Item 8.01 Other Events.
On July 20, 2021, Revolution Acceleration Acquisition Corp ("RAAC"), the
predecessor to Berkshire Grey, Inc. (the "Company"), held a special meeting of
stockholders (the "RAAC Special Meeting") to approve certain matters relating to
the business combination between RAAC and Berkshire Grey, Inc. One of these
matters was a proposal to amend RAAC's charter to, among other things, increase
the total number of authorized shares of RAAC's Class A common stock, par value
$0.0001 per share (the "Class A common stock"), from 75,000,000 shares to
385,000,000 shares (the "Charter Proposal"). The Charter Proposal was approved
by a majority of the shares of Class A common stock, Class B common stock and
Class C common stock of RAAC, voting together as a single class, that were
outstanding as of the record date for the RAAC Special Meeting. After the RAAC
Special Meeting, RAAC and Berkshire Grey, Inc. closed the business combination,
and RAAC changed its name to Berkshire Grey, Inc.
As of December 31, 2022, the Company had 234,844,952 shares of Class A common
stock issued and outstanding, as well as a significant number of additional
shares of Class A common stock issuable upon conversion, exercise, or settlement
of outstanding warrants, stock options, and restricted stock units.
A recent ruling by the Court of Chancery introduces uncertainty as to whether
Section 242(b)(2) of the Delaware General Corporation Law (the "DGCL") would
have required the Charter Proposal to be approved by a separate vote of the
majority of RAAC's then-outstanding shares of Class A common stock.
In light of the recent Court of Chancery decision, and to resolve potential
uncertainty with respect to the Company's capital structure, on February 13,
2023, the Company filed a petition in the Court of Chancery under Section 205 of
the DGCL to seek validation of the Charter Proposal and the shares issued
thereunder. Section 205 of the DGCL permits the Court of Chancery, in its
discretion, to ratify and validate potentially defective corporate acts. The
Company is aware that a number of other former SPACs are facing similar concerns
related to amendments to their charters, and some have already filed petitions
under Section 205 of the DGCL in the Court of Chancery for similar reasons. A
copy of the petition in the form filed with the Court of Chancery is attached
hereto as Exhibit 99.1. and is also available at ir.berkshiregrey.com.
Concurrently with the petition, the Company filed a motion to expedite the
hearing on the petition.
On February 13, 2023, the Court of Chancery granted the motion to expedite and
set a hearing date for the petition to be heard. The hearing has been set for
February 27, 2023 at 4:00 p.m. Eastern Time at the Leonard L. Williams Justice
Center, 500 North King Street, Wilmington, Delaware 19801.
This Current Report on Form 8-K constitutes notice of the hearing. If any
stockholder of the Company wishes to express a position on the petition, such
stockholder of the Company may (i) appear at the hearing or (ii) file a written
submission with the Register in Chancery, Leonard L. Williams Justice Center,
500 North King Street, Wilmington, Delaware 19801, referring to the case
caption, In re Berkshire Grey, Inc., C.A. No. 2023-0171-LWW (Del. Ch.), in
advance of the hearing, and any such written submission should be emailed to the
Company's counsel, S. Mark Hurd of Morris, Nichols, Arsht & Tunnell LLP, at
shurd@morrisnichols.com.
If the Company is not successful in the Section 205 proceeding, the uncertainty
with respect to the Company's capitalization resulting from the Court of
Chancery's ruling referenced above could have a material adverse impact on the
Company, including on the Company's ability to complete equity or debt financing
transactions or issue stock-based compensation to its employees, directors and
officers until the underlying issues are definitively resolved. This uncertainty
could impair the Company's ability to execute its business plan, attract and
retain employees, management and directors and adversely affect its commercial
relationships.
The information found on, or otherwise accessible through, our website at
ir.berkshiregrey.com is not incorporated into this Current Report on Form 8-K.
Cautionary Statement Regarding Forward-Looking Statements
This Current Report on Form 8-K includes forward-looking statements made under
the "safe harbor" provisions of the U.S. Private Securities Litigation Reform
Act of 1995. All statements other than statements of historical facts contained
in this report are forward-looking statements. In some cases, you can identify
forward-looking statements by terms such as "may," "will," "should," "expect,"
"plan," "anticipate," "could," "intend," "target," "project," "contemplate,"
"believe," "estimate," "predict," "potential" or "continue" or the negative of
these terms or other similar expressions. The forward-looking statements in this
report are only predictions. Berkshire Grey has based these forward-looking
statements on current information and management's current expectations and
beliefs. Such forward-looking statements are subject to risks, uncertainties and
other factors which could cause actual results to differ materially from
historical experience or from future results expressed or implied by such
forward-looking statements.
In particular, no assurances can be made regarding the outcome or the timing of
the Section 205 proceeding described above. If the Company is unsuccessful in
the Section 205 proceeding, the uncertainty with respect to the Company's
capitalization could limit its ability to complete equity or debt financing
transactions or issue stock-based compensation to its employees, directors and
officers until the underlying issues are definitively resolved. As described
above, this uncertainty could have a material adverse impact on the Company.
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Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit Description
Number
99.1 Petition of Berkshire Grey, Inc. pursuant to 8 Del. C. § 205.
104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
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