We define Orders as the number of paid orders by our Customers across our meal, wine, and market products sold on our ~~e‑commerce~~e-commerce platforms and, beginning in the second quarter of 2022, through third-party sales platforms in any reporting period, inclusive of orders that may have eventually been refunded or credited to customers. Orders, together with Average Order Value, is an indicator of the net revenue we expect to recognize in a given period. We view Orders delivered as a key indicator of our scale and ~~growth.~~financial performance, however Orders has limitations as a financial and operating metric as it does not reflect the product mix chosen by our ~~customers~~Customers or the purchasing behavior of our customers. Because of these and other limitations, we consider, and you should consider, Orders in conjunction with our other metrics, including net revenue, net income (loss), adjusted EBITDA, net cash from (used in) operating activities, free cash flow, Average Order Value, and Orders per Customer.

We believe that our ability to compete depends upon many factors both within and beyond our control, including:

~~the size and composition of our customer base;~~

~~our reputation and brand strength relative to our competitors;~~

~~consumer tastes and preferences;~~

•our cash resources and related marketing efforts;

~~the flexibility and variety of our product offerings relative to our competitors;~~

•the flexibility and variety of our product offerings relative to our competitors, and our ability to timely launch new products;

~~our selling and marketing efforts;~~

•the quality and price of products offered by us and our competitors;

~~the quality and price of products offered by us and our competitors;~~

•our reputation and brand strength relative to our competitors;

~~our ability to comply with, and manage the costs of complying with, laws and regulations applicable to our business;~~

•customer satisfaction;

~~the convenience of the experience that we provide; and~~

•consumer tastes and preferences and trends in consumer spending, which have changed, and may continue to change, in response to macroeconomic factors, like inflation, the impact of pandemics or otherwise;

~~our ability to cost‑effectively source, market and distribute the products we offer and to manage our operations.~~

•the size and composition of our customer base;

•the convenience of the experience that we provide;

•the strength of FreshRealm’s food safety and quality program;

•our and FreshRealm’s ability to comply with, and manage the costs of complying with, laws and regulations applicable to our business; and

•FreshRealm’s ability to cost-effectively source and distribute the products we offer and to manage its operations.

Some of our current competitors have, and potential competitors may have, longer operating histories, larger or more efficient fulfillment infrastructures, greater technical capabilities, significantly greater financial, marketing and other resources and larger customer bases than we do. In addition, business combinations and consolidation in and across the industries in which we compete could further increase the competition we face and result in competitors with significantly

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greater resources and customer bases than us. Further, some of our other current or potential competitors may be smaller, less regulated, and have a greater ability to reposition their product offerings than companies that, like us, operate at a larger scale. These factors may allow our competitors to derive greater sales and profits from their existing customer base, acquire customers at lower costs, respond more quickly than we can to changes in consumer demand and tastes, or otherwise compete with us effectively, which may adversely affect our business, financial condition and operating results. These competitors may engage in more extensive research and development efforts, undertake more ~~far‑reaching~~far-reaching marketing campaigns and adopt more aggressive pricing policies, which may allow them to build larger customer bases or generate additional sales more effectively than we do.

~~Table~~Our deliberate decision to reduce marketing expenses during the first half of ~~Contents~~

If2023 may negatively impact our ability to compete which may have a material adverse impact on our ability to acquire or retain customers. In addition, as the COVID-19 pandemic’s impact on consumer behaviors has tapered, and consumers seek out other dining options or resume traveling, we ~~do not successfully build out~~have and ~~operate our fulfillment centers~~may continue to see an increase in competition, which may be significant, and ~~logistics channels, including by expanding our use of automation, and manage our ongoing real property and operational needs,~~which could have an adverse effect on our business, financial condition and operating ~~results could be~~results.

Food safety and food-borne illness incidents or advertising or product mislabeling may materially adversely ~~affected.~~

Ifaffect our business by exposing us to lawsuits, product recalls or regulatory enforcement actions, increasing our costs and reducing demand for our product offerings.

Selling food for human consumption involves inherent legal and other risks, and there is increasing governmental scrutiny of and public awareness regarding food safety. Unexpected side effects, illness, injury or death related to allergens, food borne illnesses or other food safety incidents (including food tampering or contamination) caused by products we ~~do not successfully build out~~sell, or involving companies that supply our ingredients and ~~operate our fulfillment centers, we may experience insufficient~~products, could result in the discontinuance of sales of these products or ~~excess fulfillment capacity,~~other supply chain disruption, such as FreshRealm’s relationships with ingredient suppliers, or otherwise result in increased operating costs ~~impairment charges~~ or ~~other~~ harm to our ~~business.~~ reputation. Shipment of adulterated products, even if inadvertent, can result in criminal or civil liability. Such incidents could also expose us to product liability, negligence or other lawsuits brought by consumers, consumer agencies or others. Any claims brought against us may exceed or be outside the scope of our existing or future insurance policy coverage or limits or ability to recover from other parties, including FreshRealm. Any judgment against us that is in excess of our insurance policy limits or not covered by our policies or not subject to insurance would have to be paid from our cash reserves, which would reduce our capital resources, which could impact our ability to execute our strategy.In addition, we have less direct control over the production and fulfillment of our meal kits as a result of the FreshRealm Transaction.

The occurrence of food borne illnesses or other food safety incidents could also adversely affect the price and availability of affected ingredients, resulting in higher costs, disruptions in supply and a reduction in our sales. Furthermore, any instances of food contamination, regardless of origin, could subject our products or ingredients to a food recall pursuant to the Food Safety Modernization Act of the United States Food and Drug Administration, or FDA, and comparable state laws. The risk of food contamination may be also heightened further due to changes in government funding or a government shutdown. Meat and poultry suppliers may operate only under inspection by the United States Department of Agriculture, or USDA. While USDA meat and poultry inspections are considered essential services, a government shutdown or lapse in funding may increase the risk that inspectors perform their duties inadequately, fail to report for work, or leave their positions without prompt replacement, potentially compromising food safety.

We have ~~encountered~~been in the past, and ~~may encounter~~could be in the future, ~~difficulty~~subject to food recalls. Food recalls could result in ~~hiring~~significant losses due to their costs, the destruction of product inventory, lost net revenues due to customer credits and refunds, lost future sales due to the unavailability of the product for a ~~sufficient number~~period of ~~employees~~time and potential loss of existing customers and a potential negative impact on our ability to ~~adequately staff~~retain existing customers and attract new customers due to negative consumer experiences or as a result of an adverse impact on our ~~fulfillment centers, requiring us~~brand and reputation.

In addition, food companies have been subject to use temporary workers through third parties at greater cost and with lower levels of performance. If we do not have sufficient fulfillment capacity or experience problems or delays in fulfilling orders, our customers may experience delays in receiving their meal deliveries, which could harm our reputationtargeted, large-scale tampering as well as to opportunistic, individual product tampering, and our ~~customer relationships~~products could be a target for product tampering. Forms of tampering could include the introduction of foreign material, chemical contaminants and pathological organisms into consumer products as well as product substitution. Beginning in July 2019, the FDA required companies registered as Food Facilities, or facilities that manufacture, process, pack or hold food for human or animal consumption, to analyze, prepare and implement “food defense” mitigation strategies specifically to address tampering designed to inflict widespread public health harm. If FreshRealm does not adequately address the possibility, or any actual instance, of product tampering, we could face possible seizure or recall of our products and the imposition of civil or criminal sanctions, which could materially adversely affect our business, financial condition and operating results. ~~In addition,~~

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Changes in consumer tastes and preferences or in consumer spending due to inflation or otherwise, and other economic or financial market conditions could materially adversely affect our business.

Our operating results may be materially adversely affected by changes in consumer tastes and preferences. Our future success depends in part on our ability to anticipate the tastes, eating habits and lifestyle preferences of consumers and to offer products that appeal to consumer tastes and preferences. Consumer tastes and preferences may change from time to time and can be affected by a number of different trends and other factors that are beyond our control. For example, our net revenue could be materially adversely affected by changes in consumer demand in response to nutritional and dietary trends, dietary concerns regarding items such as calories, sodium, carbohydrates or fat, or concerns regarding food safety. Our competitors may react more efficiently and effectively to these changes than we can. We cannot provide any ~~disruption~~assurances regarding our ability to respond effectively to changes in consumer health perceptions or ~~the loss of operations at, one~~our ability to adapt our product offerings to trends in eating habits. If we fail to anticipate, identify or ~~more of our fulfillment centers, even~~react to these changes and trends, or to introduce new and improved products on a ~~short term~~timely basis, ~~could delay~~ or ~~postpone production of~~if we cease offering such products or fail to maintain partnerships that react to these changes and trends, we may experience reduced demand for our products, which could materially adversely affect our business, financial condition and operating results. ~~For example, unexpected complexities~~

In addition, the business of selling food products over the Internet is dynamic and ~~costs have recently arisen~~continues to evolve. The market segment for food delivery has grown significantly, and this growth may not continue or may decline, including specifically with respect to the ~~launch of~~meal solutions sector. If customers cease to find value in this model or otherwise lose interest in our ~~Linden, New Jersey fulfillment center, which are adversely affecting our revenue expectations, the rollout of our new~~ product offerings or our business model generally, we may not acquire new customers in numbers sufficient to sustain growth in our business or retain existing customers at rates consistent with our business model, which could be materially adversely affect our business, financial condition, and ~~our ability to acquire~~operating results.

Furthermore, preferences and ~~retain new customers.~~

Weoverall economic conditions, such as inflation, that impact consumer confidence and spending, including discretionary spending, could have ~~designed and built our own fulfillment center infrastructure, including customizing third‑party inventory and package handling software systems, which is tailored to meet the specific needs of~~a material impact on our business. ~~Furthermore, we are expanding~~Economic conditions affecting disposable consumer income such as employment levels, business conditions, higher rates of inflation, slower growth or recession, market volatility, negative financial news, changes in housing market conditions, the ~~use~~availability of ~~automated production equipment~~credit, interest rates, tax rates, new or increased tariffs, fuel and ~~processes in our existing fulfillment centers~~energy costs, the effect of natural disasters or acts of terrorism, and ~~are incorporating automated production equipment and processes into our new Linden, New Jersey fulfillment center. As we continue~~other matters, could reduce consumer spending or cause consumers to ~~add capacity, capabilities and automated production equipment and processes~~shift their spending to ~~our fulfillment centers, our fulfillment operations will become increasingly complex and challenging. Any failure to hire, train or retain employees capable~~lower priced alternatives, each of ~~operating our fulfillment centers~~which could materially adversely affect our business, financial condition and operating results. ~~We also may be unable~~

In addition to ~~procure~~an adverse impact on demand for our products, uncertainty about, or a decline in, economic conditions could have a significant impact on FreshRealm or FreshRealm’s suppliers, logistics providers and ~~implement automated production equipment~~other business partners, including resulting in financial instability, inability to obtain credit to finance operations and ~~processes~~insolvency. Certain suppliers, and their manufacturing and assembly activities, are located outside the United States, and as a result our performance depend on ~~a timely basis,~~both global and ~~they may not operate as intended or achieve anticipated cost efficiencies. For example, suppliers could miss their equipment delivery schedules, new production lines~~regional economic conditions. These and operations could improve less rapidly than expected, or not at all, the equipment or processes could require longer design time than anticipated or redesigning after installation, and new production technology may involve equipment and processes with which we are not fully experienced. Difficulties we experience in automating our fulfillment processes could impair our ability to reduce costs andother economic factors could materially adversely affect our business, financial condition and operating results. In addition, any disruption in the operation of our fulfillment centers, including due to factors such as earthquakes, weather, fires, floods, power losses, telecommunications failures, acts of war or terrorism, human errors and similar events or disruptions, could materially adversely affect our business, financial condition and operating results.

Assuming we grow in the future, we will need to continue to add additional fulfillment and storage capacity in order to meet customer demand. For example, we recently launched a new fulfillment center in Linden, New Jersey, which increased our overall fulfillment capacity. If we do not successfully manage our ongoing real property and operational needs or if we redeploy these facilities for other uses or vacate these facilities, we may experience insufficient or excess fulfillment capacity, increased costs, impairment charges or other harm to our business, financial condition and operating results. For example, in July 2017, we approved a plan to transition all of our Jersey City, New Jersey fulfillment center operations to our new fulfillment center in Linden, New Jersey and, as a result, have performed an impairment test in accordance with ASC 360-10-35. For further discussion of this transition, see “Note 5 in our Consolidated Financial Statements.” In addition, we expect to incur future capital expenditures, primarily related to our fulfillment centers. For a discussion of our projected future capital expenditures, see “Management’s Discussion and Analysis of Financial Conditions and Results of Operations—Liquidity.” The timing and amount of our projected capital expenditures is dependent upon a number of factors, including the actual and anticipated growth in our business, and may vary significantly from our estimates, and we cannot assure you that these and any other new fulfillment centers will be timely constructed, that we will effectively integrate new facilities into our existing fulfillment operations, that our fulfillment software systems will continue to meet our business needs, or that we will be able to execute our expansion plans or recruit qualified managerial and operational personnel necessary to support our expansion plans. The expansion of our fulfillment capacity will put pressure on our managerial, financial, operational, technological and other resources.

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If we are unable to expand our fulfillment operations and increase our fulfillment capacity or to effectively control expansion‑related expenses, or if we grow faster than we anticipate, we may exceed our fulfillment center capacity sooner than we anticipate, we may experience problems fulfilling orders in a timely manner or our customers may experience delays in receiving their purchases, any of which could harm our reputation and our relationships with our customers. Many of the expenses and investments with respect to our fulfillment centers are fixed, and any expansion of such fulfillment centers will require additional investment of capital. We expect to continue to incur capital expenditures in the future for our fulfillment center operations. We may incur such expenses or make such investments in advance of expected sales, and such expected sales may not occur.

Our ability to source quality ingredients and other products is critical to our business, and any disruption to ~~our~~the supply or supply chain could materially adversely affect our business.

~~We depend~~

The production of our meal kit productsdepends on frequent deliveries of ingredients and other products from a variety of local, regional, national and international suppliers, and some ~~of our~~such suppliers may depend on a variety of other local, regional, national and international suppliers to fulfill the purchase orders ~~we place~~that FreshRealm places with them. The availability of such ingredients and other products at competitive prices depends on many factors beyond our or FreshRealm’s control, including the number and size of farms, ranches, vineyards and ~~vineyards~~other suppliers that provide crops, livestock and other raw materials ~~for making wine~~ that meet our quality and production standards.

We rely on ~~our~~FreshRealm, FreshRealm’s suppliers, and their respective supply chains, to meet our quality and production standards and specifications and supply ingredients and other products in a timely and safe manner. We ~~have developed~~are dependent on FreshRealm to develop and ~~implemented a series of~~implement measures to ensure the safety and quality of ~~our third party‑~~third-party supplied products, including using contract specifications, certificates of identity for some products or ingredients, sample testing by suppliers and sensory based testing. However, no safety and quality measures can eliminate the possibility that suppliers may provide ~~us with~~ defective or ~~out‑of‑~~out of specification products against which regulators may take action or which may subject us to litigation or require a recall. Suppliers may provide ~~us with~~ food that is or may be unsafe, food that is below our quality standards or food that is improperly labeled. In addition to a negative customer experience, we could face possible seizure or recall of our products and the imposition of civil or criminal sanctions if ~~we incorporate~~ a defective or ~~out‑of‑~~out of specification item is incorporated into one of our deliveries.

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Furthermore, there are many factors beyond our control which could cause shortages or interruptions in the supply of our ingredients and other products, including adverse weather, environmental factors, natural disasters, prolonged utility outages, unanticipated demand, shipping and distribution issues, labor ~~or distribution~~ problems, public health crises, such as pandemics and epidemics, changes in law or policy, food safety issues by ~~our~~ suppliers and their supply chains, and the financial health of ~~our~~ suppliers and their supply chains. For example, any future negative impact on the respective supply chains of FreshRealm or FreshRealm’s suppliers, as a result of weather, gas prices, pandemics, or otherwise, could materially and adversely impact our business, financial condition and operating results. Production of the agricultural products used in our business may also be materially adversely affected by drought, water scarcity, temperature extremes, scarcity of agricultural labor, changes in government agricultural programs or subsidies, import restrictions, scarcity of suitable agricultural land, crop conditions, crop or animal diseases or crop pests. Failure to take adequate steps to mitigate the likelihood or potential effect of such events, or to effectively manage such events if they occur, by us or FreshRealm may materially adversely affect our business, financial condition and operating results, particularly in circumstances where an ingredient or product is sourced from a single supplier or location.

In addition, unexpected delays in deliveries from suppliers that ship directly to ~~our~~FreshRealm’s fulfillment centers or increases in transportation costs, ~~(including~~including through increased fuel ~~costs)~~costs, could materially adversely affect our business, financial condition and operating results. Labor shortages or work stoppages in the transportation industry, ~~long‑~~long term disruptions to the national transportation infrastructure, reduction in capacity and ~~industry‑~~industry specific regulations such as ~~hours‑of‑~~hours of service rules that lead to delays or interruptions of deliveries could also materially adversely affect our business, financial condition and operating results.

~~We currently source certain~~

Certain of our ingredients are sourced from suppliers located outside of the United States. Any event causing a disruption or delay of imports from suppliers located outside of the United States, including weather, drought, ~~crop‑~~crop related diseases, the imposition of import or export restrictions, restrictions on the transfer of funds or increased tariffs, ~~destination‑~~destination based taxes, ~~value‑~~value added taxes, quotas or increased regulatory requirements, could increase the cost or reduce the supply of our ingredients and the other materials required by our product offerings, which could materially adversely affect our business, financial condition and operating results. Furthermore, ~~our~~ suppliers’ operations may be

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adversely affected by political and financial instability, resulting in the disruption of trade from exporting countries, restrictions on the transfer of funds or other trade disruptions, each of which could adversely affect our access or ability to source ingredients and other materials used in our product offerings on a timely or ~~cost‑effective~~cost-effective basis.

~~The reliable and cost‑effective storage, transport and delivery of ingredients~~

We have implemented significant reorganization activities in our business, such as the FreshRealm Transaction. These and other ~~products and our product offerings is critical to~~reorganization activities could have long-term adverse effects on our business, including additional attrition in personnel and ~~any interruptions, delays~~the failure to achieve the anticipated benefits and savings from these activities.

We have implemented significant reorganization activities in our business to adjust our cost structure, and we may engage in similar reorganization activities in the future.

For example, on June 9, 2023, we closed the FreshRealm Transaction, and subleased the Facilities to FreshRealm. As a result, we incurred a loss of approximately $48.6, relating to the carrying value of the assets disposed of and the issuance of the Warrant (as defined below).

Furthermore, in December 2022 and July 2023, to better align internal resources with strategic priorities, we further executed our planned reduction in corporate personnel of approximately 10% and 20%, respectively, of our corporate workforce, inclusive of both then current and vacant roles. As a result, we incurred approximately $1.5 million of employee-related expenses in December 2022, primarily consisting of severance payments, substantially all of which are cash expenditures that were paid in the first half of 2023, and incurred approximately $1.1 million of employee-related expenses in July 2023, primarily consisting of severance payments, substantially all of which are cash expenditures to be paid in the second half of 2023 and first quarter of 2024. In addition, in February 2020, we announced a plan to close our fulfillment center in Arlington, Texas. As part of this plan, in the first and second quarters of 2020 we transferred all of the remaining production volume from our Arlington, Texas fulfillment center to the Linden, New Jersey and Richmond, California fulfillment centers. These actions resulted and could result in the future in the loss of employees across various functions through attrition or ~~failures~~the need for further reductions, the loss of institutional knowledge and expertise and the reallocation and combination of certain roles and responsibilities across our organization, all of which could ~~materially~~ adversely affect our ~~reputation, business, financial condition~~operations. In addition, there is a risk of reduced employee morale and, ~~operating results.~~

~~We maintain arrangements with third parties to store ingredients~~as a result, we could face further employee attrition following a reorganization activity.

