Item 1.01 Entry into a Material Definitive Agreement
Merger Agreement
On August 26, 2020, Trine Acquisition Corp., a Delaware corporation ("Trine")
entered into an Agreement and Plan of Merger (the "Merger Agreement") by and
among Trine, Sparrow Merger Sub, Inc., a wholly owned subsidiary of Trine
("Merger Sub"), and Desktop Metal, Inc. ("Desktop Metal").
Pursuant to the terms of the Merger Agreement, a business combination between
Trine and Desktop Metal will be effected through the merger of Merger Sub with
and into Desktop Metal, with Desktop Metal surviving the merger as a wholly
owned subsidiary of Trine (the "Merger"). At the effective time of the Merger
(the "Effective Time"), each share of Desktop Metal preferred stock, par value
$0.0001 per share ("Desktop Metal preferred stock"), and each share of Desktop
Metal common stock, par value $0.0001 per share ("Desktop Metal common stock"),
will be converted into the right to receive such number of shares of Trine's
Class A common stock, par value $0.0001 per share (the "Common Stock") equal to
the Per Share Preferred Stock Consideration (as defined in the Merger Agreement)
or the Per Share Common Stock Consideration (as defined in the Merger
Agreement), as applicable. Pursuant to the terms of the Merger Agreement, Trine
is required to use reasonable best efforts to cause the Common Stock to be
issued in connection with the transactions contemplated by the Merger Agreement
(the "Transactions") to be listed on the New York Stock Exchange ("NYSE") prior
to the closing of the Merger (the "Closing").
Desktop Metal, based in Burlington, Massachusetts, is accelerating the
transformation of manufacturing with an expansive portfolio of 3D printing
solutions, from rapid prototyping to mass production. Founded in 2015 by leaders
in advanced manufacturing, metallurgy, and robotics, Desktop Metal is addressing
the unmet challenges of speed, cost, and quality to make Additive Manufacturing
an essential tool for engineers and manufacturers around the world.
The consummation of the proposed Transactions is subject to the receipt of the
requisite approval of the stockholders of each of Trine and Desktop Metal (such
approvals, the "Trine stockholder approval" and the "Desktop Metal stockholder
approval," respectively) and the fulfillment of certain other conditions.
Representations and Warranties
The Merger Agreement contains customary representations and warranties of the
parties thereto with respect to, among other things, (a) entity organization,
formation and authority, (b) capital structure, (c) authorization to enter into
the Merger Agreement, (d) licenses and permits, (e) taxes, (f) financial
statements, (g) real property, (h) material contracts, (i) title to assets, (j)
absence of changes, (k) employee matters, (l) compliance with laws, (m)
litigation, (n) transactions with affiliates and (o) regulatory matters.
Covenants
The Merger Agreement includes customary covenants of the parties with respect to
operation of the business prior to consummation of the Transactions and efforts
to satisfy conditions to consummation of the Transactions. The Merger Agreement
also contains additional covenants of the parties, including, among others, (a)
covenants providing for Trine and Desktop Metal to use reasonable best efforts
to obtain all necessary regulatory approvals and (b) covenants providing for
Trine, Merger Sub and Desktop Metal to cooperate in the preparation of the
Registration Statement, Proxy Statement and Consent Solicitation Statement (as
each such term is defined in the Merger Agreement) required to be filed in
connection with the Transactions.
Desktop Metal Omnibus Incentive Plan
Prior to the Closing, Trine will adopt the Acquiror Omnibus Incentive Plan (as
defined in the Merger Agreement) subject to the receipt of the Trine stockholder
approval.
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Desktop Metal Non-Solicitation Restrictions
Except as expressly permitted by the Merger Agreement, from the date of the
Merger Agreement to the Effective Time or, if earlier, the valid termination of
the Merger Agreement in accordance with its terms, Desktop Metal has agreed not
to, among other things, initiate, solicit or knowingly encourage or knowingly
facilitate any inquiries or requests for information with respect to, or the
making of, any inquiry regarding, or any proposal or offer that constitutes, or
could reasonably be expected to result in or lead to, any Acquisition Proposal
(as defined in the Merger Agreement).
Prior to the receipt of the Desktop Metal stockholder approval, the Desktop
Metal board of directors may, among other things, (a) change its recommendation
that the Desktop Metal stockholders adopt the Merger Agreement or (b) pay the
termination fee described below and terminate the Merger Agreement to enter into
a definitive acquisition agreement providing for a Superior Proposal (as defined
in the Merger Agreement), subject to the conditions set forth in the Merger
Agreement, including Desktop Metal's board of directors concluding, in
consultation with its financial advisor(s) and outside legal counsel, that the
failure to take such action would be inconsistent with its fiduciary duties
under applicable law.
