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As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 5/02/23 Berkshire Grey, Inc. SC 13E3 7:43M Berkshire Grey, Inc. Broadridge Fin’l So… Inc Backgammon Acquisition Corp. Backgammon Investment Corp. SB Global Advisers Ltd. Softbank Group Corp. Softbank Vision Fund II-2 L.P. SVF II Aggregator (Jersey) L.P. SVF II BG (De) LLC SVF II Holdings (De) LLC |
Document/Exhibit Description Pages Size
1: SC 13E3 Tender-Offer Statement by an Issuer - HTML 242K
Going-Private Transaction
7: EX-FILING FEES Filing Fees Table HTML 23K
2: EX-99.(C)(1) Exhibit (C)(1) HTML 88K
3: EX-99.(C)(2) Exhibit (C)(2) HTML 89K
4: EX-99.(D)(4) Exhibit (D)(4) HTML 86K
5: EX-99.(D)(5) Exhibit (D)(5) HTML 85K
6: EX-99.(D)(6) Exhibit (D)(6) HTML 95K
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13E-3
RULE 13E-3 TRANSACTION STATEMENT
UNDER SECTION 13(E) OF
THE SECURITIES EXCHANGE ACT OF 1934
Berkshire Grey, Inc.
(Name of the Issuer)
Berkshire Grey, Inc.
Softbank Group Corp.
Backgammon Acquisition Corp.
Backgammon Investment Corp.
SVF II BG (DE) LLC
SVF II Holdings (DE) LLC
SoftBank Vision Fund II-2 L.P.
SVF II Aggregator (Jersey) L.P.
SB Global Advisers Limited
(Names of Persons Filing Statement)
Class A Common Stock, par value $0.0001 per share
Redeemable Warrants, exercisable for Class A Common Stock
(Title of Class of Securities)
(CUSIP Number of Class of Securities)
|
Berkshire Grey, Inc. 140 South Road (833) 848-9900 |
SoftBank Group Corp. Tokyo Portcity Takeshiba 1-7-1 Kaigan Minato-ku, Tokyo 105-7537 Japan +81-3-6889-2000 Attention: Tim Mackey & Stephen Lam
Backgammon Acquisition Corp. Backgammon Investment Corp. 1 Circle Star Way +81-3-6889-2000 Attention: Alex Clavel & Stephen Lam
SVF II BG (DE) LLC SVF II Holdings (DE) LLC 251 Little Falls Drive +81-3-6889-2000 Attention: Michael Johnson
SoftBank Vision Fund II-2 L.P. SVF II Aggregator (Jersey) L.P. Crestbridge Limited, 47 Esplanade St. Helier, Jersey, JE1 0BD +81-3-6889-2000 Attention: Jonathan Duckles
SB Global Advisers Limited 69 Grosvenor Street London, W1K 3JP England, United Kingdom 650-562-8211 Attention: Alex Clavel |
(Name, Address, and Telephone Numbers of Person Authorized to Receive Notices
and Communications on Behalf of the Persons Filing Statement)
With copies to
|
Goodwin Procter LLP 100 Northern Avenue (617) 570-1000 Attention: Mark S. Opper, John T. Haggerty & R. Kirkie Maswoswe
|
Morrison & Foerster LLP Shin-Marunouchi Building, 29th Floor 5-1, Marunouchi 1-Chome, Chiyoda-ku, Tokyo, Japan, 100-6529 81-3-3214-6522 Attention: Kenneth A. Siegel
Morrison & Foerster LLP 2100 L Street NW, Suite 900 (202) 887-1500 Attention: David P. Slotkin & Andrew P. Campbell |
This statement is filed in connection with (check the appropriate box):
| a. | ☒ | The filing of solicitation materials or an information statement subject to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the Securities Exchange Act of 1934. |
| b. | ☐ | The filing of a registration statement under the Securities Act of 1933. |
| c. | ☐ | A tender offer. |
| d. | ☐ | None of the above. |
Check the following box if the soliciting materials or information statement referred to in checking box (a) are preliminary copies: ☒
Check the following box if the filing is a final amendment reporting the results of the transaction: ☐
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of this transaction, passed upon the merits or fairness of this transaction or passed upon the adequacy or accuracy of the disclosure in this transaction statement on Schedule 13E-3. Any representation to the contrary is a criminal offense.
