Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
by and among
FATHOM DIGITAL MANUFACTURING INTERMEDIATE, LLC, FATHOM DIGITAL MANUFACTURING MERGER SUB, INC., FATHOM DIGITAL MANUFACTURING MERGER SUB 2, LLC, FATHOM HOLDCO, LLC
and
FATHOM DIGITAL MANUFACTURING CORPORATION
Dated as of February 16, 2024
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS & INTERPRETATIONS 3
ARTICLE II THE EXCHANGES AND THE MERGERS 22
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY 33
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ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND THE MERGER SUBS 59
ARTICLE V INTERIM OPERATIONS 65
ARTICLE VI ADDITIONAL COVENANTS 75
Filings 76
Insurance 82
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6.12 | Public Statements and Disclosure .............................................................. | 83 |
6.13 | Transaction Litigation.................................................................................... | 84 |
6.14 | Stock Exchange Delisting; Deregistration............................................... | 84 |
6.15 | [RESERVED]................................................................................................... | 84 |
6.16 | Parent Vote........................................................................................................ | 84 |
6.17 | No Control of the Other Party’s Business ............................................... | 84 |
6.18 | [RESERVED]. ................................................................................................. | 85 |
6.19 | Resignations...................................................................................................... | 85 |
6.20 | Amendment to Tax Receivable Agreement ............................................ | 85 |
6.21 | Amendment to OpCo LLC Agreement .................................................... | 85 |
ARTICLE | VII CONDITIONS TO THE MERGERS....................................................................... | 85 |
7.1 | Conditions to Each Party’s Obligations to Effect the Mergers ......... | 85 |
7.2 | Conditions to the Obligations of Parent and the Merger Subs .......... | 85 |
7.3 | Conditions to the Company’s Obligations to Effect the Mergers .... | 87 |
ARTICLE | VIII TERMINATION, AMENDMENT AND WAIVER ......................................... | 87 |
8.1 | Termination....................................................................................................... | 87 |
8.2 | Manner and Notice of Termination; Effect of Termination ............... | 89 |
8.3 | Fees and Expenses .......................................................................................... | 90 |
8.4 | Amendment....................................................................................................... | 93 |
8.5 | Extension; Waiver........................................................................................... | 94 |
8.6 | Special Committee Matters .......................................................................... | 94 |
ARTICLE | IX GENERAL PROVISIONS.............................................................................................. | 94 |
9.1 | Survival of Representations, Warranties and Covenants .................... | 94 |
9.2 | Notices................................................................................................................ | 94 |
9.3 | Assignment........................................................................................................ | 96 |
9.4 | Intentionally Omitted ..................................................................................... | 96 |
9.5 | Entire Agreement ............................................................................................ | 96 |
9.6 | Third-Party Beneficiaries.............................................................................. | 96 |
9.7 | Severability ....................................................................................................... | 97 |
9.8 | Remedies............................................................................................................ | 97 |
9.9 | Governing Law ................................................................................................ | 98 |
9.10 | Consent to Jurisdiction .................................................................................. | 98 |
9.11 | WAIVER OF JURY TRIAL ....................................................................... | 99 |
9.12 | Company Disclosure Letter References ................................................... | 99 |
9.13 | Counterparts...................................................................................................... | 99 |
9.14 | No Limitation ................................................................................................... | 100 |
9.15 | Disclaimer.......................................................................................................... | 100 |
9.16 | Non-Recourse Parent Parties ....................................................................... | 100 |
SCHEDULES:
Schedule 2.1(c) Form of Rollover Agreement
Schedule 2.6(c) Form of Second Amended and Restated Certificate of Incorporation Schedule 6.20 Form of TRA Amendment
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Schedule 6.21 Form of OpCo LLCA Amendment
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”) is made and entered into as of February 16, 2024 (the “Agreement Date”), by and among Fathom Digital Manufacturing Intermediate, LLC, a Delaware limited liability company (“Parent”), Fathom Digital Manufacturing Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Parent (“Company Merger Sub”), Fathom Digital Manufacturing Merger Sub 2, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Company Merger Sub (“LLC Merger Sub” and, together with Company Merger Sub, the “Merger Subs”), Fathom Holdco, LLC, a Delaware limited liability company (“OpCo LLC”), and Fathom Digital Manufacturing Corporation, a Delaware corporation (the “Company”). Each of Parent, the Merger Subs, and the Company are sometimes referred to as a “Party.” All capitalized terms that are used in this Agreement have the respective meanings given to them in Article I.