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Other reorganization activities in which we may engage in the future, as well as other ongoing or future cost reduction activities, may reduce our available talent, assets, capabilities and other resources and could slow improvements in our products ~~to deliver ingredients~~ and ~~other products from our suppliers to our fulfillment centers and to transport ingredients and other products between our fulfillment centers. Interruptions or failures in these~~ services, ~~could delay or prevent the delivery of these ingredients and other products to us and therefore~~ adversely affect our ability to ~~fulfill~~respond to competition and limit our ~~customers’ orders. These interruptions~~ability to satisfy customer demands. As a result, our management may need to divert a disproportionate amount of its attention away from our day-to-day strategic and operational activities, and devote a substantial amount of time to managing the organizational changes brought about by our reorganization. If we do not have sufficient resources, we may not be able to effectively manage the changes in our business operations resulting from the reorganization, which may result in weaknesses in our operations, risks that we may not be able to comply with legal and regulatory requirements, loss of business opportunities, loss of employees and reduced productivity among remaining employees. If we are unable to effectively manage these activities, our expenses may be ~~due~~higher than expected, and we may not be able to ~~events that are beyond~~implement our ~~control~~business strategy or achieve the anticipated benefits and savings from any such activities. In addition, delays in implementing planned restructuring activities, unexpected costs, or the ~~control~~failure to meet targeted improvements may diminish the operational or financial benefits we realize from such actions. Any of the third parties with whom we contract. In addition, we are in the process of expanding our internal capabilities with respect to storing ingredients and other products and transporting ingredients and other products both from our suppliers to our storage locations and fulfillment centers and between our storage locations and fulfillment centers. These expansion efforts may fail to meet our expectations and may not prove to be cost‑effective or as operationally efficient as our current arrangements with third parties, each of whichcircumstances described above could materially adversely affect our business ~~financial condition~~ and operating ~~results.~~

We also maintain arrangements with third‑party transport carriers to deliver the food products we sell to our customers. Interruptions, delays or failures in these carrier services could prevent the timely or proper delivery of these products, which may result in significant product inventory losses given the highly perishable nature of our food products. These interruptions may be due to events that are beyond our control or the control of these carriers, including adverse weather and natural disasters. If we are not able to maintain acceptable pricing and other terms with these carriers or they experience performance problems or other difficulties, we may not be able to deliver orders in a timely manner and meet customer expectations, and our business and reputation could suffer.

We rely on third‑party transport carriers for the delivery of our wines to our customers. State and federal laws regulate the ability of transport carriers to transport wine, and carriers may be required to obtain licenses in order to deliver wine to our customers. Changes in our access to those carriers, including changes in prices or changes in our relationships with those carriers, changes in the laws allowing third‑party transport of wine, or regulatory discipline against licenses held by those carriers, could materially adversely affect our wine business.

Delivery of the products we sell to our customers could also be affected or interrupted by the merger, acquisition, insolvency, or government shut‑down of the carriers we engage to make deliveries. If the products we sell are not delivered in proper condition or on a timely basis, our business and reputation could suffer.

~~Any failure to adequately store, maintain and deliver quality perishable foods could materially adversely affect our business,~~ financial ~~condition and operating~~ results.

Our ability to adequately store, maintain and deliver quality perishable foods is critical to our business. We store food products, which are highly perishable, in refrigerated fulfillment centers and ship them to our customers inside boxes that are insulated with thermal liners and frozen refrigerants to maintain appropriate temperatures in transit and use refrigerated third‑party delivery trucks to support temperature control for shipments to certain locations. Keeping our food products at specific temperatures maintains freshness and enhances food safety. In the event of extended power outages, natural disasters or other catastrophic occurrences, failures of the refrigeration systems in our fulfillment centers or third‑party delivery trucks, failure to use adequate packaging to maintain appropriate temperatures, or other circumstances both within and beyond our control, our inability to store highly perishable inventory at specific temperatures could result in significant product inventory losses as well as increased risk of food‑borne illnesses and other food safety risks. Improper handling or storage of food by a customer—without any fault by us—could result in food‑borne illnesses, which could nonetheless result in negative publicity and harm to our brand and reputation. The occurrence of any of these risks could materially adversely affect our business, financial condition and operating results.

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If we lose key management or fail to meet our ~~growing~~ need for qualified employees with specialized skills, our business, financial condition and operating results could be materially adversely affected.

Our ~~continued~~future success is dependent upon our ability to retain key ~~management, particularly Matthew B. Salzberg, our president and chief executive officer, and Ilia M. Papas, our chief technology officer. Messrs. Salzberg and Papas and our other~~management. Our executive officers and other management personnel are employees “at will” and could elect to terminate their employment with us at any time. For example, ~~on July 24,~~since 2017, ~~Matthew J. Wadiak resigned as~~we have had three different chief executive officers, since 2018 we have had four chief financial officers, and we have had five executive officers leave the business in the last twelve months (inclusive of one of our chief ~~operating~~financial officers and exclusive of our chief supply chain officer ~~and is transitioning~~who transferred to ~~a senior advisory role with our company.~~FreshRealm). We do not maintain “key person” insurance on the lives of ~~Messrs. Salzberg or Papas or other~~any of our executive officers.

Our ~~continued~~future success is also dependent upon our ability to attract, retain and effectively deploy ~~other~~ qualified employees, including management, possessing a broad range of skills and expertise. We may need to offer higher compensation and other benefits in order to attract and retain key personnel in the future, and, to attract top talent, we must offer competitive compensation packages before we have the opportunity to validate the productivity and effectiveness of new employees. Additionally, from time to time we have not been, and we may not in the future be, able to hire ~~new employees~~sufficient workforce quickly enough or to retain sufficient workforce, or if we do not generate sufficient cash from operations or raise additional capital we may not have adequate resources to meet our hiring needs, and we must effectively deploy our workforce in order to efficiently allocate our internal resources. For example, in ~~October 2017,~~December 2022 and July 2023, in order to better align internal resources with strategic priorities, we ~~implemented a company-wide realignment of~~further executed our planned reduction in corporate personnel ~~to support our strategic priorities. This realignment resulted in a reduction~~ of approximately 6%10% and 20%, respectively, of our total corporate workforce, ~~across~~inclusive of both then current and vacant roles. and we may experience a negative impact of the workforce reduction on executing our ~~corporate offices and fulfillment centers.~~strategy. If we fail to ~~meet our hiring needs, successfully integrate our new hires~~hire or retain qualified employees, or effectively deploy our existing personnel, our efficiency and ability to meet our forecasts, our ability to successfully execute on our strategic plan and our employee morale, productivity and retention could all suffer. Any of these factors could materially adversely affect our business, financial condition and operating results.

If our net revenue declines or if it begins to increase at only a moderate rate, or as seasonal patterns become more pronounced, seasonality could have a material impact on our results.

Our business is seasonal in nature, which impacts the levels at which customers engage with our products and brand, and, as a result, the trends of our revenue and our expenses fluctuate from quarter to quarter. For example, we historically anticipated that the first quarter of each year would generally represent our strongest quarter in terms of customer engagement, other than in 2020 when we saw the effect of the economic and social impact of the COVID-19 pandemic. Conversely, during the summer months and the end of year holidays, when people are vacationing more often or have less predictable weekly routines, we historically anticipated lower customer engagement. In addition, our marketing strategies and expenditures, which may be informed by these seasonal trends, will impact our quarterly results of operations. These seasonal trends may cause our net revenue and our cash requirements to vary from quarter to quarter depending on the variability in the volume and timing of sales. We believe that these seasonal trends have affected and will continue to affect our quarterly results in the future. However, we cannot predict the impact that macroeconomic trends such as inflation may have on seasonality. Our net revenue growth during the COVID-19 pandemic moderated the impact of seasonality on our business, but if our net revenue continues to decline or if it increases at only a moderate rate, or if seasonal spending by our customers becomes more pronounced, seasonality could have a more significant impact on our operating results from period to period. In addition, in the first and second quarters of 2022, we entered into sponsorship agreements with a related party under which we agreed to issue $27.5 million of gift cards (net of promotional discounts),

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which may result in higher levels of card breakage revenue which may inflate net revenue or mask seasonality in future periods. As of the date of this Quarterly Report on Form 10-Q, we have not yet received the remaining $12.7 million relating to the Sponsorship Gift Cards Agreement and there are no assurances that we will receive all or a portion of such funds. See Note 14 to the consolidated financial statements in this Quarterly Report on Form 10-Q.

We rely on our proprietary technology and data to forecast customer demand and we have licensed certain technology to FreshRealm to manage ~~our~~the supply chain for our products, and any failure of this technology, or the quality of our data, could materially adversely affect our business, financial condition and operating results.

We and FreshRealm rely on our proprietary technology and data to forecast demand and predict our customers’ orders, determine the amounts of ingredients and other ~~supply~~supplies to purchase, and to optimize ~~our in‑bound~~in-bound and ~~out‑bound~~out-bound logistics for delivery and transport of ~~our supply~~supplies to ~~our~~the fulfillment centers and of our product offerings to customers. If this technology fails or produces inaccurate results at any step in this process—such as if the data we or FreshRealm collect from customers is insufficient or incorrect, if we over or underestimate future demand, or if ~~we fail~~FreshRealm fails to optimize delivery routes to our customers—we could experience increased food waste or shortages in key ingredients, the operational efficiency of ~~our~~the supply chain may suffer (including as a result of excess or shortage of fulfillment center capacity) or our customers may experience delays or failures in the delivery of our product offerings, for example by missing ingredients. Moreover, forecasts based on historical data, regardless of any historical patterns or the quality of the underlying data, are inherently uncertain, and unforeseen changes in consumer tastes or external events could result in material inaccuracy of our forecasts, which could result in disruptions in our business, ~~and our~~ incurrence of significant costs under the production and fulfillment agreement, and waste. Furthermore, any interruptions or delays in our ability to use or access our proprietary technology could lead to interruptions or delays in ~~our~~the supply chain. The occurrence of any of the foregoing risks could materially adversely affect our business, financial condition and operating results.

The reliable and cost-effective storage, transport and delivery of ingredients and other products and our product offerings is critical to our business, and any interruptions, delays or failures could materially adversely affect our reputation, business, financial condition and operating results.

We rely on FreshRealm tomaintain arrangements to store ingredients and other products, to deliver ingredients and other products from suppliers to the fulfillment centers and to transport ingredients and other products between the fulfillment centers. Interruptions or failures in these services could delay or prevent the delivery of these ingredients and other products to FreshRealm and therefore adversely affect FreshRealm’s ability to fulfill our customers’ orders.

We also depend on FreshRealm to maintain arrangements with third-party transport carriers to deliver the food products we sell to our customers. Interruptions, delays or failures in these carrier services could prevent the timely or proper delivery of these products, which may result in significant product inventory losses given the highly perishable nature of our food products. These interruptions may be due to events that are beyond our control or the control of these carriers, including adverse weather, natural disasters and public health crises, such as pandemics and epidemics. If these carriers experience performance problems or other difficulties, customer orders may not be delivered in a timely manner and meet customer expectations, and our business and reputation could suffer. For example, carrier interruptions and delays as a result of the COVID-19 pandemic or otherwise have in the past impacted, and could again in the future impact our ability to deliver orders to our customers which could materially and adversely impact our business, financial condition and operating results. In addition, if FreshRealm is not able to maintain acceptable pricing and other terms with these carriers, whether as a result of inflation or otherwise, and we do not increase the price of our product offerings, we may experience reduced operating margins.

We rely on third-party transport carriers for the delivery of our wines to our customers. State and federal laws regulate the ability of transport carriers to transport wine, and carriers may be required to obtain licenses in order to deliver wine to our customers. Changes in our access to those carriers, including changes in prices and fuel surcharges or changes in our relationships with those carriers, changes in the laws allowing third party transport of wine, or regulatory discipline against licenses held by those carriers, could materially adversely affect our wine business.

Delivery of the products we sell to our customers could also be affected or interrupted by the merger, acquisition, insolvency, or government shutdown of the carriers we engage to make deliveries. If the products we sell are not delivered in proper condition or on a timely basis, our business and reputation could suffer.

Unionization activities may disrupt our operations and adversely affect our business.

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Although none of our or FreshRealm’s employees is currently covered under a collective bargaining agreement, our or FreshRealm’s employees may elect to seek to be represented by labor unions in the future. For example, in April 2018, a local labor union filed an election petition with the National Labor Relations Board seeking to represent certain employees at the Linden, New Jersey facility; however, such employees subsequently voted to not be represented by the union and one of our competitors recently faced a union election in three states. If a significant number of our or FreshRealm’s employees were to become unionized and collective bargaining agreement terms were to deviate significantly from our or FreshRealm’s current compensation and benefits structure, our business, financial condition and operating results could be materially adversely affected. In addition, a labor dispute involving some or all of our employees may harm our reputation, disrupt our operations and reduce our net revenues, and the resolution of labor disputes may increase our costs.

Any failure by FreshRealm or a third-party carrier to adequately store, maintain and deliver quality perishable foods could materially adversely affect our business, financial condition and operating results.

Theability to adequately store, maintain and deliver quality perishable foods is critical to our business. FreshRealm produces and stores food products, which are highly perishable, in refrigerated fulfillment centers and ships them to our customers inside boxes that are insulated with thermal or corrugate liners and frozen refrigerants to maintain appropriate temperatures in transit and use refrigerated third-party delivery trucks to support temperature control for shipments to certain locations. Keeping our food products at specific temperatures maintains freshness and enhances food safety. In the event of extended power outages, natural disasters or other catastrophic occurrences, failures of the refrigeration systems in fulfillment centers or third-party delivery trucks, FreshRealm’s failure to use adequate packaging to maintain appropriate temperatures, FreshRealm’s inability to store highly perishable inventory at specific temperatures could result in significant product inventory losses as well as increased risk of food borne illnesses and other food safety risks. Improper handling or storage of food by a customer—without any fault by us—could result in food borne illnesses, which could nonetheless result in negative publicity and harm to our brand and reputation. Further, FreshRealm may contract with third parties to conduct certain fulfillment processes and operations on our behalf. Any failure by such third party to adequately store, maintain or transport perishable foods could negatively impact the safety, quality and merchantability of our products and the experience of our customers. The occurrence of any of these risks could materially adversely affect our business, financial condition and operating results.

Disruptions in our or FreshRealm’s data and information systems could harm our reputation and our ability to run our business.

We and FreshRealm rely extensively on data and information systems for supply chain, order processing, fulfillment operations, financial reporting, human resources and various other operations, processes and transactions. Furthermore, a significant portion of the communications between, and storage of personal data of, our personnel, customers and suppliers depends on information technology. Our and FreshRealm’s data and information systems are subject to damage or interruption from power outages, computer and telecommunications failures, computer viruses, security breaches (including breaches of our transaction processing or other systems that could result in the compromise of confidential customer data), catastrophic events, data breaches and usage errors by our or FreshRealm’s employees or third-party service providers. Our or FreshRealm’s data and information technology systems may also fail to perform as we anticipate, and we may encounter difficulties in adapting these systems to changing technologies or expanding them to meet the future needs of our business. If our or FreshRealm’s systems are breached, damaged or cease to function properly, we may have to make significant investments to fix or replace them, suffer interruptions in our operations, incur liability to our customers and others or face costly litigation, and our reputation with our customers may be harmed. We also rely on third parties for a majority of our data and information systems, including for third-party hosting and payment processing. If these facilities fail, or if they suffer a security breach or interruption or degradation of service, a significant amount of our data could be lost or compromised and our ability to operate our business and deliver our product offerings could be materially impaired. In addition, various third parties, such as suppliers and payment processors, also rely heavily on information technology systems, and any failure of these systems could also cause loss of sales, transactional or other data and significant interruptions to our business. Any material interruption in the data and information technology systems we rely on, including the data or information technology systems of FreshRealm and other third parties, could materially adversely affect our business, financial condition and operating results.

Our business is subject to data security risks, including security breaches.

We, or our third-party vendors on our behalf, collect, process, store and transmit substantial amounts of information, including information about our customers and suppliers. In addition, FreshRealm (or their third-party

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vendors) will be collecting, processing, storing and transmitting such information on or behalf in connection with their performance of their obligations under the production and fulfillment agreement. We take steps to protect the security and integrity of the information we collect, process, store or transmit, but there is no guarantee that inadvertent or unauthorized use or disclosure will not occur, that third parties will not gain unauthorized access to this information despite such efforts, or that FreshRealm or one of our or their vendors will not misuse or mishandle such information. Security breaches, computer malware, computer hacking attacks and other compromises of information security measures have become more prevalent in the business world and may occur on our systems or those of our vendors in the future. Large Internet companies and websites have from time to time disclosed sophisticated and targeted attacks on portions of their websites, and an increasing number have reported such attacks resulting in breaches of their information security. We, FreshRealm and their and our third-party vendors are at risk of suffering from similar attacks and breaches. Although we take steps to maintain confidential and proprietary information on our information systems, these measures and technology may not adequately prevent security breaches and we rely on our third-party vendors to take appropriate measures to protect the security and integrity of the information on those information systems. Because techniques used to obtain unauthorized access to or to sabotage information systems change frequently and may not be known until launched against us, we may be unable to anticipate or prevent these attacks. In addition, we have experienced, and may experience in the future, a “credentials stuffing” incident, which is where a third party is able to illicitly obtain a customer’s identification and password credentials on the dark web to access a customer’s account and certain account data. We have also experienced, and may experience in the future, fraudulent use of promotional coupons or gift card codes.

Any actual or suspected security breach or other compromise of our security measures or those of FreshRealm or their or our third-party vendors, whether as a result of hacking efforts, denial of service attacks, viruses, malicious software, break ins, phishing attacks, social engineering or otherwise, could harm our reputation and business, damage our brand and make it harder to retain existing customers or acquire new ones, require us to expend significant capital and other resources to address the breach, and result in a violation of applicable laws, regulations or other legal obligations. Our insurance policies may not be adequate to reimburse us for direct losses caused by any such security breach or indirect losses due to resulting customer attrition.

We rely on email and other messaging services to connect with our existing and potential customers. Our customers may be targeted by parties using fraudulent spoofing and phishing emails to misappropriate passwords, payment information or other personal information or to introduce viruses through Trojan horse programs or otherwise through our customers’ computers, smartphones, tablets or other devices. Despite our efforts to mitigate the effectiveness of such malicious email campaigns through product improvements, spoofing and phishing may damage our brand and increase our costs. Any of these events or circumstances could materially adversely affect our business, financial condition and operating results.

We are subject to risks associated with payments to us from our customers and other third parties, including risks associated with fraud.

Nearly all of our customers’ payments are made by credit card or debit card. We currently rely exclusively on one third-party vendor to provide payment processing services, including the processing of payments from credit cards and debit cards, and our business would be disrupted if this vendor becomes unwilling or unable to provide these services to us and we are unable to find a suitable replacement on a timely basis. We are also subject to payment brand operating rules, payment card industry data security standards and certification requirements, which could change or be reinterpreted to make it more difficult or impossible for us to comply. If we fail to comply with these rules or requirements, we may be subject to fines and higher transaction fees and lose our ability to accept credit and debit card payments from customers, which would make our services less convenient and attractive to our customers and likely result in a substantial reduction in net revenue. We may also incur losses as a result of claims that the customer did not authorize given purchases, fraud, erroneous transmissions and customers who have closed bank accounts or have insufficient funds in their accounts to satisfy payments owed to us.

We are subject to, or voluntarily comply with, a number of other laws and regulations relating to the payments we accept from our customers and third parties, including with respect to money laundering, money transfers, privacy, and information security, and electronic fund transfers. These laws and regulations could change or be reinterpreted to make it difficult or impossible for us to comply. If we were found to be in violation of any of these applicable laws or regulations, we could be subject to civil or criminal penalties and higher transaction fees or lose our ability to accept credit and debit card payments from our customers, process electronic funds transfers or facilitate other types of online payments, which may make our services less convenient and less attractive to our customers and diminish the customer experience.

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We are highly dependent upon FreshRealm, as the exclusive manufacturer and supplier of our products, and the termination of, or material changes to, our relationship with FreshRealm or FreshRealm’s relationships with key suppliers or vendors could materially adversely affect our business, financial condition and operating results.

As part of the FreshRealm Transaction, we granted FreshRealm the exclusive right to manufacture and supply certain of our products, including our meal kits. In addition, the transfer of many of our employees to FreshRealm in connection with the FreshRealm Transaction means that we no longer have any significant in-house manufacturing operational expertise. Accordingly, we do not have manufacturing capabilities, do not plan to develop such capacity in the foreseeable future, and are entirely reliant on FreshRealm and its suppliers to provide all of our products. We ~~currently~~cannot be certain that we will be able to secure an alternative supplier without experiencing interruptions in our workflow including delivery of products to our customers, or that any alternative supplies will meet our quality control and performance requirements. FreshRealm may not be able to meet our delivery schedules, we may lose our relationship with FreshRealm and FreshRealm may not be able to meet performance and quality specifications. We will have to depend on FreshRealm to perform effectively on a timely basis and to comply with regulatory requirements. If for any reason FreshRealm is unable to do so and, as a result, we are unable to supply sufficient quantities of our products on acceptable terms, which could materially adversely affect our business, financial condition and operating results. In the event that our production and fulfillment agreement with FreshRealm expires or is terminated, FreshRealm is required to provide us with some assistance to transfer it manufacturing and supply responsibilities to a third party. However, any such transfer is not guaranteed to be successful and, even if successful, could be lengthy and involve significant additional costs, particularly in light of the loss of our in-house manufacturing operational expertise described above.