Introduction
This Transaction Statement on Schedule 13E-3 (this “Transaction Statement”) is being filed with the U.S. Securities and Exchange Commission (the “SEC”) pursuant to Section 13(e) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), by (1) Berkshire Grey, Inc., a Delaware corporation (the “Company”); (2) SoftBank Group Corp., a Japanese kabushiki kaisha (“SoftBank” or “Parent”); (3) Backgammon Acquisition Corp., a Delaware corporation (“Merger Sub”); (4) Backgammon Investment Corp., (5) SVF II BG (DE) LLC (“SVF II BG”); (6) SoftBank Vision Fund II-2 L.P. (“SVF II-2”); (7) SVF II Aggregator (Jersey) L.P. (“SVF II Aggregator”); (8) SVF II Holdings (DE) LLC (“SVF II Holdings”); and (9) SB Global Advisers Limited (“SB Global Advisers”) (each of (1) through (9) a “Filing Person,” and collectively, the “Filing Persons”). SoftBank and Merger Sub are affiliates of SVF II BG, SVF II-2, SVF II Aggregator, SVF II Holdings and SB Global Advisers, investment funds managed by SoftBank which held approximately 27.0% of the voting power of the issued and outstanding shares of the Company common stock (as defined below) as of April 10, 2023.
This Transaction Statement relates to the Agreement and Plan of Merger, dated as of March 24, 2023 (as it may be amended from time to time, the “Merger Agreement”), by and among the Company, Parent and Merger Sub. The Merger Agreement provides that, subject to the terms and conditions set forth in the Merger Agreement, Merger Sub will merge with and into the Company (the “Merger”), with the Company surviving the Merger as a subsidiary of Parent.
At the effective time of the Merger (the “Effective Time”), each outstanding share of Class A common stock, par value $0.0001 per share, of the Company (the “Class A common stock”) and Class C common stock, par value $0.0001 per share, of the Company (the “Class C common stock” and, together with the Class A common stock, the “Company common stock”) outstanding immediately prior to the effective time of the Merger (other than (i) restricted shares of Company common stock that are not vested, (ii) shares of Company common stock owned by the Company as treasury stock or by Merger Sub and (iii) shares of Company common stock that are owned by stockholders of the Company who did not vote in favor of the Merger Agreement Proposal and who have perfected and not withdrawn a demand for appraisal rights with respect to such shares pursuant to Section 262 of the General Corporation Law of the State of Delaware (“DGCL”)) will be automatically converted into the right to receive $1.40 per share in cash, without interest (the “Merger Consideration”). Following the completion of the Merger, the shares of Class A common stock and the Company’s public warrants will no longer be publicly traded, and holders of such shares of Company common stock that have been converted into the right to receive the Merger Consideration will cease to have any ownership interest in the Company.
At the Effective Time, each outstanding redeemable warrant for Class A common stock pursuant to that certain Warrant Agreement, dated December 7, 2020, by and between Revolution Acceleration Acquisition Corp. and Continental Stock Transfer & Trust Company (the “Warrant Agreement”), will, in accordance with its terms, automatically and without any required action on the part of the holder thereof, become a warrant exercisable for the Merger Consideration that such holder would have received if such warrant had been exercised immediately prior to the Effective Time; provided that if a holder of such warrant properly exercises such warrant within thirty (30) days following the public disclosure of the consummation of the Merger, the holder of such warrant will be entitled to the Black-Scholes Warrant Value (as defined in the Warrant Agreement) with respect to such warrant.
Concurrently with the filing of this Transaction Statement, the Company is filing with the SEC a proxy statement (the “Proxy Statement”) under Regulation 14A of the Exchange Act, pursuant to which the Company’s board of directors (the “Board”) is soliciting proxies from stockholders of the Company in connection with the Merger, including to (i) approve and adopt the Merger Agreement and (ii) a proposal to approve and adopt an amendment (the “Charter Amendment”) to the Company’s Third Amended and Restated Certificate of Incorporation, dated July 21, 2021, to (a) increase the number of authorized shares of the Class A common stock of the Company from 385,000,000 to 700,000,000 and (b) increase the number of authorized shares of Company common stock from 400,000,000 to 715,000,000. A copy of the Proxy Statement is attached hereto as Exhibit (a)(1). A copy of the Merger Agreement is attached to the Proxy Statement as Annex A and is incorporated herein by reference. As of the date hereof, the Proxy Statement is in preliminary form, and is subject to completion or amendment. Terms used but not defined in this Transaction Statement have the meanings assigned to them in the Proxy Statement.
The Board evaluated the Merger Agreement and the transactions contemplated thereby, including the Merger (the “Merger Transactions”) and unanimously: (i) determined that the terms of the Merger Agreement and the Merger Transactions are advisable and in the best interests of the Company and its stockholders, including the holders of shares of the Company common stock not owned, directly or indirectly, by SoftBank or its affiliates (the “Unaffiliated Voting Shares”), and fair (as used in Item 1014(a) of Regulation M-A) to the Company’s “unaffiliated security holders,” as defined under Rule 13e-3 of the Exchange Act (the “Unaffiliated Stockholders”); (ii) recommended that the Company enter into the Merger Agreement; and (iii) recommends that the stockholders of the Company vote in favor of the proposal to approve and adopt the Merger Agreement and the proposal to approve and adopt the Charter Amendment.
