Specific Matters. In addition, and without limiting the generality of Section 5.1(a), except (A) as set forth on Section 5.1(b) of the Company Disclosure Schedule or otherwise expressly permitted or expressly contemplated by this Agreement, including but not limited to actions included in the Company Stockholder Approval; (B) as required by applicable Law; or (C) with the prior written consent of Parent (which shall not be unreasonably withheld, conditioned or delayed), during the Pre-Closing Period, the Company shall not, and shall not permit any of the Company Subsidiaries to, do any of the following: (i) (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, shares or property or any combination thereof) in respect of, any of its shares, other equity interests or voting securities (or any other Capital Stock), other than dividends and distributions by a direct or indirect wholly owned Subsidiary of the Company to the Company or another direct or indirect wholly owned Company Subsidiary; (B) split, combine, subdivide or reclassify any of its shares of Capital Stock, or securities convertible into or exchangeable or exercisable for its Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for its Capital Stock, or (C) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of its or its Affiliates’ Capital Stock or any securities convertible into or exchangeable or exercisable for shares of Capital Stock of the Company or any Company Subsidiary, except for acquisitions, or deemed acquisitions, of Company Common Stock effected in connection with (1) the net-exercise payment of the exercise price of the Company Stock Options or the Company Warrants, (2) required tax withholding in connection with the exercise, vesting or settlement of the Company Equity Awards, (3) forfeitures of the Company Equity Awards, and (4) repurchases of Company Common Stock held by its employees that are subject to a repurchase right in favor of the Company upon termination of employment; (ii) issue, deliver, sell, grant, pledge or otherwise encumber or subject to any Lien (other than Permitted Liens) any shares of Capital Stock of the Company or any Company Subsidiary, including without limitation granting any new awards, or amending or modifying the terms of any outstanding awards, under the Company Incentive Award Plan and/or take any action to accelerate the vesting or lapsing of restrictions or payment of compensation or benefits under the Company Incentive Award Plan (other than the issuance of shares of Company Common Stock upon the exercise, vesting or settlement of Company Equity Awards, as applicable, outstanding at the close of business on the date of this Agreement and in accordance with their terms in effect); (iii) amend, modified or supplement the Company Certificate of Incorporation, the Company’s bylaws (whether by merger, consolidation or otherwise), or any of the organizational documents of any Company Subsidiary (whether by merger, consolidation or otherwise); (iv) adopt a plan of complete or partial liquidation, dissolution, recapitalization or restructuring (other than transactions solely among the Company Subsidiaries); (v) make any material change in financial accounting methods, principles or practices, by the Company or any Company Subsidiary, except insofar as may have been required by a change in GAAP (after the date of this Agreement), as approved by its independent public accountants; (vi) change or modify in any manner the existing credit, collection and payment policies, procedures and practices in respect to accounts receivable and accounts payable, including (A) acceleration of collections of receivables (including through the use of discounts for early payments, requests for early payments or otherwise) and (B) failure to pay payables when due or delay in payment of payables compared to past practices (including continuation of past practices with respect to the early payment of payables to obtain the benefit of any payment discounts);. (vii) merge or consolidate with, or directly or indirectly acquire in any transaction, any equity interest in or business of, any Person; (viii) sell, lease (as lessor), license, mortgage, sell and leaseback or otherwise encumber or subject to any Lien (other than Permitted Liens), or otherwise dispose of any properties or assets (other than sales of products or services in the ordinary course of business consistent with past practice) or any interests therein; (ix) form or create a Subsidiary; (x) authorize, make or incur any capital expenditures or obligations or liabilities in connection therewith; (xi) incur or refinance any Indebtedness, except for any Indebtedness solely between the Company and any Company Subsidiary or between Company Subsidiaries; (xii) make any material loans, advances or capital contributions to, or investments in, any other Person, other than loans, advances, capital contributions or investments (A) by the Company to or in, as applicable, one or more of Company Subsidiaries, (B) by any Company Subsidiary to or in, as applicable, the Company or any Company Subsidiary, or (C) advancement of expenses under the Company Certificate of Incorporation or the Company’s bylaws; (xiii) waive, release, assign, settle or compromise any claim, action or proceeding, other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (A) equal to or lesser than the amounts specifically reserved with respect thereto on the balance sheet included in the Company SEC Documents; or (B) that do not exceed $250,000 in the aggregate; (xiv) voluntarily terminate, suspend, abrogate, amend, let lapse or modify any material Company Permit in a manner materially adverse to the Company and the Company Subsidiaries, taken as a whole; (xv) (A) assign, abandon, subject to a Lien (other than a Permitted Lien), convey title (in whole or in part), exclusively license or grant any right or other licenses to material Intellectual Property Rights owned or exclusively licensed to the Company or any Company Subsidiary, other than the grant of non-exclusive licenses to customers in the ordinary course of business consistent with past practice; or (B) enter into licenses or agreements that impose material restrictions upon the Company or any of its Affiliates with respect to material Company Licensed IP; (xvi) (A) amend, modify, waive, terminate or fail to renew any Company Material Contract, in each case, if such amendment, modification, waiver, termination or failure to renew would have an adverse effect on the Company or the Company Subsidiaries, or (B) enter into any Contract that would be a Company Material Contract if it had been entered into prior to the date hereof (other than (x) any Contract for the purchase or sale of products or services of the Company or any Company Subsidiary entered into in the ordinary course of business consistent with past practice and (y) purchase orders, invoices, statements of work and non-disclosure or similar agreements entered into in the ordinary course of business consistent with past practice); (xvii) enter into any new line of business outside of its existing business or discontinue any existing line of business; (xviii) (A) make (inconsistent with past practices), change or revoke any material Tax election, (B) change any annual Tax accounting period, (C) change any method of Tax accounting, (D) enter into any closing agreement with respect to Taxes, (E) settle or surrender or otherwise concede, terminate or resolve any Tax claim, audit, investigation or assessment, or (F) apply for a ruling from any Taxing Authority; (xix) except as required by any Company Benefit Plan, Law, or Collective Bargaining Agreement, in each case, as in effect on the date hereof, (A) grant any cash or equity-based incentive awards, severance or termination pay, retention bonuses or transaction or change-in-control bonuses to any current or former employee, officer, or director of the Company or any Company Subsidiary; (B) grant any increase in base salary or wage rate exceeding, in the aggregate, $500,000 on an annualized basis; (C) hire, terminate (other than for cause), or promote any employees or officers, except in the ordinary course of business consistent with past practice with respect to employees or officers with total annual base compensation that does not exceed $150,000 per employee or officer; (D) establish, adopt, enter into, amend, modify or terminate in any material respect any Collective Bargaining Agreement or material Company Benefit Plan (other than annual modifications to any Company Benefit Plan that is a health or welfare benefit plan in the ordinary course of business and consistent with past practice); (E) take any action or agree or commit to (whether conditionally or otherwise) accelerate any rights, benefits or the lapsing of any restrictions, or the funding of any payments or benefits, payable to any current or former employee, officer, or director of the Company or any Company Subsidiary; or (F) amend the terms of any outstanding Company Equity Awards; or (xx) agree to take or make any commitment to take any of the actions prohibited by this Section 5.1(b).
