement, and (b) no past or future action, course of conduct or failure to act regarding the Proposed Transaction, or relating to the negotiation of the terms of the Proposed Transaction or a definitive agreement between Wonder and Blue Apron regarding the Proposed Transaction, will give rise to or serve as a basis for any obligation or other liability on the part of any party hereto. Each of Wonder and Blue Apron acknowledges that it has been advised by the other that such other party has not made any determination to enter into the Proposed Transaction.

 

4.

It is understood and agreed that money damages would not be a sufficient remedy for any breach of this letter agreement and that without prejudice to any rights or remedies at law or in equity otherwise available, either party shall, if the other party breaches any provision of this letter agreement, be entitled to seek injunctive relief, specific performance or other appropriate equitable remedies for any such breach without posting any bond or similar security. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.

 

5.

This letter agreement may be executed in counterparts, each of which will be deemed an original, and all of which will constitute the same agreement. Delivery of an executed counterpart of this letter agreement by facsimile or electronic transmission will be effective to the fullest extent permitted by applicable law.

 

6.

This letter agreement will be governed by and construed in accordance with the laws of the State of Delaware, without regard to principles of conflicts of laws. Upon the expiration of the Exclusivity Period, this letter agreement will automatically terminate.

 

 

If you are in agreement with the terms of this letter agreement and desire to proceed with negotiations on that basis, please sign this letter agreement in the space provided below and return an executed copy to Wonder.

 

	WONDER GROUP, INC.
	By:	/s/ Marc Lore
	Name:	Marc Lore
	Title:	Founder & CEO

 

 

AGREED AND ACCEPTED, this 21st day of September 2023:

 

BLUE APRON HOLDINGS, INC.

 

By:	/s/ Linda Findley
Name:	Linda Findley
Title:	President and Chief Executive Officer

 

 

Exhibit 107

 

Calculation of Filing Fee Tables

 

Schedule TO

 

BLUE APRON HOLDINGS, INC.

(Name of Subject Company (issuer))

 

BASIL MERGER CORPORATION

(Offeror)

a wholly owned subsidiary of

 

WONDER GROUP, INC.

(Parent of Offeror)

(Names of Filing Persons (identifying status as offeror, issuer or other person))

 

Table 1-Transaction Valuation

 

	Transaction Valuation(1)	Fee rate	Amount of Filing Fee(2)
Fees to Be Paid	$102,781,393.00	0.0001476	$15,170.53
Fees Previously Paid	$0		$0
Total Transaction Valuation	$102,781,393.00
Total Fees Due for Filing			$15,170.53
Total Fees Previously Paid			$0
Total Fee Offsets			$0
Net Fee Due			$15,170.53

 

(1)

Estimated solely for purposes of calculating the amount of the filing fee only. The transaction valuation was calculated by adding (a) the product of (i) $13.00, the purchase price per share (the “Offer Price”) of Blue Apron Holdings, Inc. (“Blue Apron”) Class A common stock, par value $0.0001 per share (each such share, a “Share”), net to the stockholder in cash, without interest and less any applicable tax withholding, and (ii) 7,696,606 Shares issued and outstanding, (b) the product of (i) 0 Shares issuable pursuant to outstanding stock options with an exercise price less than the Offer Price and (ii) the difference between the Offer Price and the weighted average exercise price for such options, (c) the product of (i) 189,973 Shares issuable pursuant to outstanding restricted stock units and (ii) the Offer Price and (d) the product of (i) 19,682 Shares issuable pursuant to outstanding vested performance stock units and (ii) the Offer Price. The calculation of the filing fee is based on information provided by Blue Apron as of October 12, 2023.

(2)

The amount of the filing fee was calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory #1 for fiscal year 2024 beginning on October 1, 2023, issued August 25, 2023, by multiplying the transaction value by 0.0001476.

 

 

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