In connection with the execution of the Merger Agreement, on March 23, 2023, the Company and Parent entered into voting and support agreements (the “Voting and Support Agreements”) with Thomas Wagner, the Company’s Chief Executive Officer, and three of the Company’s largest stockholders (certain entities related to Vinod Khosla (Khosla Ventures Seed B LP, Khosla Ventures Seed B (CF), LP and Khosla Ventures V, LP) and New Enterprise Associates 15, L.P. (New Enterprise Associates 15, L.P. and NEA Ventures 2016, L.P.) and Canaan X, L.P.) (collectively, the “Supporting Stockholders”), who collectively owned approximately 46.9% of the voting power of the issued and outstanding shares of Company common stock as of April 10, 2023. Pursuant to the Voting and Support Agreements, the Supporting Stockholders each agreed to vote, or cause to be voted, all of the shares of Company common stock it beneficially owns in favor of Merger Agreement Proposal and the Charter Amendment Proposal. A copy of the Form of Voting and Support Agreement is attached to the Proxy Statement as Annex E and is incorporated herein by reference.
The Merger cannot be completed without the affirmative vote of the holders of a majority of the voting power of the outstanding shares of Company common stock (voting together as a single class) entitled to vote in accordance with the DGCL.
Pursuant to General Instruction F to Schedule 13E-3, the information in the Proxy Statement, including all annexes thereto, is expressly incorporated by reference herein in its entirety, and responses to each item herein are qualified in their entirety by the information contained in the Proxy Statement and the annexes thereto. The cross-references below are being supplied pursuant to General Instruction G to Schedule 13E-3 and show the location in the Proxy Statement of the information required to be included in response to the items of Schedule 13E-3.
While each of the Filing Persons acknowledges that the Merger is a going private transaction for purposes of Rule 13E-3 under the Exchange Act, the filing of this Transaction Statement shall not be construed as an admission by any Filing Person, or by any affiliate of a Filing Person, that the Company is “controlled” by any of the Filing Persons and/or their respective affiliates.
The information concerning the Company contained in, or incorporated by reference into, this Transaction Statement and the Proxy Statement was supplied by the Company. Similarly, all information concerning each other Filing Person contained in, or incorporated by reference into, this Transaction Statement and the Proxy Statement was supplied by such Filing Person. No Filing Person is responsible for the accuracy of any information supplied by any other Filing Person.
| Item 1. | Summary Term Sheet |
Regulation M-A Item 1001
The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Summary Term Sheet”
“Questions and Answers About the Special Meeting and the Merger”
| Item 2. | Subject Company Information |
Regulation M-A Item 1002
(a) Name and address. The Company’s name, and the address and telephone number of its principal executive offices are:
Berkshire Grey, Inc.
140 South Road
(b) Securities. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Questions and Answers About the Special Meeting and the Merger—Who can vote at the Special Meeting?”
“The Special Meeting—Record Date and Quorum”
“Other Important Information Regarding the Company—Security Ownership of Certain Beneficial Owners and Management”
“Summary Term Sheet—Certain Defined Terms—Public Warrants”
(c) Trading market and price. The information set forth in the Proxy Statement under the following caption is incorporated herein by reference:
“Other Important Information Regarding the Company—Market Price of Securities and Dividends”
(d) Dividends. The information set forth in the Proxy Statement under the following caption is incorporated herein by reference:
“Other Important Information Regarding the Company—Market Price of Securities and Dividends”
“The Merger Agreement—Conduct of Our Business Pending the Merger”
(e) Prior public offerings. The information set forth in the Proxy Statement under the following caption is incorporated herein by reference:
“Other Important Information Regarding the Company—Prior Public Offerings”
(f) Prior stock purchases. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Other Important Information Regarding the Company—Certain Transactions in the Company’s Securities”
| Item 3. | Identity and Background of Filing Person |
Regulation M-A Item 1003(a) through (c)
(a) – (c) Name and Address of Each Filing Person; Business and Background of Entities; Business and Background of Natural Persons. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Summary Term Sheet—Parties to the Merger”
“Parties to the Merger”
“Other Important Information Regarding the Company”
“Other Important Information Regarding the SoftBank Entities”
“Where You Can Find More Information”
| Item 4. | Terms of the Transaction |
Regulation M-A Item 1004(a) and (c) through (f)
(a) Material terms.
(1) Tender offer. Not applicable.
(2) Merger or Similar Transactions.