Appears in 2 contracts
Samples: Merger Agreement (Markforged Holding Corp), Merger Agreement (Nano Dimension Ltd.)
Specific Matters. In addition, and without limiting the generality of Section 5.1(a), except (A) as set forth on Section 5.1(b) of the Company Ironman Disclosure Schedule or otherwise expressly permitted or expressly contemplated by this Agreement, including but not limited to the actions included in the Company Ironman Stockholder Approval; (B) as required by applicable Law; or (C) with the prior written consent of Parent Sun (which shall not be unreasonably withheld, conditioned or delayed), during the Pre-Closing Period, the Company Ironman shall not, and shall not permit any of the Company Ironman Subsidiaries to, do any of the following:
(i) (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, shares or property or any combination thereof) in respect of, any of its shares, other equity interests or voting securities (or any other Capital Stock), other than dividends and distributions by a direct or indirect wholly owned Subsidiary of the Company Ironman to the Company Ironman or another direct or indirect wholly owned Company Ironman Subsidiary; (B) split, combine, subdivide or reclassify any of its shares of Capital Stock, or securities convertible into or exchangeable or exercisable for its Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for its Capital Stock, or (C) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of its or its Affiliates’ Capital Stock or any securities convertible into or exchangeable or exercisable for shares of Capital Stock of the Company Ironman or any Company Ironman Subsidiary, except for acquisitions, or deemed acquisitions, of Company Ironman Common Stock effected in connection with (1) the net-exercise payment of the exercise price of the Company Ironman Stock Options or the Company WarrantsOptions, (2) required tax withholding in connection with the exercise, vesting or settlement of the Company Ironman Equity Awards, (3) forfeitures of the Company Ironman Equity Awards, and (4) repurchases of Company Ironman Common Stock held by its employees that are subject to a repurchase right in favor of the Company Ironman upon termination of employment;
(ii) except, as applicable, for or with respect to new grants of Ironman Equity Awards consisting only of time-based vesting Ironman Stock Options or Ironman RSU Awards that are granted pursuant to the Ironman Incentive Award Plans in the ordinary course of business consistent with past practice, provided that the aggregate number of shares of Ironman Common Stock subject to such Ironman Equity Awards granted following the date of this Agreement not exceed 1.5% of the issued and outstanding shares of Ironman Common Stock as of the date of this Agreement (“Permitted Ironman Equity Awards”), issue, deliver, sell, grant, pledge or otherwise encumber or subject to any Lien (other than Permitted Liens) (A) any shares of Capital Stock of the Company Ironman or any Company Subsidiary, including without limitation granting any new awards, or amending or modifying the terms of any outstanding awards, under the Company Incentive Award Plan and/or take any action to accelerate the vesting or lapsing of restrictions or payment of compensation or benefits under the Company Incentive Award Plan Ironman Subsidiary (other than the issuance of shares of Company Ironman Common Stock upon the exercise, vesting or settlement of Company Ironman Equity Awards, as applicable, outstanding at the close of business on the date of this Agreement and in accordance with their terms in effecteffect or with respect to Permitted Ironman Equity Awards); (B) any securities convertible into or exchangeable or exercisable for shares of Capital Stock of Ironman or any Ironman Subsidiary; (C) any warrants, calls, options or other rights to acquire any shares of Capital Stock of Ironman or any Ironman Subsidiary; (D) any rights issued by Ironman or any Ironman Subsidiary that are linked in any way to the value of Ironman, an Ironman Subsidiary, or any of their respective Capital Stock; and provided that Ironman shall provide written notice to Sun not less than five (5) Business Days prior to the grant of any Permitted Ironman Equity Awards;
(iii) amend, modified or supplement amend the Company Ironman Certificate of Incorporation, the CompanyIncorporation or Ironman’s bylaws (whether by merger, consolidation or otherwise)bylaws, or amend in any of material respect the charter or organizational documents of any Company Subsidiary (whether by merger, consolidation or otherwise)Ironman Subsidiary;
(iv) adopt a plan of complete or partial liquidation, dissolution, recapitalization or restructuring (other than transactions solely among the Company Subsidiaries);
(v) make any material change in financial accounting methods, principles or practices, by the Company Ironman or any Company Ironman Subsidiary, except insofar as may have been required by a change in GAAP (after the date of this Agreement), as approved by its independent public accountants;
(vi) change or modify in any manner the existing credit, collection and payment policies, procedures and practices in respect to accounts receivable and accounts payable, including (A) acceleration of collections of receivables (including through the use of discounts for early payments, requests for early payments or otherwise) and (B) failure to pay payables when due or delay in payment of payables compared to past practices (including continuation of past practices with respect to the early payment of payables to obtain the benefit of any payment discounts);.
