EXHIBIT 4.1
CERTAIN INFORMATION IN THIS EXHIBIT, MARKED BY [***], HAS BEEN EXCLUDED FROM THE EXHIBIT PURSUANT TO ITEM 601(B)(10)(IV) OF REGULATION S-K BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL.
EXECUTION VERSION
WARRANT TO PURCHASE CLASS A COMMON STOCK
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS.
THIS INSTRUMENT IS ISSUED PURSUANT TO AND SUBJECT TO THE RESTRICTIONS ON TRANSFER AND OTHER PROVISIONS OF A TRANSACTION AGREEMENT, DATED AS OF JULY 29, 2022, BY AND BETWEEN THE ISSUER OF THESE SECURITIES AND FCJI, INC., AN OHIO CORPORATION, A COPY OF WHICH IS ON FILE WITH THE ISSUER. THE SECURITIES REPRESENTED BY THIS INSTRUMENT MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH SAID AGREEMENT. ANY SALE OR OTHER TRANSFER NOT IN COMPLIANCE WITH SAID AGREEMENT WILL BE VOID.
WARRANT
to purchase
25,250,616
Shares of Class A Common Stock of
Berkshire Grey, Inc.
a Delaware Corporation
Issue Date: July 29, 2022
“30-Day VWAP” means, as of any date, the volume weighted average price per share of the Common Stock on the Principal Trading Market (as reported by Bloomberg L.P. (or its successor) or, if not available, by another authoritative source mutually agreed by the Company and FedEx) from 9:30 a.m. (New York City time) with respect to the period that begins on the Trading Day that is thirty (30) Trading Days preceding such date to 4:00 p.m. (New York City time) and ends on the last Trading Day immediately preceding such date.
“Affiliate” has the meaning ascribed to it in the Transaction Agreement.
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“Alternate Consideration” has the meaning set forth in Section 12(iii).
“Appraisal Procedure” means a procedure whereby two independent, nationally recognized appraisers, one chosen by the Company and one by the Warrantholder, shall mutually agree upon the determinations then the subject of appraisal. Each party shall deliver a notice to the other appointing its appraiser within 15 days after the Appraisal Procedure is invoked. If within 30 days after appointment of the two appraisers they are unable to agree upon the amount in question, a third independent, nationally recognized appraiser shall be chosen within 10 days thereafter by the mutual consent of such first two appraisers or, if such two first appraisers fail to agree upon the appointment of a third appraiser, such appointment shall be made by the American Arbitration Association, or any organization successor thereto, from a panel of arbitrators having experience in appraisal of the subject matter to be appraised. In such event, the decision of the third appraiser so appointed and chosen shall be given within 30 days after the selection of such third appraiser. If three appraisers shall be appointed and the determination of one appraiser is disparate from the middle determination by more than twice the amount by which the other determination is disparate from the middle determination, then the determination of such appraiser shall be excluded, the remaining two determinations shall be averaged and such average shall be binding and conclusive upon the Company and the Warrantholder; otherwise, the average of all three determinations shall be binding and conclusive upon the Company and the Warrantholder. The costs of conducting any Appraisal Procedure shall be borne 50% by the Company and 50% by the Warrantholder.
“Assumed Payment Amount” has the meaning set forth in Section 12(ii).
“Attribution Parties” has the meaning set forth in Section 13(i).
“Beneficial Ownership Limitation” has the meaning set forth in Section 13(ii).
“Board of Directors” means the board of directors of the Company.
“Business Combination” means a merger, consolidation, statutory share exchange, reorganization, recapitalization or similar extraordinary transaction (which may include a reclassification) involving the Company.
“Business Day” has the meaning ascribed to it in the Transaction Agreement.
“Cash Exercise” has the meaning set forth in Section 3(ii).
“Cashless Exercise” has the meaning set forth in Section 3(ii).
“Cashless Exercise Ratio” with respect to any exercise of this Warrant means a fraction (i) the numerator of which is the excess of (x) the 30-Day VWAP as of the day immediately preceding such exercise date over (y) the Exercise Price, and (ii) the denominator of which is the 30-Day VWAP as of the day immediately preceding such exercise date.
“Change of Control Transaction” means (a) any transaction or series of related transactions as a result of which any Person or group within the meaning of Section 13(d)(3) of
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the Exchange Act (excluding the Warrantholder or any of its Affiliates) becomes the beneficial owner, directly or indirectly, of 50% or more of the Equity Interests (measured by either voting power or economic interests) of the Company, (b) any transaction or series of related transactions in which the stockholders of the Company immediately prior to such transaction or series of related transactions cease to beneficially own, directly or indirectly, at least 50% of the outstanding Equity Interests (measured by either voting power or economic interests) of the Company; provided that this clause (b) shall not apply if such transaction or series of related transactions is an acquisition by the Company effected, in whole or in part, through the issuance of Equity Interests of the Company, or (c) any Business Combination as a result of which at least 50% of the ownership of the Company is transferred to another Person or group of persons within the meaning of Section 13(d)(3) of the Exchange Act (excluding the Warrantholder or any of its Affiliates).