(i) The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Summary Term Sheet”
“Questions and Answers About the Special Meeting and the Merger”
“Special Factors—Background of the Merger”
“The Merger Agreement—Structure of the Merger; Certificate of Incorporation; Bylaws; Directors and Officers”
“The Merger Agreement—Closing and Effective Time of the Merger”
“The Merger Agreement—Consideration to be Received in the Merger”
“The Merger Agreement—Conditions to the Merger”
(ii) The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Summary Term Sheet”
“Questions and Answers About the Special Meeting and the Merger—As a common stockholder, what will I receive in the Merger?”
“The Merger Agreement—Consideration to be Received in the Merger”
“Special Factors—Certain Effects of the Merger”
(iii) The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Special Factors—Reasons for the Merger”
“Special Factors—Position of the SoftBank Entities as to the Fairness of the Merger”
“Special Factors—Purpose and Reasons of the Company for the Merger”
“Special Factors—Purpose and Reasons of the SoftBank Entities for the Merger”
“Special Factors—Opinion of the Board’s Financial Advisor”
“Special Factors—Unaudited Prospective Financial Information of the Company”
(iv) The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Questions and Answers About the Special Meeting and the Merger—What vote is required to approve the Proposals”
“The Special Meeting—Vote Required”
(v) The information set forth in the Proxy Statement under the following caption is incorporated herein by reference:
“Summary Term Sheet”
“Questions and Answers About the Special Meeting and the Merger”
“Special Factors—Certain Effects of the Merger”
“Special Factors—Interests of Executive Officers and Directors of the Company in the Merger”
“The Merger Agreement—Consideration to be Received in the Merger”
“The Merger Agreement—Employee Matters”
“The Merger Agreement—Indemnification; Directors’ and Officers’ Insurance”
“The Merger Agreement—Surrender and Payment Procedures”
“The Voting and Support Agreements”
(vi) The information set forth in the Proxy Statement under the following caption is incorporated herein by reference:
“Special Factors—Accounting Treatment”
(vii) The information set forth in the Proxy Statement under the following caption is incorporated herein by reference:
“Special Factors—Material U.S. Federal Income Tax Consequences of the Merger”
(c) Different terms. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Summary Term Sheet”
“Questions and Answers About the Special Meeting and the Merger”
“Special Factors—Certain Effects of the Merger”
“Special Factors—Interests of Executive Officers and Directors of the Company in the Merger”
“The Merger Agreement—Consideration to be Received in the Merger”
“The Merger Agreement—Employee Matters”
“The Merger Agreement—Indemnification; Directors’ and Officers’ Insurance”
“The Merger Agreement—Surrender and Payment Procedures”
“The Voting and Support Agreement”
(d) Appraisal rights. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Summary Term Sheet”
“Questions and Answers About the Special Meeting and the Merger—Am I entitled to rights of appraisal under the DGCL?”
“Special Factors—Appraisal Rights”
(e) Provisions for unaffiliated security holders. The information set forth in the Proxy Statement under the following caption is incorporated herein by reference:
“Special Factors—Reasons for the Merger”
“Special Factors—Provisions for Unaffiliated Stockholders”
(f) Eligibility for listing or trading. Not applicable.
| Item 5. | Past Contacts, Transactions, Negotiations and Agreements |
Regulation M-A Item 1005(a) through (c) and (e)
(a)(1) – (2) Transactions. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Summary Term Sheet”
“Special Factors—Background of the Merger”
“Special Factors—Certain Effects of the Merger”
“Special Factors—Interests of Executive Officers and Directors of the Company in the Merger”
“Special Factors—Financing of the Merger”
“The Merger Agreement”
“The Voting and Support Agreements”
“Other Important Information Regarding the Company— Certain Transactions in the Company’s Securities”
(b) – (c) Significant corporate events; Negotiations or contacts. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Summary Term Sheet”
“Special Factors—Background of the Merger”
“Special Factors—Reasons for the Merger”
“Special Factors—Position of the Company as to the Fairness of the Merger to Unaffiliated Stockholders”
“Special Factors—Position of the SoftBank Entities as to the Fairness of the Merger”
“Special Factors—Purpose and Reasons of the Company for the Merger”
“Special Factors—Purpose and Reasons of the SoftBank Entities for the Merger”
“Special Factors—Interests of Executive Officers and Directors of the Company in the Merger”
“Special Factors—Financing of the Merger”
“The Merger Agreement”
“The Voting and Support Agreements”
Annex A—Agreement and Plan of Merger, dated as of March 24, 2023, by and among SoftBank Group Corp., Backgammon Acquisition Corp. and Berkshire Grey, Inc.