FreshRealm depends on a limited number of suppliers for some ~~of our~~ key ~~ingredients. We strive~~ingredients and we now depend on FreshRealm to work with suppliers that engage in certain growing, raising or farming standards that we believe are superior to conventional practices and that can deliver products that are specific to our quality, food safety and production standards. Currently, there are a limited number of meat and seafood suppliers that are able to simultaneously meet our standards and volume requirements. As such, these suppliers could be difficult to replace if we were no longer able to rely on ~~them.~~them indirectly through FreshRealm. We also ~~work~~have historically worked with suppliers that ~~grow~~produce specialty or unique ingredients for ~~us.~~us, which will be mediated through FreshRealm. It can take a significant amount of time and resources to identify, develop and maintain relationships with certain suppliers, including suppliers that ~~grow~~produce specialty or unique products for us. In the event of any disruptions to our or FreshRealm’s relationships with ~~our~~suppliers of specialty ~~crop growers,~~products, the ingredients ~~they grow~~those suppliers produce for us would be difficult to replace. The termination of, or material changes to, arrangements with key suppliers or vendors, disagreements with key suppliers or vendors as to payment or other terms, or the failure of a

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key supplier or vendor to meet its contractual obligations ~~to us~~ may require us to have FreshRealm contract with alternative suppliers or vendors. For example, the failure of a key supplier to meet its obligations ~~to us~~ or otherwise deliver ingredients at the volumes that meet our quality and production standards could require uspurchases to ~~make purchases~~be made from alternative suppliers or for us to make changes to our product offerings. If we have to replace key suppliers or vendors, we may be subject to pricing or other terms less favorable than those we currently enjoy, and it may be difficult to identify and secure relationships with alternative suppliers or vendors that are able to meet our volume requirements, food safety and quality or other standards. If we cannot replace or engage suppliers or vendors who meet our specifications and standards in a short period of time, we could encounter increased expenses, shortages of ingredients and other items, disruptions or delays in customer shipments or other harm. In this event, we could experience a significant reduction in sales and incur higher costs for replacement goods and customer refunds during the shortage or thereafter, any of which could materially adversely affect our business, financial condition and operating results.

In our wine business, we rely on the use of ~~third‑party~~third-party alternating proprietorship winemaking facilities. We rely on the host or owner of such facilities to ensure that the facilities are operational and maintained in good condition. Changes in those facilities or our access to those facilities, including changes in prices or changes in our relationships with the third parties who own and operate those facilities, or regulatory discipline against licenses held by those third parties, or any failure by such third parties to maintain their facilities in good condition, may impair our ability to produce wines at such facilities and could materially adversely affect our wine business.

~~Higher labor costs due to statutory and regulatory changes could materially adversely affect our business, financial condition and operating results.~~

Various federal and state labor laws govern our relationships with our employees and affect operating costs. These laws include employee classifications as exempt or non‑exempt, minimum wage requirements, unemployment tax rates, workers’ compensation rates, overtime, family leave, workplace health and safety standards, payroll taxes, citizenship requirements and other wage and benefit requirements for employees classified as non‑exempt. As our employees are paid at rates set above, but related to, the applicable minimum wage, further increases in the minimum wage could increase our labor costs. Significant additional government regulations could materially adversely affect our business, financial condition and operating results.

~~Unionization activities may disrupt our operations and adversely affect our profitability.~~

Although none of our employees is currently covered under a collective bargaining agreement, our employees may elect to be represented by labor unions in the future. If a significant number of our employees were to become unionized and collective bargaining agreement terms were to deviate significantly from our current compensation and benefits structure, our business, financial condition and operating results could be materially adversely affected. In addition, a labor dispute involving some or all of our employees may harm our reputation, disrupt our operations and reduce our revenues, and the resolution of labor disputes may increase our costs.

~~Disruptions in our data and information systems could harm our reputation and our ability to run our business.~~

We rely extensively on data and information systems for our supply chain, order processing, fulfillment operations, financial reporting, human resources and various other operations, processes and transactions. Furthermore, a significant portion of the communications between, and storage of personal data of, our personnel, customers and suppliers depends on information technology. Our data and information systems are subject to damage or interruption from power outages, computer and telecommunications failures, computer viruses, security breaches (including breaches of our transaction processing or other systems that could result in the compromise of confidential customer data), catastrophic events, data breaches and usage errors by our employees or third‑party service providers. Our data and information technology systems may also fail to perform as we anticipate, and we may encounter difficulties in adapting these systems to changing technologies or expanding them to meet the future needs of our business. If our systems are breached, damaged or cease to function properly, we may have to make significant investments to fix or replace them, suffer interruptions in our operations, incur liability to our customers and others or face costly litigation, and our reputation with our customers may be harmed. We also rely on third‑parties for a majority of our data and information systems, including for third‑party hosting and payment processing. If these facilities fail, or if they suffer a security

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breach or interruption or degradation of service, a significant amount of our data could be lost or compromised and our ability to operate our business and deliver our product offerings could be materially impaired. In addition, various third parties, such as our suppliers and payment processors, also rely heavily on information technology systems, and any failure of these systems could also cause loss of sales, transactional or other data and significant interruptions to our business. Any material interruption in the data and information technology systems we rely on, including the data or information technology systems of third‑parties, could materially adversely affect our business, financial condition and operating results.

~~Our business is subject to data security risks, including security breaches.~~

We, or our third‑party vendors on our behalf, collect, process, store and transmit substantial amounts of information, including information about our customers. We take steps to protect the security and integrity of the information we collect, process, store or transmit, but there is no guarantee that inadvertent or unauthorized use or disclosure will not occur or that third parties will not gain unauthorized access to this information despite such efforts. Security breaches, computer malware, computer hacking attacks and other compromises of information security measures have become more prevalent in the business world and may occur on our systems or those of our vendors in the future. Large Internet companies and websites have from time to time disclosed sophisticated and targeted attacks on portions of their websites, and an increasing number have reported such attacks resulting in breaches of their information security. We and our third‑party vendors are at risk of suffering from similar attacks and breaches. Although we take steps to maintain confidential and proprietary information on our information systems, these measures and technology may not adequately prevent security breaches and we rely on our third‑party vendors to take appropriate measures to protect the security and integrity of the information on those information systems. Because techniques used to obtain unauthorized access to or to sabotage information systems change frequently and may not be known until launched against us, we may be unable to anticipate or prevent these attacks. In addition, a party who is able to illicitly obtain a customer’s identification and password credentials may be able to access the customer’s account and certain account data.

Any actual or suspected security breach or other compromise of our security measures or those of our third‑party vendors, whether as a result of hacking efforts, denial‑of‑service attacks, viruses, malicious software, break‑ins, phishing attacks, social engineering or otherwise, could harm our reputation and business, damage our brand and make it harder to retain existing customers or acquire new ones, require us to expend significant capital and other resources to address the breach, and result in a violation of applicable laws, regulations or other legal obligations. Our insurance policies may not be adequate to reimburse us for direct losses caused by any such security breach or indirect losses due to resulting customer attrition.

~~We are subject to risks associated with payments to us from our customers and other third parties, including risks associated with fraud.~~

Nearly all of our customers’ payments are made by credit card or debit card. We currently rely exclusively on one third‑party vendor to provide payment processing services, including the processing of payments from credit cards and debit cards, and our business would be disrupted if this vendor becomes unwilling or unable to provide these services to us and we are unable to find a suitable replacement on a timely basis. We are also subject to payment brand operating rules, payment card industry data security standards and certification requirements, which could change or be reinterpreted to make it more difficult or impossible for us to comply. If we fail to comply with these rules or requirements, we may be subject to fines and higher transaction fees and lose our ability to accept credit and debit card payments from customers, which would make our services less convenient and attractive to our customers and likely result in a substantial reduction in revenue. We may also incur losses as a result of claims that the customer did not

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~~authorize given purchases, fraud, erroneous transmissions and customers who have closed bank accounts or have insufficient funds in their accounts to satisfy payments owed to us.~~

We may require additional capital to fund the expansion of our business, and our inability to obtain such capital could materially adversely affect our business, financial condition and operating results.

To support our anticipated business expansion, we must have sufficient capital to continue to make significant investments. We cannot assure you that our existing cash and cash equivalents, together with cash generated from operations and available borrowing capacity under our revolving credit facility, will be sufficient to allow us to fund such expansion. If cash flows from operations are not sufficient, we may need additional equity or debt financing to provide the funds required to expand our business. If such financing is not available on satisfactory terms or at all, we may be unable to expand our business or to develop new business at the rate desired, and our operating results may suffer. Debt financing increases expenses, may contain covenants that restrict the operation of our business, and must be repaid regardless of operating results. For example, covenants contained in our revolving credit agreement include limitations on our ability to pay dividends; create, incur or assume indebtedness or liens; consummate a merger, sale, disposition or similar transaction; engage in transaction with affiliates; and make investments. Equity financing, or debt financing that is convertible into equity, could result in dilution to our existing stockholders.

Our inability to obtain adequate capital resources, whether in the form of equity or debt, to fund our business and growth strategies may require us to delay, scale back or eliminate some or all of our operations or the expansion of our business, which could materially adversely affect our business, financial condition and operating results.

Our results could be adversely affected by natural disasters, public health crises, such as pandemics and epidemics, political crises or other catastrophic events.

Natural disasters, such as hurricanes, tornadoes, floods, earthquakes, droughts and other adverse weather and climate conditions; crop pests or diseases; animal diseases; unforeseen public health crises, such as pandemics and ~~epidemics; crop or animal diseases; crop pests;~~epidemics, such as the COVID-19 pandemic; political crises, such as terrorist attacks, war and other political instability or uncertainty; or other catastrophic events, whether occurring in the United States or internationally, could disrupt our

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operations or the operations of one or more of our ~~suppliers.~~or FreshRealm’s suppliers or vendors. In particular, these types of events could impact ~~our~~the supply chain for our products from or to the impacted region given our dependency on frequent deliveries of ingredients and other products from a variety of local, regional and national suppliers. In addition, these types of events could adversely affect consumer spending in the impacted regions or our ability to deliver our products to our ~~customers.~~customers safely, cost-effectively or at all. To the extent any of these events occur, our business, financial condition and operating results could be materially and adversely affected.

We ~~may be unsuccessful~~have identified a material weakness in ~~making, integrating and maintaining acquisitions, joint ventures and strategic investments.~~

~~We expect~~our internal controls over financial reporting related to evaluate and consider a wide array of potential strategic transactions, including acquisitions and dispositions of businesses, joint ventures, new technologies, services, products and other assets and strategic investments. Any of these transactions could be material to our business, financial condition and operating results. The process of integrating any acquired business or operating any joint venture may create unforeseen operating difficulties and expenditures. We may face difficulties in incorporating supply or distribution channels,ineffective information technology ~~and rights into our existing product offerings, and we may experience unanticipated expenses relating to these and other integration~~

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~~processes. We may also face known and unknown liabilities associated with a company we acquire or in which we invest.~~

We may not realize the anticipated benefits of any or all of our acquisitions, joint ventures or investments in the time frame expected or at all. Valuations supporting our acquisitions and strategic investments could change rapidly. Following any such transaction, we could determine that such valuations have experienced impairments or other‑than‑temporary declines in fair value which could materially adversely affect our business, financial condition and operating results through the write‑off of goodwill and other impairment charges.

general controls. Failure to establish and maintain effective internal controls in accordance with Section 404 of the ~~Sarbanes‑Oxley~~Sarbanes-Oxley Act in the future could have a material adverse effect on our business and stock price.

As a public company, we are ~~not currently~~ required to comply with the rules of the SEC implementing Section 404 of the Sarbanes‑Oxley Act and are therefore not required to make a formal assessment of the effectiveness of our internal control over financial reporting for that purpose. As a newly public company, we are required to comply with the SEC’s rules implementing Sections 302 and 404 of the ~~Sarbanes‑Oxley~~Sarbanes-Oxley Act, which requires management to certify financial and other information in our quarterly and annual reports and provide an annual management report on the effectiveness of controls over financial reporting. ~~Though we~~We are required to disclose changes made in our internal controls and procedures on a quarterly basis ~~we are not required~~and to make ~~our first~~ annual ~~assessment~~assessments of our internal control over financial reporting pursuant to Section ~~404 until the year following our first annual report required to be filed with the SEC. As~~404. In addition, as of January 1, 2023, we are no longer an emerging growth company and therefore, as an accelerated filer with annual revenues greater than $100 million, our independent registered public accounting firm ~~will not be~~is now required to ~~formally~~ attest to the effectiveness of our internal control over financial reporting pursuant to Section ~~404 until the later of the year following our first annual report required to be filed with the SEC or the date we are no longer an emerging growth company. At such time, our~~404. Our independent registered public accounting firm, and management, may issue a report that is adverse in the event it is not satisfied with the level at which our controls are documented, designed or operating.

To comply with the requirements of being a public company, we have undertaken various actions, and may need to take additional actions, such as implementing new internal controls and procedures and hiring additional accounting or internal audit staff. Testing and maintaining internal control can divert our management’s attention from other matters that are important to the operation of our business.

Additionally, when evaluating our internal control over financial reporting, we may identify material weaknesses and significant deficiencies and, as of December 31, 2022, our management identified a material weakness in internal controls related to ineffective information technology general controls. The material weakness did not result in any identified misstatements to the financial statements and there were no changes to previously identified financial results. Management has developed and is implementing a remediation plan to address the material weakness. However, we cannot assure you that the testing of the operational effectiveness of the new control will be complete within a specific timeframe.

There is no assurance that another material weaknesses or significant deficiencies will not occur or that we ~~may not~~will be able to remediate such material weaknesses or significant deficiencies in time to meet the applicable deadline imposed upon us for compliance with the requirements of Section 404. If we identify any material weaknesses in our internal control over financial reporting or are unable to comply with the requirements of Section 404 in a timely manner or assert that our internal control over financial reporting is effective, or if our independent registered public accounting firm is unable to express an opinion as to the effectiveness of our internal control over financial reporting, ~~once we are no longer an emerging growth company,~~ investors may lose confidence in the accuracy and completeness of our financial reports and the market price of our Class A common stock could be materially adversely affected, and we could become subject to investigations by the stock exchange on which our securities are listed, the SEC or other regulatory authorities, which could require additional financial and management resources.

Risks Related to Our Intellectual Property

We may be accused of infringing or violating the intellectual property rights of others.

Other parties have claimed or may claim in the future that we infringe or violate their trademarks, patents, copyrights, domain names, publicity rights or other proprietary rights. Such claims, regardless of their merit, could result in litigation or other proceedings and could require us to expend significant financial resources and attention by our management and other personnel that otherwise would be focused on our business operations, result in injunctions against us that prevent us from using material intellectual property rights, or require us to pay damages to third parties. We may need to obtain licenses from third parties who allege that we have infringed or violated their rights, but such licenses may not be available on terms acceptable to us or at all. In addition, we may not be able to obtain or use on terms that are favorable to us, or at all, licenses or other rights with respect to intellectual property that we do not own, which would require us to develop alternative intellectual property. To the extent we rely on ~~open source~~open-source software, we may face claims

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developed using such software, or otherwise seek to enforce the terms of the applicable ~~open source~~open-source license. Similar claims might also be asserted regarding our ~~in‑house~~in-house software. These risks have been amplified by the increase in intellectual property claims by third parties whose sole or primary business is to assert such claims. As knowledge of our business expands, we are likely to be subject to intellectual property claims against us with increasing frequency, scope and magnitude. We may also be obligated to indemnify affiliates or other partners who are accused of violating third parties’ intellectual property rights by virtue of those affiliates or partners’ agreements with us, and this could increase our costs in defending such claims and our damages. Furthermore, such affiliates and partners may discontinue their relationship with us either as a result of injunctions or otherwise. The occurrence of these results could harm our brand or materially adversely affect our business, financial position and operating results.

We may not be able to adequately protect our intellectual property rights.

We regard our customer lists and other consumer data, trademarks, service marks, domain names, copyrights, trade dress, trade secrets, ~~know‑how,~~know-how, proprietary technology and similar intellectual property as critical to our future success. We cannot be sure that our intellectual property portfolio will not be infringed, violated or otherwise challenged by third parties, or that we will be successful in enforcing, defending or ~~combatting~~combating any such infringements, violations, or challenges. We also cannot be sure that the law might not change in a way that would affect the nature or extent of our intellectual property ownership.

We rely on patent, registered and unregistered trademark, copyright and trade secret protection and other intellectual property protections under applicable law to protect these proprietary rights. While we have taken steps toward procuring trademark registration for several of our trademarks in key countries around the world and have entered or may enter into contracts to assist with the procurement and protection of our trademarks, we cannot assure you that our common law, ~~applied‑~~applied for, or registered trademarks are valid and enforceable, that our trademark registrations and applications or use of our trademarks will not be challenged by known or unknown third parties, or that any pending trademark or patent applications will issue or provide us with any competitive advantage. Effective intellectual property protection may not be available to us or may be challenged by third parties. Furthermore, regulations governing domain names may not protect our trademarks and other proprietary rights that may be displayed on or in conjunction with our website and other marketing media. We may be unable to prevent third parties from acquiring or retaining domain names that are similar to, infringe upon, or diminish the value of our trademarks and other proprietary rights.

We also rely on confidentiality, supplier, license and other agreements with our employees, suppliers and ~~others.~~others, including our agreements with FreshRealm, in which we both grant to, and receive from, FreshRealm rights under technology and intellectual property rights. Among other things, we have granted FreshRealm rights to use our trademarks in connection with the sale of certain products in retail channels under the retail license agreement, which requires FreshRealm to comply with our brand standards when using our trademarks, among other requirements. However, if FreshRealm does not comply with our brand standards, including ingredient quality specifications for FreshRealm’s own products sold using our trademarks, our brand could be harmed, which could have an adverse effect on our intellectual property rights in our trademarks. There is no guarantee that ~~these third parties~~our employees, FreshRealm, suppliers and others will comply with these agreements and refrain from misappropriating our proprietary rights. Misappropriation of our proprietary rights could materially adversely affect our business, financial position and operating results.

We may not be able to discover or determine the extent of any unauthorized use or infringement or violation of our intellectual property or proprietary rights. Third parties also may take actions that diminish the value of our proprietary rights or our reputation. The protection of our intellectual property may require the expenditure of significant financial and managerial resources. Moreover, the steps we take to protect our intellectual property may not adequately protect our proprietary rights or prevent third parties from continuing to infringe or misappropriate these rights. We also cannot be certain that others will not independently develop or otherwise acquire equivalent or superior technology or other intellectual property rights, which could materially adversely affect our business, financial condition and operating results.

Despite our efforts to protect our proprietary rights, unauthorized parties may attempt to obtain and use information that we regard as proprietary. Litigation may be necessary in the future to enforce our intellectual property rights, to protect our trade secrets, to determine the validity and scope of the proprietary rights of others or to defend against claims of infringement or invalidity. Such litigation could be costly, ~~time‑~~time consuming and distracting to management, result in a diversion of resources, the impairment or loss of portions of our intellectual property and could materially adversely affect our business, financial condition and operating results. Furthermore, our efforts to enforce our intellectual property rights may be met with defenses, counterclaims and countersuits attacking the validity and

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enforceability of our intellectual property rights. These steps may be inadequate to protect our intellectual property. We will not be able to protect our intellectual property if we are unable to enforce our rights or if we do not detect

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unauthorized use of our intellectual property. Despite our precautions, it may be possible for unauthorized third parties to use information that we regard as proprietary to create product offerings that compete with ours.

We currently operate only in the United States. To the extent that we determine to expand our business internationally, we will encounter additional risks, including different, uncertain or more stringent laws relating to intellectual property rights and protection.

Risks Related to Government Regulation of ~~Our~~ Food Operations

We are subject to extensive governmental regulations, which require ~~significant expenditures and~~ ongoing compliance efforts.

Our products are subject to extensive federal, state and local regulations. ~~Our food processing facilities and products are subject to inspection by the U.S. Department of Agriculture, or USDA, the FDA and various state and local health and agricultural agencies.~~ Applicable statutes and regulations governing food products include rules for labeling the content of specific types of foods, the nutritional value of that food and its serving size, as well as rules that protect against contamination of products by ~~food‑~~food borne ~~pathogens.~~pathogens and food production rules addressing the discharge of materials and pollutants and animal welfare. Many jurisdictions also provide that food producers adhere to good manufacturing or production practices (the definitions of which may vary by jurisdiction) with respect to processing food. Recently, the food safety practices ~~and procedures in~~of the meat processing industry and produce industry have been subject to ~~more~~ intense scrutiny and oversight by the USDA and FDA, respectively, and the FDA has begun to evaluate the possible need for new regulations for e-commerce food delivery companies, and future food-borne illness outbreaks ~~of diseases among cattle, poultry~~ or ~~pigs~~other food safety incidents related to meat or produce could lead to further governmental regulation of our business or of ~~our~~ suppliers. In addition, ~~our~~the fulfillment centers where our products are produced, which are operated by FreshRealm and not under our control, are subject to inspection by the FDA and various state and local health and agricultural agencies, as well as various federal, state and local laws and regulations relating to workplace safety and workplace health. Those fulfillment centers and our corporate and other offices, as applicable, continue to also be subject to additional FDA, Centers for Disease Control and Prevention, Occupational Safety and Health Administration regulations and guidelines and, in certain areas, ongoing local guidelines relating to COVID-19. Failure to comply with all applicable laws and regulations could subject us, FreshRealm and its suppliers or ~~our suppliers~~other strategic partners to civil remedies, including fines, injunctions, product recalls or seizures and criminal sanctions, any of which could have a material adverse effect on our business, financial condition and operating results. Furthermore, compliance with current or future laws or regulations could require us to make significant expenditures or require FreshRealm to make significant expenditures that FreshRealm may pass through to us through increased prices under the production and fulfillment agreement or otherwise materially adversely affect our business, financial condition and operating results.