RECITALS
(ii) approved and declared advisable this Agreement and the Transactions, (iii) recommended that the Company Board approve and declare advisable this Agreement and the Transactions, and determine that this Agreement and the Transactions are fair to, advisable, and in the best interests of, the Company and the Unaffiliated Stockholders and (iv) recommended that, subject to Company Board approval, the Company Board submit this Agreement to the Company Stockholders for their adoption and recommend that the Company Stockholders vote in favor of the adoption of this Agreement.
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AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and the representations, warranties, covenants and agreements set forth herein, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and accepted, and intending to be legally bound hereby, Parent, the Merger Subs and the Company agree as follows:
ARTICLE I DEFINITIONS & INTERPRETATIONS
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consummation of such purchase or other acquisition, including pursuant to a tender offer or exchange offer by any Person or “group” of Persons that, if consummated in accordance with its terms, would result in such Person or “group” of Persons beneficially owning more than 20% of the total outstanding voting power of the Company after giving effect to the consummation of such tender or exchange offer;
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Plan. Plan.
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relationships, contractual or otherwise, of the Company Group with suppliers, customers, partners, vendors or any other third Person; provided, however, that this clause (vii) shall not apply to any representation or warranty contained in this Agreement to the extent that such representation or warranty expressly addresses consequences resulting from the negotiation, execution or announcement of this Agreement;
except, with respect to clauses (i), (ii), (iii), (iv), (v), (vi), (x) and (xi), to the extent that such Effect has had a disproportionate adverse effect on the Company Group relative to
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other companies operating in the industry or industries in which the Company Group conducts business, in which case the incremental disproportionate adverse impact may be taken into account in determining whether there has occurred or would reasonably be expected to occur a Company Material Adverse Effect.
(aa) “Company Performance Stock Unit Award” means an award of performance stock units granted under the Company Equity Plan or that certain Performance Stock Unit Award Agreement (Inducement) effective as of October 23, 2023 by and between the Company and Carey Chen (the “PSU Inducement Award Agreement”).
(bb) “Company Preferred Stock” means the preferred stock, par value $0.0001 per share, of the Company.
(cc) “Company Product” means all products, technologies and services developed (including products, technologies and services under development), marketed, owned, made, provided, distributed, imported, sold or licensed by or on behalf of the Company Group currently or at any time since January 1, 2022, including products and services for which development is ongoing and that the Company or a Subsidiary thereof intends to release publicly within six (6) months after the Agreement Date.
(dd) “Company Registered Intellectual Property” means all of the Registered Intellectual Property owned or purported to be owned by any Company Group Member, including the Intellectual Property set forth on Schedule 3.13(a).
(ee) “Company Registration Rights Agreement” means that certain Registration Rights Agreement, dated as of December 23, 2021, by and among the (i) Company (formerly known as Altimar Acquisition Corp. II), (ii) the SPAC Sponsor and certain equityholders of the Company as set forth on Schedule A thereto and (iii) certain direct and indirect equityholders of OpCo LLC set forth on Schedule B thereto.
(ff) “Company Restricted Stock Unit Award” means an award of restricted stock units granted under the Company Equity Plan or under that certain Restricted Stock Unit Award Agreement (Inducement) effective as of October 23, 2023 by and between the Company and Carey Chen (together with the PSU Inducement Award Agreement, the “Inducement Award Agreements”).
(gg) “Company Stockholder Meeting” means a meeting of the Company Stockholders (held as promptly as reasonably practicable following the mailing of the Proxy Statement to the Company Stockholders) for the purpose of obtaining the Requisite Stockholder Approval.
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(hh) “Company Stockholders” means the holders of shares of Company Common Stock.
(jj) “Company Warrants” means those outstanding Public Warrants (as defined in the Warrant Agreement) and Private Placement Warrants (as defined in the Warrant Agreement) of the Company exercisable for Company Class A Common Stock pursuant to the terms of the Warrant Agreement.
(kk) “Continuing Employees” means each individual who is an employee of the Company or any of its Subsidiaries immediately prior to the LLC Merger Effective Time and continues to be an employee of Parent or one of its Subsidiaries (including the Surviving Corporation) immediately following the Company Merger Effective Time.
(ll) “Contract” means any contract, subcontract, note, bond, mortgage, indenture, lease, license, sublicense or other binding agreement.
(mm) “CORE” means CORE Industrial Partners, LLC, a Delaware limited liability company.
(nn) “CORE Funds” means, collectively, CORE Industrial Partners Fund I, L.P., a Delaware limited partnership, CORE Industrial Partners Fund I Parallel LP, a Delaware limited partnership, CORE Industrial Fund Partners GP I, LLC, a Delaware limited liability company (acting in its capacity as general partner of CORE Fund I and CORE Fund I Parallel), and any affiliated investment vehicles managed, directly or indirectly, by CORE or its Affiliates.