Annex E—Form of Voting and Support Agreement
(e) Agreements involving the subject company’s securities. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Summary Term Sheet”
“Questions and Answers About the Special Meeting and the Merger”
“Special Factors—Background of the Merger”
“Special Factors—Plans for the Company After the Merger”
“Special Factors—Financing of the Merger”
“The Merger Agreement”
“The Voting and Support Agreements”
“The Special Meeting—Vote Required”
“Other Important Information Regarding the Company— Certain Transactions in the Company’s Securities”
Annex A—Agreement and Plan of Merger, dated as of March 24, 2023, by and among SoftBank Group Corp., Backgammon Acquisition Corp. and Berkshire Grey, Inc.
Annex E—Form of Voting and Support Agreement
| Item 6. | Purposes of the Transaction and Plans or Proposals |
Regulation M-A Item 1006(b) and (c)(1) through (8)
(b) Use of securities acquired. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Summary Term Sheet”
“Special Factors—Plans for the Company After the Merger”
“Special Factors—Certain Effects of the Merger”
“Special Factors—Certain Effects of the Merger for Parent”
“Special Factors—Certain Effects on the Company if the Merger Is Not Completed”
“Special Factors—Interests of Executive Officers and Directors of the Company in the Merger”
“Other Important Information Regarding the Company—Market Price of Securities and Dividends”
“Delisting and Deregistration of Class A Common Stock and Public Warrants”
(c)(1) – (8) Plans. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Summary Term Sheet”
“Questions and Answers About the Special Meeting and the Merger”
“Special Factors—Background of the Merger”
“Special Factors—Recommendation of the Board”
“Special Factors—Reasons for the Merger”
“Special Factors—The Position of the Company as to the Fairness of the Merger to Unaffiliated Stockholders”
“Special Factors—Position of the SoftBank Entities as to the Fairness of the Merger”
“Special Factors—Purpose and Reasons of the Company for the Merger”
“Special Factors—Purpose and Reasons of the SoftBank Entities for the Merger”
“Special Factors—Plans for the Company After the Merger”
“Special Factors—Certain Effects of the Merger”
“Special Factors—Certain Effects of the Merger for Parent”
“Special Factors—Certain Effects on the Company if the Merger Is Not Completed”
“Special Factors—Interests of Executive Officers and Directors of the Company in the Merger”
“Special Factors—Financing of the Merger”
“The Voting and Support Agreements”
“The Merger Agreement—Structure of the Merger; Certificate of Incorporation; Bylaws; Directors and Officers”
“The Merger Agreement—Consideration to be Received in the Merger”
“The Merger Agreement—Conduct of Our Business Pending the Merger”
“Other Important Information Regarding the Company—Market Price of Securities and Dividends”
“Other Important Information Regarding the Company—Directors and Executive Officers of the Company”
“Delisting and Deregistration of Class A Common Stock and Public Warrants”
Annex A—Agreement and Plan of Merger, dated as of March 24, 2023, by and among SoftBank Group Corp., Backgammon Acquisition Corp. and Berkshire Grey, Inc.
| Item 7. | Purposes, Alternatives, Reasons and Effects |
Regulation M-A Item 1013
(a) Purposes. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Summary Term Sheet”
“Questions and Answers About the Special Meeting and the Merger”
“Special Factors—Background of the Merger”
“Special Factors—Reasons for the Merger”
“Special Factors— Position of the Company as to the Fairness of the Merger to Unaffiliated Stockholders”
“Special Factors—Position of the SoftBank Entities as to the Fairness of the Merger”
“Special Factors—Purpose and Reasons of the Company for the Merger”
“Special Factors—Purpose and Reasons of the SoftBank Entities for the Merger”
“Special Factors—Plans for the Company After the Merger”
“Special Factors—Certain Effects of the Merger”
(b) Alternatives. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Special Factors—Background of the Merger”
“Special Factors—Reasons for the Merger”
“Special Factors— Position of the Company as to the Fairness of the Merger to Unaffiliated Stockholders”
“Special Factors—Position of the SoftBank Entities as to the Fairness of the Merger”
“Special Factors—Purpose and Reasons of the Company for the Merger”
“Special Factors—Purpose and Reasons of the SoftBank Entities for the Merger”
“Special Factors—Opinion of the Board’s Financial Advisor”
(c) Reasons. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Summary Term Sheet”
“Special Factors—Background of the Merger”
“Special Factors—Reasons for the Merger”
“Special Factors—Position of the SoftBank Entities as to the Fairness of the Merger”
“Special Factors—Purpose and Reasons of the Company for the Merger”
“Special Factors—Purpose and Reasons of the SoftBank Entities for the Merger”
“Special Factors—Opinion of the Board’s Financial Advisor”
“Special Factors—Unaudited Prospective Financial Information of the Company”
“Special Factors—Certain Effects of the Merger”
Annex C – Opinion of Credit Suisse Securities (USA) LLC
