205 Petition – Notice of Hearing and Relief Sought
On February 17, 2023, Momentus Inc. (the “Company”) filed a petition in the Delaware Court of Chancery (the “Court of Chancery”) pursuant to Section 205 of
the Delaware General Corporation Law (the “Petition”). The Petition seeks an order validating and declaring effective the Second Amended and Restated Certificate of Incorporation of the Company, which, among other things, increased the total number
of authorized shares of all classes of capital stock from 111,000,000 shares to 274,312,500 shares, consisting of (a) 250,000,000 shares of Class A Common Stock, $0.00001 par value per share (“Class A Common Stock”), (b) 4,312,500 shares of Class B
Common Stock, $0.00001 par value per share, and (c) 20,000,000 shares of Preferred Stock, $0.00001 par value per share (the “Increase in Authorized Shares”). The Petition also requests that the Court of Chancery validate and declare effective the
shares of the Company’s Class A Common Stock issued in reliance on such provisions of the Second Amended and Restated Certificate of Incorporation of the Company as of the date of the original issuance of such shares.
The Company filed the Petition consistent with the approach taken by a number of other similarly-situated companies to resolve uncertainty introduced by a
recent ruling by the Court of Chancery as to whether Section 242(b)(2) of the Delaware General Corporation Law would have required the Second Amended and Restated Certificate of Incorporation of the Company, and in particular the Increase in
Authorized Shares effected thereby, to be approved by a separate vote of a majority of the then-outstanding shares of Class A Common Stock in addition to the votes sought and obtained at the special meeting of the stockholders of the Company held on
August 11, 2021 (the “2021 Special Meeting”).
At the time of the 2021 Special Meeting, there was no Delaware case law bearing on the validity of the approval of the Increase in Authorized Shares. If
the Company is not successful in the Section 205 proceeding, the uncertainty with respect to the Company’s capitalization resulting from the Court of Chancery’s decision referenced above could have a material adverse effect on the Company, including
its ability to complete financing or strategic transactions and to issue stock-based compensation to its employees, directors and officers, until the underlying issues are definitively resolved.
On February 17, 2023, the Court of Chancery issued an order scheduling a hearing on the merits of the Petition at 3:00 p.m. on March 14, 2023 at the
Leonard L. Williams Justice Center, 500 N. King Street, Wilmington, Delaware 19801. This Form 8-K constitutes notice of the hearing and a copy of the Petition is attached hereto as an exhibit.
The Company’s stockholders may appear at the hearing in person or through counsel or may file a written submission with the Register in Chancery, at the
address below, by hand, first class U.S. mail, courier or express service, or via File & ServeXpress, in advance of the hearing. Any written submission also must be served on the following counsel for the Company, at the address below, by any of
the above-listed methods of service, in advance of the hearing:
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Register in Chancery:
Delaware Court of Chancery
Leonard L. Williams Justice Center
500 N. King Street
Wilmington, Delaware 19801
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Counsel for the Company:
Srinivas M. Raju
Kevin M. Kidwell
Richards, Layton & Finger, P.A.
920 North King Street
Wilmington, Delaware 19801
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The case is captioned In re Momentus Inc., C.A. No. 2023-0206-LWW.
Forward-Looking Statements
This current report on Form 8-K (this “Current Report”) includes “forward-looking statements” within the meaning of Section 27A of the Securities Act of
1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. All statements, other than statements of present or historical fact included in this Current Report, are forward-looking statements. In some cases, you can identify
forward-looking statements by terminology such as “may,” “should,” “could,” “would,” “expect,” “plan,” “anticipate,” “intend,” “believe,” “estimate,” “continue,” “project” or the negative of such terms and other similar expressions that predict or
indicate future events or trends or that are not statements of present or historical matters. These statements are based on various assumptions, whether or not identified herein, and on the current expectations of the Company and are not predictions
of actual outcomes. Actual events and circumstances are impossible to predict and are beyond the control of the Company.
With respect to the matters addressed in this Current Report, no assurances can be made regarding the outcome of the Company’s proceeding pursuant to
Section 205 of the Delaware General Corporation Law. The Section 205 proceeding is subject to inherent uncertainties and is beyond the Company’s control and may not result in timely resolution of the uncertainty regarding the Company’s
capitalization, if at all. If the Company is unsuccessful in the Section 205 proceeding, it could have a material adverse effect on the Company.
Additional information on potential factors that could affect the Company’s operating or financial results and its forward-looking statements is included
in its most recent Form 10-K and subsequent filings with the Securities and Exchange Commission. All forward-looking statements are qualified in their entirety by this cautionary statement. Any forward-looking statements speak only as of the date on
which they are made, and the Company undertakes No obligation to update any forward-looking statement to reflect events or circumstances after the date of this report.