Trine Exclusivity Restrictions
From the date of the Merger Agreement to the Effective Time or, if earlier, the
valid termination of the Merger Agreement in accordance with its terms, Trine
has agreed not to, among other things, solicit, initiate, continue or engage in
discussions or negotiations with, or enter into any agreement, letter of intent,
memorandum of understanding or agreement in principle with, or encourage,
respond, provide information to or commence due diligence with respect to, any
person (other than Desktop Metal, its stockholders or any of their affiliates or
representatives), concerning, relating to or which is intended or is reasonably
likely to give rise to or result in any Business Combination (as defined in the
Merger Agreement) other than with Desktop Metal, its stockholders and their
affiliates or representatives.
Trine Change in Recommendation
Trine is required to include in the Proxy Statement the recommendation of
Trine's board of directors to Trine's stockholders that they approve the
proposals (as defined in the Merger Agreement) relating to the Transactions (the
"Trine board recommendation"). Trine is permitted to change the Trine Board
Recommendation (such change, a "change in recommendation") in response to an
Acquiror Intervening Event (as defined in the Merger Agreement) if it
determines, in good faith, after consultation with its outside legal counsel,
that the failure to make such a change in recommendation would be inconsistent
with its fiduciary duties under applicable law.
Conditions to Closing
The consummation of the Merger is conditioned upon, among other things, (i)
receipt of the Trine stockholder approval, (ii) receipt of the Desktop Metal
stockholder approval, (iii) the expiration or termination of the waiting period
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, (iv)
the absence of any governmental order, statute, rule or regulation enjoining or
. . .
Item 3.02 Unregistered Sales of Equity Securities.
The information set forth above in Item 1.01 of this Report under the heading
"Subscription Agreements" is incorporated by reference herein. The shares of
Common Stock to be issued in connection with the Subscriptions and the
transactions contemplated thereby will not be registered under the Securities
Act, in reliance on the exemption from registration provided by Section 4(a)(2)
of the Securities Act and/or Regulation D promulgated thereunder.
Item 8.01 Other Events.
Press Release
Attached as Exhibit 99.1 to this Report is a joint press release of Trine and
Desktop Metal, announcing the transactions.
IMPORTANT ADDITIONAL INFORMATION AND WHERE TO FIND IT
This communication is being made in respect of the proposed merger transaction
involving Trine and Desktop Metal. Trine intends to file a registration
statement on Form S-4 with the SEC, which will include a proxy statement of
Trine, a consent solicitation statement of Desktop Metal and a prospectus of
Trine, and each party will file other documents regarding the proposed
transaction with the SEC. A definitive proxy statement/consent solicitation
statement/prospectus will also be sent to the stockholders of Trine and Desktop
Metal, seeking any required stockholder approval. Before making any voting or
investment decision, investors and security holders of Trine and Desktop Metal
are urged to carefully read the entire registration statement and proxy
statement/consent solicitation statement/ prospectus, when they become
available, and any other relevant documents filed with the SEC, as well as any
amendments or supplements to these documents, because they will contain
important information about the proposed transaction. The documents filed by
Trine with the SEC may be obtained free of charge at the SEC's website at
www.sec.gov. In addition, the documents filed by Trine may be obtained free of
charge from Trine at www.Trineac.com. Alternatively, these documents, when
available, can be obtained free of charge from Trine upon written request to
Trine Acquisition Corp., 405 Lexington Avenue, 48th Floor, New York, New York
10174, Attn: Secretary, or by calling (212) 503-2855.
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Trine, Desktop Metal and certain of their respective directors and executive
officers may be deemed to be participants in the solicitation of proxies from
the stockholders of Trine, in favor of the approval of the Merger. Information
regarding Trine's directors and executive officers is contained in Trine's
Annual Report on Form 10-K for the year ended December 31, 2019 and its
Quarterly Report on Form 10-Q for the quarterly periods ended March 31, 2020,
and June 30, 2020, which are filed with the SEC. Additional information
regarding the interests of those participants, the directors and executive
officers of Desktop Metal and other persons who may be deemed participants in
the transaction may be obtained by reading the registration statement and the
proxy statement/consent solicitation statement/prospectus and other relevant
documents filed with the SEC when they become available. Free copies of these
documents may be obtained as described in the preceding paragraph.
This communication does not constitute an offer to sell or the solicitation of
an offer to buy any securities or a solicitation of any vote or approval, nor
shall there be any sale of any securities in any state or jurisdiction in which
such offer, solicitation, or sale would be unlawful prior to registration or
qualification under the securities laws of such other jurisdiction.
