BERKSHIRE GREY, INC. Item 1.01 Entry Into a Material Definitive Agreement.
Agreement and Plan of Merger
On
The Merger is to become effective, upon the terms and subject to the conditions
of the Merger Agreement, at the date and time when a certificate of merger (the
"Certificate of Merger") has been duly filed with the Secretary of State of the
The Merger Agreement contains customary representations, warranties and covenants of the Company, Parent and Merger Sub, including, among others, covenants by the Company to conduct its business in the ordinary course of business during the period between execution of the Merger Agreement and consummation of the Merger (the "Closing") and prohibiting the Company from engaging in certain kinds of activities during such period without the consent of Parent. The assertions embodied in those representations, warranties and covenants were made for purposes of the contract between the respective parties and are subject to representations, warranties, covenants and agreements contained in the Merger Agreement, which were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the parties to the Merger Agreement, may be subject to limitations agreed upon by the contracting parties (including being qualified by a confidential disclosure schedule made for the purposes of allocating contractual risk between the parties to the Merger Agreement instead of establishing these matters as facts) and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors, security holders, or securities laws. Investors and security holders are not third-party beneficiaries under the Merger Agreement and should not rely on the representations, warranties, covenants and agreements, or any descriptions thereof, as characterizations of the actual state of facts or condition of any party to the Merger Agreement. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the Company's public disclosures. The Merger Agreement also contains customary termination provisions for both the Company and Parent, as described in more detail below.
The Merger is conditioned upon, among other things, the approval of the Merger Agreement by the affirmative vote of holders of at least a majority of all outstanding shares of Company Common Stock, voting together as a single class (the "Stockholder Approval"), at a meeting of the Company's stockholders held for such purpose (the "Stockholder Meeting"), the expiration of the applicable waiting period (and any extension thereof) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, certain other approvals, clearances or expirations of waiting periods under other antitrust laws and foreign investment screening laws, and other customary closing conditions. The Closing is not subject to a financing condition.
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The Company is subject to a customary "no-shop" provision whereby, subject to certain exceptions, it is prohibited from (i) entering into discussions concerning, or providing confidential information in connection with, any alternative transaction and (ii) withholding, withdrawing, amending or modifying the Company Recommendation in a manner adverse to Parent. The "no shop" provision allows the Company, under certain circumstances and in compliance with certain obligations set forth in the Merger Agreement, to provide non-public information and engage in discussions and negotiations with respect to an unsolicited acquisition proposal that constitutes or is reasonably expected to lead to an alternative transaction that the Board determines would be more favorable, from a financial point of view, to the Company's stockholders than the Merger (a "Superior Proposal"). Under certain circumstances and in . . .
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement of a Registrant.
The information set forth under the caption "Convertible Note Purchase Agreement" under Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
Item 3.02 Unregistered Sale of
The information set forth under the caption "Convertible Note Purchase Agreement" under Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
The Company's offer and sale of the Notes to BIC is in reliance on the exemption
from registration provided by Section 4(a)(2) of the Securities Act of 1933, as
amended (the "Securities Act"). The Company relied on these exemptions from
registration based in part on representations made by BIC in the Note Purchase
Agreement. The shares of Class A Common Stock issuable upon conversion of the
Notes have not been registered under the Securities Act and may not be offered
or sold in
To the extent that any shares of Class A Common Stock are issued upon conversion of the Notes, they will be issued in transactions anticipated to be exempt from registration under the Securities Act by virtue of Section 3(a)(9) thereof, because no commission or other remuneration is expected to be paid in connection with conversion of the Notes and any resulting issuance of shares of Class A Common Stock.
Item 8.01 Other Events.
On
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Important Information and Where to Find It
In connection with the proposed transaction between the Company and Parent, the
Company will file relevant materials with the
Participants in the Solicitation
The Company and certain of its directors and executive officers may be deemed to
be participants in the solicitation of proxies from the Company's stockholders
in respect of the proposed transaction and any other matters to be voted on at
the special meeting. Information regarding the Company's directors and executive
officers, including a description of their direct interests, by security
holdings or otherwise, is contained in the Company's proxy statement for its
2022 annual meeting of stockholders, which was filed with the
Forward-Looking Statements
Certain statements contained in this communication may constitute
forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933 and Section 21E of the Securities Exchange Act of 1934. All
statements, other than statements of historical fact, are statements that could
be deemed forward-looking statements, including statements containing the words
"will," "predicts," "plans," "expects," "anticipates," "believes," "goal,"
"target," "estimate," "potential," "may," "might," "could," "see," "seek,"
"forecast," and similar words. Forward-looking statements are based on the
Company's current plans and expectations, estimates and projections about the
industry and markets in which the Company operates and the Company's beliefs and
assumptions as to the timing and outcome of future events, including the
transactions described in this communication. While the Company's management
believes the assumptions underlying the forward-looking statements are
reasonable, such information is necessarily subject to uncertainties and may
involve certain risks and uncertainties which are, in many instances, difficult
to predict and beyond the Company's control, and which could cause actual
results to differ materially from those included in or contemplated or implied
by the forward-looking statements. Such risks and uncertainties include, among
others: (i) the occurrence of any event, change or other circumstance that could
give rise to the termination of the merger agreement; (ii) the failure to obtain
stockholder approval; (iii) the failure to obtain certain required regulatory
approvals to the completion of the proposed Merger or the failure to satisfy any
of the other conditions to the completion of the proposed Merger; (iv) the
effect of the announcement of the proposed Merger on the ability of the Company
to retain and hire key personnel and maintain relationships with its key
business partners and customers, and others with whom it does business, or on
its operating results and businesses generally; (v) the response of the
Company's competitors to the proposed Merger; (vi) risks associated with the
disruption of management's attention from ongoing business operations due to the
proposed Merger; (vii) the ability to meet expectations regarding the timing and
completion of the proposed Merger; (viii) significant costs associated with the
proposed Merger, including the timing, receipt and terms and conditions of any
required governmental and regulatory approvals of the proposed Merger;
(ix) potential litigation relating to the proposed Merger; (x) restrictions
during the pendency of the proposed Merger that may impact the Company's ability
to pursue certain business opportunities; (xi) the outcome of any legal
proceedings that may be instituted against the parties and others following
announcement of the merger agreement; (xii) the completion of the convertible
note financing and (xiii) the other risks, uncertainties and factors detailed in
the Company's most recent annual and quarterly reports filed with the
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There can be no assurance that the proposed transaction will in fact be consummated. The Company cautions investors not to unduly rely on any forward-looking statements. The Company is providing the information in this communication as of this date and assumes no obligations to update the information included in this communication or revise any forward-looking statements, whether as a result of new information, future events or otherwise, and the Company does not intend to do so.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits. Exhibit Number Description 2.1* Agreement and Plan of Merger, datedMarch 24, 2023 , by and betweenBerkshire Grey, Inc. , SoftBank Group Corp. andBackgammon Acquisition Corp. 10.1 Form of Voting and Support Agreement. 10.2 Note Purchase Agreement, datedMarch 24, 2023 , by and betweenBerkshire Grey, Inc. andBackgammon Investment Corp. 99.1 Press release, datedMarch 24, 2023 . 104 Cover Page Interactive Data File (embedded within the Inline XBRL document).
* All schedules to the Merger Agreement have been omitted pursuant to Item
601(a)(5) of Regulation S-K. A copy of any omitted schedule and/or exhibit will
be furnished to the
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