(viiv) merge or consolidate with, or directly or indirectly acquire in any transaction, transaction any equity interest in or business of, any PersonPerson if the aggregate amount of the consideration paid or transferred by Ironman and the Ironman Subsidiaries in connection with all such transactions would exceed a total amount equal to 10% of the aggregate cash and cash equivalents of Ironman and the Ironman Subsidiaries at such time;
(viiivi) sell, lease (as lessor), license, mortgage, sell and leaseback or otherwise encumber or subject to any Lien (other than Permitted Liens), or otherwise dispose of any properties or assets (other than sales of products or services in the ordinary course of business consistent with past practice) or any interests thereintherein that, individually or in the aggregate, have a fair market value (or result in aggregate proceeds), in the aggregate for all such transactions, in excess of $15,000,000;
(ix) form or create a Subsidiary;
(x) authorize, make or incur any capital expenditures or obligations or liabilities in connection therewith;
(xivii) incur or refinance any Indebtedness, except for (A) any Indebtedness solely between the Company Ironman and any Company wholly-owned Ironman Subsidiary or between Company wholly-owned Ironman Subsidiaries, or (B) increases of Indebtedness incurred in the ordinary course of business consistent with past practice under any of Ironman or an Ironman Subsidiary’s existing credit facilities as of the date hereof;
(xii) make any material loans, advances or capital contributions to, or investments in, any other Person, other than loans, advances, capital contributions or investments (A) by the Company to or in, as applicable, one or more of Company Subsidiaries, (B) by any Company Subsidiary to or in, as applicable, the Company or any Company Subsidiary, or (C) advancement of expenses under the Company Certificate of Incorporation or the Company’s bylaws;
(xiiiviii) waive, release, assign, settle or compromise any claim, action or proceeding, other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (A) equal to or lesser than the amounts specifically reserved with respect thereto on the balance sheet included in the Company Ironman SEC Documents; or (B) that do not exceed $250,000 3,000,000 in the aggregate;
(xiv) voluntarily terminate, suspend, abrogate, amend, let lapse or modify any material Company Permit in a manner materially adverse to the Company and the Company Subsidiaries, taken as a whole;
(xv) (A) assign, abandon, subject to a Lien (other than a Permitted Lien), convey title (in whole or in part), exclusively license or grant any right or other licenses to material Intellectual Property Rights owned or exclusively licensed to the Company Ironman or any Company Ironman Subsidiary, other than abandonment of Intellectual Property Rights or the grant of non-exclusive licenses to customers in the ordinary course of business consistent with past practice; or (B) enter into licenses or agreements that impose material restrictions upon the Company Ironman or any of its Affiliates with respect to material Company Ironman Licensed IP;
(xvi) (A) amend, modify, waive, waive or terminate or fail to renew any Company Ironman Material Contract, in each case, case if such amendment, modification, waiver, waiver or termination or failure to renew would have an adverse effect on that, individually or in the Company or aggregate, is material to Ironman and the Company Ironman Subsidiaries, taken as a whole; or (B) enter into any Contract that would be a Company an ironman Material Contract if it had been entered into prior to the date hereof (other than (x) any Contract described in Section 3.14(a)(ii) to the extent entered into in the ordinary course of business consistent with past practice, (y) any Contract for the purchase or sale of products or services of the Company or any Company Subsidiary entered into in the ordinary course of business consistent with past practice and (yz) purchase orders, invoices, statements of work and non-disclosure or similar agreements entered into in the ordinary course of business consistent with past practice);
(xviixi) enter into any new line of business outside of its existing business or discontinue any existing line of business, in each case other than in the ordinary course of business consistent with past practice;
(xviiixii) (A) make (inconsistent with past practices)except in the ordinary course of business, make, change or revoke any material Tax election, (B) change file any annual material amended Tax accounting periodReturn, (C) change any method of Tax accounting, (D) enter into any closing agreement with respect to Taxes, (E) or settle or surrender compromise any material Tax liability or otherwise concede, terminate or resolve any Tax claim, audit, investigation or assessment, or (F) apply for a ruling from any Taxing Authorityrefund;
(xixxiii) except (x) as required by any Company Ironman Benefit Plan, Law, Plan or Collective Bargaining Agreement, in each case, case as in effect on the date hereofhereof or (y) for actions in the ordinary course of business consistent with past practice and aligned with the annual plan presented to the Ironman Board, (A) grant or announce any cash or equity-based incentive awards, severance or termination pay, retention bonuses or bonuses, transaction or change-in-control bonuses or any increase in salary, wage or other compensation, to any current or former employee, officer, or director of the Company Ironman or any Company Ironman Subsidiary, other than (1) Permitted Ironman Equity Awards, (2) payment of cash incentive compensation for completed performance periods based on actual achievement of applicable performance goals, (3) annual increases in base compensation, or (4) increases in cash compensation opportunity as a result of a promotion or title change not prohibited by clause (B) hereof, in any case, in the ordinary course of business and consistent with past practice; (B) grant any increase in base salary or wage rate exceeding, in the aggregate, $500,000 on an annualized basis; (C) hire, terminate (other than for cause), or promote any employees or officers, except in the ordinary course of business consistent with past practice with respect to employees or officers with total an annual base compensation salary that does not exceed $150,000 350,000 per employee or officer; (DC) establish, adopt, enter into, amend, modify or terminate in any material respect any Collective Bargaining Agreement or material Company Ironman Benefit Plan (other than annual modifications to any Company Ironman Benefit Plan that is a health or welfare benefit plan in the ordinary course of business and consistent with past practice); (ED) take any action or agree or commit to (whether conditionally or otherwise) accelerate any rights, benefits or the lapsing of any restrictions, or the funding of any payments or benefits, payable to any current or former employee, officer, or director of the Company Ironman or any Company Ironman Subsidiary; or (FE) amend the terms of any outstanding Company Ironman Equity Awards;
(xiv) amend, modify, supplement or terminate the Ironman Indenture or take any action that would result in a change to the Conversion Rate (other than as contemplated by Section 6.18) or that would cause the redemption of the Ironman Indenture to be accelerated; or
(xxxv) agree to take or make any commitment to take any of the actions prohibited by this Section 5.1(b).
Appears in 2 contracts
Samples: Merger Agreement (Desktop Metal, Inc.), Merger Agreement (Stratasys Ltd.)