Even inadvertent, ~~non‑negligent~~non-negligent or unknowing violations of federal, state or local regulatory requirements could expose us to adverse governmental action and materially adversely affect our business, financial condition and operating results.

The Federal Food, Drug, and Cosmetic Act, or FDCA, which governs the shipment of foods in interstate commerce, generally does not distinguish between intentional and unknowing, ~~non‑negligent~~non-negligent violations of the law’s requirements. Most state and local laws operate similarly. Consequently, almost any deviation from subjective or objective requirements of the FDCA or state or local law leaves us vulnerable to a variety of civil and criminal penalties.

In the ~~future, we may~~event that FreshRealm needs to deploy new equipment, update ~~our~~its facilities or occupy new ~~facilities. These~~facilities to produce our products, these activities may require usFreshRealm to adjust ~~our~~its operations and regulatory compliance systems to meet rapidly changing ~~conditions.~~conditions, and such adjustments in FreshRealm's operations may disrupt FreshRealm's ability to deliver products to our customers. In addition, FreshRealm may pass the costs of such adjustments in its operations through to us through increased prices under the production and fulfillment agreement. Although we have adopted and implemented systems to prevent the production of unsafe or mislabeled products, we no longer control the facilities where our products are produced, and any failure of those systems to prevent or anticipate an instance or category of deficiency could result in significant business interruption and financial losses to us. The occurrence of events that are difficult to prevent completely, such as the introduction of pathogenic organisms from the outside environment into ~~our~~FreshRealm’s facilities, also may result in the failure of our products to meet legal standards. Under these conditions we could be exposed to civil and criminal regulatory action.

In some instances, we may be responsible or held liable for the activities and compliance of ~~our third‑party~~FreshRealm, or other third-party vendors, ~~and~~ suppliers or other strategic partners, despite limited visibility into their operations. Although we monitor and carefully select our ~~third‑party~~third-party vendors, ~~and~~ suppliers, or other strategic partners, including FreshRealm, they may fail to adhere to regulatory standards, or our safety and quality standards or labor and employment practices, and we may fail to identify deficiencies or violations on a timely basis or at all. In addition, ~~recent legislation~~a statute in California called the Transparency in Supply Chains Act of 2010 requires us to ~~audit our suppliers with respect~~disclose the extent to ~~certain risks related~~which we take any action regarding verifications, audits, certifications, internal accountability or training to eradicate slavery and human trafficking ~~and to mitigate any such risks in our operations,~~from the supply chain, and any

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failure to ~~disclose issues~~comply with the disclosure requirements or other ~~non‑compliance~~non-compliance could subject us to action by the California Attorney General.

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We cannot assure you that we or FreshRealm will always be in full compliance with all applicable laws and regulations or that we will be able to comply with any future laws and regulations. Failure to comply with these laws and regulations could materially adversely affect our business, financial condition and operating results.

Changes to law, regulation or policy applicable to foods could leave us vulnerable to adverse governmental action and materially adversely affect our business, financial condition and operating results.

The food industry is highly ~~regulated. We invest significant resources in our efforts to comply with the local, state~~regulated and ~~federal food regulatory regimes under which we operate. However,~~ we cannot assure you that existing laws and regulations will not be revised or that new, more restrictive laws, ~~and~~ regulations, guidance or enforcement policies will not be adopted or become applicable to us, suppliers (including FreshRealm) or the products we distribute. We also operate under a business model that is relatively new to the food industry, in which we rapidly source, process, store and package meal ingredients—including fresh fruits and vegetables, and poultry, beef and seafood, each of which may be subject to a unique regulatory regime—and ship them directly to consumers in the course of ~~e‑commerce~~e-commerce transactions. Our business model leaves our business particularly susceptible to changes in and reinterpretations of compliance policies of the FDA and other government agencies, and some of our competitors may interpret the applicability of the same or similar laws and regulations to their businesses differently than we interpret them. Furthermore, ~~certain recently promulgated FDA regulations, such as the requirements regarding food defense, are not yet in effect, and~~ it is unclear how the FDA may interpret and enforce ~~many other recent~~certain recently promulgated regulations, ~~presenting~~such as the requirements regarding food defense mitigation strategies, or if the FDA will adopt new regulations for e-commerce food delivery companies, which present considerable future uncertainty. ~~The recent U.S. presidential election, bringing with it a change~~Recent and ongoing changes in senior federal government officials and policy priorities ~~creates~~create additional uncertainty.

Our and FreshRealm’s existing compliance structures may be insufficient to address the changing regulatory environment and changing expectations from government regulators regarding our business model. This may result in gaps in compliance coverage or the omission of necessary new compliance activity. Furthermore, the expansion of our business internationally would require us to comply with foreign laws and regulations, including those related to food safety, employment and health and safety, each of which may be materially different than the laws and regulations applicable to us in the United States. In addition, and regardless of our prospective compliance status, our business, financial condition and operating results could be materially adversely affected by future changes in applicable law and regulations.

Furthermore, we recently began conducting livestock and poultry operations, which are subject to a variety of federal, state and local legal and regulatory requirements, including regarding the discharge of materials and pollutants and animal welfare.

~~Our~~

Thefacilities and operations that produce our meal kits are governed by numerous and sometimes conflicting registration, licensing and reporting requirements.

~~Our~~

The fulfillment centers that produce our meal kits are required to be registered with the federal government and, depending on their location, are also subject to the authority of state and local governments. In some cases, disparate registration and licensing requirements lead to legal uncertainty, inconsistent government classifications of ~~our~~the meal kit operations and unpredictable governmental actions. Regulators may also change prior interpretations of governing licensing and registration requirements. ~~Our relatively new business model leaves us particularly susceptible to these factors.~~ If we or FreshRealm misapply or misidentify licensing or registration requirements, fail to maintain ~~our~~applicable registrations or licenses or otherwise violate applicable requirements, our products may be subject to seizure or recall and the operations that produce our ~~operations~~products could be subject to injunction. This could materially adversely affect our business, financial condition and operating results.

Similarly, we are required to submit reports to the FDA’s Reportable Food Registry in the event that we determine a product may present a serious danger to consumers. The reporting requirement may be triggered based on a subjective assessment of incomplete and changing facts. ~~Our~~The inventory for our products moves very rapidly throughout ~~our~~the supply and distribution ~~chain.~~chain, and that supply chain is now controlled by FreshRealm. Should we fail, in a timely fashion, to identify and report a potentially reportable event which, subsequently, is determined to have been reportable, whether as a result of FreshRealm’s failure to timely report an event to us or from our own inactions, government authorities may institute civil or criminal enforcement actions against us, and there may ~~result in~~be civil litigation against us or criminal charges against certain of our employees. This could materially adversely affect our business, financial condition and operating results.

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Good manufacturing process standards and food safety compliance metrics are complex, highly subjective and selectively enforced.

The federal regulatory scheme governing food products establishes guideposts and objectives for complying with legal requirements rather than providing clear direction on when particular standards apply or how they must be met. For example, ~~new~~ FDA regulations referred to as Hazard Analysis and ~~Risk‑~~Risk Based Preventive Controls for Human Food require that weproducers of food evaluate food safety hazards inherent to ~~our~~their specific products and operations. WeFollowing the FreshRealm Transaction, the FDA regulations are no longer directly applicable to us, but the regulations apply to FreshRealm in connection with the production of our products, as well as products they produce for other clients. To comply with the applicable FDA regulations, FreshRealm must ~~then~~ implement “preventive controls” in cases where we they

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determine that qualified food safety personnel would recommend that wethey do so. Determining what constitutes a food safety hazard, or what a qualified food safety expert might recommend to prevent such a hazard, requires evaluating a variety of situational factors. This analysis is necessarily subjective, and a government regulator may find ~~our~~FreshRealm’s analysis or conclusions inadequate. Similarly, the standard of “good manufacturing practice” to which ~~we are~~FreshRealm is held in ~~our~~its food production operations relies on a hypothesis regarding what individuals and organizations qualified in food manufacturing and food safety would find to be appropriate practices in the context of ~~our~~their operations. ~~Our~~The business model for producing our products, and the scale and nature of ~~our~~such operations, have relatively few meaningful comparisons among traditional food companies. Government regulators may disagree with ~~our~~the analyses and decisions regarding the good manufacturing practices appropriate for operations necessary to produce our ~~operations.~~

products. We have less direct control of the management of our manufacturing following the FreshRealm Transaction, including as relates to compliance with good manufacturing practices.

Decisions made or processes adopted ~~by us~~ in producing our ~~meals~~products are subject to ~~after‑the‑~~after the fact review by government authorities, sometimes years after the fact. Similarly, governmental agencies and personnel within those agencies may alter, clarify or even reverse previous interpretations of compliance requirements and the circumstances under which they will institute formal enforcement activity. It is not always possible accurately to predict regulators’ responses to actual or alleged ~~food‑~~food production deficiencies due to the large degree of discretion afforded regulators. We may be vulnerable to civil or criminal enforcement action by government regulators if they disagree with our analyses, conclusions, actions or practices. This could materially adversely affect our business, financial condition and operating results.

Packaging, labeling and advertising requirements are subject to varied interpretation and selective enforcement.

We operate under a novel business model in which we source, process, store and package meal ingredients and ship them directly to consumers. Most FDA requirements for mandatory food labeling are decades old and were adopted prior to the advent of ~~large‑scale, direct‑to‑~~large-scale, direct to consumer food sales and ~~e‑commerce~~e-commerce platforms. Consequently, we, like our competitors, must make judgments regarding how best to comply with labeling and packaging regulations and industry practices not designed with our specific business model in mind. Government regulators may disagree with these judgments, leaving us open to civil or criminal enforcement action. This could materially adversely affect our business, financial condition and operating results.

We are subject to detailed and complex requirements for how our products may be labeled and advertised, which may also be supplemented by guidance from governmental agencies. Generally speaking, these requirements divide information into mandatory information that we must present to consumers and voluntary information that we may present to consumers. Packaging, labeling, disclosure and advertising regulations may describe what mandatory information must be provided to consumers, where and how that information is to be displayed physically on our materials or elsewhere, the terms, words or phrases in which it must be disclosed, and the penalties for ~~non‑compliance.~~

non-compliance.

Voluntary statements made by us ~~to our customers,~~or by certain third parties, whether on ~~our packages,~~package labels or labeling, on websites, in print, in radio, on ~~television~~social media channels, or ~~in package inserts,~~on television, can be subject to FDA regulation, Federal Trade Commission, or FTC, regulation, USDA regulation, state and local regulation, or any combination of the foregoing. These statements may be subject to specific requirements, subjective regulatory evaluation, ~~or both.~~and legal challenges by plaintiffs. FDA, FTC, USDA and ~~state‑~~state and ~~local‑~~local level regulations and guidance can be confusing and subject to conflicting interpretations. Guidelines, standards and market practice for, and consumers’ understandings of, certain types of voluntary statements, such as those characterizing the nutritional and other attributes of food products, continue to evolve rapidly, and regulators may attempt to impose civil or criminal penalties against us if they disagree with our approach to using voluntary statements. Furthermore, in recent years the FDA has increased enforcement of its regulations with respect to nutritional, health and other claims related to food products, and plaintiffs have commenced legal actions against a number of companies that market food products positioned as “natural” or “healthy,” asserting false, misleading and deceptive advertising and labeling claims, including

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claims related to such food being “all natural” or that they lack any genetically modified ingredients. Should we become subject to similar claims or actions, consumers may avoid purchasing products from us or seek alternatives, even if the basis for the claim is unfounded, and the cost of defending against any such claims could be significant. The occurrence of any of the foregoing risks could materially adversely affect our business, financial condition and operating results.

Risks Related to Government Regulation of our Wine Business

If we do not comply with the specialized regulations and laws that regulate the alcoholic beverage industry, our business could be materially adversely affected.

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Alcoholic beverages are highly regulated at both the federal and state levels. Regulated areas include production, importation, product labeling, taxes, marketing, pricing, delivery, ownership restrictions, prohibitions on sales to minors, and relationships among alcoholic beverage producers, wholesalers and retailers. We cannot assure you that we will always be in full compliance with all applicable regulations or laws, that we will be able to comply with any future regulations and laws, that we will not incur material costs or liabilities in connection with compliance with applicable regulatory and legal requirements, or that such regulations and laws will not materially adversely affect our wine business.

We rely on various internal and external personnel with relevant experience complying with applicable regulatory and legal requirements, and the loss of personnel with such expertise could adversely affect our wine business.

Licenses issued by state and federal alcoholic beverage regulatory agencies are required in order to produce, sell and ship wine. We have state and federal licenses, and must remain in compliance with state and federal laws in order to keep our licenses in good standing. Compliance failures can result in fines, license suspension or license revocation. In some cases, compliance failures can also result in ~~cease and desist~~cease-and-desist orders, injunctive proceedings or other criminal or civil penalties. If our licenses do not remain in good standing, our wine business could be materially adversely affected.

Our wine business relies substantially on state laws that authorize the shipping of wine by ~~out‑of‑~~out of state producers directly to ~~in‑~~in state consumers. Those laws are relatively new in many states, and it is common for the laws to be ~~modified.~~modified or regulators to change prior interpretations of governing licensing requirements. Adverse changes to laws or their interpretation allowing a producer to ship wine to consumers across state lines could materially adversely affect our wine business.

Other Risks Related to Government Regulation

Government regulation of the Internet, ~~e‑commerce~~e-commerce and other aspects of our business is evolving, and we may experience unfavorable changes in or failure to comply with existing or future regulations and laws.

We are subject to a number of regulations and laws that apply generally to businesses, as well as regulations and laws specifically governing the Internet and ~~e‑commerce~~e-commerce and the marketing, sale and delivery of goods and services over the Internet. Existing and future regulations and laws may impede the growth and availability of the Internet and online services and may limit our ability to ~~grow~~operate our business. These laws and regulations, which continue to evolve, cover taxation, tariffs, privacy and data protection, data security, pricing, content, copyrights, distribution, mobile and other communications, advertising practices, electronic contracts, sales procedures, automatic subscription renewals, credit card processing procedures, consumer protections, the provision of online payment services, unencumbered Internet access to our services, the design and operation of websites, and the characteristics and quality of product offerings that are offered online. We cannot guarantee that we have been or will be fully compliant in every jurisdiction, as it is not entirely clear how existing laws and regulations governing issues such as property ownership, sales and other taxes, consumer protection, libel and personal privacy apply or will be enforced with respect to the Internet and ~~e‑commerce,~~e-commerce, as many of these laws were adopted prior to the advent of the Internet and ~~e‑commerce~~e-commerce and do not contemplate or address the unique issues they raise. Moreover, as ~~e‑commerce~~e-commerce continues to evolve, increasing regulation and enforcement efforts by federal and state agencies and the prospects for private litigation claims related to our data collection, privacy policies or other ~~e‑commerce~~e-commerce practices become more likely. In addition, the adoption of any laws or regulations, or the imposition of other legal requirements, that adversely affect our ability to market, sell, and deliver our products could decrease our ability to offer, or customer demand for, our offerings, resulting in lower net revenue, and existing or future laws or regulations could impair our ability to expand our product offerings, which could also result in lower net revenue and make us more vulnerable to increased competition. Future regulations, or changes in

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laws and regulations or their existing interpretations or applications, could also require us to change our business practices, raise compliance costs or other costs of doing business and materially adversely affect our business, financial condition and operating results.

Failure to comply with ~~privacy‑~~privacy related obligations, including federal and state privacy laws and regulations and other legal obligations, or the expansion of current or the enactment of new ~~privacy‑~~privacy related obligations could materially adversely affect our business.

A variety of federal and state laws and regulations govern the collection, use, retention, sharing, transfer and security of customer data. We also may choose to comply with, or may be required to comply with, ~~self‑regulatory~~self-regulatory obligations or other industry standards with respect to our collection, use, retention, sharing or security of customer data.

We strive to comply with all applicable laws, regulations, ~~self‑regulatory~~self-regulatory requirements, policies and legal obligations relating to privacy, data usage, and data protection. It is possible, however, that these laws, regulations and other obligations may be interpreted and applied in a manner that is inconsistent from one jurisdiction to another and which

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may conflict with other rules or requirements or our practices. We cannot guarantee that our practices have complied, comply, or will comply fully with all such laws, regulations, requirements and obligations.

We have posted our privacy policy which describes our practice related to the collection, use and disclosure of customer data on our website and in our mobile application. Any failure, or perceived failure, by us to comply with our posted privacy policy or with any federal or state laws, regulations, ~~self‑regulatory~~self-regulatory requirements, industry standards, or other legal obligations could result in claims, proceedings or actions against us by governmental entities, customers or others, or other liabilities, or could result in a loss of customers, any of which could materially adversely affect our business, financial condition and operating results. In addition, a failure or perceived failure to comply with industry standards or with our own privacy policy and practices could result in a loss of customers and could materially adversely affect our business, financial condition and operating results.

Additionally, existing ~~privacy‑~~privacy related laws, regulations, ~~self‑regulatory~~self-regulatory obligations and other legal obligations are evolving and are subject to potentially differing interpretations. Various federal and state legislative and regulatory bodies may expand current laws or enact new laws regarding privacy matters, and courts may interpret existing ~~privacy‑~~privacy related laws and regulations in new or different manners. ~~In addition, as~~For example, we ~~expand our business internationally we may be~~are subject to ~~non‑U.S. privacy,~~the California Consumer Privacy Act of 2018, which came into effect on January 1, 2020 and its successor, the California Privacy Rights Act, which took effect on January 1, 2023, which require, among other things, that companies that process information on California residents to provide new disclosures to California consumers, allows such consumers to opt out of data ~~protection, consumer protection~~sharing with third parties and provides a new cause of action for data breaches. Some other states have adopted, and many other states are considering, similar legislation. While we have invested and may continue to invest in readiness to comply with the applicable legislation, the effects of these new and evolving laws, regulations, and other ~~laws~~obligations potentially are far-reaching and regulations, which in some cases are more restrictive than those in the United States. For example, the European Union traditionally has imposed stricter obligations under such laws than the United States. Consequently, the expansion of our operations internationally may require ~~changes~~us to ~~the ways we collect~~further modify our data processing practices and ~~use consumer information.~~

policies and to incur substantial costs and expenses in an effort to comply.

Changes in ~~privacy‑~~privacy related laws, regulations, ~~self‑regulatory~~self-regulatory obligations and other legal obligations, or changes in industry standards or consumer sentiment, such as our need to adjust our digital marketing in response to the ongoing elimination of cookie-based tracking, could require us to incur substantial costs or to change our business practices, including changing, limiting or ceasing altogether the collection, use, sharing, or transfer of data relating to consumers. Any of these effects could materially adversely affect our business, financial condition and operating results.

If government regulations relating to the Internet or other areas of our business change, we may need to alter the manner in which we conduct our business, or incur greater operating expenses, which could materially adversely affect our business.

The adoption or modification of laws or regulations relating to the Internet or other areas of our business could limit or otherwise adversely affect the manner in which we currently conduct our business. In addition, the continued growth and development of the market for e‑commerce may lead to more stringent consumer protection laws, which may impose additional burdens on us. If we are required to comply with new regulations or legislation or new interpretations of existing regulations or legislation, this compliance could cause us to incur additional expenses or alter our business model, which could materially adversely affect our business, financial condition and operating results.

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Our failure to collect state or local sales, use or other similar taxes could result in substantial tax liabilities, including for past sales, as well as penalties and interest, and our business could be materially adversely affected.

~~We do~~

In general, we have not ~~collect~~historically collected state or local sales, use or other similar taxes in any jurisdictions in which we do not have a ~~physical presence,~~tax nexus, in reliance on court decisions or applicable exemptions that restrict or preclude the imposition of obligations to collect state and local sales, use and other similar taxes with respect to online sales of our products. In addition, we dohave not ~~collect~~historically collected state or local sales, use or other similar taxes in certain jurisdictions in which we do have a physical presence in reliance on applicable exemptions. ~~However, an increasing~~On June 21, 2018, the U.S. Supreme Court decided, in South Dakota v. Wayfair, Inc., that state and local jurisdictions may, at least in certain circumstances, enforce a sales and use tax collection obligation on remote vendors that have no physical presence in such jurisdiction. A number of states have ~~considered~~already begun, or ~~adopted laws~~ have positioned themselves to begin, requiring sales and use tax collection by remote vendors and/or ~~administrative practices~~by online marketplaces. The details and effective dates of these collection requirements vary from state to state. It is possible that attempt to impose obligations on remote sellers and online marketplaces to collect taxes on their behalf, and our reliance on such case law and exemptions in certain jurisdictions could be challenged. A successful assertion by one or more ~~states requiring us to collect~~jurisdictions may assert that we have liability for periods for which we have not collected sales, use or other similar taxes, ~~where we do not do so~~and if such an assertion or assertions were successful it could result in substantial tax liabilities, including for past sales as well as penalties and interest, ~~and~~which could materially adversely affect our business, financial condition and operating results.

