| Item 3.03. | Material Modification to Rights of Security Holders. |
The information set forth under Item 5.03 below is incorporated by reference in this Item 3.03.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On June 22, 2023, upon recommendation of the Board of Directors (the “Board”) of Petco Health and Wellness Company, Inc. (the “Company”), at the 2023 Annual Meeting of Stockholders of the Company (the “Annual Meeting”), the Company’s stockholders approved the First Amendment (the “Plan Amendment”) to the Petco Health and Wellness Company, Inc. 2021 Equity Incentive Plan (the “2021 Plan” and, as amended by the Plan Amendment, the “Amended Plan”) to increase the shares of the Company’s Class A common stock, $0.001 par value per share (the “Common Stock”), reserved for issuance under the 2021 Plan by 15,500,000 shares of Common Stock. The Amended Plan is described in more detail in the Company’s definitive proxy statement as filed with the U.S. Securities and Exchange Commission on May 12, 2023 (the “2023 Proxy Statement”).
This summary of the Plan Amendment does not purport to be complete and is subject to and qualified in its entirety by reference to the text of the Plan Amendment filed as Exhibit 10.1 to this Current Report on Form 8-K, which is incorporated herein by reference.
| Item 5.03. | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal year. |
On June 22, 2023, at the Annual Meeting, upon the recommendation of the Board, the Company’s stockholders approved amendments to Article XI of the Company’s Second Amended and Restated Certificate of Incorporation (the “Certificate”) to provide for the elimination of monetary liability of certain officers of the company in certain circumstances as is or may be permitted under Delaware law (the “Amendment”).
As a result, the Company filed a Certificate of Amendment to the Certificate with the Secretary of State of the State of Delaware on June 22, 2023 setting forth the Amendment (the “Certificate of Amendment”), which became effective upon filing.
The foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to (i) the description of the Amendment set forth under the heading “Proposal 4—Approval of Amendment to the Company’s Second Amended and Restated Certificate of Incorporation to Limit the Liability of Certain Officers as Permitted by Delaware Law” of the Company’s 2023 Proxy Statement, and (ii) the full text of the Certificate of Amendment, a copy of which is attached as Exhibit 3.1 to this Current Report on Form 8-K and incorporated herein by reference.
| Item 5.07. | Submission of Matters to a Vote of Security Holders. |
At the Annual Meeting, the stockholders voted upon the following matters: (1) the election of Gary Briggs, Nishad Chande, and Mary Sullivan (the “Director Nominees”) to the Board as Class III directors, each to serve for a three-year term expiring at the Company’s 2026 annual meeting of stockholders and until his or her successor is duly elected and qualified, or until his or her earlier death, resignation, removal, retirement, or disqualification (“Proposal 1”); (2) the approval, on a non-binding, advisory basis, of the compensation of the Company’s named executive officers (“Proposal 2”); (3) the approval of the Plan Amendment to increase the number of shares of Class A Common Stock authorized for issuance under the 2021 Plan (“Proposal 3”); (4) the approval of the Amendment to limit the liability of certain officers as permitted by Delaware law (“Proposal 4”); and (5) the ratification of the appointment of Ernst & Young LLP as the Company’s independent registered public accounting firm for the fiscal year ending February 3, 2024 (“Proposal 5”).
Holders of the Company’s Class A common stock were entitled to vote on all matters presented for stockholder vote at the Annual Meeting. Holders of the Company’s Class B-1 common stock were entitled to vote on all matters presented for stockholder vote at the Annual Meeting, except for Proposal 1. Holders of the Company’s Class B-2 common stock were entitled to vote only on Proposal 1 at the Annual Meeting.
Based on the votes cast by holders of Class A common stock, Class B-1 common stock, and Class B-2 common stock, with Class A and Class B-2 common stock voting together on Proposal 1, and Class A and Class B-1 common stock voting together on Proposals 2 through 5, the final results for each proposal presented to the Company’s stockholders at the Annual Meeting are set forth below:
| 1. | The election of the Director Nominees to the Board as Class III directors (Proposal 1): |
| | | | | | |
Director Nominee | | Votes For | | Votes Withheld | | Broker Non-Votes |
Gary Briggs | | 206,685,215 | | 39,207,476 | | 11,046,270 |
Nishad Chande | | 221,142,972 | | 24,749,719 | | 11,046,270 |
Mary Sullivan | | 207,311,021 | | 38,581,670 | | 11,046,270 |