Specific Matters. In addition, and without limiting the generality of Section 5.1(a), except (A) as set forth on Section 5.1(b) of the Company Disclosure Schedule or otherwise expressly permitted or expressly contemplated by this Agreement, including but not limited to actions included in the Company Stockholder Approval; (B) as required by applicable Law; or (C) with the prior written consent of Parent (which shall not be unreasonably withheld, conditioned or delayed, except with respect to actions contemplated by Sections 5.1(b)(i)(A), 5.1(b)(i)(C), and 5.1(b)(ii), (vii), (viii), (x), (xi), (xvi) and (xviii), in which case Parent may provide or withhold such consent in its sole discretion), during the Pre-Closing Period, the Company shall not, and shall not permit any of the Company Subsidiaries to, do any of the following:
(i) (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, shares or property or any combination thereof) in respect of, any of its shares, other equity interests or voting securities (or any other Capital Stock), other than dividends and distributions by a direct or indirect wholly owned Subsidiary of the Company to the Company or another direct or indirect wholly owned Company Subsidiary; (B) split, combine, subdivide or reclassify any of its shares of Capital Stock, or securities convertible into or exchangeable or exercisable for its Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for its Capital Stock, or (C) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of its or its Affiliates’ Capital Stock or any securities convertible into or exchangeable or exercisable for shares of Capital Stock of the Company or any Company Subsidiary, except for acquisitions, or deemed acquisitions, of Company Common Stock effected in connection with (1) the net-exercise payment of the exercise price of the Company Stock Options or the Company WarrantsOptions, (2) required tax withholding in connection with the exercise, vesting or settlement of the Company Equity Awards, (3) forfeitures of the Company Equity Awards, and (4) repurchases of Company Common Stock held by its employees that are subject to a repurchase right in favor of the Company upon termination of employmentemployment and (5) any distribution or payment (including upon settlement of any conversions) required under the Company Convertible Notes in accordance with the terms of the Company Indenture;
(ii) issue, deliver, sell, grant, pledge or otherwise encumber or subject to any Lien (other than Permitted Liens) any shares of Capital Stock of the Company or any Company Subsidiary, including without limitation granting any new awards, or amending or modifying the terms of any outstanding awards, under the any Company Incentive Award Plan and/or take any action to accelerate the vesting or lapsing of restrictions or payment of compensation or benefits under the any Company Incentive Award Plan (other than the issuance of shares of Company Common Stock (1) upon the conversion of the Company Convertible Notes pursuant to the terms of the Company Indenture, and (2) upon the exercise, vesting or settlement of Company Equity Awards, as applicable, outstanding at the close of business on the date of this Agreement and in accordance with their terms in effect);
(iii) amend, modified or supplement amend the Company Certificate of Incorporation, Incorporation or the Company’s bylaws (whether by merger, consolidation or otherwise), or amend in any of material respect the charter or organizational documents of any Company Subsidiary (whether by merger, consolidation or otherwise);
(iv) adopt a plan of complete or partial liquidation, dissolution, recapitalization or restructuring (other than transactions solely among the Company Company’s wholly-owned Subsidiaries);
(v) make any material change in financial accounting methods, principles or practices, by the Company or any Company Subsidiary, except insofar as may have been required by a change in GAAP (after the date of this Agreement), as approved by its independent public accountants;
(vi) change or modify in any manner the existing credit, collection and payment policies, procedures and practices in respect to accounts receivable and accounts payable, payable including (A) acceleration of collections of receivables (including through the use of discounts for early payments, requests for early payments or otherwise) and (B) failure to pay payables when due or delay in payment of payables compared to past practices (including continuation of past practices with respect to the early payment of payables to obtain the benefit of any payment discounts);.
(vii) merge or consolidate with, or directly or indirectly acquire in any transaction, any equity interest in or business of, any Person;
(viii) sell, lease (as lessor), license, mortgage, sell and leaseback or otherwise encumber or subject to any Lien (other than Permitted Liens), or otherwise dispose of any properties or assets (other than sales of products or services in the ordinary course of business consistent with past practice) or any interests therein;
(ix) form or create a Subsidiary;
(x) authorize, make or incur any capital expenditures or obligations or liabilities in connection therewith;
(xix) incur or refinance any Indebtedness, except for (A) any Indebtedness solely between the Company and any wholly-owned Company Subsidiary or between wholly-owned Company Subsidiaries;; (B) payments required to be made under the Company Convertible Notes, including without limitation the retirement or repayment of the Company Convertible Notes (together with all accrued interests, fees and other expenses) at maturity, in accordance with the terms of the Company Indenture; or (C) any Indebtedness related to the Bridge Loan Facility.
(xiixi) make any material loans, advances (other than for ordinary course business expenses consistent with past practice) or capital contributions to, or investments in, any other Person, other than loans, advances, capital contributions or investments (A) by the Company to or in, as applicable, one or more of Company its wholly owned Subsidiaries, (B) by any Subsidiary of the Company Subsidiary to or in, as applicable, the Company or any Company Subsidiarywholly owned Subsidiary of the Company, or (C) advancement of expenses under the Company Certificate of Incorporation or the Company’s bylawsbylaws or (D) investments in cash equivalents in the ordinary course of business consistent with past practice;
(xiiixii) waive, release, assign, settle or compromise any claim, action or proceeding, other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (A) equal to or lesser than the amounts specifically reserved with respect thereto on the balance sheet included in the Company SEC Documents; or (B) that do not exceed $250,000 in the aggregate;
(xivxiii) voluntarily terminate, suspend, abrogate, amend, let lapse or modify any material Company Permit in a manner materially adverse to the Company and the Company its Subsidiaries, taken as a whole;
(xv) (A) assign, abandon, subject to a Lien (other than a Permitted Lien), convey title (in whole or in part), exclusively license or grant any right or other licenses to material Intellectual Property Rights owned or exclusively licensed to the Company or any Company Subsidiary, other than abandonment of Intellectual Property Rights or the grant of non-exclusive licenses to customers in the ordinary course of business consistent with past practice; or (B) enter into licenses or agreements that impose material restrictions upon the Company or any of its Affiliates with respect to material Company Licensed IP;
(xvixv) (A) amend, modify, waive, waive or terminate or fail to renew any Company Material Contract, in each case, case if such amendment, modification, waiver, waiver or termination or failure to renew would have an adverse effect on that, individually or in the aggregate, is material to the Company or and the Company Subsidiaries, taken as a whole, or (B) enter into any Contract that would be a Company Material Contract if it had been entered into prior to the date hereof (other than (x) any Contract described in Section 3.14(a)(ii) to the extent entered into in the ordinary course of business consistent with past practice, (y) any Contract for the purchase or sale of products or services of the Company or any Company Subsidiary entered into in the ordinary course of business consistent with past practice and (yz) purchase orders, invoices, statements of work and non-disclosure or similar agreements entered into in the ordinary course of business consistent with past practice);
(xviixvi) enter into any new line of business outside of its existing business or discontinue any existing line of business;