FORWARD-LOOKING STATEMENTS
This communication contains forward-looking statements within the meaning of the
Private Securities Litigation Reform Act of 1995 including, but not limited to,
Trine's and Desktop Metal's expectations or predictions of future financial or
business performance or conditions. Forward-looking statements are inherently
subject to risks, uncertainties and assumptions. Generally, statements that are
not historical facts, including statements concerning our 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. Such forward-looking statements involve risks
and uncertainties that may cause actual events, results or performance to differ
materially from those indicated by such statements. Certain of these risks are
identified and discussed in Trine's Form 10-K for the year ended December 31,
2019 under Risk Factors in Part I, Item 1A. These risk factors will be important
to consider in determining future results and should be reviewed in their
entirety. These forward-looking statements are expressed in good faith, and
Trine and Desktop Metal believe there is a reasonable basis for them. However,
there can be no assurance that the events, results or trends identified in these
forward-looking statements will occur or be achieved. Forward-looking statements
speak only as of the date they are made, and neither Trine nor Desktop Metal is
under any obligation, and expressly disclaim any obligation, to update, alter or
otherwise revise any forward-looking statement, whether as a result of new
information, future events or otherwise, except as required by law. Readers
should carefully review the statements set forth in the reports, which Trine has
filed or will file from time to time with the SEC.
In addition to factors previously disclosed in Trine's reports filed with the
SEC and those identified elsewhere in this communication, the following factors,
among others, could cause actual results to differ materially from
forward-looking statements or historical performance: ability to meet the
closing conditions to the Merger, including approval by stockholders of Trine
and Desktop Metal on the expected terms and schedule and the risk that
regulatory approvals required for the Merger are not obtained or are obtained
subject to conditions that are not anticipated; delay in closing the Merger;
failure to realize the benefits expected from the proposed transaction; the
effects of pending and future legislation; risks related to disruption of
management time from ongoing business operations due to the proposed
transaction; business disruption following the transaction; risks related to the
impact of the COVID-19 pandemic on the financial condition and results of
operations of Trine and Desktop Metal; risks related to Trine's or Desktop
Metal's indebtedness; other consequences associated with mergers, acquisitions
and divestitures and legislative and regulatory actions and reforms; risks of
the highly competitive nature of the additive manufacturing industry and the
need to consistently innovate to effectively respond to the changing needs to
product developers and engineers; the risks of failure to meet customers'
quality specifications; the risks of being unable to successfully commercialize
products under development; the risks of being unable to introduce new 3D
printers, high-performance systems and consumables acceptable to customers or to
improve the technology, software or consumables used in Desktop Metal's current
systems in response to changing technology and end-user needs; the risks of
product mix shifting too far into lower margin products, and reducing Desktop
Metal's profitability; the risks of demand for Desktop Metal's products not
increasing adequately or as anticipated.
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Any financial projections in this communication are forward-looking statements
that are based on assumptions that are inherently subject to significant
uncertainties and contingencies, many of which are beyond Trine's and Desktop
Metal's control. While all projections are necessarily speculative, Trine and
Desktop Metal believe that the preparation of prospective financial information
involves increasingly higher levels of uncertainty the further out the
projection extends from the date of preparation. The assumptions and estimates
underlying the projected results are inherently uncertain and are subject to a
wide variety of significant business, economic and competitive risks and
uncertainties that could cause actual results to differ materially from those
contained in the projections. The inclusion of projections in this communication
should not be regarded as an indication that Trine and Desktop Metal, or their
representatives, considered or consider the projections to be a reliable
prediction of future events.
Annualized, pro forma, projected and estimated numbers are used for illustrative
purpose only, are not forecasts and may not reflect actual results.
This communication is not intended to be all-inclusive or to contain all the
information that a person may desire in considering an investment in Trine and
is not intended to form the basis of an investment decision in Trine. All
subsequent written and oral forward-looking statements concerning Trine and
Desktop Metal, the proposed transaction or other matters and attributable to
Trine and Desktop Metal or any person acting on their behalf are expressly
qualified in their entirety by the cautionary statements above.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits:
Exhibit Description
2.1* Agreement and Plan of Merger dated as of August 26, 2020, by and among
Trine Acquisition Corp., Sparrow Merger Sub, Inc. and Desktop Metal,
Inc.
99.1 Press Release issued by Trine and Desktop Metal on August 26, 2020.
* Certain exhibits and schedules to this Exhibit have been omitted in accordance
with Regulation S-K Item 601(b)(2). Trine agrees to furnish supplementally a
copy of all omitted exhibits and schedules to the Securities and Exchange
Commission upon its request.
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