Item 8.01 Other Events
On October 15, 2020, Forum Merger II Corporation ("Forum"), the predecessor to
Tattooed Chef, Inc. (the "Company"), held a special meeting of stockholders (the
"Special Meeting") to approve certain matters relating to the business
combination between Forum and Myjojo, Inc. ("Myjojo"). One of these matters was
a proposal to approve Forum's proposed second amended and restated certificate
of incorporation (the "New Certificate of Incorporation") which, among other
things, would (i) have the effect of reclassifying all Class A common stock
shares and Class B common stock shares into a single class of common stock
("Common Stock" and such reclassification, the "Reclassification"), and (ii)
upon completion of the Reclassification, increase the number of authorized
shares of Common Stock of the Company from 111,000,000 shares, consisting of
100,000,000 shares of Class A common stock, 10,000,000 shares of Class B common
stock and 1,000,000 shares of preferred stock to 1,010,000,000 shares, which
would consist of 1,000,000,000 shares of common stock, and 10,000,000 shares of
preferred stock. The New Certificate of Incorporation was approved by a majority
of the shares of Class A and Class B common stock of Forum, voting together as a
single class, that were outstanding as of the record date for the Special
Meeting. After the Special Meeting, Forum and Myjojo closed the business
combination, and Forum changed the Company's name to "Tattooed Chef, Inc."
A recent ruling by the Court of Chancery introduces uncertainty as to whether
Section 242(b)(2) of the Delaware General Corporation Law (the "DGCL") would
have required the New Certificate of Incorporation to be approved by a separate
vote of the majority of Forum's then-outstanding shares of Class A common stock.
In light of the recent Court of Chancery decision, on February 17, 2023, the
Company filed a petition in the Court of Chancery pursuant to Section 205 of the
DGCL seeking validation of the New Certificate of Incorporation and the shares
issued in reliance on the effectiveness thereof 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
after considering a variety of factors.
The Section 205 proceeding filed by the Company in the Court of Chancery is
captioned In re Tattooed Chef, Inc., C.A. No. 2023-0207-LWW (Del. Ch.). A copy
of the Company's petition filed in the Section 205 Action is attached as an
exhibit to this Form 8-K. The same day the Section 205 proceeding was filed, the
Company also moved that the Court's consideration of the Section 205 proceeding
be expedited. The Court of Chancery granted the Company's motion for expedited
proceedings and directed the Company to notify stockholders that the Court of
Chancery will hold a final hearing to consider the merits of the petition filed
by the Company in the Section 205 proceeding on March 6, 2023, at 9:35 a.m.
Eastern Time, at the Leonard L. Williams Justice Center, 500 North King Street,
Wilmington, Delaware 19801 (the "Section 205 Hearing"). This Form 8-K
constitutes notice of the Section 205 Hearing. If any stockholder of the Company
wishes to express a position on the Section 205 proceeding, such stockholders of
the Company may (i) appear at the Section 205 Hearing, or (ii) file a written
submission with the Register in Chancery, Leonard L. Williams Justice Center,
500 North King Street, Wilmington, Delaware 19801, referring to the case
caption, In re Tattooed Chef, Inc., C.A. No. 2023-0207-LWW (Del. Ch.), in
advance of the Section 205 Hearing, and any such written submission should be
emailed to the Company's counsel, John D. Hendershot, Richards, Layton & Finger,
P.A., at Hendershot@RLF.com.
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 ruling referenced above could have a material adverse impact on the
Company, including on the Company's ability to complete equity or debt financing
transactions or issue stock-based compensation to its employees, directors and
officers until the underlying issues are definitively resolved. This uncertainty
could impair the Company's ability to execute its business plan, attract and
retain employees, management and directors and adversely affect its commercial
relationships.
Forward-Looking Statements
This report includes forward looking statements. These statements are made under
the "safe harbor" provisions of the U.S. Private Securities Litigation Reform
Act of 1995. These statements may be identified by words such as "feel,"
"believes," expects," "estimates," "projects," "intends," "should," "is to be,"
or the negative of such terms, or other comparable terminology. Forward-looking
statements are statements that are not historical facts. Such forward-looking
statements are not guarantees of future performance and are subject to risks and
uncertainties, which could cause actual results to differ materially from the
forward-looking statements contained herein due to many factors. With respect to
the matters addressed in this report, no assurances can be made regarding the
outcome of our proceeding pursuant to Section 205 of the Delaware General
Corporation Law or any claims, proceedings or litigation regarding the
authorization of our common stock. Our Section 205 proceeding is, and any other
litigation regarding the authorization of our stock would be, subject to
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uncertainties inherent in the litigation process, and may not result in timely
resolution of the uncertainty regarding our capitalization, if at all. If we are
unsuccessful in the Section 205 proceeding, claims alleging that a portion of
our Common Stock was not authorized could have a material adverse effect on the
Company, including on our ability to complete financing transactions. Additional
information on potential factors that could affect the financial results of the
Company 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.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
EXHIBIT
NUMBER DESCRIPTION
99.1 Petition filed by Tattooed Chef, Inc. in the Delaware Court of
Chancery on February 17, 2023
104 Cover Page Interactive Data File (embedded within the Inline XBRL
document)
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