(xviiixvii) (A) make (inconsistent with past practices)make, change or revoke any material Tax election, (B) change any annual Tax accounting period, (C) change any method of Tax accounting, (D) enter into any closing agreement with respect to Taxes, (E) settle or surrender or otherwise concede, terminate or resolve any Tax claim, audit, investigation or assessment, or (F) apply for a ruling from any Taxing Authority, or (G) take any action outside the ordinary course of business that would have the effect of materially increasing the Tax liability of the Company or any Company Subsidiary for any period ending after the Closing Date or materially decreasing any Tax attribute of the Company or any Company Subsidiary existing on the Closing Date;
(xixxviii) except as required by any Company Benefit Plan, Law, Plan or Collective Bargaining Agreement, in each case, case as in effect on the date hereof, (A) grant or announce any cash or equity-based incentive awards, severance or termination pay, retention bonuses or bonuses, transaction or change-in-control bonuses or any increase in salary, wage or other compensation, to any current or former employee, officer, or director of the Company or any Company Subsidiary, other than (1) payment of cash incentive compensation for completed performance periods based on actual achievement of applicable performance goals, (2) annual increases in base compensation; provided, however, that no individual shall receive an annual increase in base compensation greater than three percent (3%) of such individual’s base compensation for the immediately preceding year, and (3) or increases in cash compensation opportunity, as a result of a promotion or title change not prohibited by clause (B) hereof, in any case, in the ordinary course of business and consistent with past practice; (B) grant any increase in base salary or wage rate exceeding, in the aggregate, $500,000 on an annualized basis; (C) hire, terminate (other than for cause), or promote any employees or officers, except in the ordinary course of business consistent with past practice with respect to employees or officers with total annual base compensation that does not exceed $150,000 250,000 per employee or officer; (DC) establish, adopt, enter into, amend, modify or terminate in any material respect any Collective Bargaining Agreement or material Company Benefit Plan (other than annual modifications to any Company Benefit Plan that is a health or welfare benefit plan in the ordinary course of business and consistent with past practice); (ED) take any action or agree or commit to (whether conditionally or otherwise) accelerate any rights, benefits or the lapsing of any restrictions, or the funding of any payments or benefits, payable to any current or former employee, officer, or director of the Company or any Company Subsidiary; or (FE) amend the terms of any outstanding Company Equity Awards;
(xix) amend, modify, supplement or terminate the Company Indenture or take any action that would result in a change to the Conversion Rate (other than as contemplated by Section 6.14) or that would cause the redemption of the Company Convertible Notes to be accelerated;
(xx) incur Company Transaction Expenses that, in the aggregate, exceed $15,000,000; or
(xxxxi) agree to take or make any commitment to take any of the actions prohibited by this Section 5.1(b).
Appears in 2 contracts
Samples: Merger Agreement (Desktop Metal, Inc.), Merger Agreement (Nano Dimension Ltd.)
Specific Matters. In addition, and without limiting the generality of Section 5.1(a), except (A) as set forth on Section 5.1(b) of the Company Trident Disclosure Schedule or otherwise expressly permitted or expressly contemplated by this Agreement, including but not limited to the actions included in the Company Trident Stockholder Approval; (B) as required by applicable Law; or (C) with the prior written consent of Parent Sun (which shall not be unreasonably withheld, conditioned or delayed), during the Pre-Closing Period, the Company Trident shall not, and shall not permit any of the Company Trident Subsidiaries to, do any of the following:
(i) (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, shares or property or any combination thereof) in respect of, any of its shares, other equity interests or voting securities (or any other Capital Stock), other than dividends and distributions by a direct or indirect wholly owned Subsidiary of the Company Trident to the Company Trident or another direct or indirect wholly owned Company Trident Subsidiary; (B) split, combine, subdivide or reclassify any of its shares of Capital Stock, or securities convertible into or exchangeable or exercisable for its Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for its Capital Stock, or (C) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of its or its Affiliates’ Capital Stock or any securities convertible into or exchangeable or exercisable for shares of Capital Stock of the Company Trident or any Company Trident Subsidiary, except for acquisitions, or deemed acquisitions, of Company Trident Common Stock effected in connection with (1) the net-exercise payment of the exercise price of the Company Stock Options or the Company WarrantsTrident Options, (2) required tax withholding in connection with the exercise, vesting or settlement of the Company Trident Equity Awards, (3) forfeitures of the Company Trident Equity Awards, and (4) repurchases of Company Trident Common Stock held by its employees that are subject to a repurchase right in favor of the Company Trident upon termination of employment;
(ii) except, as applicable, for or with respect to new grants of Trident Equity Awards consisting only of time-based vesting Trident Equity Awards that are granted pursuant to the Trident Equity Plan in the ordinary course of business consistent with past practice, provided that the aggregate number of shares of Trident Common Stock subject to such Trident Equity Awards granted following the date of this Agreement not exceed 1.5% of the issued and outstanding shares of Trident Common Stock as of the date of this Agreement (“Permitted Trident Equity Awards”), issue, deliver, sell, grant, pledge or otherwise encumber or subject to any Lien (other than Permitted Liens) (A) any shares of Capital Stock of the Company Trident or any Company Subsidiary, including without limitation granting any new awards, or amending or modifying the terms of any outstanding awards, under the Company Incentive Award Plan and/or take any action to accelerate the vesting or lapsing of restrictions or payment of compensation or benefits under the Company Incentive Award Plan Trident Subsidiary (other than the issuance of shares of Company Trident Common Stock upon the exercise, vesting or settlement of Company Trident Equity Awards, as applicable, outstanding at the close of business on the date of this Agreement and in accordance with their terms in effecteffect or with respect to Permitted Trident Equity Awards); (B) any securities convertible into or exchangeable or exercisable for shares of Capital Stock of Trident or any Trident Subsidiary; (C) any warrants, calls, options or other rights to acquire any shares of Capital Stock of Trident or any Trident Subsidiary; (D) any rights issued by Trident or any Trident Subsidiary that are linked in any way to the value of Trident, a Trident Subsidiary, or any of their respective Capital Stock; and provided that Trident shall provide written notice to Sun not less than five (5) Business Days prior to the grant of any Permitted Trident Equity Awards;
(iii) amend, modified or supplement amend the Company Trident Certificate of IncorporationIncorporation or Trident’s bylaws, the CompanyParent’s certificate of incorporation or Parent’s bylaws (whether by merger, consolidation or otherwise), amend in any material respect the charter or any of the organizational documents of any Company Subsidiary (whether by merger, consolidation or otherwise)other Trident Subsidiary;
(iv) adopt a plan of complete or partial liquidation, dissolution, recapitalization or restructuring (other than transactions solely among the Company Subsidiaries);
(v) make any material change in financial accounting methods, principles or practices, by the Company Trident or any Company Trident Subsidiary, except insofar as may have been required by a change in GAAP (after the date of this Agreement), as approved by its independent public accountants;
(vi) change or modify in any manner the existing credit, collection and payment policies, procedures and practices in respect to accounts receivable and accounts payable, including (A) acceleration of collections of receivables (including through the use of discounts for early payments, requests for early payments or otherwise) and (B) failure to pay payables when due or delay in payment of payables compared to past practices (including continuation of past practices with respect to the early payment of payables to obtain the benefit of any payment discounts);.
