As filed with the Securities and Exchange Commission on May 10, 2023
February 14, 2024
FORM
| Delaware | | | 3559 | | | 83-2044042 | |
| (State or other jurisdiction of incorporation or organization) | | | (Primary Standard Industrial Classification Code Number) | | | (I.R.S. Employer Identification Number) | |
Registration Statement becomes effective.
Burlington, Massachusetts 01803
(978) 224-1244
General Counsel
Desktop Metal, Inc.
63 3rd Avenue
Burlington, Massachusetts 01803
(978) 224-1244John H. Chory,
Elisabeth M. Martin, Esq.Jennifer A. Yoon, Esq.
Latham & Watkins LLP
200 Clarendon Street
Boston, MAMassachusetts 02116
(617) 948-6000APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this registration statement.Large accelerated filer ☒☐ Accelerated filer ☐ ☒ Non-accelerated filer ☐☐ Smaller reporting company ☐ Emerging growth company ☐
The Registrantregistrant hereby amends this Registration Statementregistration statement on such date or dates as may be necessary to delay its effective date until the Registrantregistrant shall file a further amendment which specifically states that this Registration Statementregistration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statementregistration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
February 14, 2024
444,793 Shares
This prospectus relates to the resale,securities identified above from time to time in one or more offerings. This prospectus provides you with a general description of upthe securities.
We will not receivethrough one or more underwriters, dealers and agents, or directly to purchasers, or through a combination of these methods. If any proceeds fromunderwriters, dealers or agents are involved in the sale of the shares by the selling stockholders.
We will bear all costs, expenses and fees in connection with the registrationany of the sharessecurities, their names and any applicable purchase price, fee, commission or discount arrangement between or among them will be set forth, or will be calculable from the information set forth, in the applicable prospectus supplement. See the sections of Class A common stock. The selling stockholders will bear all commissionsthis prospectus entitled “About this Prospectus” and discounts, if any, attributable to their sales“Plan of Distribution” for more information. No securities may be sold without delivery of this prospectus and the applicable prospectus supplement describing the method and terms of the sharesoffering of Class A common stock.
such securities.
Our business and investment in our Class A common stock involve significant risks. These risks are described in the section titled “Risk Factors” beginning on page 9 of this prospectus.
$0.58 per share.
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TABLE OF CONTENTS
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Neither we, nor the selling stockholders,
applicable series of securities.
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We have included our website address in this prospectus solely as an inactive textual reference.
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with, the SEC, will also be incorporated by reference into this prospectus and deemed to be part of this prospectus from the date of the filing of such reports and documents.
Under no circumstances shall any information furnished under Item 2.02 or 7.01 of Form 8-K be deemed incorporated herein by reference unless such Form 8-K expressly provides to the contrary.
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Our principal executive offices are located at 63 Third Avenue in Burlington, Massachusetts 01803, and our telephone number is (978) 224-1244.
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payment of dividends and distributions to stockholders and any other factors or considerations our board of directors may regard as relevant.
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any updates or supplements to such notice at the times and in the forms required by our amended and restated bylaws. To be timely, a stockholder’s notice must be delivered to, or mailed and received at, our principal executive
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fiduciary duty owed by any of
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We may issue debt securities either separately, or together with, or upon the conversion or exercise of or in exchange for, other securities described in this prospectus. Debt securities may be our senior, senior subordinated or subordinated obligations and, unless otherwise specified in a supplement to this prospectus, the debt securities will be our direct, unsecured obligations and may be issued in one or more series.
The selling stockholders identified in the table belowissue. Those terms may from time to time offer and sell under this prospectus any or all of the shares of Class A common stock listed under the column “Number of Shares Being Offered” in the table below. The table below and footnote disclosure following the table sets forth the name of each selling stockholder and include:
The number of shares beneficially owned by each selling stockholder is determined under rules issued by may be purchased upon such exercise;
We have assumed that all shares of Class A common stock reflected in the table as being offered will be sold from time to time by the selling stockholders. The selling stockholders may offer some, all or none of their shares of Class A common stock.
In June 2021, our affiliate entered into service agreements with each of Charles-Edouard Moens de Hase and Matthias Hick pursuant to which Messrs. Moens de Hase and Hick provide certain consulting services to us. In addition, certaincombination of the selling stockholders in the following table are our employees.
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Unless otherwise indicated, we believe that all persons named in the table below have sole voting and investment power with respect to the voting securities beneficially owned by them.
