GINO BIOW Item 1.01. Entry into a Material Definitive Agreement.
Registration Rights Agreement
In connection with the Closing, New Ginkgo entered into an amended and restated registration rights agreement (the "Registration Rights Agreement") among New Ginkgo, the Sponsor and certain New Ginkgo stockholders. Pursuant to the Registration Rights Agreement, New Ginkgo will be required to register for resale securities held by the stockholders party thereto. New Ginkgo will have no obligation to facilitate more than two demands per calendar year for each of the Sponsor or the Ginkgo Holders (as defined in the Registration Rights Agreement) that New Ginkgo register such stockholders' securities. In addition, the holders have certain "piggyback" registration rights with respect to registrations initiated by New Ginkgo. New Ginkgo will bear the expenses incurred in connection with the filing of any registration statements pursuant to the Registration Rights Agreement.
The foregoing description of the Registration Rights Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the Registration Rights Agreement, which is attached hereto as Exhibit 10.4 and is incorporated herein by reference.
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Indemnification Agreements
On the Closing Date, New Ginkgo entered into indemnification agreements with each of its directors and executive officers.
Each indemnification agreement provides for indemnification and advancements by New Ginkgo of certain expenses and costs relating to claims, suits or proceedings arising from each director or executive officer's service to New Ginkgo, or, at New Ginkgo's request, service to other entities, as officers or directors to the maximum extent permitted by applicable law.
The foregoing description of the indemnification agreements does not purport to be complete and is qualified in its entirety by the terms and conditions of the indemnification agreements, a form of which is attached hereto as Exhibit 10.42 and is incorporated herein by reference.
On
Item 2.01. Completion of Acquisition or Disposition of Assets.
The disclosure set forth under "Introductory Note - Domestication and Business Combination Transaction" above is incorporated into this Item 2.01 by reference.
Forward-Looking Statements
This Current Report on Form 8-K, and some of the information incorporated herein by reference, includes forward-looking statements regarding, among other things, the plans, strategies and prospects, both business and financial, of New Ginkgo. These statements are based on the beliefs and assumptions of the management of New Ginkgo. Although New Ginkgo believes that its plans, intentions and expectations reflected in or suggested by these forward-looking statements are reasonable, it cannot assure you that it will achieve or realize these plans, intentions or expectations. Forward-looking statements are inherently subject to risks, uncertainties and assumptions. Generally, statements that are not historical facts, including statements concerning possible or assumed future actions, business strategies, events or results of operations, are forward-looking statements. These statements may be preceded by, followed by or include the words "believes", "estimates", "expects", "projects", "forecasts", "may", "will", "should", "seeks", "plans", "scheduled", "anticipates" or "intends" or similar expressions. Forward-looking statements contained in this Current Report on Form 8-K include, but are not limited to, statements about:
• the ability of New Ginkgo to realize the benefits expected from the
Business Combination;
• the ability to maintain the listing of New Ginkgo Class A common stock on
the NYSE;
• New Ginkgo's ability to raise financing in the future and to comply with
restrictive covenants related to long-term indebtedness in the future;
• New Ginkgo's ability to retain or recruit, or adapt to changes required
in, its founders, senior executives, key personnel or directors;
• New Ginkgo's ability to effectively manage its growth;
• New Ginkgo's exposure to the volatility and liquidity risks inherent in
holding equity interests in certain of its customers;
• rapidly changing technology and extensive competition in the synthetic
biology industry that could make the products and processes New Ginkgo is
developing obsolete or non-competitive unless it continues to collaborate
on the development of new and improved products and processes and pursue
new market opportunities;
. . .
Item 3.02. Unregistered Sales of
Transaction Consideration
The information set forth in the "
The shares of New SRNG Class A common stock issued to the Investors became
shares of New Ginkgo Class A common stock upon consummation of the Business
Combination. The shares issued by New SRNG to the
Item 3.03. Material Modification to Rights of Security Holders.
In connection with the Domestication and immediately prior to the consummation
of the Business Combination, SRNG filed a certificate of incorporation with the
Secretary of State of the
As disclosed below in Item 8.01, in accordance with Rule 12g-3(a) under the Securities Exchange Act, New Ginkgo is the successor issuer to SRNG and has succeeded to the attributes of SRNG as the registrant. In addition, the shares of common stock of New Ginkgo, as the successor to SRNG, are deemed to be registered under Section 12(b) of the Exchange Act.
