Desktop Metal, Inc. Annual report pursuant to Section 13 and 15(d)

Annual report pursuant to Section 13 and 15(d)

SUBSEQUENT EVENTS

SUBSEQUENT EVENTS	12 Months Ended
Dec. 31, 2022
SUBSEQUENT EVENTS
SUBSEQUENT EVENTS	25. SUBSEQUENT EVENTS On January 31, 2023, the Company committed to additional actions to continue and expand the Initiative. These additional actions include closing and consolidating select locations in the United States and Canada and reducing our workforce by an additional 15%., prioritizing investments and operations in line with near-term revenue generation, positioning us to achieve our long-term financial goals. For all committed restructuring activities under the Initiative, we expect to incur total pre-tax restructuring charges of $19.6 million to $26.0 million related to one-time termination benefits and associated costs, inventory write-offs, lease termination and equipment exit costs, and contract termination costs. The Company continues to anticipate that the Initiative will be substantially complete by the end of 2023. On December 8, 2020, the Company, then operating under the name Trine Acquisition Corp., held a special meeting of stockholders (the “2020 Special Meeting”) to approve certain matters relating to its proposed business combination with Desktop Metal, Inc. and Sparrow Merger Sub, Inc. Two of these matters were (1) a proposal to increase the total number of authorized shares of the Company’s Class A common stock, par value $0.0001 per share (the “Class A common stock”), from 100,000,000 shares to 500,000,000 shares (the “Class A Increase Amendment”) and (2) an amendment and restatement of its certificate of incorporation to read in its entirety as set forth in the Amended and Restated Certificate of Incorporation (“New Certificate of Incorporation”). The Class A Increase Amendment and the New Certificate of Incorporation were approved by a majority of the shares of Class A and Class B common stock of the Company, voting together as a single class, that were outstanding as of the record date for the 2020 Special Meeting. After the 2020 Special Meeting, a certificate of amendment with respect to the Class A Increase Amendment became effective, the business combination was consummated, the New Certificate of Incorporation became effective, and Company changed its name to Desktop Metal, Inc. A recent decision of the Delaware Court of Chancery has created uncertainty as to whether Section 242(b)(2) of the Delaware General Corporation Law (“DGCL”) would have required the Class A Increase Amendment and the New Certificate of Incorporation to be approved by a separate vote of the majority of the Company’s then-outstanding shares of Class A common stock, in addition to a majority of the shares of Class A and Class B common stock voting together (“Boxed Decision”). While the Company believes that the Company's shares have been validly authorized since their original issuance, in light of the Boxed Decision, on February 13, 2023 the Company filed a petition in the Court of Chancery pursuant to Section 205 of the DGCL seeking validation of the Class A Increase Amendment, the New Certificate of Incorporation, and the shares issued in reliance on the effectiveness of the Class A Increase Amendment and the New Certificate of Incorporation to resolve any uncertainty with respect to those matters. Section 205 of the DGCL permits the Court of Chancery, in its discretion, to ratify and validate potentially defective corporate acts and stock after considering a variety of factors. On February 28, 2023, the Court of Chancery granted the Company’s Petition and issued an order providing that “1. The Class A Increase Amendment, including the filing and effectiveness thereof, is hereby validated and declared effective as of 12:01 a.m. (EDT) on December 9, 2020, 2. The New Certificate of Incorporation, including the filing and effectiveness thereof, is hereby validated and declared effective as of 4:15 p.m. (EDT) on December 9, 2020 and 3. All shares of capital stock of the Company issued in reliance on the effectiveness of the Class A Increase Amendment and New Certificate of Incorporation are hereby validated and declared effective as of the date and time of the original issuance of such shares.” The Court’s granting of the Section 205 Petition has addressed and eliminated the uncertainty created by the Boxed Decision.

SUBSEQUENT EVENTS

12 Months Ended

Dec. 31, 2022

25. SUBSEQUENT EVENTS

On January 31, 2023, the Company committed to additional actions to continue and expand the Initiative. These additional actions include closing and consolidating select locations in the United States and Canada and reducing our workforce by an additional 15%., prioritizing investments and operations in line with near-term revenue generation, positioning us to achieve our long-term financial goals. For all committed restructuring activities under the Initiative, we expect to incur total pre-tax restructuring charges of $19.6 million to $26.0 million related to one-time termination benefits and associated costs, inventory write-offs, lease termination and equipment exit costs, and contract termination costs. The Company continues to anticipate that the Initiative will be substantially complete by the end of 2023.

On December 8, 2020, the Company, then operating under the name Trine Acquisition Corp., held a special meeting of stockholders (the “2020 Special Meeting”) to approve certain matters relating to its proposed business combination with Desktop Metal, Inc. and Sparrow Merger Sub, Inc. Two of these matters were (1) a proposal to increase the total number of authorized shares of the Company’s Class A common stock, par value $0.0001 per share (the “Class A common stock”), from 100,000,000 shares to 500,000,000 shares (the “Class A Increase Amendment”) and (2) an amendment and restatement of its certificate of incorporation to read in its entirety as set forth in the Amended and Restated Certificate of Incorporation (“New Certificate of Incorporation”). The Class A Increase Amendment and the New Certificate of Incorporation were approved by a majority of the shares of Class A and Class B common stock of the Company, voting together as a single class, that were outstanding as of the record date for the 2020 Special Meeting. After the 2020 Special Meeting, a certificate of amendment with respect to the Class A Increase Amendment became effective, the business combination was consummated, the New Certificate of Incorporation became effective, and Company changed its name to Desktop Metal, Inc.

A recent decision of the Delaware Court of Chancery has created uncertainty as to whether Section 242(b)(2) of the Delaware General Corporation Law (“DGCL”) would have required the Class A Increase Amendment and the New Certificate of Incorporation to be approved by a separate vote of the majority of the Company’s then-outstanding shares of Class A common stock, in addition to a majority of the shares of Class A and Class B common stock voting together (“Boxed Decision”). While the Company believes that the Company's shares have been validly authorized since their original issuance, in light of the Boxed Decision, on February 13, 2023 the Company filed a petition in the Court of Chancery pursuant to Section 205 of the DGCL seeking validation of the Class A Increase Amendment, the New Certificate of Incorporation, and the shares issued in reliance on the effectiveness of the Class A Increase Amendment and the New Certificate of Incorporation to resolve any uncertainty with respect to those matters. Section 205 of the DGCL permits the Court of Chancery, in its discretion, to ratify and validate potentially defective corporate acts and stock after considering a variety of factors.

On February 28, 2023, the Court of Chancery granted the Company’s Petition and issued an order providing that “1. The Class A Increase Amendment, including the filing and effectiveness thereof, is hereby validated and declared effective as of 12:01 a.m. (EDT) on December 9, 2020, 2. The New Certificate of Incorporation, including the filing and effectiveness thereof, is hereby validated and declared effective as of 4:15 p.m. (EDT) on December 9, 2020 and 3. All shares of capital stock of the Company issued in reliance on the effectiveness of the Class A Increase Amendment and New Certificate of Incorporation are hereby validated and declared effective as of the date and time of the original issuance of such shares.” The Court’s granting of the Section 205 Petition has addressed and eliminated the uncertainty created by the Boxed Decision.