(d) Effects. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Summary Term Sheet”
“Questions and Answers About the Special Meeting and the Merger”
“Special Factors—Background of the Merger”
“Special Factors—Reasons for the Merger”
“Special Factors—Position of the Company as to the Fairness of the Merger to Unaffiliated Stockholders”
“Special Factors—Position of the SoftBank Entities as to the Fairness of the Merger”
“Special Factors—Purpose and Reasons of the Company for the Merger”
“Special Factors—Purpose and Reasons of the SoftBank Entities for the Merger”
“Special Factors—Plans for the Company After the Merger”
“Special Factors—Certain Effects of the Merger”
“Special Factors—Certain Effects of the Merger for Parent”
“Special Factors—Certain Effects on the Company if the Merger Is Not Completed”
“Special Factors—Interests of Executive Officers and Directors of the Company in the Merger”
“Special Factors—Appraisal Rights”
“Special Factors—Material U.S. Federal Income Tax Consequences of the Merger”
“Special Factors—Accounting Treatment”
“Special Factors—Financing of the Merger”
“Special Factors—Fees and Expenses”
“Special Factors—Surrender and Payment Procedures”
“The Merger Agreement—Structure of the Merger; Certificate of Incorporation; Bylaws; Directors and Officers”
“The Merger Agreement—Consideration to be Received in the Merger”
“The Merger Agreement—No Solicitation of Acquisition Proposals; Adverse Recommendation Changes”
“The Merger Agreement—Indemnification; Directors’ and Officers’ Insurance”
“The Merger Agreement—Employee Matters”
“The Merger Agreement—Conduct of Our Business Pending the Merger”
“Other Important Information Regarding the Company—Market Price of Securities and Dividends”
“Delisting and Deregistration of Class A Common Stock and Public Warrants”
Annex A—Agreement and Plan of Merger, dated as of March 24, 2023, by and among SoftBank Group Corp., Backgammon Acquisition Corp. and Berkshire Grey, Inc.
| Item 8. | Fairness of the Transaction |
Regulation M-A Item 1014
(a) – (b) Fairness; Factors considered in determining fairness. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Summary Term Sheet”
“Questions and Answers About the Special Meeting and the Merger”
“Special Factors—Background of the Merger”
“Special Factors—Reasons for the Merger”
“Special Factors—Position of the Company as to the Fairness of the Merger to Unaffiliated Stockholders”
“Special Factors—Position of the SoftBank Entities as to the Fairness of the Merger”
“Special Factors—Purpose and Reasons of the Company for the Merger”
“Special Factors—Purpose and Reasons of the SoftBank Entities for the Merger”
“Special Factors—Certain Effects of the Merger”
“Special Factors—Interests of Executive Officers and Directors of the Company in the Merger”
“Special Factors—Opinion of the Board’s Financial Advisor”
Annex C—Opinion of Credit Suisse Securities (USA) LLC
Discussion Materials of Credit Suisse Securities (USA) LLC for the Board, dated March 15, 2023, are attached hereto as Exhibit (c)(1) and are incorporated herein by reference.
Discussion Materials of Credit Suisse Securities (USA) LLC for the Board, dated March 23, 2023, are attached hereto as Exhibit (c)(2) and are incorporated herein by reference.
(c) Approval of security holders. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Summary Term Sheet”
“Questions and Answers About the Special Meeting and the Merger”
“Special Factors—Reasons for the Merger”
“Special Factors—Position of the Company as to the Fairness of the Merger to Unaffiliated Stockholders”
“Special Factors—Position of the SoftBank Entities as to the Fairness of the Merger”
“The Merger Agreement—Special Meeting”
“The Merger Agreement—Conditions to the Merger”
“The Special Meeting”
“Proposal 1 — The Merger Agreement Proposal”
Annex A—Agreement and Plan of Merger, dated as of March 24, 2023, by and among SoftBank Group Corp., Backgammon Acquisition Corp. and Berkshire Grey, Inc.
(d) Unaffiliated representative. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Special Factors—Background of the Merger”
“Special Factors—Reasons for the Merger”
“Special Factors—Position of the Company as to the Fairness of the Merger to Unaffiliated Stockholders”
“Special Factors—Position of the SoftBank Entities as to the Fairness of the Merger”
“Special Factors—Purpose and Reasons of the Company for the Merger”
“Special Factors—Provisions for Unaffiliated Stockholders”
(e) Approval of directors. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Summary Term Sheet”
“Questions and Answers About the Special Meeting and the Merger”
“Special Factors—Background of the Merger”
“Special Factors—Recommendation of the Board”
“Special Factors—Reasons for the Merger”
“Special Factors—Position of the Company as to the Fairness of the Merger to Unaffiliated Stockholders”
“Special Factors—Purpose and Reasons of the Company for the Merger”
“Special Factors—Position of the SoftBank Entities as to the Fairness of the Merger”
“Special Factors—Opinion of the Board’s Financial Advisor”
“Special Factors—Interests of Executive Officers and Directors of the Company in the Merger”
“Proposal 1 — The Merger Agreement Proposal”
(f) Other offers. Not applicable.