“Chosen Courts” has the meaning set forth in Section 14.
“Commission” has the meaning set forth in Section 13(i).
“Common Stock” means the Class A Common Stock, par value $0.0001 per share of the Company.
“Company” means Berkshire Grey, Inc., a Delaware corporation.
“Continuing Directors” means the directors of the Company on the date hereof and each other director, if, in each case, such other director’s nomination for election to the Board of Directors is recommended by more than 50% of the Continuing Directors or more than 50% of the members of the Nominating and Governance Committee of the Board of Directors that are Continuing Directors.
“Convertible Securities” means any securities or rights exercisable or convertible into or exchangeable for shares of Common Stock, including through distributions on outstanding securities.
“Equity Interests” means any and all (a) shares, interests, participations or other equivalents (however designated) of capital stock or other voting securities of a corporation, any and all equivalent or analogous ownership (or profit) or voting interests in a Person (other than a corporation), (b) securities convertible into or exchangeable for shares, interests, participations or other equivalents (however designated) of capital stock or voting securities of (or other ownership or profit or voting interests in) such Person, and (c) any and all warrants, rights or options to purchase any of the foregoing, whether voting or nonvoting, and, in each case, whether or not such shares, interests, participations, equivalents, securities, warrants, options, rights or other interests are authorized or otherwise existing on any date of determination.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations promulgated thereunder.
“Exercise Period” has the meaning set forth in Section 3.
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“Exercise Price” means a dollar amount equal to the 30-Day VWAP as of the Issue Date of this Warrant.
“Expiration Time” has the meaning set forth in Section 3.
“Fair Market Value” means, with respect to any security or other property, the fair market value of such security or other property as determined by the Board of Directors, acting in good faith and evidenced by a written notice delivered promptly to the Warrantholder (which written notice shall include certified resolutions of the Board of Directors in respect thereof). If the Warrantholder objects in writing to the Board of Director’s calculation of fair market value within 10 Business Days after receipt of written notice thereof and the Warrantholder and the Company are unable to agree on the fair market value during the 10-day period following the delivery of the Warrantholder objection, the Appraisal Procedure may be invoked by either the Company or the Warrantholder to determine Fair Market Value by delivering written notification thereof not later than the 30th day after delivery of the Warrantholder objection. For the avoidance of doubt, the Fair Market Value of cash shall be the amount of such cash.
“Fundamental Transaction” means any transaction or series of related transactions, whether effected directly or indirectly, pursuant to which (i) the Company effects any Business Combination, (ii) the Company effects any sale, exclusive lease, exclusive license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets, (ii) the Company effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, (iii) any purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock, (iv) the holders of the Common Stock will receive any shares of stock or other securities (including pursuant to a spin off transaction), instruments or property (including cash, but excluding any ongoing ordinary course dividends), or (iv) any Change of Control Transaction occurs with respect to the Company.
“FedEx” means FCJI, Inc., an Ohio corporation.
“Issue Date” has the meaning set forth in the caption of this agreement.
“Market Price” means, with respect to the Common Stock or any other security, on any given day, the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, of Common Stock or of such security, as applicable, on the Nasdaq on such day. If the Common Stock or such security, as applicable, is not listed on the Nasdaq as of any date of determination, the Market Price of the Common Stock or such security, as applicable, on such date of determination means the closing sale price on such date as reported in the composite transactions for the principal U.S. national or regional securities exchange on which the Common Stock or such security, as applicable, is so listed or quoted, or, if no closing sale price is reported, the last reported sale price on such date on the principal U.S. national or regional securities exchange on which the Common Stock or such security, as applicable, is so listed or quoted, or if the Common Stock or such security, as
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applicable, is not so listed or quoted on a U.S. national or regional securities exchange, the last quoted bid price on such date for the Common Stock or such security, as applicable, in the over-the-counter market as reported by Pink Sheets LLC or similar organization, or, if that bid price is not available, the Market Price of the Common Stock or such security, as applicable, on that date shall mean the Fair Market Value per share as of such date of the Common Stock or such security. For the purposes of determining the Market Price of the Common Stock or any such security, as applicable, on the Trading Day preceding, on or following the occurrence of an event, (a) that Trading Day shall be deemed to commence immediately after the regular scheduled closing time of trading on the applicable exchange, market or organization, or, if trading is closed at an earlier time, such earlier time and (b) that Trading Day shall end at the next regular scheduled closing time, or if trading is closed at an earlier time, such earlier time (for the avoidance of doubt, and as an example, if the Market Price is to be determined as of the last Trading Day preceding a specified event and the closing time of trading on a particular day is 4:00 p.m. and the specified event occurs at 5:00 p.m. on that day, the Market Price would be determined by reference to such 4:00 p.m. closing price).
“Master Professional Services Agreement” means the Master Professional Services Agreement, dated July 29, 2022, as it may be amended from time to time, by and between the Company and FedEx, including all annexes, schedules and exhibits thereto.