(viiv) merge or consolidate with, or directly or indirectly acquire in any transaction, transaction any equity interest in or business of, any PersonPerson if the aggregate amount of the consideration paid or transferred by Trident and the Trident Subsidiaries in connection with all such transactions would exceed a total amount equal to 10% of the aggregate cash and cash equivalents of Trident and the Trident Subsidiaries at such time;
(viiivi) sell, lease (as lessor), license, mortgage, sell and leaseback or otherwise encumber or subject to any Lien (other than Permitted Liens), or otherwise dispose of any properties or assets (other than sales of products or services in the ordinary course of business consistent with past practice) or any interests thereintherein that, individually or in the aggregate, have a fair market value (or result in aggregate proceeds), in the aggregate for all such transactions, in excess of $15,000,000;
(ix) form or create a Subsidiary;
(x) authorize, make or incur any capital expenditures or obligations or liabilities in connection therewith;
(xivii) incur or refinance any Indebtedness, except for (A) any Indebtedness solely between the Company Trident and any Company wholly-owned Trident Subsidiary or between Company wholly-owned Trident Subsidiaries, or (B) increases of Indebtedness incurred in the ordinary course of business consistent with past practice under any of Trident or a Trident Subsidiary’s existing credit facilities as of the date hereof;
(xii) make any material loans, advances or capital contributions to, or investments in, any other Person, other than loans, advances, capital contributions or investments (A) by the Company to or in, as applicable, one or more of Company Subsidiaries, (B) by any Company Subsidiary to or in, as applicable, the Company or any Company Subsidiary, or (C) advancement of expenses under the Company Certificate of Incorporation or the Company’s bylaws;
(xiiiviii) waive, release, assign, settle or compromise any claim, action or proceeding, other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (A) equal to or lesser than the amounts specifically reserved with respect thereto on the balance sheet included in the Company Trident SEC Documents; or (B) that do not exceed $250,000 3,000,000 in the aggregate;
(xiv) voluntarily terminate, suspend, abrogate, amend, let lapse or modify any material Company Permit in a manner materially adverse to the Company and the Company Subsidiaries, taken as a whole;
(xv) (A) assign, abandon, encumber, subject to a Lien (other than a Permitted Lien), convey title (in whole or in part), exclusively license or grant any right or other licenses to material Intellectual Property Rights owned or exclusively licensed to the Company Trident or any Company Trident Subsidiary, other than abandonment of Intellectual Property Rights or the grant of non-exclusive licenses to customers in the ordinary course of business consistent with past practice; or (B) enter into licenses or agreements that impose material restrictions upon the Company Trident or any of its Affiliates with respect to material Company Trident Licensed IP;
(xvix) (A) amend, modify, waive, waive or terminate or fail to renew any Company Trident Material Contract, in each case, case if such amendment, modification, waiver, waiver or termination or failure to renew would have an adverse effect on that, individually or in the Company or aggregate, is material to Trident and the Company Trident Subsidiaries, taken as a whole; or (B) enter into any Contract that would be a Company Trident Material Contract if it had been entered into prior to the date hereof (other than (x) any Contract described in Section 3.15(a)(ii) to the extent entered into in the ordinary course of business consistent with past practice, (y) any Contract for the purchase or sale of products or services of the Company or any Company Subsidiary Trident entered into in the ordinary course of business consistent with past practice and (yz) purchase orders, invoices, statements of work and non-disclosure or similar agreements entered into in the ordinary course of business consistent with past practice);
(xviixi) enter into any new line of business outside of its existing business or discontinue any existing line of business, in each case other than in the ordinary course of business consistent with past practice;
(xviiixii) (A) make (inconsistent with past practices)except in the ordinary course of business, make, change or revoke any material Tax election, (B) change file any annual material amended Tax accounting periodReturn, (C) change any method of Tax accounting, (D) enter into any closing agreement with respect to Taxes, (E) or settle or surrender compromise any material Tax liability or otherwise concede, terminate or resolve any Tax claim, audit, investigation or assessment, or (F) apply for a ruling from any Taxing Authorityrefund;
(xixxiii) except (x) as required by any Company Trident Benefit Plan, Law, Plan or Collective Bargaining Agreement, in each case, case as in effect on the date hereofhereof or (y) for actions in the ordinary course of business consistent with past practice and aligned with the annual plan presented to the Trident Board, (A) grant or announce any cash or equity-based incentive awards, severance or termination pay, retention bonuses or bonuses, transaction or change-in-control bonuses or any increase in salary, wage or other compensation, to any current or former employee, officer, or director of the Company Trident or any Company Trident Subsidiary, other than (1) Permitted Trident Equity Awards, (2) payment of cash incentive compensation for completed performance periods based on actual achievement of applicable performance goals, (3) annual increases in base compensation, or (4) increases in cash compensation opportunity as a result of a promotion or title change not prohibited by clause (B) hereof, in any case, in the ordinary course of business and consistent with past practice; (B) grant any increase in base salary or wage rate exceeding, in the aggregate, $500,000 on an annualized basis; (C) hire, terminate (other than for cause), or promote any employees or officers, except in the ordinary course of business consistent with past practice with respect to employees or officers with total an annual base compensation salary that does not exceed $150,000 350,000 per employee or officer; (DC) establish, adopt, enter into, amend, modify or terminate in any material respect any Collective Bargaining Agreement or material Company Trident Benefit Plan (other than annual modifications to any Company Trident Benefit Plan that is a health or welfare benefit plan in the ordinary course of business and consistent with past practice); (ED) take any action or agree or commit to (whether conditionally or otherwise) accelerate any rights, benefits or the lapsing of any restrictions, or the funding of any payments or benefits, payable to any current or former employee, officer, or director of the Company Trident or any Company Trident Subsidiary; or (FE) amend the terms of any outstanding Company Trident Equity AwardsAward;
(xiv) amend, modify, supplement or terminate the Trident Indenture or take any action that would result in a change to the Conversion Rate or that would cause the redemption of the Trident Indenture to be accelerated; or
(xxxv) agree to take or make any commitment to take any of the actions prohibited by this Section 5.1(b).
