Berkshire Grey, Inc. (Form: 8-K, Received: 02/28/2023 16:23:26)

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): February 27, 2023

Berkshire Grey, Inc.

(Exact name of Registrant as Specified in Its Charter)


Delaware	001-39768	85-2994421
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(IRS Employer Identification No.)

140 South Road
Bedford, Massachusetts		01730
(Address of Principal Executive Offices)		(Zip Code)

Registrant’s Telephone Number, Including Area Code: 833 848-9900

(Former Name or Former Address, if Changed Since Last Report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

☐Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:


Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Class A Common Stock	BGRY	The Nasdaq Stock Market LLC
Redeemable Warrants	BGRYW	The Nasdaq Stock Market LLC

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).

Emerging growth company ☒

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Item 8.01 Other Events.

As previously disclosed, on February 13, 2023, Berkshire Grey, Inc. (the “Company”) filed a petition in the Delaware Court of Chancery pursuant to Section 205 of the Delaware General Corporation Law seeking validation of the Company’s Third Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”), which included anincrease in the total number of authorized shares of the Company’s Class A common stock from 75,000,000 shares to 385,000,000 shares, and the shares issued pursuant thereto to resolve any uncertainty with respect to those matters (captioned In re Berkshire Grey, Inc., C.A. No. 2023-0171-LWW (Del. Ch.)) (the “Section 205 Action”).

On February 27, 2023, the Court of Chancery held a hearing in the Section 205 Action and issued an order granting the Company’s petition validating the Certificate of Incorporation and all shares of capital stock and other securities of the Company issued in reliance on the effectiveness of the Certificate of Incorporation, each as of the original issuance dates. A copy of the Court’s order is attached.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.


Exhibit Number		Description
99.1		Order entered by the Delaware Court of Chancery on February 27, 2023
104		Cover Page Interactive Data File (embedded within the Inline XBRL document)

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 hereunto duly authorized.


			Berkshire Grey, Inc.

Date:	February 28, 2023	By:	/s/ Mark Fidler
			Mark Fidler Chief Financial Officer

Exhibit 99.1

IN THE COURT OF CHANCERY FOR THE STATE OF DELAWARE

)

IN RE BERKSHIRE GREY, INC. ) C.A. No. 2023-0171-LWW

)

ORDER UNDER 8 DEL. C. § 205

WHEREAS, on July 21, 2021, Berkshire Grey, Inc. (“Berkshire Grey”) filed its Third Amended and Restated Certificate of Incorporation (the “Charter”) with the Delaware Secretary of State;

WHEREAS, from time to time on or after July 21, 2021 through the date of this Order, the Company has issued shares of its capital stock, and other securities convertible into or exercisable for shares of its capital stock, in reliance on the Charter;

WHEREAS, on February 13, 2023, Berkshire Grey filed with this Court a Verified Petition for Relief Under 8 Del. C. § 205 (the “Petition”); and

WHEREAS, the Court, having considered the factors in 8 Del. C. § 205(d), and for good cause shown,

IT IS HEREBY ORDERED, this 27th day of February, 2023, that, under 8 Del. C. § 205 and for the reasons set forth in the court’s bench ruling:

1 See Feb. 27, 2023 Hr’g Trans.; see also Opinion Regarding Section 205 Petition, In re Lordstown Motors Corp., 2023-0083-LWW (Del. Ch. Feb. 21, 2023) (setting forth reasoning for granting similar relief in a Section 205 action).

The Charter, including the filing and effectiveness thereof, is

hereby validated and declared effective retroactive to the date of its filing with the Office of the Secretary of State of the State of Delaware on July 21, 2021, and all amendments effected thereby.

The Company’s securities (and the issuance of the securities)

described in the Petition and any other securities issued in reliance on the validity of the Charter are hereby validated and declared effective, each as of the original issuance dates.

The action is hereby closed.

/s/ Lori W. Will

Vice Chancellor Will