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| | Shares Beneficially Owned | | | | Shares Beneficially Owned | ||||
| | Prior to the Offering | | Number of Shares | | After the Offering | ||||
Name of Selling Stockholder | | Number of Shares |
| Percentage |
| Being Offered |
| Number of Shares |
| Percentage |
Antoine Deblire |
| 10,878 | | * | | 2,743 | | 8,135 | | * |
Bram Neirinck | | 6,527 | | * | | 1,646 | | 4,881 | | * |
Charles-Edouard Moens de Hase | | 237,339 | | * | | 113,223 | | 124,116 | | * |
Innovation Fund SA/NV(1) | | 167,372 | | * | | 51,103 | | 116,269 | | * |
Jonathan Soler Lillo |
| 6,527 | | * | | 1,646 | | 4,881 | | * |
Lionel Bolkaerts |
| 3,697 | | * | | 932 | | 2,765 | | * |
M4KE.IT SRL(2) |
| 263,705 | | * | | 59,269 | | 204,436 | | * |
Martin Marchal |
| 3,697 | | * | | 932 | | 2,765 | | * |
Matthias Hick | | 282,639 | | * | | 119,808 | | 162,831 | | * |
Noshaq Spin-Offs S.A.(3) |
| 66,470 | | * | | 51,103 | | 15,367 | | * |
Peter Mercelis |
| 51,895 | | * | | 39,897 | | 11,998 | | * |
Sara Janssens |
| 3,240 | | * | | 2,491 | | 749 | | * |
* Less than 1%
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We are registering 444,793 shares of Class A common stock for possible sale by the selling stockholders from time to time. We are required to pay all fees and expenses incident to the registration of the shares of our Class A common stock to be offered and sold pursuant to this prospectus.
The shares of Class A common stock beneficially owned by the selling stockholders covered byunder this prospectus may be offered and sold from time to time by the selling stockholders. As used in this prospectus, “selling stockholders” includes donees, pledgees, transferees or other successors in interest selling securities received from a selling stockholder as a gift, pledge, partnership distribution or other transfer. The selling stockholders will act independently of us in making decisions with respect to the timing, manner and size of each sale. Such sales may be made on one or more exchangesseries. We may evidence each series of units by unit certificates that we will issue under a separate agreement. We may enter into unit agreements with a unit agent. Each unit agent will be a bank or trust company that we select. We will indicate the name and address of the unit agent in the over-the-counter market or otherwise, at pricesapplicable prospectus supplement relating to a particular series of units.
In addition, any shares that qualify for sale pursuant to Rule 144 may be sold under Rule 144 rather than pursuant to this prospectus. A selling stockholder that is an entity may elect to make an in-kind distribution of common stock to its members, partners, stockholders or other equityholders pursuantexhibit to the registration statement of which this prospectus formsis a part, or will incorporate by delivering reference from another report that we file with the SEC, the form of each unit agreement relating to units offered under this prospectus.
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ToOffers to purchase the extent required,securities being offered by this prospectus may be amended or supplementedsolicited directly. Agents may also be designated to solicit offers to purchase the securities from time to time to describetime. Any agent involved in the offer or sale of our securities will be identified in a specific plan of distribution. In connection with distributionsprospectus supplement.
A selling stockholderdealers participating in the offering may be reclaimed if securities sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the securities at a level above that which might otherwise prevail in the open market. These transactions may be discontinued at any time.
In effecting sales, broker-dealers or agents engaged by the selling stockholders may arrange for other broker-dealers to participate. Broker-dealers or agents may receive commissions, discounts or concessions from the selling stockholders in amounts to be negotiated immediately prior to the sale.
In offering the shares covered by this prospectus, the selling stockholders and any broker-dealers who execute sales for the selling stockholders may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales. Any profits realized by the selling stockholders and the compensation
In order to comply with the securities laws of certain states, if applicable, the shares must be sold in such jurisdictions only through registered or licensed brokers or dealers. In addition, in certain states the shares may not be sold unless they have been registered or qualified for saledescribed in the applicable stateprospectus supplement.
We have advised the selling stockholders that the anti-manipulation rules of Regulation M under the Exchange Act may apply to sales of sharesperform services for us, in the market and to the activitiesordinary course of the selling stockholders and their affiliates. In addition, we will make copies of this prospectus available to the selling stockholdersbusiness for the purpose of satisfying the prospectus delivery requirements of the Securities Act. The selling stockholders may indemnify any broker-dealer that participates in transactions involving the sale of the shares against certain liabilities, including liabilities arising under the Securities Act.
At the time a particular offer of shares is made, if required, a prospectus supplement will be distributed that will set forth the number of shares being offered and the terms of the offering, including the name of any underwriter, dealer or agent, the purchase price paid by any underwriter, any discount, commission and other item constituting compensation, any discount, commission or concession allowed or reallowed or paid to any dealer, and the proposed selling price to the public.
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Our Class A common stock trades on the New York Stock Exchange (“NYSE”) under the ticker symbol “DM”. On February 13, 2024, the closing sale price of our Class A common stock as reported by NYSE was $0.58 per share.