Changes in tax treatment of companies engaged in ~~e‑commerce~~e-commerce could materially adversely affect the commercial use of our sites and our business, financial condition and operating results.

~~Due~~

The decision of the U.S. Supreme Court in South Dakota v. Wayfair, Inc., discussed above, permits state and local jurisdictions, in certain circumstances, to impose sales and use tax collection obligation on remote vendors, and a number of states have already begun imposing such obligations on Internet vendors and online marketplaces. In addition, due to the global nature of the Internet, it is possible that various states ~~or, if we expand internationally, foreign countries,~~ might attempt to impose additional or new regulation on our business or levy additional or new sales, income or other taxes relating to our activities. Tax authorities at the ~~international,~~ federal, state, and local levels are currently reviewing the appropriate treatment of companies engaged in ~~e‑commerce.~~e-commerce. New or revised ~~international,~~ federal, state, or local tax regulations may subject us or our customers to additional sales, income, and other taxes. For example, Congress is considering various approaches to legislation that would require companies engaged in e‑commerce to collect sales tax taxes on Internet revenue. We cannot predict the effect of current attempts to impose sales, income or other taxes on e‑commerce. New or revised taxes and, in particular, sales taxes, ~~value‑~~value added taxes and similar taxes ~~would~~(including sales and use taxes that we may

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be required to collect as a result of the Wayfair decision) are likely to increase costs to our customers and increase the cost of doing business online ~~and decrease~~(including the ~~attractiveness~~cost of ~~selling products over the Internet. New taxes could also create significant increases in internal costs~~compliance processes necessary to capture data and collect and remit ~~taxes.~~taxes), and such taxes may decrease the attractiveness of purchasing products over the Internet. Any of these events could materially adversely affect our business, financial condition and operating results.

Our ability to use our net operating losses to offset future taxable income may be subject to certain limitations which could subject our business to higher tax liability.

We may be limited in the portion of net operating loss carryforwards that we can use in the future to offset taxable income for U.S. federal and state income tax purposes. As of December 31, ~~2015~~2022 and ~~2016,~~2021, we had U.S. federal net operating loss carryforwards of ~~$57.0~~$563.9 million and ~~$62.9~~$460.9 million, respectively, and state net operating loss carryforwards of ~~$35.8~~$249.7 million and ~~$42.0~~$197.7 million, ~~respectively. In general,~~respectively, that are available to offset future tax liabilities. Of the $563.9 million of federal net operating loss carryforwards, $221.4 million was generated before January 1, 2018 and is subject to a 20-year carryforward period. The remaining $342.5 million can be carried forward indefinitely, but is subject to an 80% taxable income limitation, in any future taxable year. The pre-2018 federal and all state net operating losses will begin to expire in 2032 and 2033, respectively, if not utilized.

Furthermore, Section 382 of the Internal Revenue Code of 1986, as amended or (“the ~~Code,~~Code”), limits the ability of a company that undergoes an “ownership change” (generally defined as a greater than ~~50‑percentage‑~~50 percentage point cumulative change (by value) in the equity ownership of certain stockholders over a rolling ~~three‑year~~three-year period) to utilize ~~our~~ net operating loss carryforwards and tax credit ~~carry forwards~~carryforwards and certain ~~built‑in~~built-in losses recognized in years after the ownership change. Future changes in our stock ownership, some of which may be outside of our control, could result in an ownership change under Section 382 of the Code. ~~Furthermore,~~In addition, Section 383 of the Code generally limits the amount of tax liability in any ~~post‑ownership~~post-ownership change year that can be reduced by ~~pre‑ownership~~pre-ownership change tax credit carryforwards. If we were to undergo an “ownership change,” it could materially limit our ability to utilize our net operating loss carryforwards and other deferred tax assets. In addition, our federal and state net operating loss carryforwards will each expire at various dates beginning in 2033, if not utilized. Our net operating loss carryforwards may expire unutilized or underutilized, which could prevent us from offsetting future taxable income.

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Risks Related to Our Class A Common Stock

We may not be able to remain in compliance with the New York Stock Exchange’s requirements for the continued listing of our Class A common stock on the exchange.

On December 21, 2022, we were notified by the New York Stock Exchange (the “NYSE”) that we were no longer in compliance with the NYSE’s continued listing standards set forth in Section 802.01B of the NYSE Listed Company Manual because our average global market capitalization over a consecutive 30 trading-day period was less than $50.0 million and, at the same time, our last reported stockholders’ equity was less than $50.0 million. If our average global market capitalization over a consecutive 30 trading-day period drops below $15.0 million, the NYSE will initiate delisting proceedings. As required by the NYSE, on January 6, 2023, we notified the NYSE of our intent to cure the deficiency and restore our compliance with the NYSE continued listing standards. In accordance with applicable NYSE procedures, on February 6, 2023, we submitted a plan advising the NYSE of the definitive actions we have taken and are taking, that would bring us into compliance with the NYSE continued listing standards within 18 months of receipt of the written notice. On February 28, 2023, the NYSE accepted the plan and our Class A common stock will continue to be listed and traded on the NYSE during the 18-month period from December 21, 2022, subject to our compliance with other NYSE continued listing standards and continued periodic review by the NYSE of our progress with respect to our plan. We can provide no assurances that we will be able to satisfy any of the steps outlined in the plan approved by the NYSE and maintain the listing of our shares on the NYSE. The notice has no immediate impact on the listing of our Class A common stock which will continue to trade on the NYSE during the cure period.

We intend to seek to regain compliance with the NYSE global market capitalization listing standard.

In addition, as previously disclosed, on December 21, 2022, we were notified by the NYSE that we did not satisfy the continued listing compliance standard set forth in Section 802.01C of the NYSE Listed Company Manual because the average closing price of our Class A common stock was less than $1.00 per share over a consecutive 30-day trading period. We completed a 1-for-12 reverse stock split of our Class A common stock on June 8, 2023. We regained compliance with the continued listing compliance standard set forth in Section 802.01C of the NYSE Listed Company Manual after the average closing price of our Class A common stock was above $1.00 per share over a consecutive 30-day trading period. On June 21, 2023, we received a letter from the NYSE notifying us that we had regained compliance with the continued listing compliance standard set forth in Section 802.01C of the NYSE Listed Company Manual. Although we have remained in compliance with Section 802.01C of the NYSE Listed Company Manual, there is no assurance that our efforts

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will be successful to regain compliance with Section 802.01B of the NYSE Listed Company Manual, nor is there any assurance that we will remain in compliance with other NYSE continued listing standards in the future, including Section 802.01C of the NYSE Listed Company Manual.

A delisting of our Class A common stock could negatively impact our company and holders of our Class A common stock, including by reducing the willingness of investors to hold our Class A common stock because of the resulting decreased price, liquidity and trading of our Class A common stock, limited availability of price quotations, and reduced news and analyst coverage. These developments may also require brokers trading in our Class A common stock to adhere to more stringent rules and may limit our ability to raise capital by issuing additional shares of Class A common stock in the future. Delisting may adversely impact the perception of our financial condition, cause reputational harm with investors, our employees and parties conducting business with us, and limit our access to debt and equity financing. The perceived decrease in value of employee equity incentive awards may reduce their effectiveness in encouraging performance and retention.

Our June 2023 reverse stock split may decrease the liquidity of the shares of our Class A common stock.

The liquidity of the shares of Class A our common stock may be affected adversely by the 1-for-12 reverse stock split we effected in June 2023 given the reduced number of shares that are outstanding following the reverse stock split, which may lead to reduced trading and a smaller number of market makers for our common stock, particularly if the price per share of our common stock is not sustained. In addition, the reverse stock split has increased the number of stockholders who own “odd lots” of less than 100 shares of our common stock. A purchase or sale of less than 100 shares of common stock may result in incrementally higher trading costs through certain brokers, particularly “full service” brokers. Therefore, those stockholders who own fewer than 100 shares of our common stock following the reverse stock split may be required to pay higher transaction costs if they sell their common stock.

The market price of our Class A common stock has been and may ~~continue~~in the future be highly volatile, and could be subject to ~~be volatile,~~wide fluctuations in response to various factors, some of which are beyond our control, and which could result in substantial losses for investors purchasing our shares.

The stock market in general and the market for our Class A common stock in particular has, from time to time, and may again, experience extreme volatility that has often been unrelated to the operating performance of particular companies. For example, since our initial public offering in June 2017, the market price of our Class A common stock has ~~been~~ranged from a high of $1980.00 (adjusted for the reverse stock splits that occurred in June 2019 and ~~could continue~~June 2023) to ~~be subject to significant fluctuations.~~a low of $4.72 on July 27, 2023. Some of the factors that may cause the market price of our Class A common stock to fluctuate include:

~~price and volume fluctuations in the overall stock market from time to time;~~

~~volatility in the market price and trading volume of comparable companies;~~

~~actual or anticipated changes in our earnings or fluctuations in our operating results or in the expectations of securities analysts;~~

•price and volume fluctuations in the overall stock market from time to time;

~~announcements of new service offerings, strategic alliances or significant agreements by us or by our competitors;~~

•volatility in the market price and trading volume of comparable companies;

~~departure of key personnel;~~

•actual or anticipated changes in our earnings or liquidity needs or fluctuations in our operating results or in the expectations of securities analysts;

~~litigation involving us or that may be perceived as having an adverse effect on our business;~~

•announcements of new service offerings, strategic alliances or significant agreements by us or by our competitors;

~~changes in general economic, industry and market conditions and trends;~~

•departure of key personnel;

~~investors’ general perception of us;~~

•litigation involving us or that may be perceived as having an adverse effect on our business;

~~sales of large blocks of our stock; and~~

•changes in general economic, industry and market conditions and trends, including as a result of high inflationary pressures;

~~announcements regarding industry consolidation.~~

•investors’ general perception of us;

•sales or perceived sales of large blocks of our stock; and

•announcements regarding industry consolidation.

In the past, following periods of volatility in the market price of a company’s securities, securities class action litigation has often been brought against that company. For example, we ~~are~~have been subject to several putative class action lawsuits alleging federal securities law violations in connection with our initial public offering, or IPO. Because of the past and the potential future volatility of our stock price, we may become the target of additional securities litigation in the future. Securities litigation could result in substantial costs and divert management’s attention and resources from our business.

Our quarterly operating results or other operating metrics may fluctuate significantly, which could cause the trading price of our Class A common stock to continue to decline.

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Our quarterly operating results and other operating metrics have fluctuated in the past and may in the future fluctuate as a result of a number of factors, many of which are outside of our control and may be difficult to predict, including:

~~the level of demand for our service offerings and our ability to maintain and increase our customer base;~~

~~the timing and success of new service introductions by us or our competitors or any other change in the competitive landscape of our market;~~

~~the mix of products sold;~~

•the timing and amount of raising additional capital, if any;

~~order rates by our customers;~~

•the level of demand for our service offerings and our ability to maintain our customer base,

~~pricing pressure as a result of competition or otherwise;~~

•the timing and success of new service introductions by us or our competitors or any other change in the competitive landscape of our market;

~~delays or disruptions in our supply chain;~~

•the mix of products sold;

~~our ability to reduce costs;~~

•order rates by our customers;

•pricing pressure as a result of competition or otherwise;

•delays or disruptions in the respective supply chains of FreshRealm and FreshRealm’s suppliers;

•our ability to reduce costs;

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the demand for our products, which could lead to lower net revenue or increased costs;

~~errors in our forecasting of the demand for our products, which could lead to lower revenue or increased costs;~~

•seasonal or other variations in buying patterns by our customers;

~~seasonal or other variations in buying patterns by our customers;~~

•changes in and timing of sales and marketing and other operating expenses that we may incur;

~~increases in and timing of sales and marketing and other operating expenses that we may incur to grow and expand our operations and to remain competitive;~~

•levels of customer credits and refunds;

~~levels of customer credits and refunds;~~

•adverse litigation judgments, settlements or other litigation related costs;

~~adverse litigation judgments, settlements or other litigation‑related costs;~~

•food safety concerns, regulatory proceedings or other adverse publicity about us or our products;

~~food safety concerns, regulatory proceedings or other adverse publicity about us or our products;~~

•costs related to the acquisition of businesses, talent, technologies or intellectual property, including potentially significant amortization costs and possible write downs;

~~costs related to the acquisition of businesses, talent, technologies or intellectual property, including potentially significant amortization costs and possible write‑downs;~~

•changes in consumer tastes and preferences and consumer spending habits; and

~~changes in consumer tastes and preferences; and~~

•general economic conditions, including general economic changes as a result of high inflationary pressures

~~general economic conditions.~~

Any one of the factors above or the cumulative effect of some or all of the factors above may result in significant fluctuations in our operating results.

The variability and unpredictability of our quarterly operating results or other operating metrics could result in our failure to meet our expectations or those of any analysts that cover us or investors with respect to net revenue or other operating results for a particular period. If we fail to meet or exceed such expectations for these or any other reasons, the market price of our Class A common stock could continue to fall substantially, and we could face costly lawsuits, including securities class action suits.

If securities or industry analysts ~~cease publishing~~do not publish research or reports about us, our business or our market, or if they publish negative evaluations of our stock or the stock of other companies in our industry, the price of our stock and trading volume could decline.

The trading market for our Class A common stock ~~will be~~is influenced by the research and reports that industry or securities analysts may publish about us, our business, our market or our competitors. If the analyst(s) covering our business downgrade their evaluations of our stock or the stock of other companies in our industry, the price of our stock could decline. Since December 31, 2018, thirteen of the analysts who formerly covered our stock have ceased to cover our stock and we currently have only four analysts covering our stock, three of whom commenced coverage last year. If these analysts cease to cover our stock and other analysts do not begin to cover our stock, we could lose additional visibility in the market for our stock, which in turn could cause our stock price to decline further. The trading market for our Class A common stock is influenced by the research and reports that industry or financial analysts publish about us or our business. There can be no assurance that existing analysts will continue to cover us or that new analysts will begin to cover us. There is also no assurance that any covering analyst will provide favorable coverage. A lack of research coverage or adverse coverage may negatively impact the market price of our Class A common stock. In addition, if one or more of the analysts covering our business downgrade their evaluations of our stock or the stock of other companies in our industry, the price of our Class A common stock could decline. ~~If one or more of these analysts cease to cover our stock, we could lose visibility in the market for our stock, which in turn could cause our stock price to decline.~~

Because we do not expect to pay any dividends on our Class A common stock for the foreseeable future, investors may never receive a return on their investment.

You should not rely on an investment in our Class A common stock to provide dividend income. We have never paid cash dividends to holders of our Class A common stock and do not anticipate that we will pay any cash dividends to holders of our Class A common stock in the foreseeable future. Instead, we plan to retain any earnings to maintain and ~~expand~~support our existing operations. Accordingly, investors must rely on sales of their Class A common stock after price

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appreciation, which may never occur, as the only way to realize any return on their investment. As a result, investors seeking cash dividends should not purchase our Class A common stock.

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~~Our tri‑class capital structure has~~our stockholders could beneficially own a significant portion of our outstanding Class A common stock, and therefore would have significant influence over the ~~effect~~outcome of ~~concentrating voting control with our president and chief executive officer, Matthew B. Salzberg, and the other holders of Class B common stock. This structure will limit or preclude your ability~~matters subject to ~~influence corporate matters,~~stockholder approval, including a change of control, which could make our Class A common stock less attractive to some investors or otherwise harm our business and/or stock price.

On June 9, 2023, we issued to FreshRealm the Warrant, which represented 19.99% of our then outstanding Class A common stock. As reported on a Schedule 13D filed on June 20, 2023, FreshRealm publicly reported beneficially owning an aggregate of 1,268,574 shares of our outstanding Class A common stock, by virtue of the ownership of the Warrant. The shares underlying the Warrant are only entitled to voting rights upon exercise of such warrant. Prior to the seventh (7th) anniversary of the Closing Date of the FreshRealm Transaction, the Warrant is exercisable at any time on or after the earlier to occur of (i) the expiration of the Standstill/Lock-up Period (as defined below) and ~~might~~(ii) the delisting of the Class A common stock from the New York Stock Exchange; provided that if the Class A common stock is concurrently listed on another Trading Market (as defined in the Warrant) within ninety (90) days after such delisting, the Warrant will not become exercisable pursuant to clause (ii). Subject to the terms of the Warrant, the number of shares issuable upon exercise of the Warrant and the exercise price will be subject to adjustment in certain events, including (i) dividends or distributions of shares of Class A common stock, (ii) splits, subdivisions, combinations and certain reclassifications of shares of Class A common stock, or (iii) distributions of assets other than Class A common stock. In addition, pursuant to the terms of the Warrant, we will not effect the exercise of the Warrant, and the holder will not be entitled to exercise any portion of the Warrant, that, upon giving effect to such exercise, the aggregate number of shares of Class A common stock beneficially owned by the holder (together with its affiliates) would exceed 19.99% of the number of shares of Class A common stock outstanding immediately after giving effect to the exercise, as such percentage ownership is determined in accordance with the terms of the Warrant, which percentage may be changed at the holders election to a lower percentage upon sixty-one (61) days’ notice to us, subject to the terms of the Warrant.

In the event that FreshRealm exercises some or all of the Warrant, it would become a significant holder of our voting common stock. Further, FreshRealm is our most significant commercial partner and if FreshRealm were to become a significant holder of our voting common stock, coupled with FreshRealm’s rights under our commercial agreements with them, FreshRealm could potentially exert significant control over our business, operations, and strategic decisions. See the risk factor titled “We are highly dependent upon FreshRealm, as the exclusive manufacturer and supplier of our products, and the termination of, or material changes to, our relationship with FreshRealm or FreshRealm’s relationships with key suppliers or vendors could materially adversely affect our business, financial condition and operating results.” This influence—which could include significant influence over matters submitted to our stockholders for approval such as the ~~market~~election of directors and the approval of any merger, consolidation or sale of all or substantially all of our assets—could be contrary to your interests as a holder of our common stock.

As of July 31, 2023, Joseph N. Sanberg and his affiliates owned 183,502 shares of our Class A Common Stock, and Mr. Sanberg and his affiliates also own warrants to purchase 772,635 shares of Class A Common Stock and are required to purchase 818,584 additional shares of Class A common stock at $67.80 per share (after adjusting for the 1-for-12 reverse stock split) under the RJB Purchase Agreement, although Mr. Sanberg and his affiliates have not yet funded the purchase price for such shares and the Company is evaluating its options and has reserved all rights and remedies. The warrants to purchase the 772,635 shares of Class A common stock are exercisable at exercise prices of $180.00, $216.00 and $240.00 (as adjusted for the 1-for-12 reverse stock split). Assuming full exercise of all outstanding warrants and fulfillment of the obligation to fund the purchase price for the shares of our Class A common ~~stock.~~

~~Our capital structure consists~~stock under the RJB Purchase Agreement, Mr. Sanberg and his affiliates would own an aggregate of ~~three classes~~1,774,721 shares of ~~stock: Class B common stock, with ten votes per share;~~our Class A common stock, ~~with one vote per share; and non‑voting Class C capital stock. Immediately after~~which would represent, (i) prior to the ~~completion~~exercise of the Warrant, 22.2% of our ~~IPO: stockholders who held shares of~~standing Class BA common stock, ~~including our executive officers, employees and directors and their affiliates, together held approximately 98.2%~~or (ii), upon the exercise of the Warrant, 19.2% of our outstanding Class A common stock. The shares underlying the warrants are only entitled to voting rights upon exercise of such warrants. Additionally, pursuant to a purchase agreement, dated September 15, 2021, RJB is subject to a voting agreement, pursuant to which RJB agreed to cause all of our voting securities beneficially owned by it or certain of its affiliates, including Mr. Sanberg, in excess of 19.9% of the total voting power of our outstanding capital ~~stock;~~stock to be voted in proportion to, and accordance with, the vote of all of our ~~executive officers, directors, 5%~~ stockholders, ~~and their respective affiliated entities together held approximately 87.5% of~~limiting the effective voting power of ~~our outstanding capital stock; and our president and chief executive officer, Matthew B. Salzberg,~~the securities beneficially held ~~approximately 29.2%~~by Mr. Sanberg.