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Amended and Restated Certificate of Incorporation and Bylaws
Upon the effectiveness of the Domestication, SRNG's memorandum and articles of association in effect immediately prior to the Domestication were replaced with the certificate of incorporation and bylaws of New SRNG, which continued in effect through the Closing as the certificate of information and bylaws of New Ginkgo. The certificate of incorporation, among other things:
(a) increases the total number of authorized shares of all classes of capital
stock, consisting of (i) 16,000,000,000 shares of common stock, including
10,500,000,000 shares of New Ginkgo Class A common stock, par value
(b) generally provides that holders of shares of New Ginkgo Class A common stock will be entitled to cast one vote per share of New Ginkgo Class A common stock on each matter properly submitted to New Ginkgo's stockholders entitled to vote, holders of shares of New Ginkgo Class B common stock will be entitled to cast 10 votes per share of New Ginkgo Class B common stock on each matter properly submitted to New Ginkgo's stockholders entitled to vote and, except as otherwise expressly provided in the certificate of incorporation or required by applicable law, holders of shares of New Ginkgo Class C common stock will not be entitled to vote on matters submitted to New Ginkgo's stockholders;
(c) provides that the number of directors on the Board be fixed from time to . . .
Item 4.01. Change in Registrant's Certifying Accountant.
(a) Dismissal of independent registered public accounting firm
On the Closing Date, the Audit Committee of the Board approved the engagement of
The reports of WSB on SRNG's, the Company's legal predecessor, balance sheet as
of
During the period from
During the period from
During the period from
The Company has provided WSB with a copy of the foregoing disclosures and has
requested that WSB furnish the Company with a letter addressed to the
Item 5.01. Changes in Control of Registrant.
Reference is made to the disclosure in the Proxy in the section titled "The Business Combination Proposal," which is incorporated herein by reference. Further reference is made to the information contained in Item 2.01 to this Current Report on Form 8-K, which is incorporated herein by reference.
Immediately after giving effect to the Business Combination, including rollover equity instruments (i.e., restricted stock awards and stock options), there were 1,330,072,374 shares of New Ginkgo Class A common stock outstanding, 627,316,622 shares of New Ginkgo Class B common stock outstanding and 51,824,925 warrants to purchase shares of New Ginkgo
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Class A common stock outstanding. As of such time, New Ginkgo's executive officers and directors and their affiliated entities held 32.6% of the total voting power of New Ginkgo's outstanding capital stock.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Upon the Closing, and in accordance with the terms of the Merger Agreement, each
executive officer of SRNG and Merger Sub ceased serving in such capacities;
Upon the consummation of the Business Combination, the Company established the
following three committees of the Board: audit committee, compensation committee
and nominating and corporate governance committee.
Additionally, upon consummation of the Business Combination,
Following the consummation of the Business Combination, the non-employee
directors of the Company will be entitled to the following compensation for
their service on the Board under the Non-Employee Director Compensation Program:
(i) an annual cash retainer of
Under the Non-Employee Director Compensation Program, each non-employee director
who is initially elected or appointed to the New Ginkgo Board on or after the
consummation of the Business Combination (other than those non-employee
directors who were appointed by SRNG to serve on the Board or those non-employee
directors who served on the board of SRNG or Old Ginkgo prior to the
consummation of the Business Combination) will receive (A) an initial option to
purchase shares of New Ginkgo Class A common stock with a grant date fair value
equal of
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
The disclosure set forth in Item 3.03 of this Current Report on Form 8-K is incorporated in this Item 5.03 by reference.
Item 5.06. Change in Shell Company Status.
As a result of the Business Combination, which fulfilled the definition of an "initial business combination" as required by SRNG's organizational documents, the Company ceased to be a shell company upon the closing of the Business Combination. The material terms of the Business Combination are described in the sections titled "The Business Combination Proposal" and "The Merger Agreement" beginning on page 108 and 131, respectively, of the Proxy, and are incorporated herein by reference.
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Item 8.01. Other Events.
