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 21, 2023
BUTTERFLY NETWORK, INC.
(Exact name of registrant as specified in its charter)
Delaware | 001-39292 | 84-4618156 |
(State or other jurisdiction of | (Commission File Number) | (IRS Employer |
1600 District Avenue | |
(Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code: (781) 557-4800
Not applicable
(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, par value $0.0001 per share | | BFLY | | The New York Stock Exchange |
Warrants to purchase one share of Class A common stock, each at an exercise price of $11.50 per share | | BFLY WS | | The New York Stock Exchange |
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 Information.
On February 21, 2023, Butterfly Network, Inc. (the “Company”) filed a petition (the “Petition”) in the Delaware Court of Chancery under Section 205 of the Delaware General Corporation Law (the “DGCL”) to resolve potential uncertainty with respect to the Company’s authorized share capital. Such uncertainty was introduced by a recent holding in Garfield v. Boxed, Inc., 2022 WL 17959766 (Del. Ch. Dec. 27, 2022) that potentially affects the Company and many other similarly situated companies that became publicly traded through a special purpose acquisition vehicle (“SPAC”). Out of an abundance of caution, the Company has elected to pursue the remedial actions described below. Concurrently with the filing of the Petition, the Company filed a motion to expedite the hearing on the Petition, which was subsequently granted on February 22, 2023, as described below.
Background
On February 12, 2021, Longview Acquisition Corp. (“Longview”), the SPAC predecessor to the Company, held a special meeting of stockholders (the “Longview Special Meeting”) to approve certain matters relating to the business combination between Longview, Clay Merger Sub, Inc. (“Merger Sub”), and Butterfly Network, Inc., (“Legacy Butterfly”). One of these matters was a proposal to amend and restate Longview’s certificate of incorporation in order to, among other things, increase the number of authorized shares of Class A common stock from 200,000,000 to 600,000,000 (such proposal, the “Charter Amendment Proposal”). While the Company currently has fewer than 200,000,000 shares of Class A common stock outstanding, the additional authorized shares in excess of 200,000,000 were approved primarily for future potential use in financing the Company’s business, acquiring other businesses, forming strategic partnerships and alliances and for stock dividends and stock splits. At the Longview Special Meeting, the Charter Amendment Proposal was approved by a majority of the outstanding shares of Class A common stock and Class B common stock of Longview as of the record date for the Longview Special Meeting, voting together as a single class. After the Longview Special Meeting, Longview and Legacy Butterfly closed the business combination pursuant to which the Company became publicly traded, and the Company’s certificate of incorporation, as amended to give effect to the Charter Amendment Proposal, became effective.
The recent ruling by the Delaware Court of Chancery in the Boxed case introduces uncertainty as to whether Section 242(b)(2) of the DGCL would have required the Charter Amendment Proposal to be approved by separate votes of the majority of Longview’s then-outstanding shares of Class A common stock and Class B common stock. The Company has been operating with the understanding that the Charter Amendment Proposal was validly approved at the Longview Special Meeting. In light of this recent ruling, however, to resolve potential uncertainty with respect to the Company’s authorized share capital, the Company has filed a petition in the Delaware Court of Chancery under Section 205 of the DGCL to seek validation of the Charter Amendment Proposal. Section 205 of the DGCL permits the Court of Chancery, in its discretion, to ratify and validate potentially defective corporate acts. If the Company is not successful in the Section 205 proceeding, the uncertainty with respect to the Company’s authorized capitalization could have a material adverse impact on the Company.
Hearing Date
On February 22, 2023, the Court of Chancery granted our motion to expedite and set a hearing date for the Petition to be heard. The hearing has been set for March 14, 2023 at 9:35 a.m. Eastern Time at the Leonard L. Williams Justice Center, 500 North King Street, Wilmington, Delaware 19801. As ordered by the Court of Chancery, the Company is filing the Petition with this Current Report on Form 8-K, a copy of which is attached hereto as Exhibit 99.1. This Form 8-K constitutes notice of the hearing. If any stockholder of the Company wishes to express a position on the Petition, such stockholders of the Company may (i) appear at the hearing or (ii) file a written submission with the Register in Chancery, Leonard L. Williams Justice Center, 500 North King Street, Wilmington, Delaware 19801, referring to the case caption, In re Butterfly Network, Inc., C.A. No. 2023-0225-LWW (Del. Ch.), in advance of the hearing. Any such written submission should also be emailed to the Company’s counsel, Kevin M. Gallagher, of Richards, Layton & Finger, P.A, at Gallagher@rlf.com.
Forward-Looking Statements
Certain statements in this Current Report on Form 8-K constitute “forward-looking statements” within the meaning of the U.S. Private Securities Litigation Reform Act of 1995. Statements contained in this Form 8-K that are not historical facts are forward-looking statements and include, for example, statements with respect the pending Section 205 proceeding referenced above and the potential material adverse impact on the Company. Such forward-looking statements involve known and unknown risks and uncertainties, and our actual results could differ materially from future results expressed or implied in these forward-looking statements. The forward-looking statements included in this release are based on our current beliefs and expectations of our management as of the date of this release. These statements are not guarantees or indicative of future performance. Important assumptions and other important factors that could cause actual results to differ materially from those forward looking statements include, but are not limited to, our ability to obtain the requested relief in the Section 205 proceeding and those additional risks, uncertainties and factors described in more detail under the caption “Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2021, as amended, and in our other subsequent filings with the Securities and Exchange Commission. We do not intend, and, except as required by law, we undertake no obligation, to update any of our forward-looking statements after the issuance of this release to reflect any future events or circumstances. Given these risks and uncertainties, readers are cautioned not to place undue reliance on such forward-looking statements.
Item 9.01 Financial Statements and Exhibits.
(d) | Exhibits. |
Exhibit No. |
| Description |
| Petition of Butterfly Network, Inc. Pursuant to 8 Del. C. § 205. | |
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.
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| BUTTERFLY NETWORK, INC. | |
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| | By: | /s/ Heather C. Getz, CPA |
| | Name: | Heather C. Getz, CPA |
| | Title: | Executive Vice President and Chief Financial Officer |
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Date: February 24, 2023 | | | |