As a result of the ~~voting power of our outstanding capital stock. Because~~foregoing, assuming exercise of the ~~ten‑to‑one voting ratio between the Class B common stock~~applicable warrants and ~~Class A common stock, the holders of Class B common stock collectively will continue to control a majority~~fulfillment of the ~~combined voting power of our common stock~~obligation to fund the purchase price under the RJB Purchase Agreement, Mr. Sanberg and ~~therefore be able to control all~~his affiliates could have significant influence over matters submitted to our stockholders for approval, including the election of directors and the approval of any merger, consolidation or sale of all or substantially all of our ~~assets, so long as the outstanding shares~~assets. This concentration of ~~Class B common stock represent at least 9.1% of the total number of outstanding shares of Class A common stock and Class B common stock. This concentrated control will limit~~voting power, if realized, might delay, defer or ~~preclude your ability to influence corporate matters, including~~prevent a change in control or delay or prevent a merger, consolidation, takeover or other business combination

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involving us on terms that other stockholders may desire, which, in each case, could adversely affect our ~~company, for the foreseeable future, and might affect~~business and/or the market price of our Class A common stock.

~~Future transfers by holders~~

Substantial sales of ~~Class B common stock will generally result in those~~ shares ~~converting into~~of our Class A common stock with limited exceptions and permitted transfers described in our restated certificate of incorporation. In addition, each outstanding share of Class B common stock held by a stockholder who is a natural person, or held by the permitted transferees of such stockholder, will convert automatically into one share of Class A common stock upon the death or permanent and total disability of such stockholder, subject to a conversion delay of nine months in the event of the death or permanent and total disability of one of our founders, Matthew B. Salzberg, Ilia M. Papas or Matthew J. Wadiak. The conversion of Class B common stock into Class A common stock will have the effect, over time, of increasing the relative voting power of those holders of Class B common stock who retain their shares of Class B common stock in the long term. If, for example, Mr. Salzberg retains a significant portion of his holdings of Class B common stock for an extended period of time, he could, in the future, control a majority of the combined voting power of the Class A common stock and Class B common stock.

~~A significant portion of our total outstanding shares may be sold into the public market in the near future, which~~ could cause the market price of our Class A common stock to ~~drop significantly.~~

decline and/or result in dilution to our stockholders.

Sales of a substantial number of shares of our Class A common stock in the public market, ~~could occur at any time. These sales,~~ or the ~~market~~ perception that ~~the holders of a large number of shares intend to sell shares,~~these sales might occur, could reduce the market price of our ~~common stock.~~

~~As of September 30, 2017, we had outstanding a total of 30,042,687 shares of~~ Class A common stock ~~160,097,378 shares~~and could impair our ability to raise capital through the sale of ~~Class B common stock, and no shares of Class C capital stock. Of these shares,~~additional equity or other securities. We are unable to predict the ~~30,000,000 shares~~effect that such sales may have on the prevailing market price of our Class A common stock sold in our IPO are freely tradable, and the balance of the outstanding shares will be available for sale in the public market beginning following the expiration of lock-up agreements entered into in connection with our IPO. The representatives of the underwriters in our IPO may release these stockholders from their lock-up agreements at any time and without notice, which would allow for earlier sales of shares in the public market.

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As of ~~September 30, 2017,~~July 31, 2023, an aggregate of ~~17,403,468~~206,282 shares of our common stock ~~was reserved~~remained available for future ~~issuance~~grants under our equity incentive plans. The issuance of such shares would dilute the ownership of existing stockholders. Shares registered under our registration statements on Form S-8 are available for sale in the public market subject to vesting arrangements and exercise of options, ~~the lock-up agreements described above~~ and the restrictions of Rule 144 under the Securities ~~Act.~~

~~Additionally,~~Act of 1933, as ~~of September 30, 2017,~~amended, or the holders of an aggregate of approximately 113 million shares of our common stock have rights, subject to certain conditions, to require us to file one or more registration statements covering their shares or to include their shares in registration statements that we may file for ourselves or other stockholders.Securities Act. If ~~we were to register~~ these ~~shares for resale, they could be freely sold in the public market. If these additional~~ shares are sold, or if it is perceived that they will be sold, in the public market, the trading price of our Class A common stock could decline.

Additionally, as of July 31, 2023, the holders of an aggregate of approximately 157,214 registrable securities have rights, subject to certain conditions, to include their securities in registration statements that we may file for ourselves or other stockholders, inclusive of the 14,749 shares of Class A common stock issued to Remember Bruce, LLC under the RJB Purchase Agreement. If the remaining amounts owed under the RJB Purchase Agreement are funded, then holders of an additional 818,584 shares of Class A common stock would have rights, subject to certain conditions, to include their securities in registration statements that we may file for ourselves or other stockholders. If we were to register these securities for resale, they could be freely sold in the public market. If these additional securities are sold, or if it is perceived that they will be sold, in the public market, the trading price of our Class A common stock could decline.

In connection with an amendment to our prior senior secured term loan, on the first day of each quarter that our senior secured notes were outstanding, beginning on or after July 1, 2021, we were obligated to issue warrants to the lenders to purchase such number of shares of Class A common stock as equals 0.50% of the then outstanding shares of our common stock on a fully-diluted basis and we were required to file a registration statement with the SEC to register for resale the shares of Class A common stock underlying the warrants. Pursuant to this obligation, (i) on July 1, 2021, we issued warrants to the lenders exercisable for an aggregate of 10,862 shares of Class A common stock, (ii) on October 1, 2021, we issued warrants to the lenders exercisable for an aggregate of 11,155 shares of Class A common stock, (iii) on January 1, 2022 we issued warrants to the lenders exercisable for an aggregate of 18,710 shares of Class A common stock, and (iv) on April 1, 2022, we issued warrants to the lenders exercisable for an aggregate of 19,668 shares of Class A common stock; all such warrants have been fully exercised, and a total of 60,396 shares of Class A common stock have been issued to the lenders upon such exercises. We have filed registration statements for the resale of such shares with the SEC.

On September 15, 2021, in connection with the private placement with Mr. M. Salzberg pursuant to the 2021 Purchase Agreement, we issued to Mr. M. Salzberg (i) 25,000 shares of Class A common stock, (ii) warrants to purchase 20,000 shares of Class A common stock at an exercise price of $180.00 per share, (iii) warrants to purchase 10,000 shares of Class A common stock at an exercise price of $216.00 per share, and (iv) warrants to purchase 5,000 shares of Class A common stock at an exercise price of $240.00 per share, for an aggregate purchase price of $3.0 million.

On November 4, 2021, in connection with the 2021 Purchase Agreement and concurrently with the closing of the rights offering, we issued to RJB an aggregate of (i) 522,151 shares of Class A common stock, (ii) warrants to purchase 417,696 shares of Class A common stock at an exercise price of $180.00 per share, (iii) warrants to purchase 208,848 shares of Class A common stock at an exercise price of $216.00 per share, and (iv) warrants to purchase 104,424 shares of Class A common stock at an exercise price of $240.00 per share, for an aggregate purchase price of $62.7 million in two private placements. On November 4, 2021, we entered into a registration rights agreement with RJB and Mr. M. Salzberg, pursuant to which RJB, Mr. M. Salzberg and their respective permitted transferees, including pledgees, have the right to request that we file a shelf registration statement with respect to all or a portion of the shares that they hold, which include (x) shares of Class A common stock held prior to the execution of the 2021 Purchase Agreement, and (y) shares of Class A common stock and shares underlying the warrants purchased in connection with the 2021 Purchase Agreement. On December 10, 2021, we filed a registration statement for the resale of such shares and warrants with the SEC, which permits Mr. Sanberg, RJB, Mr. M. Salzberg and their respective permitted transferees, to sell such shares and/or warrants at any time and from time to time.

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On February 14, 2022, in connection with a private placement with RJB pursuant to a purchase agreement (the “February Purchase Agreement”), we issued to RJB an aggregate of (i) 29,762 shares of Class A common stock, (ii) warrants to purchase 23,809 shares of Class A common stock at an exercise price of $180.00 per share, (iii) warrants to purchase 11,905 shares of Class A common stock at an exercise price of $216.00 per share, and (iv) warrants to purchase 5,952 shares of Class A common stock at an exercise price of $240.00 per share, for an aggregate purchase price of $5.0 million. On February 14, 2022, we entered into a registration rights agreement with RJB pursuant to which, among other things, RJB and its permitted transferees have the right to request that we file a shelf registration statement with respect to all or a portion of the shares of Class A common stock and shares underlying the warrants purchased in connection with the February Purchase Agreement.

On April 29, 2022, in connection with a private placement with RJB, pursuant to the RJB Purchase Agreement, we issued to (i) Long Live Bruce, LLC (“LLB”), which was assigned RJB’s rights to purchase the foregoing shares, an aggregate of 138,889 shares of Class A common stock for an aggregate purchase price of $20.0 million, which was financed, according to Mr. Sanberg’s Schedule 13D filed on May 2, 2022 through a loan secured by a pledge of such shares of Class A common stock. On April 29, 2022, in connection with a separate private placement with Linda Findley, a director and our President and Chief Executive Officer, pursuant to a purchase agreement (the “Findley Purchase Agreement”), we issued to Ms. Findley an aggregate of 3,472 shares of Class A common stock. On April 29, 2022, (i) we and RJB entered into an amendment and restatement of the registration rights agreement entered into with RJB in connection with the February 2022 private placement, pursuant to which, among other things, RJB and its permitted transferees, including pledgees, have the right to request that we file a shelf registration statement with respect to all or a portion of the shares Class A common stock purchased in connection with the RJB Purchase Agreement and the shares of Class A common stock and shares underlying the warrants purchased in connection with the February Purchase Agreement, and (ii) a registration rights agreement with Ms. Findley, pursuant to which, among other things, Ms. Findley and her permitted transferees, including pledgees, have the right to request that we file a shelf registration statement with respect to all or a portion of the shares of Class A common stock purchased in connection with the Findley Purchase Agreement. On August 7, 2022 we and RJB entered into an amendment to the amended and restated registration rights agreement to establish certain registration rights in respect of the 14,749 shares of Class A common stock issued to Remember Bruce, LLC under the RJB Purchase Agreement in December 2022 and 818,584 additional shares of Class A common stock that we have agreed to issue to RJB at the closing of the transactions contemplated by the RJB Purchase Agreement, which are consistent with those registration rights in respect of the 138,889 shares of Class A common stock purchased by RJB on April 29, 2022.

The stockholders above, or their permitted transferees, including pledgees,, could decide to sell their shares of Class A common stock into the market at any time, including on a rapid basis, and in one or more block trades or series of transactions, which could negatively impact the trading price of our Class A common stock.

On April 29, 2020, we filed a universal shelf registration statement on Form S-3 with the SEC, as amended by Amendment No. 1 to Form S-3 filed in July 2020 (the “2020 Shelf”), to register for sale from time to time up to $75.0 million of Class A common stock, preferred stock, debt securities and/or warrants in one or more offerings, which became effective on July 23, 2020. In addition, on November 7, 2022, we filed a universal shelf registration statement (the “2022 Shelf”) on Form S-3 with the SEC, to register for sale from time to time up to $100.0 million of Class A common stock, preferred stock, debt securities and/or warrants in one or more offerings, which became effective on November 10, 2022.

On October 3, 2022, we entered into an equity distribution agreement with Canaccord Genuity LLC, as sales agent (the “Sales Agent”), pursuant to which we could issue and sell shares of our Class A common stock having an aggregate offering price of up to $14,999,425 from time to time through the Sales Agent, pursuant to an “at-the-market” offering (the “October 2022 ATM”). The 385,231 shares of our Class A common stock issued and sold pursuant to the October 2022 ATM were issued and sold under our 2020 Shelf. In addition, on November 10, 2022, we entered into an equity distribution agreement with the Sales Agent, pursuant to which we could issue and sell shares of our Class A common stock having an aggregate offering price of up to $30.0 million from time to time through the Sales Agent, pursuant to an “at-the-market” offering (the “November 2022 ATM”). The 2,416,501 shares of our Class A common stock issued and sold pursuant to the November 2022 ATM were issued and sold under the 2022 Shelf. Furthermore, on February 10, 2023, we entered into an equity distribution agreement with the Sales Agent, pursuant to which we may issue and sell shares of our Class A common stock having an aggregate offering price of up to $70.0 million from time to time through the Sales Agent, pursuant to an “at-the-market” offering (the “February 2023 ATM”). The shares of Class A common stock issued and sold pursuant to the February 2023 ATM have been, and will be, issued and sold under our 2022 Shelf. As of July 31, 2023, we have issued and sold 603,033 shares of Class A common stock pursuant to the February 2023 ATM.

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On June 9, 2023, in connection with the FreshRealm Transaction, we issued to FreshRealm a warrant to purchase 1,268,574 shares of Class A common stock, at an exercise price of $0.01 per share (the “Warrant”). In addition, we entered into a registration rights agreement with FreshRealm pursuant to which we agreed, among other things, to file a shelf registration statement with respect to the shares of Class A common stock underlying the Warrant (i) following the expiration of the period beginning on the issuance date of the Warrant and ending eighteen (18) months after the issuance date of the Warrant (the “Standstill/Lock-up Period”), within thirty (30) days of the date requested by FreshRealm and (ii) on such other date as mutually agreed by us and FreshRealm. Further, at any time following the expiration of the Standstill/Lock-up Period that the shelf registration statement is not effective, we are required upon a demand by FreshRealm to file and cause to be declared effective a shelf registration statement registering the resale of the shares of Class A common stock underlying the Warrant, provided that FreshRealm is entitled to no more than two (2) such demands in any twelve (12) month period. FreshRealm is also entitled to an aggregate of three (3) demands for underwritten offerings and other take-downs.

Sales of additional amounts of shares of our Class A common stock or other securities convertible into shares of Class A common stock, including the warrants issued to our prior lenders in connection with the amendment to our prior senior secured notes, the warrants issued pursuant to the 2021 Purchase Agreement and the February Purchase Agreement, and the Warrant, for which we have filed or are obligated to file shelf registrations with the SEC relating to the shares underlying those warrants, would dilute our stockholders’ ownership in us.

The exclusion of our Class A common stock from major stock indexes could adversely affect the trading market and price of our Class A common stock.

~~Several major~~

Prior to September 15, 2021, we had issued and outstanding shares of Class B common stock ~~index providers have announced they will begin to~~with ten votes per share. Since that date, all issued and outstanding shares of Class B common stock were converted into Class A common stock and all shares now consist of Class A common stock with one vote per share. However, because our certificate of incorporation authorizes the issuance of different classes of stock with different voting rights, our Class A common stock could be excluded from stock indexes that exclude ~~or are considering plans to exclude, from their indexes~~ the securities of companies with unequal voting ~~rights, such as Blue Apron.~~rights. Exclusion from stock indexes could make it more difficult, or impossible, for some fund managers to buy the excluded securities, particularly in the case of index tracking mutual funds and exchange traded funds. The exclusion of our Class A common stock from major stock indexes could adversely affect the trading market and price of our Class A common stock.

~~Anti‑takeover~~

Anti-takeover provisions in our restated certificate of incorporation and our amended and restated bylaws, as well as provisions of Delaware law, might discourage, delay or prevent a change in control of our company or changes in our management and, therefore, depress the trading price of our Class A common stock.

Our restated certificate of incorporation and amended and restated bylaws and Delaware law contain provisions that may discourage, delay or prevent a merger, acquisition or other change in control that stockholders may consider favorable, including transactions in which you might otherwise receive a premium for your shares of our Class A common stock. These provisions may also prevent or delay attempts by our stockholders to replace or remove our management. Our corporate governance documents include provisions:

~~establishing a classified board of directors with staggered three‑year terms so that not all members of our board are elected at one time;~~

providing that directors may be removed by stockholders only for cause and only with a vote of the holders of at least 66‑2/3% of the votes that all our stockholders would be entitled to cast for the election of directors;

~~limiting the ability of our stockholders to call and bring business before special meetings and to take action by written consent in lieu of a meeting;~~

•establishing a classified board of directors with staggered three-year terms so that not all members of our board are elected at one time, such that following the 2023 annual meeting of stockholders, all directors will be up for election at the 2024 annual meeting of stockholders and, commencing with the 2024 annual meeting of stockholders, we will have a single class of directors subject to annual election for one-year terms;

~~requiring advance notice of stockholder proposals for business to be conducted at meetings of our stockholders and for nominations of candidates for election to our board of directors;~~

•providing that directors may be removed by stockholders only for cause and only with a vote of the holders of at least 66 2/3% of the votes that all our stockholders would be entitled to cast for the election of directors;

~~authorizing blank check preferred stock, which could be issued with voting, liquidation, dividend and other rights superior to our Class A common stock; and~~

•limiting the ability of our stockholders to call and bring business before special meetings and to take action by written consent in lieu of a meeting;

~~limiting the liability of, and providing indemnification to, our directors and officers.~~

•requiring advance notice of stockholder proposals for business to be conducted at meetings of our stockholders and for nominations of candidates for election to our board of directors;

•authorizing blank check preferred stock, which could be issued with voting, liquidation, dividend and other rights superior to our Class A common stock; and

•limiting the liability of, and providing indemnification to, our directors and officers.

As a Delaware corporation, we are also subject to provisions of Delaware law, including Section 203 of the Delaware General Corporation Law, which limits the ability of stockholders holding shares representing more than 15% of the voting power of our outstanding voting stock from engaging in certain business combinations with us. Any

provision of

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~~provision of~~ our restated certificate of incorporation or amended and restated bylaws, each as may be further amended and/or amended and restated from time to time, or Delaware law that has the effect of delaying or deterring a change in control could limit the opportunity for our stockholders to receive a premium for their shares of our Class A common stock, and could also affect the price that some investors are willing to pay for our Class A common stock.

Additionally, under certain circumstances, a reverse stock split of our Class A common stock could have an anti-takeover effect. For example, it may be possible for the board of directors to delay or impede a takeover or transfer of control of our company by causing the additional shares of our Class A common stock that may be available for issuance as a result of a reverse stock split to be issued to holders who might side with the board of directors in opposing a takeover bid that the board of directors determines is not in the best interests of our company or our stockholders. A reverse stock split, therefore, may have the effect of discouraging unsolicited takeover attempts. By potentially discouraging initiation of any such unsolicited takeover attempts, a reverse stock split may also limit the opportunity for our stockholders to dispose of their shares at the higher price generally available in takeover attempts or that may be available under a merger proposal. A reverse stock split may have the effect of permitting our current management, including the current board of directors, to retain its position, and place it in a better position to resist changes that stockholders may wish to make if they are dissatisfied with the conduct of our company’s business.

The existence of the foregoing provisions and ~~anti‑takeover~~anti-takeover measures could limit the price that investors might be willing to pay in the future for shares of our Class A common stock. They could also deter potential acquirers of our company, thereby reducing the likelihood that you could receive a premium for your Class A common stock in an acquisition.

Our restated certificate of incorporation provides that the Court of Chancery of the State of Delaware is the sole and exclusive forum for substantially all disputes between us and our stockholders. Our restated certificate of incorporation further provides that the federal district courts of the United States of ~~the~~ America are the sole and exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act. These choice of forum provisions could limit our stockholders’ ability to obtain a favorable judicial forum for disputes with us or our directors, officers or employees.

Our restated certificate of incorporation provides that the Court of Chancery of the State of Delaware is the sole and exclusive forum for (1) any derivative action or proceeding brought on behalf of our company, (2) any action asserting a claim of breach of fiduciary duty owed by any director, officer or other employee or stockholder of our company to us or our stockholders, (3) any action asserting a claim arising pursuant to any provision of the General Corporation Law or as to which the General Corporation Law of the State of Delaware confers jurisdiction on the Court of Chancery or (4) any action asserting a claim governed by the internal affairs doctrine. This choice of forum provision may limit a stockholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes with us or our directors, officers or other employees, which may discourage such lawsuits against us and our directors, officers and other employees. Alternatively, if a court were to find this choice of forum provision contained in our restated certificate of incorporation to be inapplicable or unenforceable in an action, we may incur additional costs associated with resolving such action in other jurisdictions, which could materially adversely affect our business, financial condition and operating results.

Our restated certificate of incorporation further provides that, unless we consent in writing to the selection of an alternative forum, the federal district courts of the United States of America shall, to the fullest extent permitted by law, be the sole and exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act. ~~These choice~~

Some members of ~~forum provisions may limit a stockholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes with us or~~ our directors, officers or other employees, which may discourage such lawsuits against us and our directors, officers and other employees. Alternatively, if a court were to find the choice of forum provisions contained in our certificate of incorporation to be inapplicable or unenforceable in an action, we may incur additional costs associated with resolving such action in other jurisdictions, which could materially adversely affect our business, financial condition and operating results.

~~Our~~ management team ~~has~~have limited experience managing a public company.

~~Most~~

Some members of our management team have limited experience managing a publicly traded company, interacting with public company investors ~~and~~and/or complying with the increasingly complex laws pertaining to public companies. Our management team may not successfully or efficiently continue to manage ~~our transition to~~ being a public company subject to significant regulatory oversight and reporting obligations under the federal securities laws and the scrutiny of securities analysts and investors. These ~~new~~ obligations and constituents ~~will~~ require significant attention from our management team and could divert their attention away from the ~~day‑to‑day~~day-to-day management of our business, which could materially adversely affect our business, financial condition and operating results.

The requirements of being a public company may strain our resources, divert management’s attention and affect our ability to attract and retain qualified board members.