“Master Purchase Agreement” means the Master Purchase Agreement to be entered into between the Company and FedEx, as it may be amended from time to time, including all annexes, schedules and exhibits thereto.
“Nasdaq” means The Nasdaq Stock Market LLC.
“Permitted Repurchase” means (a) a Repurchase of shares of Common Stock pursuant to one or more “Dutch Auction” tender offers at a price no greater than 5% above the Fair Market Value of the Common Stock at the time of such Repurchase, (b) a purchase or series of purchases of Equity Interests of the Company by the Company or any Affiliate thereof pursuant to, and in compliance with, the requirements of Rule 10b-18 under the Exchange Act (provided that all Equity Interests repurchased under clauses (a) and (b) shall not exceed, in the aggregate and on an as-converted basis with respect to Convertible Securities, 7,014,060 shares of Common Stock, subject to adjustment for stock splits, and reverse stock splits), and (c) one or more purchases of shares of Common Stock in connection with the net exercise of options, or the payment of tax withholding with respect to equity awards, issued under the Company’s equity incentive plans.
“Person” has the meaning given to it in Section 3(a)(9) of the Exchange Act and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act.
“Principal Trading Market” means the trading market on which the Common Stock is primarily listed on and quoted for trading, and which, as of the date hereof, is the Nasdaq.
“Qualified Payments” shall mean cash payments made by FedEx and its Affiliates to the Company that are either (i) payments made under the Master Professional Services Agreement or
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the Master Purchase Agreement; or (ii) any other payments made for hardware or services, including research and development services on or after June 1, 2022.
“Repurchases” means any transaction or series of related transactions to acquire by purchase or otherwise Equity Interests of the Company or any of its subsidiaries by the Company or any subsidiary thereof for a purchase price greater than Fair Market Value, whether pursuant to any tender offer or exchange offer (whether or not subject to Section 13(e) or 14(e) of the Exchange Act or Regulation 14E promulgated thereunder), open market transactions, private negotiated transactions or otherwise, and, in each case, whether for cash, Equity Interests of the Company, other securities of the Company, evidences of indebtedness of the Company or any other Person or any other property or assets (including Equity Interests, other securities or evidences of indebtedness of a subsidiary), or any combination thereof, effected while this Warrant is outstanding.
“Securities Act” means the Securities Act of 1933, as amended, or any successor statute, and the rules and regulations promulgated thereunder.
“Subject Adjustment” has the meaning set forth in Section 12(v).
“Subject Record Date” has the meaning set forth in Section 12(v).
“Successor Entity” has the meaning set forth in Section 12(iii).
“Trading Day” means a day on which the Principal Trading Market is open for trading.
“Transaction Agreement” means the Transaction Agreement, dated as of July 29, 2022, as it may be amended from time to time, by and between the Company and FedEx, including all annexes, schedules and exhibits thereto.
“Transaction Documents” has the meaning ascribed to it in the Transaction Agreement.
“Vesting Event” means the events with respect to Warrant Shares set forth on Schedule A hereto. Notwithstanding any other provision of this Warrant, no event described on Schedule A hereto shall qualify as a Vesting Event, and no Vesting Event shall occur, after December 31, 2025.
“Warrant” means this Warrant, issued pursuant to the Transaction Agreement.
“Warrant Shares” has the meaning set forth in Section 2.
“Warrantholder” has the meaning set forth in Section 2.
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If to the Company, to:
Name: Berkshire Grey, Inc.
Address: 140 South Road
Bedford, MA 01730
Attn: Mark Fidler
Email:
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with a copy to (which copy alone shall not constitute notice):
Name: Goodwin Procter LLP
Address: 100 Northern Avenue
Boston, MA 02210
Fax: (617) 801-8748
Attn: Mark S. Opper
Email:
If to the Warrantholder, to:
Name: FCJI, Inc.
Address: 942 S. Shady Grove Rd.
Memphis, TN 38120
Attn: Clement E. Klank III, Secretary and Vice President
Email:
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by a duly authorized officer.
Dated: July 29, 2022
BERKSHIRE GREY, INC.
By: /s/ Tom Wagner
Name: Tom Wagner
Title: CEO
Acknowledged and Agreed
FCJI, INC.
[DBB]
By: /s/ Trampas T. Grunter
Name: Trampas T. Gunter
Title: President
[Signature Page to Warrant]
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Schedule A
Vesting Events
For the avoidance of doubt, (i) Vesting Events shall stop occurring once the total number of Warrant Shares authorized under Section 2 have vested pursuant to Vesting Events and (ii) payments to any subsidiary of the Company shall be deemed a payment to the Company for purposes of determining whether a Vesting Event has occurred. For the avoidance of doubt, the number of Warrant Shares that will vest pursuant to a Vesting Event are subject to adjustment as provided herein.
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Annex A
[Form of Notice of Vesting Event]
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Annex B
[Form of Notice of Exercise]
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