| Item 9. | Reports, Opinions, Appraisals and Negotiations |
Regulation M-A Item 1015
(a) – (b) Report, opinion or appraisal; Preparer and summary of the report, opinion or appraisal. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Summary Term Sheet”
“Questions and Answers About the Special Meeting and the Merger”
“Special Factors—Background of the Merger”
“Special Factors—Reasons for the Merger”
“Special Factors—Position of the Company as to the Fairness of the Merger to Unaffiliated Stockholders”
“Special Factors—Position of the SoftBank Entities as to the Fairness of the Merger”
“Special Factors—Opinion of the Board’s Financial Advisor”
“Special Factors—Purpose and Reasons of the Company for the Merger”
“Where You Can Find More Information”
Annex C—Opinion of Credit Suisse Securities (USA) LLC
Discussion Materials of Credit Suisse Securities (USA) LLC for the Board, dated March 15, 2023, are attached hereto as Exhibit (c)(1) and are incorporated herein by reference.
Discussion Materials of Credit Suisse Securities (USA) LLC for the Board, dated March 23, 2023, are attached hereto as Exhibit (c)(2) and are incorporated herein by reference.
(c) Availability of documents. The reports, opinions or appraisals referenced in this Item 9 will be made available for inspection and copying at the principal executive offices of the Company during its regular business hours by any interested equity security holder of the Company or representative who has been so designated in writing.
| Item 10. | Source and Amounts of Funds or Other Consideration |
Regulation M-A Item 1007
(a) – (b) Source of funds; Conditions. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Summary Term Sheet”
“Special Factors—Financing of the Merger”
(c) Expenses. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Summary Term Sheet”
“Special Factors—Fees and Expenses”
“The Merger Agreement—Termination Fee”
“The Merger Agreement—Expenses”
(d) Borrowed funds. Not applicable.
| Item 11. | Interest in Securities of the Subject Company |
Regulation M-A Item 1008
(a) Securities ownership. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Special Factors—Interests of Executive Officers and Directors of the Company in the Merger”
“Other Important Information Regarding the Company—Security Ownership of Certain Beneficial Owners and Management”
(b) Securities transactions. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Other Important Information Regarding the Company— Certain Transactions in the Company’s Securities”
“Other Important Information Regarding the Company—Prior Public Offerings”
| Item 12. | The Solicitation or Recommendation |
Regulation M-A Item 1012(d) and (e)
(d) Intent to tender or vote in a going-private transaction. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Summary Term Sheet”
“Questions and Answers About the Special Meeting and the Merger”
“Special Factors—Reasons for the Merger”
“Special Factors—Position of the Company as to the Fairness of the Merger to Unaffiliated Stockholders”
“Special Factors—Position of the SoftBank Entities as to the Fairness of the Merger”
“Special Factors—Purpose and Reasons of the Company for the Merger”
“Special Factors—Purpose and Reasons of the SoftBank Entities for the Merger”
“Special Factors—Intent to Vote in Favor of the Merger”
“Special Factors— Intent to Vote in Favor of the Merger”
“The Merger Agreement—SoftBank Vote”
“The Special Meeting—Vote Required”
“The Voting and Support Agreements”
Annex E—Form of Voting and Support Agreement
(e) Recommendation of others. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Summary Term Sheet”
“Questions and Answers About the Special Meeting and the Merger”
“Special Factors—Background of the Merger”
“Special Factors—Recommendation of the Board”
“Special Factors—Reasons for the Merger”
“Special Factors—The Company’s Position as to the Fairness of the Merger to Unaffiliated Stockholders”
“Special Factors—Position of the SoftBank Entities as to the Fairness of the Merger”
“Special Factors—Purpose and Reasons of the Company for the Merger”
“Special Factors—Purpose and Reasons of the SoftBank Entities for the Merger”
“Proposal 1 — The Merger Agreement Proposal”
| Item 13. | Financial Information |
Regulation M-A Item 1010(a) through (b)
(a) Financial statements. The audited consolidated financial statements of the Company for the fiscal years ended December 31, 2022 and 2021 are incorporated herein by reference to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed on March 29, 2023 (see “Item 8 - Financial Statements and Supplementary Data” on page 51).