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| Assumed public offering price per share of Class A common stock | | | | | | | | | | $ | 0.58 | | |
| Net tangible book value per share as of September 30, 2023 | | | | $ | 0.36 | | | | | | | | |
| Increase in net tangible book value per share attributable to the offering | | | | | 0.06 | | | | | | | | |
| As adjusted net tangible book value per share after giving effect to the offering | | | | | | | | | | | 0.42 | | |
| Dilution per share to new investors participating in the offering | | | | | | | | | | $ | 0.16 | | |
INFORMATION NOT REQUIRED IN PROSPECTUS
| SEC registration fee | | | | $ | 36,900 | | |
| FINRA filing fee | | | | $ | (1) | | |
| Printing expenses | | | | $ | (1) | | |
| Legal fees and expenses | | | | $ | (1) | | |
| Accounting fees and expenses | | | | $ | (1) | | |
| Blue Sky, qualification fees and expenses | | | | $ | (1) | | |
| Transfer agent fees and expenses | | | | $ | (1) | | |
| Trustee fees and expenses | | | | $ | (1) | | |
| Warrant agent fees and expenses | | | | $ | (1) | | |
| Miscellaneous | | | | $ | (1) | | |
| Total | | | | $ | (1) | | |
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Securities and Exchange Commission registration fee | | $ | 87.00 |
FINRA filing fee | | $ | * |
Accountants' fees and expenses | | $ | * |
Blue Sky fees and expenses | | $ | * |
Transfer Agent's fees and expenses | | $ | * |
Printing and engraving expenses | | $ | * |
Miscellaneous | | $ | * |
Total expenses | | $ | * |
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Section 102
Section 145 of the General Corporation Law of the State of Delaware, provides thator the DGCL, empowers a corporation hasto indemnify any person who was or is a party or who is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the power to indemnifyright of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or a personis or was serving at the request of the corporation foras a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, in related capacities against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with ansuch action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to which hebe in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful.
Our certificate of incorporation
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believed to be in, or not opposed to, our best interests,Our second amended and with respect to any criminal action or proceeding, he or she had no reasonable cause to believe his or her conduct was unlawful. Our restated certificate of incorporation provides that we will indemnify any Indemnitee who was or is a party to an action or suit by or in the right of us to procure a judgment in our favor by reason of the fact that the Indemnitee is or was, or has agreed to become, a director or officer, or is or was serving, or has agreed to serve, at our request as a director, officer, partner, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees) and, to the fullest extent permitted by law, amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding, and any appeal therefrom, if the Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to,DGCL, none of our best interests, except that no indemnificationdirectors shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to us, unlessour company or our stockholders for monetary damages arising from a court determinesbreach of fiduciary duty owed to our company or our stockholders. In addition, our amended and restated bylaws provide that despitewe must indemnify our directors and officers to the fullest extent authorized by the DGCL and must also pay expenses incurred in defending any such adjudication butproceeding in viewadvance of its final disposition upon delivery of an undertaking, by or on behalf of an indemnified person, to repay all of the circumstances, he or sheamounts so advanced if it should be determined ultimately that such person is not entitled to indemnification of such expenses. Notwithstanding the foregoing, to the extent that any Indemnitee has been successful, on the merits or otherwise, he or she will be indemnified by us against all expenses (including attorneys’ fees) actually and reasonably incurred in connection therewith. Expenses must be advanced to an Indemnitee under certain circumstances.
this section or otherwise.
We maintain a general liability insurance policy that covers certain liabilities of directorsexclusions and officers of our corporation arising out of claims based on acts or omissions in their capacities as directors or officers.
In any underwriting agreement we enter into in connection with the sale of Class A common stock being registered hereby, the underwriters will agree to indemnify, under certain conditions, us, our directors, our officers and persons who control us within the meaninglimits of the Securities Actamount of 1933, as amended, against certain liabilities.
Number | | | Description | |
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| Form of Underwriting Agreement. | |
| | | Controlled Equity OfferingSMSales Agreement, dated as of February 14, 2024, by and between Desktop Metal, Inc. and Cantor Fitzgerald & Co. | |
3.1 | | | Second Amended and Restated Certificate of Incorporation of Desktop Metal, Inc. (incorporated by reference to | |
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Exhibit 3.2 |
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4.1 | | | | |
| | | Form of Specimen Certificate Representing Preferred Stock. | |
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4.4** | | | Form of Debt Security. | |
4.5** | | | Form of Warrant. | |
4.6** | | | Form of Warrant Agreement. | |
4.7** | | | Form of Unit Agreement. | |
5.1* | | | | |
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23.2* | | | | |
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| | | Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of Debt Trustee, as trustee under the indenture filed as Exhibit 4.3 above (to be filed prior to any issuance of Debt Securities). | |
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the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
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| | /s/ Ric Fulop | |
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| | | | | | | Ric Fulop |
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Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons on behalf of the registrant in the capacities and on the dates indicated.
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/s/ Ric Fulop Ric Fulop | | | Chairman and Chief Executive Officer (principal executive officer) | |
| February 14, 2024 | | |
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/s/ Jason Cole Jason Cole | | | Chief Financial Officer (principal financial officer and principal accounting officer) | |
| February 14, 2024 | | |
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/s/ Scott Dussault Scott Dussault | |
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/s/ James Eisenstein James Eisenstein | |
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/s/ Dayna Grayson Dayna Grayson | |
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/s/ Wen Hsieh Wen Hsieh | |
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/s/ Jeff Immelt Jeff Immelt | |
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/s/ Stephen Nigro Stephen Nigro | |
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/s/ Steve Papa Steve Papa | |
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/s/ Bilal Zuberi | |
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Bilal Zuberi | | |
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