By operation of Rule 12g-3(a) under the Exchange Act, the Company is the
successor issuer to SRNG and has succeeded to the attributes of SRNG as the
registrant, including SRNG's
The Company's Class A common stock and public warrants are listed for trading on
Holders of uncertificated shares of SRNG's Class A common stock immediately prior to the Business Combination have continued as holders of shares of uncertificated shares of New Ginkgo Class A common stock.
Holders of SRNG's shares who have filed reports under the Exchange Act with respect to those shares should indicate in their next filing, or any amendment to a prior filing, filed on or after the Closing Date that the Company is the successor to SRNG.
Item 9.01. Financial Statements and Exhibits.
(a) Financial statements of businesses acquired.
The consolidated financial statements of
The financial statements of SRNG as of
(b) Pro forma financial information.
Certain pro forma financial information of the Company as of and for the six
months ended
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(d) Exhibits. Exhibit Number Description 2.1† Agreement and Plan of Merger, dated as ofMay 11, 2021 , by and among Soaring Eagle Acquisition Corp.,SEAC Merger Sub Inc. andGinkgo Bioworks, Inc. (incorporated by reference to Exhibit 2.1 of SRNG's Current Report on Form 8-K filed with theSEC onMay 11, 2021 ). 2.2 Amendment to the Agreement and Plan of Merger, dated as ofMay 14, 2021 , by and among Soaring Eagle Acquisition Corp.,SEAC Merger Sub Inc. andGinkgo Bioworks, Inc. (incorporated by reference to Exhibit 2.1 to SRNG's Quarterly Report on Form 10-Q (File No. 001-40097) for the quarter endedMarch 31, 2021 , filed with theSEC onMay 24, 2021 ). 3.1 Certificate of Incorporation ofGinkgo Bioworks Holdings, Inc. (f/k/a Soaring Eagle Acquisition Corp.). 3.2 Amendment to Certificate of Incorporation ofGinkgo Bioworks Holdings, Inc. (f/k/a Soaring Eagle Acquisition Corp.). 3.3 Bylaws ofGinkgo Bioworks Holdings, Inc. 4.1 Specimen Class A Common Stock Certificate ofGinkgo Bioworks Holdings, Inc. (incorporated by reference to Exhibit 4.5 to Amendment No. 3 to the Registration Statement on Form S-4 (File No. 333-256121), filed with theSEC onAugust 4, 2021 ). 4.2 Warrant Agreement, dated as ofFebruary 23, 2021 , by and among Soaring Eagle Acquisition Corp. andContinental Stock Transfer & Trust Company , as warrant agent (incorporated by reference to Exhibit 4.1 of SRNG's Current Report on Form 8-K (File No. 001-40097), filed with theSEC onFebruary 26, 2021 ). 10.1+ Form ofGinkgo Bioworks Holdings, Inc. 2021 Incentive Award Plan (incorporated by reference to Annex E of SRNG's Form S-4/A (File No. 333-256121), filed with theSEC onAugust 4, 2021 ). 10.2+ Form ofGinkgo Bioworks Holdings, Inc. 2021 Employee Stock Purchase Plan (incorporated by reference to Annex F of SRNG's Form S-4/A (File No. 333-256121), filed with theSEC onAugust 4, 2021 ). 10.4 Registration Rights Agreement, dated as ofSeptember 16, 2021 , by and amongGinkgo Bioworks Holdings, Inc. ,Eagle Equity Partners III, LLC and the other Holders signatory thereto. 10.8Ginkgo Bioworks, Inc. 2008 Stock Incentive Plan, as amended as ofJune 18, 2014 (incorporated by reference to Exhibit 10.8 to Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-256121), filed with theSEC onJune 28, 2021 ). 10.9Ginkgo Bioworks, Inc. 2014 Stock Incentive Plan (incorporated by reference to Exhibit 10.9 to Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-256121), filed with theSEC onJune 28, 2021 ). 10.10 Amendment to theGinkgo Bioworks, Inc. 2014 Stock Incentive Plan, effectiveMay 1, 2019 (incorporated by reference to Exhibit 10.10 to Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-256121), filed with theSEC onJune 28, 2021 ). 10.11 Amendment to theGinkgo Bioworks, Inc. 2014 Stock Incentive Plan, effectiveSeptember 9, 2019 (incorporated by reference to Exhibit 10.11 to Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-256121), filed with theSEC onJune 28, 2021 ). 21
