Termination of Amended and Restated Registration Rights Agreement, dated as of March 31, 2022, by and among Desktop Metal and the stockholders named therein

EX-10.1 2 dm-20220331xex10d1.htm EX-10.1

Exhibit 10.1

DESKTOP METAL, INC.

TERMINATION OF

AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT

THIS TERMINATION OF AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Termination Agreement”), dated as of March 31, 2022, is entered into by and among Desktop Metal, Inc., a Delaware corporation (the “Company”), and the undersigned Holders. Capitalized terms used herein but not otherwise defined herein shall have the meanings ascribed to them in that certain Amended and Restated Registration Rights Agreement, dated as of August 26, 2020, by and among the Company and the Holders party thereto, as amended (the “RRA”).

WHEREAS, the Company and the undersigned Holders are parties to the RRA;

WHEREAS, the RRA may be amended or modified upon the written consent of (a) the Company and (b) the Holders of a majority of the total Registrable Securities (the “Required Holders”); and

WHEREAS, the Company and the undersigned Holders, constituting the Required Holders, desire to terminate the RRA as set forth in this Termination Agreement.

NOW, THEREFORE, in consideration of the mutual promises and covenants contained in this Termination Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1.Termination of RRA. The RRA is hereby terminated as of the date hereof. From and after the date hereof, the RRA shall be of no further force or effect and neither the Company nor the Holders shall have any rights, obligations or liabilities pursuant to the RRA.

2.Governing Law.  This Termination Agreement and all claims or causes of action based upon, arising out of, or related to this Termination Agreement or the transactions contemplated hereby, shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of laws of another jurisdiction.

3.Successors and Assigns. This Termination Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

4.Counterparts. This Termination Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.


5.Entire Agreement. This Termination Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes any and all prior agreements, understandings and representations, whether written or oral, between the parties hereto related to the subject matter hereof.

[Signature Page Follows]


IN WITNESS WHEREOF, the parties have executed this Termination Agreement effective as of the date first above written.

COMPANY:

DESKTOP METAL, INC.

By:

  /s/ Ric Fulop

Name:

Ric Fulop

Title:

President

[Signature Page to Termination of Registration Rights Agreement]


IN WITNESS WHEREOF, the parties have executed this Termination Agreement effective as of the date first above written.

HOLDERS:  

GV 2016, L.P.  

By:

GV 2016 GP, L.P., its general partner  

By:

GV 2016 GP, L.L.C., its general partner  

By:

/s/ Daphne Chang

Name:

Daphne Chang

Title:

Authorized Signatory

Number of Registrable Securities held as of the date

hereof:

5,669,935  

GV 2017, L.P.  

By:

GV 2017 GP, L.P., its general partner  

By:

GV 2017 GP, L.L.C., its general partner  

By:

/s/ Daphne Chang 

Name:

Daphne Chang

Title:

Authorized Signatory

Number of Registrable Securities held as of the date

hereof:

2,332,177  

GV 2019, L.P.  

By:

GV 2019 GP, L.P., its general partner  

By:

GV 2019 GP, L.L.C., its general partner  

By:

/s/ Daphne Chang

Name:

Daphne Chang

Title:

Authorized Signatory

Number of Registrable Securities held as of the date

hereof:

3,046,618  

[Signature Page to Termination of Registration Rights Agreement]


IN WITNESS WHEREOF, the parties have executed this Termination Agreement effective as of the date first above written.

HOLDERS:

KDT DESKTOP METAL HOLDINGS, INC.  

By:

/s/ Byron L. Knight

Name:

Byron L. Knight

Title:

Managing Director

Number of Registrable Securities held as of the date

hereof:

9,384,282

[Signature Page to Termination of Registration Rights Agreement]


IN WITNESS WHEREOF, the parties have executed this Termination Agreement effective as of the date first above written.

HOLDERS:  

KPCB HOLDINGS, INC., as nominee  

By:

/s/ Susan Biglieri

Name: 

Susan Biglieri 

Title:

Chief Financial Officer

Number of Registrable Securities held as of the date  

hereof:

17,631,665

[Signature Page to Termination of Registration Rights Agreement]


IN WITNESS WHEREOF, the parties have executed this Termination Agreement effective as of the date first above written.

HOLDERS:  

LUX VENTURES IV, L.P.  

By:

Lux Venture Partners, LLC  

its:

General Partner  

By:

/s/ Peter Hebert

Name:

Peter Hebert 

Title:

Managing Director 

Number of Registrable Securities held as of the date

hereof:

12,472,808 

LUX VENTURES V, L.P.  

By:

Lux Venture Partners V, LLC  

its:

General Partner  

By:

/s/ Peter Hebert  

Name:

Peter Hebert  

Title:

Managing Director  

Number of Registrable Securities held as of the date

hereof:

193,592

[Signature Page to Termination of Registration Rights Agreement]


IN WITNESS WHEREOF, the parties have executed this Termination Agreement effective as of the date first above written.

HOLDERS:

NEW ENTERPRISE ASSOCIATES 15, L.P.  

By:

NEA Partners 15, L.P.  

Its:

General Partner  

By:

NEA 15 GP, LLC, General Partner  

Its:

General Partner  

By:

/s/ Louis Citron  

Name:

Louis Citron  

Title:

Chief Legal Officer  

Number of Registrable Securities held as of the date

hereof:

14,263,413  

[Signature Page to Termination of Registration Rights Agreement]


IN WITNESS WHEREOF, the parties have executed this Termination Agreement effective as of the date first above written.

HOLDERS:  

/s/ Ric Fulop  

Ric Fulop  

Number of Registrable Securities held as of the date  

hereof:

20,095,149

[Signature Page to Termination of Registration Rights Agreement]


IN WITNESS WHEREOF, the parties have executed this Termination Agreement effective as of the date first above written.

HOLDERS:  

BLUEBIRD TRUST  

By:

/s/ Steven Papa  

Name:

Steven Papa  

Title:

Trustee  

Number of Registrable Securities held as of the date

hereof:

628,927  

KHAKI CAMPBELL TRUST  

By:

/s/ Steven Papa  

Name:

Steven Papa

Title:

Trustee  

Number of Registrable Securities held as of the date  

hereof:

628,927

RED TAILED HAWK TRUST

By:

/s/ Steven Papa

Name:

Steven Papa

Title:

Trustee

Number of Registrable Securities held as of the date

hereof:

628,927

[Signature Page to Termination of Registration Rights Agreement]


IN WITNESS WHEREOF, the parties have executed this Termination Agreement effective as of the date first above written.

HOLDERS:  

/s/ Jeffrey R. Immelt  

Jeffrey R. Immelt  

Number of Registrable Securities held as of the date

hereof:

39,256  

[Signature Page to Termination of Registration Rights Agreement]


IN WITNESS WHEREOF, the parties have executed this Termination Agreement effective as of the date first above written.

HOLDERS:  

/s/ Leo Hindery, Jr.  

Leo Hindery, Jr.  

Number of Registrable Securities held as of the date  

hereof:

2,597,317

[Signature Page to Termination of Registration Rights Agreement]