Appears in 1 contract
Samples: Merger Agreement (3d Systems Corp)
Specific Matters. In addition, and without limiting the generality of Section 5.1(a), except (A) as set forth on Section 5.1(b) of the Company Trident Disclosure Schedule or otherwise expressly permitted or expressly contemplated by this Agreement, including but not limited to the actions included in the Company Trident Stockholder Approval; (B) as required by applicable Law; or (C) with the prior written consent of Parent Sun (which shall not be unreasonably withheld, conditioned or delayed), during the Pre-Closing Period, the Company Trident shall not, and shall not permit any of the Company Trident Subsidiaries to, do any of the following:
(i) (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, shares or property or any combination thereof) in respect of, any of its shares, other equity interests or voting securities (or any other Capital Stock), other than dividends and distributions by a direct or indirect wholly owned Subsidiary of the Company Trident to the Company Trident or another direct or indirect wholly owned Company Trident Subsidiary; (B) split, combine, subdivide or reclassify any of its shares of Capital Stock, or securities convertible into or exchangeable or exercisable for its Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for its Capital Stock, or (C) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of its or its Affiliates’ Capital Stock or any securities convertible into or exchangeable or exercisable for shares of Capital Stock of the Company Trident or any Company Trident Subsidiary, except for acquisitions, or deemed acquisitions, of Company Trident Common Stock effected in connection with (1) the net-exercise payment of the exercise price of the Company Stock Options or the Company WarrantsTrident Options, (2) required tax withholding in connection with the exercise, vesting or settlement of the Company Trident Equity Awards, (3) forfeitures of the Company Trident Equity Awards, and (4) repurchases of Company Trident Common Stock held by its employees that are subject to a repurchase right in favor of the Company Trident upon termination of employment;
(ii) except, as applicable, for or with respect to new grants of Trident Equity Awards consisting only of time-based vesting Trident Equity Awards that are granted pursuant to the Trident Equity Plan in the ordinary course of business consistent with past practice, provided that the aggregate number of shares of Trident Common Stock subject to such Trident Equity Awards granted following the date of this Agreement not exceed 1.5% of the issued and outstanding shares of Trident Common Stock as of the date of this Agreement (“Permitted Trident Equity Awards”), issue, deliver, sell, grant, pledge or otherwise encumber or subject to any Lien (other than Permitted Liens) (A) any shares of Capital Stock of the Company Trident or any Company Subsidiary, including without limitation granting any new awards, or amending or modifying the terms of any outstanding awards, under the Company Incentive Award Plan and/or take any action to accelerate the vesting or lapsing of restrictions or payment of compensation or benefits under the Company Incentive Award Plan Trident Subsidiary (other than the issuance of shares of Company Trident Common Stock upon the exercise, vesting or settlement of Company Trident Equity Awards, as applicable, outstanding at the close of business on the date of this Agreement and in accordance with their terms in effecteffect or with respect to Permitted Trident Equity Awards); (B) any securities convertible into or exchangeable or exercisable for shares of Capital Stock of Trident or any Trident Subsidiary; (C) any warrants, calls, options or other rights to acquire any shares of Capital Stock of Trident or any Trident Subsidiary; (D) any rights issued by Trident or any Trident Subsidiary that are linked in any way to the value of Trident, a Trident Subsidiary, or any of their respective Capital Stock; and provided that Trident shall provide written notice to Sun not less than five (5) Business Days prior to the grant of any Permitted Trident Equity Awards;
(iii) amend, modified or supplement amend the Company Trident Certificate of IncorporationIncorporation or Trident’s bylaws, the CompanyParent’s certificate of incorporation or Parent’s bylaws (whether by merger, consolidation or otherwise), amend in any material respect the charter or any of the organizational documents of any Company Subsidiary (whether by merger, consolidation or otherwise)other Trident Subsidiary;
(iv) adopt a plan of complete or partial liquidation, dissolution, recapitalization or restructuring (other than transactions solely among the Company Subsidiaries);
(v) make any material change in financial accounting methods, principles or practices, by the Company Trident or any Company Trident Subsidiary, except insofar as may have been required by a change in GAAP (after the date of this Agreement), as approved by its independent public accountants;
(vi) change or modify in any manner the existing credit, collection and payment policies, procedures and practices in respect to accounts receivable and accounts payable, including (A) acceleration of collections of receivables (including through the use of discounts for early payments, requests for early payments or otherwise) and (B) failure to pay payables when due or delay in payment of payables compared to past practices (including continuation of past practices with respect to the early payment of payables to obtain the benefit of any payment discounts);.