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As a public company, we are subject to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Sarbanes-Oxley Act of 2002, the listing requirements of the ~~New York Stock Exchange~~NYSE and other applicable securities rules and regulations. Compliance with these rules and regulations ~~will~~may continue to increase our legal and financial compliance costs, make some activities more difficult, ~~time‑~~time consuming or costly, and increase demand on our systems and resources, particularly after we are no longer an emerging growth company or a smaller reporting company. Among other things, the Exchange Act requires that we file annual, quarterly and current reports with respect to our business and operating results and maintain effective disclosure controls and procedures and internal control over financial reporting. In order to maintain and, if required, improve our disclosure controls and procedures and internal control over financial reporting to meet this standard, significant resources and management

~~Table of Contents~~

oversight may be required. As a result, management’s attention may be diverted from other business concerns, which could harm our business and operating results. Although we have already hired additional employees to comply with these requirements, we may need to hire even more employees in the future, which will increase our costs and expenses.

As a public company, we are ~~currently evaluating~~required to evaluate our internal controls ~~identifying~~ and remediating any deficiencies in those internal controls and documenting the results of our evaluation, testing and remediation. We may not be able to complete our evaluation, testing and any required remediation in a timely fashion. Duringduring the evaluation and testing process, if we identify one or more material weaknesses in our internal control over financial reporting that we are unable to remediate before the end of the same fiscal year in which the material weakness is identified, we will be unable to assert that our internal controls are effective. If we are unable to assert that our internal control over financial reporting is effective, or if our auditors are unable to attest to management’s report on the effectiveness of our internal controls, which will be required after we are no longer an emerging growth company, we could lose investor confidence in the accuracy and completeness of our financial reports, which would cause the price of our Class A common stock to decline.

As of December 31, 2022, our management has identified a material weakness in internal controls related to ineffective information technology general controls. For a more detailed discussion of this material weakness, see the risk factor herein entitled "We have identified a material weakness in our internal controls over financial reporting related to ineffective information technology general controls. Failure to establish and maintain effective internal controls in accordance with Section 404 of the Sarbanes-Oxley Act in the future could have a material adverse effect on our business and stock price."

In addition, changing laws, regulations and standards relating to corporate governance and public disclosure are creating uncertainty for public companies, increasing legal and financial compliance costs and making some activities more time consuming. These laws, regulations, and standards are subject to varying interpretations, in many cases due to their lack of specificity, and, as a result, their application in practice may evolve over time as new guidance is provided by regulatory and governing bodies. This could result in continuing uncertainty regarding compliance matters and higher costs necessitated by ongoing revisions to disclosure and governance practices. ~~We intend to invest resources to~~To comply with evolving laws, regulations and standards, we may need to invest additional resources, and this investment may result in increased general and administrative expense and a diversion of management’s time and attention from ~~revenue‑~~revenue generating activities to compliance activities. If our efforts to comply with new laws, regulations and standards differ from the activities intended by regulatory or governing bodies, regulatory authorities may initiate legal proceedings against us and our business ~~may~~could be materially harmed.

As a result of being a public company and ~~these new~~the accompanying rules and regulations, it is more expensive for us to obtain director and officer liability insurance, and, in the future, we may be required to accept reduced coverage or incur substantially higher costs to obtain coverage. These factors could also make it more difficult for us to attract and retain qualified members of our board of directors, particularly to serve on our audit committee and compensation committee, and qualified executive officers.

We are ~~an “emerging growth~~a “smaller reporting company,” and the reduced disclosure requirements applicable to ~~emerging growth~~smaller reporting companies may make our Class A common stock less attractive to investors.

We ~~are an “emerging growth~~qualify as a smaller reporting company,~~” as defined in the JOBS Act, and may remain an emerging growth company until the last day~~ which allows us to take advantage of our fiscal year following the fifth anniversary of our initial public offering, subject to specified conditions. For so long as we remain an emerging growth company, we are permitted, and intend, to rely oncertain exemptions from ~~certain~~ disclosure requirements, that are applicable to other public companies that are not emerging growth companies. We would cease to be an emerging growth company if we have more than $1.07 billion in annual revenue, we have more than $700 million in market value of our stock held by non‑affiliates (and we have been a public company for at least 12 months and have filed one annual report on Form 10‑K) or we issue more than $1 billion of non‑convertible debt securities over a three‑year period. These exemptions includeincluding reduced disclosure obligations regarding executive ~~compensation~~compensation. In general, we will qualify as a smaller reporting company for as long as we have less than $250 million of public float (calculated as the aggregate market value of our Class A common stock and ~~exemptions from~~Class B common stock held by non-affiliates, based on the ~~requirements to hold non‑binding advisory votes~~closing price of our Class A common stock on ~~executive compensation and golden parachute payments, not being required to comply with~~ the ~~auditor attestation requirements~~NYSE on the last business day of Section 404 of the Sarbanes‑Oxley Act of 2002, and not being required to comply with any requirement that may be adopted by the Public Company Accounting Oversight Board regarding mandatory audit firm rotation or a supplement to the auditor’s report providing additional information about the audit and the financial statements.our second fiscal quarter). We cannot predict whether investors will find our Class A common stock less attractive if we rely on these exemptions. If some investors find our Class A common stock less attractive as a result, there may be a less active trading market for our Class A common stock and our stock price may be more volatile.

In addition, the JOBS Act provides that an emerging growth company can take advantage of an extended transition period for complying with new or revised accounting standards. This allows an emerging growth company to delay the adoption of certain accounting standards until those standards would otherwise apply to private companies. We have elected to avail ourselves of this exemption from new or revised accounting standards and, therefore, while we are an emerging growth company we will not be subject to new or revised accounting standards at the same time that

General Risk Factors.

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~~they~~Higher labor costs due to statutory and regulatory changes could materially adversely affect our business, financial condition and operating results.

Various federal and state labor laws, including new laws and regulations enacted in response to COVID-19, govern our relationships with our employees, as well as FreshRealm’s relationships with its employees, and affect operating costs. These laws include employee classifications as exempt or non-exempt, minimum wage requirements, unemployment tax rates, workers’ compensation rates, overtime, family leave, workplace health and safety standards, payroll taxes, citizenship requirements and other wage and benefit requirements for employees classified as non-exempt. As our employees are paid at rates set at, or above but related to, the applicable minimum wage, further increases in the minimum wage could increase our labor costs. In addition, increases in the wages or benefits that FreshRealm provides to its employees could be passed through to us through increased prices under the production and fulfillment agreement. Significant additional government regulations could materially adversely affect our business, financial condition and operating results, either directly or indirectly.

Consumer or other litigation could adversely affect our financial condition and results of operations.

We have in the past and/or may in the future become ~~applicable~~subject to ~~other public companies~~legal proceedings, disputes, claims, investigations, regulatory proceedings, or similar actions that ~~are not emerging growth companies. Accordingly, we will incur additional costs~~arise in the ordinary course of business, such as claims brought by our customers in connection with ~~complying~~commercial matters, or employment claims brought by our employees. Further, state or federal regulators could make inquiries and/or conduct investigations with respect to one or more of our products.

We have in the ~~accounting standards applicable~~past and may again become a defendant in class action litigation, including litigation regarding employment practices, product labeling, public statements and disclosures under securities laws, antitrust, advertising, consumer protection and wage and hour laws. Due to ~~public companies at~~the inherent uncertainties of litigation and regulatory proceedings, we cannot accurately predict the ultimate outcome of any such ~~time~~proceedings. Our defense costs and any resulting damage awards or ~~times as they become applicable~~settlement amounts may be significant and not be covered, or in some instances fully covered, by our insurance policies. Even if any such litigation or claims lack merit, the process of defending against these claims may result in substantial costs to ~~us.~~

the business and divert management’s attention and resources, which can harm our business, operating results and financial condition. Any adverse publicity resulting from allegations made in litigation claims or legal proceedings may also adversely affect our reputation, which in turn could adversely affect our operating results.

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Item 2. Unregistered Sales of Equity Securities and Use of Proceeds

Recent Sales of Unregistered Equity Securities

From July 1, 2017 through September 30, 2017, we issued and sold to our employees, consultants, and other service providers an aggregate of unregistered 91,150 shares of Class B common stock upon the exercise of stock options under our 2012 Equity Incentive Plan at per share exercise prices ranging from $0.0792 to $7.04.

None of the foregoing transactions involved any underwriters, underwriting discounts or commissions, or any public offering. We believe the offers, sales and issuances of the above securities were exempt from registration under the Securities Act by virtue of Section 4(a)(2) of the Securities Act (or Regulation D promulgated thereunder) because the issuance of securities to the recipients did not involve a public offering, or in reliance on Rule 701 because the transactions were pursuant to compensatory benefit plans or contracts relating to compensation as provided under such rule. The recipients of the securities in each of these transactions represented their intentions to acquire the securities for investment only and not with a view to or for sale in connection with any distribution thereof, and appropriate legends were placed upon the stock certificates issued in these transactions. All recipients had adequate access, through their relationships with us, to information about us. The sales of these securities were made without any general solicitation or advertising.

Not applicable.

Use of Proceeds

On June 28, 2017, the Registration Statement on Form S-1 (File No. 333-218425) for our initial public offering of our Class A common stock was declared effective by the SEC. Shares of our Class A common stock began trading on the New York Stock Exchange on June 29, 2017.

The underwriters of our initial public offering were Goldman, Sachs & Co., Morgan Stanley & Co. LLC, Citigroup Global Markets Inc., Barclays Capital Inc., Barclays Capital Inc., RBC Capital Markets, LLC, SunTrust Robinson Humphrey, Inc., Stifel, Nicolaus & Company, Incorporated, Canaccord Genuity Inc., Needham & Company, LLC, Oppenheimer & Co. Inc., Raymond James & Associates, Inc., and William Blair & Company, L.L.C. The offering commenced on June 28, 2017 and did not terminate until the sale of all of the shares offered.

We paid to the underwriters of our initial public offering an underwriting discount totaling approximately $16.5 million. In addition, we incurred expenses of approximately $5.5 million which, when added to the underwriting discount, amount to total expenses of approximately $22.0 million. Thus, the net offering proceeds, after deducting underwriting discounts and offering expenses, were approximately $278.0 million. No offering expenses were paid directly or indirectly to any of our directors or officers (or their associates) or persons owning 10.0% or more of any class of our equity securities or to any other affiliates.

There has been no material change in the planned use of IPO proceeds from that described in the final prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b)(4) under the Securities Act of 1933, as amended, on June 29, 2017.

Not applicable.

Item 3. Defaults Upon Senior Securities

Not applicable.

Item 4. Mine Safety Disclosures

Not applicable.

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Item 5. Other Information

Not applicable.

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Item 6. Exhibits


Exhibit		Description
~~Exhibit~~		~~Description~~
2.1		Asset Purchase Agreement, dated as of June 9, 2023, by and among Blue Apron, LLC, Blue Apron Holdings, Inc. and FreshRealm, Inc. (incorporated by reference to Exhibit 2.1 to the registrant’s current report on Form 8-K, filed with the Securities and Exchange Commission on June 12, 2023)
31.1*		~~Certification~~
3.1*		Restated Certificate of ~~Principal Executive Officer Pursuant~~Incorporation of Blue Apron Holdings, Inc., as amended

4.1		Form of Warrant (incorporated by reference to ~~Rules 13a-14(a) and 15d-14(a) under~~Exhibit 4.1 to the registrant’s current report on Form 8-K filed with the Securities and Exchange ~~Act of 1934, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002~~ Commission on June 12, 2023)

31.2* 10.1		~~Certification~~ Production and Fulfillment Agreement, dated as of ~~Principal Financial Officer Pursuant~~June 9, 2023, by and between Blue Apron, LLC and FreshRealm, Inc. (inco r porated by re ference to ~~Rules 13a-14(a)~~Exhibit 10.1 to the re gistrant's current report on Form 8-K, filed with the S ecurities and ~~15d-14(a) under~~Exchange Commission on June 12, 2023)

10.2		Sublease Agreement, dated as of June 9, 2023, by and between Blue Apron, LLC and FreshRealm, Inc. (incorporated by reference to Exhibit 10.2 to the registrant’s current report on Form 8-K, filed with the Securities and Exchange ~~Act of 1934, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002~~ Commission on June 12, 2023)

32.1** 10.3		~~Certification~~ Sublease Agreement and Assignment and Assumption Agreement, dated as of ~~Principal Executive Officer Pursuant~~June 9, 2023, by and between Blue Apron, LLC and FreshRealm, Inc. (incorporated by reference to ~~18 U.S.C. Section 1350, as Adopted Pursuant~~Exhibit 10.3 to ~~Section 906 of~~ the ~~Sarbanes-Oxley Act of 2002~~ registrant’s current report on Form 8-K, filed with the Securities and Exchange Commission on June 12, 2023)

32.2** 10.4		~~Certification~~ Registration Rights Agreement, dated as of ~~Principal Financial Officer Pursuant~~June 9, 2023, by and between Blue Apron Holdings, Inc. and FreshRealm, Inc. (incorporated by reference to ~~18 U.S.C. Section 1350, as Adopted Pursuant~~Exhibit 10.4 to ~~Section 906 of~~ the ~~Sarbanes-Oxley Act of 2002~~ registrant’s current report on Form 8-K, filed with the Securities and Exchange Commission on June 12, 2023)

101.INS* 31.1*		~~XBRL Instance Document~~

101.SCH*	~~XBRL Taxonomy Extension Schema Document~~

101.CAL*	~~XBRL Taxonomy Extension Calculation Linkbase Document~~

101.DEF*	~~XBRL Taxonomy Extension Definition Linkbase Document~~

101.LAB*	~~XBRL Taxonomy Extension Label Linkbase Document~~

101.PRE*	~~XBRL Taxonomy Extension Presentation Linkbase Document~~


*	~~Filed herewith.~~
**	~~Furnished herewith.~~

~~Table of Contents~~

~~Index to Exhibits~~




~~Exhibit~~	~~Description~~

31.1*	Certification of Principal Executive Officer Pursuant to Rules 13a-14(a) and 15d-14(a) under the Securities Exchange Act of 1934, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

31.2*		Certification of Principal Financial Officer Pursuant to Rules 13a-14(a) and 15d-14(a) under the Securities Exchange Act of 1934, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

32.1**		Certification of Principal Executive Officer 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 Principal Financial Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

101.INS*		Inline XBRL Instance Document – the instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document

101.SCH*		Inline XBRL Taxonomy Extension Schema Document

101.CAL*		Inline XBRL Taxonomy Extension Calculation Linkbase Document

101.DEF*		Inline XBRL Taxonomy Extension Definition Linkbase Document

101.LAB*		Inline XBRL Taxonomy Extension Label Linkbase Document

101.PRE*		Inline XBRL Taxonomy Extension Presentation Linkbase Document

104



*	~~Filed herewith.~~
**	~~Furnished herewith.~~ Cover Page Interactive Data File (formatted as Inline XBRL with applicable taxonomy extension information contained in Exhibits 101)

*Filed herewith.

**Furnished herewith

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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.


	BLUE APRON HOLDINGS, INC.

Date: August 9, 2023				/s/ Linda Findley
~~Date: November 3, 2017~~			~~/s/ Matthew B. Salzberg~~ Linda Findley
				~~Matthew B. Salzberg~~
		President, Chief Executive Officer, and Director
				(Principal Executive Officer)

Date: August 9, 2023				/s/ Mitch Cohen
~~Date: November 3, 2017~~			~~/s/ Bradley J. Dickerson~~ Mitch Cohen
				~~Bradley J. Dickerson~~
		Interim Chief Financial Officer and Treasurer
				(Principal Financial and Accounting Officer)


Class			Number of Shares Outstanding
Class A Common Stock, $0.0001 par value			~~30,042,687~~6,389,337 shares outstanding as of ~~September 30, 2017~~ July 31, 2023
Class B Common Stock, $0.0001 par value			~~160,097,378~~0 shares outstanding as of ~~September 30, 2017~~ July 31, 2023
Class C Capital Stock, $0.0001 par value			0 shares outstanding as of ~~September 30, 2017~~ July 31, 2023



	September 30,		December 31,
	2017		2016			June 30, 2023		December 31, 2022
ASSETS					ASSETS
CURRENT ASSETS:					CURRENT ASSETS:
Cash and cash equivalents	$	266,294	$	81,468	Cash and cash equivalents	$	30,027	$	33,476
Accounts receivable		822		485
Accounts receivable, net					Accounts receivable, net	89		556
Inventories, net		43,519		42,887	Inventories, net	2,289		25,023
Seller note receivable, net					Seller note receivable, net	3,118		—
Prepaid expenses and other current assets		11,087		8,267	Prepaid expenses and other current assets	15,655		17,657
Other receivables		1,304		4,991
Total current assets		323,026		138,098	Total current assets	51,178		76,712
Restricted cash		2,371		3,966
Property and equipment, net		239,002		130,961	Property and equipment, net	5,545		57,186
Operating lease right-of-use assets					Operating lease right-of-use assets	28,470		32,340
Other noncurrent assets		399		382	Other noncurrent assets	1,723		4,904
TOTAL ASSETS	$	564,798	$	273,407	TOTAL ASSETS	$	86,916	$	171,142
LIABILITIES, CONVERTIBLE PREFERRED STOCK AND STOCKHOLDERS’ EQUITY (DEFICIT)
LIABILITIES AND STOCKHOLDERS’ EQUITY					LIABILITIES AND STOCKHOLDERS’ EQUITY
CURRENT LIABILITIES:					CURRENT LIABILITIES:
Accounts payable	$	41,203	$	49,549	Accounts payable	$	30,033	$	18,709
Current portion of related party payables					Current portion of related party payables	—		3,000
Accrued expenses and other current liabilities		41,496		40,911	Accrued expenses and other current liabilities	21,822		27,077
Current portion of long-term debt					Current portion of long-term debt	—		27,512
Operating lease liabilities, current					Operating lease liabilities, current	9,436		8,650
Deferred revenue		19,762		24,278	Deferred revenue	16,022		19,083
Total current liabilities		102,461		114,738	Total current liabilities	77,313		104,031
Long-term debt		124,640		44,533
Facility financing obligation		69,663		49,809
Operating lease liabilities, long-term					Operating lease liabilities, long-term	18,854		23,699
Related party payables					Related party payables	—		2,500
Other noncurrent liabilities		7,837		2,858	Other noncurrent liabilities	6,949		7,191
TOTAL LIABILITIES		304,601		211,938	TOTAL LIABILITIES	103,116		137,421
Commitments and contingencies (Note 9)
Convertible preferred stock, par value of $0.0001 per share — 10,000,000 and 17,371,402 shares authorized as of September 30, 2017 and December 31, 2016, respectively; 0 issued and outstanding as of September 30, 2017 and 14,500,938 issued and outstanding as of December 31, 2016; aggregate liquidation preference of $0 as of September 30, 2017 and $195,317 as of December 31, 2016		—		194,869
STOCKHOLDERS’ EQUITY (DEFICIT):
Class A common stock, par value of $0.0001 per share — 1,500,000,000 and 177,000,000 shares authorized as of September 30, 2017 and December 31, 2016, respectively; 30,042,687 shares and 0 shares issued and outstanding as of September 30, 2017 and December 31, 2016, respectively		3		—
Class B common stock, par value of $0.0001 per share — 175,000,000 shares authorized as of September 30, 2017 and December 31, 2016; 160,097,378 and 67,095,128 shares issued and outstanding as of September 30, 2017 and December 31, 2016, respectively		16		7
Class C common stock, par value of $0.0001 per share — 500,000,000 and 2,000,000 shares authorized as of September 30, 2017 and December 31, 2016, respectively; 0 shares issued and outstanding as of September 30, 2017 and December 31, 2016		—		—
Commitments and contingencies (Note 13)					Commitments and contingencies (Note 13)
STOCKHOLDERS’ EQUITY:					STOCKHOLDERS’ EQUITY:
Class A common stock, par value of $0.0001 per share — 1,500,000,000 shares authorized as of June 30, 2023 and December 31, 2022; 6,377,956 and 4,408,495 shares issued and outstanding as of June 30, 2023 and December 31, 2022, respectively					Class A common stock, par value of $0.0001 per share — 1,500,000,000 shares authorized as of June 30, 2023 and December 31, 2022; 6,377,956 and 4,408,495 shares issued and outstanding as of June 30, 2023 and December 31, 2022, respectively	1		1
Class B common stock, par value of $0.0001 per share — 175,000,000 shares authorized as of June 30, 2023 and December 31, 2022; 0 shares issued and outstanding as of June 30, 2023 and December 31, 2022					Class B common stock, par value of $0.0001 per share — 175,000,000 shares authorized as of June 30, 2023 and December 31, 2022; 0 shares issued and outstanding as of June 30, 2023 and December 31, 2022	—		—
Class C capital stock, par value of $0.0001 per share — 500,000,000 shares authorized as of June 30, 2023 and December 31, 2022; 0 shares issued and outstanding as of June 30, 2023 and December 31, 2022					Class C capital stock, par value of $0.0001 per share — 500,000,000 shares authorized as of June 30, 2023 and December 31, 2022; 0 shares issued and outstanding as of June 30, 2023 and December 31, 2022	—		—
Additional paid-in capital		569,755		5,147	Additional paid-in capital	839,557		810,512
Accumulated deficit		(309,577)		(138,554)	Accumulated deficit	(855,758)		(776,792)
TOTAL STOCKHOLDERS’ EQUITY (DEFICIT)		260,197		(133,400)
TOTAL LIABILITIES, CONVERTIBLE PREFERRED STOCK AND STOCKHOLDERS’ EQUITY (DEFICIT)	$	564,798	$	273,407
TOTAL STOCKHOLDERS’ EQUITY					TOTAL STOCKHOLDERS’ EQUITY	(16,200)		33,721
TOTAL LIABILITIES AND STOCKHOLDERS’ EQUITY					TOTAL LIABILITIES AND STOCKHOLDERS’ EQUITY	$	86,916	$	171,142


