On March 16, 2023, Morrison Foerster circulated a revised draft of the form of voting and support agreement, that included proposed changes contemplating a stockholder vote to amend the certificate of incorporation of the Company to increase its authorized shares of common stock to 715,000,000 in order to facilitate the bridge financing. The form of voting and support agreement was finalized and agreed upon later that day.
On March 17, 2023, Dr. Wagner held a telephonic call with SoftBank’s representative, during which Dr. Wagner confirmed that the Board was willing to allow SoftBank to begin discussions regarding employment matters with senior management, because all material terms of the Merger Agreement and the Convertible Note Purchase Agreement had been agreed upon.
On March 17, 2023, Dr. Wagner also commenced outreach to representatives of the Supporting Stockholders regarding the voting and support agreements.
On March 17, 2023, representatives of Morrison Foerster sent a revised draft of the Merger Agreement to representatives of Goodwin that provided for, among other things: (i) removal of the requirement to enter into offer letters with certain key employees concurrently with the signing of the Merger Agreement, (ii) removal of the reverse termination fee to be payable by SoftBank, (iii) a Company termination fee equal to 3.5% of the aggregate equity value of the transaction, and (iv) certain other revisions with respect to the representations and warranties, covenants and conditions to closing.
On March 18, 2023, representatives of Credit Suisse provided the Company and representatives of Goodwin with written disclosures regarding its relationships with the Company and SoftBank.
Between March 20, 2023, and March 24, 2023, representatives of Goodwin and Morrison Foerster exchanged drafts of the Merger Agreement with incremental edits for finalization of the Merger Agreement.
During the period between March 18, 2023, and March 23, 2023, SoftBank and the Company, along with their respective legal and financial advisors, exchanged documents and held videoconference calls frequently to finalize the Merger Agreement, the Convertible Note Purchase Agreement and other ancillary documents associated with proposed transaction.
On March 19, 2023 and March 20, 2023, SoftBank sent Dr. Wagner draft post-closing employment agreements for senior management, including for himself, which were negotiated over the next few days and finalized on March 24, 2023.
On March 23, 2022, throughout the day, Goodwin and Morrison Foerster worked to finalize the Merger Agreement, the Convertible Note Purchase Agreement and the disclosure schedules.
On March 23, 2023, the Board and Special Committee held a meeting, at which all Board members, representatives of Credit Suisse (at the request of the Special Committee) and Goodwin, and other members of Management were in attendance. Representatives of Goodwin communicated that the Merger Agreement, the Convertible Note Purchase Agreement and all other ancillary documents associated with the proposed merger with SoftBank were in final form, with no material changes to any of the previously communicated terms. Representatives of Goodwin then reminded the Board of its fiduciary duties in connection with a merger, which had been discussed with the Board throughout the process. Management reviewed the amendment to the Special Committee’s engagement letter with Credit Suisse to reflect Credit Suisse’s engagement by the Board rather than the Special Committee. The Board then discussed the engagement of Credit Suisse as its financial advisor, noting that Credit Suisse’s disclosures regarding its relationships with SoftBank produced by Credit Suisse on March 18, 2023 did not, in the Board’s judgment, impair Credit Suisse’s ability to provide objective financial advice in the context of a financial advisory engagement. Following such review, the Board unanimously adopted resolutions approving, among other things, such amendment and Credit Suisse’s engagement by the Board. Representatives of Credit Suisse then reviewed and discussed its financial analyses with respect to the Company and the proposed Merger. Thereafter, at the request of the Board, Credit Suisse rendered its oral opinion to the Board (which was subsequently confirmed in writing by delivery of Credit Suisse’s written opinion addressed to the Board dated the same date) as to, as of March 23, 2023, the fairness, from a financial point of view, to the holders of Class A common stock, other than the Excluded Holders, of the merger consideration to be received by such holders in the Merger pursuant to the Merger Agreement. Based on the factors cited in “— Reasons for the Merger,” the Special Committee unanimously adopted, among other things, resolutions (i) determining 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 the Unaffiliated Voting Shares, and fair (as used in