(viiv) merge or consolidate with, or directly or indirectly acquire in any transaction, transaction any equity interest in or business of, any PersonPerson if the aggregate amount of the consideration paid or transferred by Trident and the Trident Subsidiaries in connection with all such transactions would exceed a total amount equal to 10% of the aggregate cash and cash equivalents of Trident and the Trident Subsidiaries at such time;
(viiivi) sell, lease (as lessor), license, mortgage, sell and leaseback or otherwise encumber or subject to any Lien (other than Permitted Liens), or otherwise dispose of any properties or assets (other than sales of products or services in the ordinary course of business consistent with past practice) or any interests thereintherein that, individually or in the aggregate, have a fair market value (or result in aggregate proceeds), in the aggregate for all such transactions, in excess of $15,000,000;
(ix) form or create a Subsidiary;
(x) authorize, make or incur any capital expenditures or obligations or liabilities in connection therewith;
(xivii) incur or refinance any Indebtedness, except for (A) any Indebtedness solely between the Company Trident and any Company wholly-owned Trident Subsidiary or between Company wholly-owned Trident Subsidiaries, or (B) increases of Indebtedness incurred in the ordinary course of business consistent with past practice under any of Trident or a Trident Subsidiary’s existing credit facilities as of the date hereof;
(xii) make any material loans, advances or capital contributions to, or investments in, any other Person, other than loans, advances, capital contributions or investments (A) by the Company to or in, as applicable, one or more of Company Subsidiaries, (B) by any Company Subsidiary to or in, as applicable, the Company or any Company Subsidiary, or (C) advancement of expenses under the Company Certificate of Incorporation or the Company’s bylaws;
(xiiiviii) waive, release, assign, settle or compromise any claim, action or proceeding, other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (A) equal to or lesser than the amounts specifically reserved with respect thereto on the balance sheet included in Trident SEC Documents publicly available prior to the Company SEC Documentsdate of this Agreement; or (B) that do not exceed $250,000 3,000,000 in the aggregate;
(xiv) voluntarily terminate, suspend, abrogate, amend, let lapse or modify any material Company Permit in a manner materially adverse to the Company and the Company Subsidiaries, taken as a whole;
(xv) (A) assign, abandon, encumber, subject to a Lien (other than a Permitted Lien), convey title (in whole or in part), exclusively license or grant any right or other licenses to material Intellectual Property Rights owned or exclusively licensed to the Company Trident or any Company Trident Subsidiary, other than abandonment of Intellectual Property Rights or the grant of non-exclusive licenses to customers in the ordinary course of business consistent with past practice; or (B) enter into licenses or agreements that impose material restrictions upon the Company Trident or any of its Affiliates with respect to material Company Trident Licensed IP;
(xvix) (A) amend, modify, waive, waive or terminate or fail to renew any Company Trident Material Contract, in each case, case if such amendment, modification, waiver, waiver or termination or failure to renew would have an adverse effect on that, individually or in the Company or aggregate, is material to Trident and the Company Trident Subsidiaries, taken as a whole; or (B) enter into any Contract that would be a Company Trident Material Contract if it had been entered into prior to the date hereof (other than (x) any Contract described in Section 3.15(a)(ii) to the extent entered into in the ordinary course of business consistent with past practice, (y) any Contract for the purchase or sale of products or services of the Company or any Company Subsidiary Trident entered into in the ordinary course of business consistent with past practice and (yz) purchase orders, invoices, statements of work and non-disclosure or similar agreements entered into in the ordinary course of business consistent with past practice);
(xviixi) enter into any new line of business outside of its existing business or discontinue any existing line of business, in each case other than in the ordinary course of business consistent with past practice;
(xviiixii) (A) make (inconsistent with past practices)except in the ordinary course of business, make, change or revoke any material Tax election, (B) change file any annual material amended Tax accounting periodReturn, (C) change any method of Tax accounting, (D) enter into any closing agreement with respect to Taxes, (E) or settle or surrender compromise any material Tax liability or otherwise concede, terminate or resolve any Tax claim, audit, investigation or assessment, or (F) apply for a ruling from any Taxing Authorityrefund;
(xixxiii) except (x) as required by any Company Trident Benefit Plan, Law, Plan or Collective Bargaining Agreement, in each case, case as in effect on the date hereof, (y) for actions in the ordinary course of business consistent with past practice and aligned with the annual plan presented to the Trident Board or (z) as expressly permitted by Exhibit E, (A) grant or announce any cash or equity-based incentive awards, severance or termination pay, retention bonuses or bonuses, transaction or change-in-control bonuses or any increase in salary, wage or other compensation, to any current or former employee, officer, or director of the Company Trident or any Company Trident Subsidiary, other than (1) Permitted Trident Equity Awards, (2) payment of cash incentive compensation for completed performance periods based on actual achievement of applicable performance goals, (3) annual increases in base compensation, or (4) increases in cash compensation opportunity as a result of a promotion or title change not prohibited by clause (B) hereof, in any case, in the ordinary course of business and consistent with past practice; (B) grant any increase in base salary or wage rate exceeding, in the aggregate, $500,000 on an annualized basis; (C) hire, terminate (other than for cause), or promote any employees or officers, except in the ordinary course of business consistent with past practice with respect to employees or officers with total an annual base compensation salary that does not exceed $150,000 350,000 per employee or officer; (DC) establish, adopt, enter into, amend, modify or terminate in any material respect any Collective Bargaining Agreement or material Company Trident Benefit Plan (other than annual modifications to any Company Trident Benefit Plan that is a health or welfare benefit plan in the ordinary course of business and consistent with past practice); (ED) take any action or agree or commit to (whether conditionally or otherwise) accelerate any rights, benefits or the lapsing of any restrictions, or the funding of any payments or benefits, payable to any current or former employee, officer, or director of the Company Trident or any Company Trident Subsidiary; or (FE) amend the terms of any outstanding Company Trident Equity AwardsAward;
(xiv) amend, modify, supplement or terminate the Trident Indenture or take any action that would result in a change to the Conversion Rate or that would cause the redemption of the Trident Indenture to be accelerated; or
(xxxv) agree to take or make any commitment to take any of the actions prohibited by this Section 5.1(b).
Appears in 1 contract
Samples: Merger Agreement (3d Systems Corp)