	Three Months Ended				Nine Months Ended
	September 30,				September 30,
	2017		2016		2017		2016			Three Months Ended June 30,				Six Months Ended June 30,
										2023		2022		2023		2022
Net revenue	$	210,638	$	205,452	$	693,538	$	579,474	Net revenue	$	106,229	$	124,237	$	219,309	$	241,988
Operating expenses:									Operating expenses:
Cost of goods sold, excluding depreciation and amortization		164,444		145,644		496,495		385,489	Cost of goods sold, excluding depreciation and amortization	66,001		81,158		138,614		160,648
Marketing		34,244		49,618		129,368		107,062	Marketing	9,357		21,776		24,084		49,690
Product, technology, general, and administrative		65,744		45,589		194,627		110,586
Product, technology, general and administrative									Product, technology, general and administrative	34,441		39,185		70,165		83,139
Depreciation and amortization		8,774		1,992		18,337		5,251	Depreciation and amortization	3,180		5,593		7,402		11,126
Other operating expense		5,934		—		5,934		—	Other operating expense	5,846		—		5,846		—
Total operating expenses		279,140		242,843		844,761		608,388	Total operating expenses	118,825		147,712		246,111		304,603
Income (loss) from operations		(68,502)		(37,391)		(151,223)		(28,914)	Income (loss) from operations	(12,596)		(23,475)		(26,802)		(62,615)
Gain (loss) on extinguishment of debt									Gain (loss) on extinguishment of debt	—		650		(1,850)		650
Gain (loss) on transaction									Gain (loss) on transaction	(48,554)		—		(48,554)		—
Interest income (expense), net		(1,281)		59		(4,803)		187	Interest income (expense), net	(774)		(834)		(1,747)		(2,003)
Other income (expense), net		(17,551)		—		(14,984)		—	Other income (expense), net	—		387		—		2,033
Income (loss) before income taxes		(87,334)		(37,332)		(171,010)		(28,727)	Income (loss) before income taxes	(61,924)		(23,272)		(78,953)		(61,935)
Benefit (provision) for income taxes		133		(27)		(13)		(82)	Benefit (provision) for income taxes	(6)		(54)		(13)		(65)
Net income (loss)	$	(87,201)	$	(37,359)	$	(171,023)	$	(28,809)	Net income (loss)	$	(61,930)	$	(23,326)	$	(78,966)	$	(62,000)

Net income (loss) per share attributable to Class A, Class B, and Class C common stockholders:
Net income (loss) per share attributable to Class A and Class B common stockholders:									Net income (loss) per share attributable to Class A and Class B common stockholders:
Basic	$	(0.47)	$	(0.56)	$	(1.60)	$	(0.44)	Basic	$	(9.52)	$	(8.22)	$	(13.11)	$	(22.42)
Diluted	$	(0.47)	$	(0.56)	$	(1.60)	$	(0.44)	Diluted	$	(9.52)	$	(8.22)	$	(13.11)	$	(22.42)
Weighted-average shares used to compute net income (loss) per share attributable to Class A, Class B, and Class C common stockholders:
Weighted-average shares used to compute net income (loss) per share attributable to Class A and Class B common stockholders:									Weighted-average shares used to compute net income (loss) per share attributable to Class A and Class B common stockholders:
Basic		184,737,720		66,841,895		106,836,062		64,894,388	Basic	6,506,610		2,839,475		6,024,122		2,765,499
Diluted		184,737,720		66,841,895		106,836,062		64,894,388	Diluted	6,506,610		2,839,475		6,024,122		2,765,499


	Three Months Ended				Nine Months Ended
	September 30,				September 30,
	2017		2016		2017		2016

Net income (loss)	$	(87,201)	$	(37,359)	$	(171,023)	$	(28,809)
Other comprehensive income (loss)		—		—		—		—
Comprehensive income (loss)	$	(87,201)	$	(37,359)	$	(171,023)	$	(28,809)


			x			QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934


			o			TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934


PART I				FINANCIAL INFORMATION
		Item 11..		Consolidated Financial Statements (unaudited)				4
				Consolidated Balance Sheets				4	5
				Consolidated Statements of Operations				5	6
				Consolidated Statements of ~~Comprehensive Income (Loss~~Stockholders’ Equity)				6	7
				~~Consolidated Statements of Convertible Preferred Stock and Stockholders’ Equity (Deficit)~~			7
	Consolidated Statements of Cash Flows			8
				Notes to Consolidated Financial Statements				9	10
		Item 22..		Management’s Discussion and Analysis of Financial Condition and Results of Operations				22	30
		Item 33..		Quantitative and Qualitative Disclosures About Market Risk				40	49
		Item 44..		Controls and Procedures				40	49

PART II				OTHER INFORMATION
		Item 11..		Legal Proceedings				42	50
		Item 1A.		Risk Factors				42	50
		Item 22..		Unregistered Sales of Equity Securities and Use of Proceeds				70	84
		Item 33..		Defaults Upon Senior Securities				70	84
		Item 44..		Mine Safety Disclosures				70	84
		Item 55..		Other Information				71	84
		Item 66..		Exhibits				71	85

~~INDEX TO EXHIBITS~~					72
SIGNATURES						73
			86


	Class A Common Stock			Additional Paid-In Capital		Accumulated Deficit		Total Stockholders' Equity
	Shares	Amount
2023
Balance — December 31, 2022	4,408,495	$	1	$	810,512	$	(776,792)	$	33,721
Issuance of common stock upon exercise of stock options and vesting of restricted stock, net of tax withholdings	12,068	0		0		—		—
Issuance of common stock from public equity offerings, net of issuance costs	1,390,711	0		16,471		—		16,471
Share-based compensation	—	—		1,355		—		1,355
Net income (loss)	—	—		—		(17,036)		(17,036)
Balance — March 31, 2023	5,811,274	$	1	$	828,338	$	(793,828)	$	34,511
Issuance of common stock upon exercise of stock options and vesting of restricted stock, net of tax withholdings	21,438	0		0		—		0
Issuance of common stock from public equity offerings, net of issuance costs	545,244	0		3,432		—		3,432
Share-based compensation	—	—		1,009		—		1,009
Issuance of warrant	—	—		6,778		—		6,778
Net income (loss)	—	—		—		(61,930)		(61,930)
Balance — June 30, 2023	6,377,956	$	1	$	839,557	$	(855,758)	$	(16,200)

2022
Balance — December 31, 2021	2,641,200	$	—	$	746,567	$	(666,514)	$	80,053
Issuance of common stock upon exercise of stock options and vesting of restricted stock, net of tax withholdings	10,082	0		0		—		0
Issuance of common stock upon exercise of warrants	40,671	0		4,096		—		4,096
Issuance of common stock from private placements, net of issuance costs	29,762	0		4,809		—		4,809
Share-based compensation	—	—		2,233		—		2,233
Cumulative effect adjustment related to the adoption of the leasing standard	—	—		—		(545)		(545)
Net income (loss)	—	—		—		(38,674)		(38,674)
Balance — March 31, 2022	2,721,715	$	—	$	757,705	$	(705,733)	$	51,972
Issuance of common stock upon exercise of stock options and vesting of restricted stock, net of tax withholdings	15,957	0		0		—		—
Issuance of common stock upon exercise of warrants	19,611	0		953		—		953
Issuance of common stock from private placements, net of issuance costs	142,361	0		20,027		—		20,027
Share-based compensation	—	—		1,799		—		1,799
Net income (loss)	—	—		—		(23,326)		(23,326)
Balance — June 30, 2022	2,899,644	$	—	$	780,484	$	(729,059)	$	51,425


											Accumulated
	Convertible			Class A, Class B, and Class C			Additional				Other				Total
	Preferred Stock			Common Stock			Paid-In		Treasury		Comprehensive		Accumulated		Stockholders'
	Shares	Amount		Shares	Amount		Capital		Stock		Loss		Deficit		Equity (Deficit)
Balance — December 31, 2015	14,500,938	$	194,869	66,565,002	$	7	$	1,727	$	—	$	—	$	(83,668)	$	(81,934)
Issuance of common stock upon exercise of stock options	—		—	530,126		—		402		—		—		—		402
Share-based compensation	—		—	—		—		3,018		—		—		—		3,018
Net income (loss)	—		—	—		—		—		—		—		(54,886)		(54,886)
Balance — December 31, 2016	14,500,938	$	194,869	67,095,128	$	7	$	5,147	$	—	$	—	$	(138,554)	$	(133,400)
Issuance of common stock upon exercise of stock options	—		—	788,498		—		816		—		—		—		816
Issuance of common stock upon acquisition	—		—	42,687		—		373		—		—		—		373
Issuance of convertible notes	—		—	—		—		19,567		—		—		—		19,567
Issuance of common stock upon initial public offering, net of offering costs	—		—	30,000,000		3		278,007		—		—		—		278,010
Issuance of common stock upon conversion of convertible notes	—		—	7,023,201		1		62,084		—		—		—		62,085
Issuance of common stock upon conversion of Series A, B, C, and D convertible preferred stock	(14,500,938)		(194,869)	85,190,551		8		194,861		—		—		—		194,869
Share-based compensation	—		—	—		—		8,900		—		—		—		8,900
Net income (loss)	—		—	—		—		—		—		—		(171,023)		(171,023)
Balance — September 30, 2017	—	$	—	190,140,065	$	19	$	569,755	$	—	$	—	$	(309,577)	$	260,197


	Nine Months Ended September 30,
	2017		2016

CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss)	$	(171,023)	$	(28,809)
Adjustments to reconcile net income (loss) to net cash from (used in) operating activities:
Depreciation and amortization of property and equipment		18,337		5,251
Loss (gain) on disposal of property and equipment		(30)		—
Loss on impairment		5,934		—
Changes in reserves and allowances		1,364		1,165
Share-based compensation		8,752		2,062
Non-cash interest expense		2,459		18
Loss on convertible notes		14,984		—
Changes in operating assets and liabilities:
Receivables		(3,972)		288
Inventories		55		(14,097)
Prepaid expenses and other current assets		(3,101)		(1,819)
Accounts payable		2,814		10,929
Accrued expenses and other current liabilities		216		32,861
Deferred revenue		(4,516)		6,849
Other noncurrent assets and liabilities		4,962		638
Net cash from (used in) operating activities		(122,765)		15,336
CASH FLOWS FROM INVESTING ACTIVITIES:
Decrease (increase) in restricted cash		1,595		(3,768)
Cash paid for acquisition		(1,177)		—
Purchases of property and equipment		(116,094)		(24,108)
Net cash from (used in) investing activities		(115,676)		(27,876)
CASH FLOWS FROM FINANCING ACTIVITIES:
Net proceeds from debt issuances		144,349		4,471
Proceeds from the exercise of stock options		816		299
Principal payments on capital lease obligations		(145)		(210)
Net proceeds from public offering		283,500		—
Payments of public offering costs		(5,253)		—
Net cash from (used in) financing activities		423,267		4,560
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS		184,826		(7,980)
CASH AND CASH EQUIVALENTS — Beginning of period		81,468		126,860
CASH AND CASH EQUIVALENTS — End of period	$	266,294	$	118,880
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Cash paid for income taxes, net of refunds	$	190	$	370
Cash paid for interest, net of amounts capitalized	$	2,342	$	32
SUPPLEMENTAL DISCLOSURES OF NON-CASH INVESTING AND FINANCING INFORMATION:
Acquisition (disposal) of property and equipment financed under capital lease obligations	$	(66)	$	257
Non-cash addition to property and equipment related to build-to-suit lease	$	19,823	$	41,661
Purchases of property and equipment included in Accounts payable and Accrued expenses and other current liabilities	$	4,709	$	12,693


	ASC 840 Amount		ASC 842 Adjustment		Six Months Ended June 30, 2022
	(In thousands)
Consolidated Statement of Operations:
Product, technology, general & administrative	$	81,767	$	1,372	$	83,139
Depreciation & amortization	$	10,868	$	258	$	11,126
Interest income (expense), net	$	(3,205)	$	1,202	$	(2,003)


	(In thousands)
Sold Assets
Inventories, net	$	24,990
Furnishings and equipment	44,874
Operating lease right-of-use assets	481
Finance lease right-of-use assets	463
Total Sold Assets	$	70,808
Assigned Liabilities
Operating lease liabilities, current	158
Finance lease liabilities, current	93
Operating lease liabilities, long-term	314
Finance lease liabilities, long-term	381
PTO accrual - relevant Team Employees	1,442
Total Assigned Liabilities	$	2,388
Total Disposal Group	$	68,420


	Purchase Consideration
	(In thousands)
Base purchase price	$	28,500
Seller note principal	(3,500)
Seller note receivable, net	3,086
PTO credit - Relevant Team Employees	(1,442)
Warrant	(6,778)
Total Purchase consideration	$	19,866


Expected volatility	134.84	%
Risk-free interest rate	3.84	%
Expected term (in years)	7
Dividend yield	0.00%


	September 30,		December 31,
	2017		2016
	(In thousands)
Computer equipment	$	11,279	$	6,468
Capitalized software		8,781		5,448
Fulfillment equipment		41,815		12,525
Furniture and fixtures		4,268		1,491
Leasehold improvements		42,023		23,660
Building(1)		114,877		—
Construction in process(1) (2)		42,255		93,092
Property and equipment, gross		265,298		142,684
Less: accumulated depreciation and amortization		(26,296)		(11,723)
Property and equipment, net	$	239,002	$	130,961


		September 30,			December 31,
	Maturity Date	2017			2016
		(In thousands)
Revolving credit facility	2019	$	125,000		$	45,000
Weighted average interest rate			3.39	%		2.84	%


	June 30, 2023		December 31, 2022
Weighted average remaining lease term:
Operating leases	3.13 years		3.55 years
Finance leases	0.00 years		4.61 years
Weighted average discount rate:
Operating leases	16.21	%	16.20	%
Finance leases	—	%	16.23	%


	Senior secured notes		Debt issuance costs, net		Net
	(In thousands)
June 30, 2023
Current portion of long-term debt	$	—	$	—	$	—
Long-term debt	—		—		—
Total	$	—	$	—	$	—

December 31, 2022
Current portion of long-term debt	$	30,000	$	(2,488)	$	27,512
Long-term debt	—		—		—
Total	$	30,000	$	(2,488)	$	27,512


		December 31, 2016
		Shares Issued					Aggregate
	Shares	and			Liquidation		Liquidation		Conversion
Convertible Preferred Stock:	Authorized	Outstanding	Net Proceeds		Price Per Share		Preference		Price Per Share
	(In thousands, except share and per-share data)
Series A	742,409	742,409	$	2,974	$	4.0751	$	3,025	$	0.0815
Series B	455,220	455,220		4,939		10.9837		5,000		0.2197
Series C	3,001,448	3,001,448		49,824		16.6586		50,000		3.3317
Series D	13,172,325	10,301,861		137,132		13.3269		137,292		13.3269
Convertible preferred stock	17,371,402	14,500,938	$	194,869			$	195,317


Exercise Price		Issued	Exercised	Outstanding as of June 30, 2023
$	0.01	1,268,574		1,268,574
$	180.00	543,810	—	543,810
$	216.00	271,905	—	271,905
$	240.00	135,952	—	135,952


	Three Months Ended June 30,				Six Months Ended June 30,
	2023		2022		2023		2022
	Class A		Class A		Class A		Class A
(In thousands, except share and per-share data)
Numerator:
Net income (loss) attributable to common stockholders	$	(61,930)	$	(23,326)	$	(78,966)	$	(62,000)
Denominator:
Weighted-average shares used to compute net income (loss) per share attributable to common stockholders—basic	6,506,610		2,839,475		6,024,122		2,765,499
Weighted-average shares used to compute net income (loss) per share attributable to common stockholders—diluted	6,506,610		2,839,475		6,024,122		2,765,499

Net income (loss) per share attributable to common stockholders—basic (1)	$	(9.52)	$	(8.22)	$	(13.11)	$	(22.42)
Net income (loss) per share attributable to common stockholders—diluted (1)	$	(9.52)	$	(8.22)	$	(13.11)	$	(22.42)


	Three Months Ended September 30,						Nine Months Ended September 30,
	2017				2016		2017						2016
	Class A		Class B		Class B		Class A		Class B		Class C		Class B
(in thousands, except share and per-share data)
Numerator:
Net income (loss)	$	(13,565)	$	(73,636)	$	(37,359)	$	(15,513)	$	(155,489)	$	(21)	$	(28,809)
Undistributed earnings reallocated to convertible preferred stock						—								—
Net income (loss) attributable to common stockholders	$	(13,565)	$	(73,636)	$	(37,359)	$	(15,513)	$	(155,489)	$	(21)	$	(28,809)
Denominator:
Weighted-average shares used to compute net income (loss) per share attributable to common stockholders—basic		28,738,339		155,999,381		66,841,895		9,690,657		97,132,114		13,291		64,894,388
Effect of dilutive securities:		—		—		—		—		—		—		—
Weighted-average shares used to compute net income (loss) per share attributable to common stockholders—diluted		28,738,339		155,999,381		66,841,895		9,690,657		97,132,114		13,291		64,894,388

Net income (loss) per share attributable to common stockholders—basic (1)	$	(0.47)	$	(0.47)	$	(0.56)	$	(1.60)	$	(1.60)	$	(1.60)	$	(0.44)
Net income (loss) per share attributable to common stockholders—diluted (1)	$	(0.47)	$	(0.47)	$	(0.56)	$	(1.60)	$	(1.60)	$	(1.60)	$	(0.44)


	September 30, 2017
	Level 1		Level 2		Level 3		Total
	(In thousands)
Financial Assets:
Money market accounts	$	227,502	$	—	$	—	$	227,502
Total financial assets	$	227,502	$	—	$	—	$	227,502


	Six Months Ended June 30, 2023
	Carrying value before impairment		Fair value (Level 3)		Impairment Loss

Non-financial assets (in thousands)
Long-lived assets	$	1,662	$	—	$	1,662


	Balance as of December 31, 2021		Loss (gain) on changes in stock price		Loss (gain) on changes in estimated common stock on a fully-diluted basis		Exercise of warrants		Derecognition		Balance as of June 30, 2022
	(In thousands)
Warrant obligation	$	9,589	$	(1,971)	$	153	$	(5,050)	$	(2,721)	$	—



	~~Level 3~~
	~~(In thousands)~~
~~Financial Liabilities~~
~~Balance at beginning of period — December 31, 2016~~	$	—
~~Issuance of convertible notes derivative~~		—
~~Balance — March 31, 2017~~		—
~~Issuance of convertible notes derivative~~		~~15,429~~
~~Change in fair value of derivative~~		~~(2,567)~~
~~Balance — June 30, 2017~~		~~12,862~~
~~Change in fair value of derivative at settlement~~		~~(3,453)~~
~~Settlement of convertible notes~~		~~(9,409)~~
~~Balance at end of period — September 30, 2017~~	$	—


	Employee-Related Costs
	(in thousands)
Balance - December 31, 2022	$	1,295
Cash payments	(911)
Balance - March 31, 2023	$	384
Charges	408
Cash payments	(307)
Other	(69)
Balance - June 30, 2023	$	416


	Three Months Ended
	June 30, 2023		March 31, 2023		December 31, 2022		September 30, 2022		June 30, 2022
Orders (in thousands)	1,403		1,608		1,460		1,548		1,701
Customers (in thousands)	267		326		298		323		349
Average Order Value	$	75.66	$	70.27	$	73.15	$	70.83	$	67.14
Orders per Customer	5.3		4.9		4.9		4.8		4.9
Average Revenue per Customer	$	397	$	346	$	358	$	340	$	328


	Three Months Ended June 30,				% Change
	2023		2022
	(In thousands)
Net revenue	$	106,229	$	124,237	(14)	%

~~81‑4777373~~
81-4777373

(State or Other Jurisdiction of Incorporation or Organization)

(I.R.S. Employer Identification No.)

~~40 West 23rd~~28 Liberty Street, New York, New York

~~10010~~
10005

(Address of Principal Executive Offices)

(Zip Code)