The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Special Factors—Certain Effects of the Merger”
“Special Factors—Unaudited Prospective Financial Information of the Company”
“Other Important Information Regarding the Company—Book Value per Share”
“Where You Can Find More Information”
(b) Pro forma information. Not applicable.
| Item 14. | Persons/Assets, Retained, Employed, Compensated or Used |
Regulation M-A Item 1009
(a) – (b) Solicitations or recommendations; Employees and corporate assets. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
“Summary Term Sheet”
“Questions and Answers About the Special Meeting and the Merger”
“Special Factors—Background of the Merger”
“Special Factors—Reasons for the Merger”
“Special Factors—Position of the Company as to the Fairness of the Merger to Unaffiliated Stockholders”
“Special Factors—Purpose and Reasons of the Company for the Merger”
“Special Factors—Fees and Expenses”
“Special Factors—Interests of Executive Officers and Directors of the Company in the Merger”
“The Special Meeting—Solicitation of Proxies; Payment of Solicitation Expenses”
| Item 15. | Additional Information |
Regulation M-A Item 1011(b)
Not applicable.
Regulation M-A Item 1011(c)
(c) Other material information. The information set forth in the Proxy Statement, including all annexes thereto, is incorporated herein by reference.
| Item 16. | Exhibits |
Regulation M-A Item 1016(a) through (d), (f) and (g)
(a)(2) Form of Proxy Card (included in the Proxy Statement and incorporated herein by reference).
(a)(5) Current Report on Form 8-K, dated March 24, 2023.
SIGNATURES
After due inquiry and to the best of each of the undersigned’s knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
Dated: May 2, 2023
| BERKSHIRE GREY, INC. | ||
| By: | /s/ Thomas Wagner | |
| Name: Thomas Wagner | ||
| Title: Chief Executive Officer | ||
| SOFTBANK GROUP CORP. | ||
| By: | /s/ Yuko Yamamoto | |
| Name: Yuko Yamamoto | ||
| Title: Head of Corporate Legal Department | ||
| BACKGAMMON INVESTMENT CORP. | ||
| By: | /s/ Stephen Lam | |
| Name: Stephen Lam | ||
| Title: Director | ||
| BACKGAMMON ACQUISITION CORP. | ||
| By: | /s/ Alex Clavel | |
| Name: Alex Clavel | ||
| Title: Director | ||
| SVF II BG (DE) LLC | ||
| By: | /s/ Jonathan Duckles | |
| Name: Jonathan Duckles | ||
| Title: Director | ||
| SVF II HOLDINGS (DE) LLC | ||
| By: | /s/ Jonathan Duckles | |
| Name: Jonathan Duckles | ||
| Title: Director | ||
|
SOFTBANK VISION FUND II-2 L.P. |
||
| By: | /s/ Alex Clavel | |
| Name: Alex Clavel | ||
| Title: Director | ||
| SVF II AGGREGATOR (JERSEY) L.P. | ||
| By: | /s/ Michael Johnson | |
| Name: Michael Johnson | ||
| Title: Director of SVF II GP (Jersey) Limited | ||
| SB GLOBAL ADVISERS LIMITED | ||
| By: | /s/ Alex Clavel | |
| Name: Alex Clavel | ||
| Title: Director | ||
| This ‘SC 13E3’ Filing | Date | Other Filings | ||
|---|---|---|---|---|
 | ||||
| Filed on: | 5/2/23 | PREM14A | ||
| 4/10/23 | SC 13D/A | |||
| 3/29/23 | 10-K, 8-K, SC 13D/A | |||
| 3/24/23 | 3, 8-K, DEFA14A, SC 13D/A | |||
| 3/23/23 | ||||
| 3/15/23 | ||||
| 12/31/22 | 10-K, 10-K/A | |||
| 12/31/21 | 10-K | |||
| 7/21/21 | 25-NSE, 3, 3/A, 4, 8-K, 8-K/A, SC 13G/A | |||
| 12/7/20 | 3, 8-A12B, 8-K, CERT, EFFECT | |||
| List all Filings | ||||
As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 7/20/23 Berkshire Grey, Inc. SC 13E3/A 1:51K Berkshire Grey, Inc. Broadridge Fin’l So… Inc 6/27/23 Berkshire Grey, Inc. SC 13E3/A 1:244K Berkshire Grey, Inc. Broadridge Fin’l So… Inc 6/22/23 Berkshire Grey, Inc. SC 13E3/A 1:244K Berkshire Grey, Inc. Broadridge Fin’l So… Inc 6/09/23 Berkshire Grey, Inc. SC 13E3/A 1:244K Berkshire Grey, Inc. Broadridge Fin’l So… Inc 6/01/23 SEC UPLOAD¶ 8/17/23 2:48K Berkshire Grey, Inc. |
As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 5/02/23 Berkshire Grey, Inc. PREM14A 5/02/23 2:5.2M Broadridge Fin’l So… Inc 3/24/23 Berkshire Grey, Inc. 8-K:1,2,3,8 3/24/23 15:1.4M Donnelley … Solutions/FA |