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10.12 Amendment to theGinkgo Bioworks, Inc. 2014 Stock Incentive Plan, effectiveNovember 14, 2019 (incorporated by reference to Exhibit 10.12 to Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-256121), filed with theSEC onJune 28, 2021 ). 10.13 Amendment to theGinkgo Bioworks, Inc. 2014 Stock Incentive Plan, effectiveApril 8, 2020 (incorporated by reference to Exhibit 10.13 to Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-256121), filed with theSEC onJune 28, 2021 ). 10.14 Amendment to theGinkgo Bioworks, Inc. 2014 Stock Incentive Plan, effectiveMarch 15, 2021 (incorporated by reference to Exhibit 10.14 to Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-256121), filed with theSEC onJune 28, 2021 ). 10.15 Form of Incentive Stock Option Agreement, granted under theGinkgo Bioworks, Inc. 2008 Stock Incentive Plan (incorporated by reference to Exhibit 10.15 to Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-256121), filed with theSEC onJune 28, 2021 ). 10.16 Form of Restricted Stock Unit Agreement, granted under theGinkgo Bioworks, Inc. 2014 Stock Incentive Plan (incorporated by reference to Exhibit 10.16 to Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-256121), filed with theSEC onJune 28, 2021 ). 10.17 Form of Restricted Stock Agreement, granted under theGinkgo Bioworks, Inc. 2014 Stock Incentive Plan (incorporated by reference to Exhibit 10.17 to Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-256121), filed with theSEC onJune 28, 2021 ).
10.18†‡ Lease Agreement, dated
Ginkgo Bioworks, Inc. (incorporated by reference to Exhibit 10.18 to Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-256121), filed with theSEC onJune 28, 2021 ). 10.19† First Amendment to Lease Agreement, datedApril 1, 2012 (incorporated by reference to Exhibit 10.19 to Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-256121), filed with theSEC onJune 28, 2021 ). 10.20† Second Amendment to Lease, datedAugust 1, 2014 (incorporated by reference to Exhibit 10.20 to Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-256121), filed with theSEC onJune 28, 2021 ). 10.21 Third Amendment to Lease, datedAugust 15, 2014 (incorporated by reference to Exhibit 10.21 to Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-256121), filed with theSEC onJune 28, 2021 ). 10.22† Fourth Amendment to Lease, datedMay 1, 2016 (incorporated by reference to Exhibit 10.22 to Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-256121), filed with theSEC onJune 28, 2021 ). 22
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10.23† Fifth Amendment to Lease, datedMay 31, 2016 (incorporated by reference to Exhibit 10.23 to Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-256121), filed with theSEC onJune 28, 2021 ). 10.24 Sixth Amendment to Lease, datedAugust 5, 2016 (incorporated by reference to Exhibit 10.24 to Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-256121), filed with theSEC onJune 28, 2021 ). 10.25† Seventh Amendment to Lease, datedJuly 31, 2017 (incorporated by reference to Exhibit 10.25 to Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-256121), filed with theSEC onJune 28, 2021 ). 10.26† Eighth Amendment to Lease, datedMarch 23, 2018 (incorporated by reference to Exhibit 10.26 to Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-256121), filed with theSEC onJune 28, 2021 ). 10.27† Ninth Amendment to Lease, datedSeptember 6, 2018 (incorporated by reference to Exhibit 10.27 to Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-256121), filed with theSEC onJune 28, 2021 ). 10.28† Tenth Amendment to Lease, datedJuly 29, 2020 (incorporated by reference to Exhibit 10.28 to Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-256121), filed with theSEC onJune 28, 2021 ). 10.29† Eleventh Amendment to Lease, datedAugust 14, 2020 (incorporated by reference to Exhibit 10.29 to Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-256121), filed with theSEC onJune 28, 2021 ). 10.30† Twelfth Amendment to Lease, datedJanuary 13, 2021 (incorporated by reference to Exhibit 10.30 to Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-256121), filed with theSEC onJune 28, 2021 ). 10.31† Thirteenth Amendment to Lease, datedSeptember 6, 2021 (incorporated . . .
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