(oo) “Credit Agreement” means that certain Credit Agreement, dated as of December 21, 2021, by and among Holdings, Borrower, the Lenders (as defined therein) party thereto from time to time and JPMorgan Chase Bank, N.A., as Administrative Agent, as amended by the First Amendment thereto, dated as of November 10, 2022, the Second Amendment thereto, dated as of March 24, 2023, the Third Amendment thereto, dated as of November 13, 2023, the Extension Consent Letter related thereto, dated January 31, 2024 and the Fourth Amendment thereto, dated as of February 16, 2024.
(pp) “D&O Claim” means any threatened, asserted, pending or completed claim, action, suit, proceeding, inquiry or investigation, whether instituted by any Party, any Governmental Authority or any other Person, whether civil, criminal, administrative, investigative or other, including any arbitration or other alternative dispute resolution mechanism, arising out of or pertaining to matters that relate to a Covered Person’s duties or service (i) as a director or officer of a Company Group Member at or prior to the Company Merger Effective Time (including with respect to any acts, facts, events or omissions occurring in connection with the approval of this Agreement and the Mergers, including the consideration and approval thereof and the process undertaken in connection therewith and any D&O Claim relating thereto) or (ii) as a director,
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trustee or officer of any other entity or any benefit plan maintained by any Company Group Member (for which a Covered Person is or was serving at the request or for the benefit of a Company Group Member) at or prior to the Company Merger Effective Time.
(qq) “Data Security Requirements” means, collectively, all of the following to the extent relating to Processing or otherwise relating to privacy, security, or security breach notification requirements and applicable to the Company, to the conduct of the business, or to any of the Company Systems or any Company Data: (i) all applicable Laws, rules and regulations, including the California Consumer Privacy Act (CCPA) and the General Data Protection Regulation (GDPR) (EU) 2016/679); (ii) industry standards with which the Company is contractually obligated to comply or has otherwise publicly stated with which it complies (including, if applicable, the Payment Card Industry Data Security Standard (PCI DSS)); (iii) contractual obligations by which the Company is bound; and (iv) the Company’s own written rules, policies and procedures.
(rr) “Employee Plan” means any “employee benefit plan” (as defined in Section 3(3) of ERISA, whether or not subject to ERISA) and any other written or oral plan, policy, program, agreement, arrangement or Contract involving compensation or benefits, including health, welfare, or life insurance coverage, severance, disability benefits, deferred compensation, retention, change in control, transaction or other bonuses, stock options, stock purchase, phantom stock, stock appreciation or other forms of fringe benefits, perquisites, incentive compensation or post-retirement or post-employment compensation or benefits and all employment, management, individual consulting, change in control, retention, severance or similar arrangements or agreements, written or otherwise, which (i) is sponsored, maintained or contributed to (or required to be contributed to) by any of the Company Group Members or any of their respective ERISA Affiliates, including for the benefit of any current or former employee, officer, director or other individual service provider of any Company Group Member, or (ii) under or with respect to which any of the Company Group Members or any of their respective ERISA Affiliates has or could reasonably be expected to have any Liability.
(ss) “Environmental Laws” means all Laws, rules, regulations, Orders, statutes, and codes promulgated or issued by any Governmental Authority relating to pollution, protection of the environment or natural resources, or public or worker health or safety, or which prohibit, regulate or control any Hazardous Material or any Hazardous Materials Activity.
(tt) “Environmental Permit” means any permit, license, variance, exemption, consent, certificate, authorization, registration, Order or other approvals issued pursuant to any Environmental Laws.
(uu) “Equity Securities” means, with respect to any Person, (i) any shares of capital or capital stock (including any ordinary shares) or other voting securities of, or other ownership interest in, such Person, (ii) any securities of such Person convertible into or exchangeable for cash or shares of capital or capital stock or other voting securities of, or other ownership interests in, such Person or any of its Subsidiaries, (iii) any warrants, calls, options or other rights to acquire from such Person, or other obligations of such Person to issue, any shares of capital or capital stock or other voting securities of, or other ownership interests in, or securities convertible into or exchangeable for shares of capital or capital stock or other voting securities of,
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or other ownership interests in, such Person or any of its Subsidiaries, or (iv) any restricted shares, stock appreciation rights, restricted units, performance units, contingent value rights, “phantom” stock or similar securities or rights issued by or with the approval of such Person that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any shares of capital or capital stock or other voting securities of, other ownership interests in, or any business, products or assets of, such Person or any of its Subsidiaries.
(vv) “ERISA” means the Employee Retirement Income Security Act of 1974. (ww) “ERISA Affiliate” means any Person that is (or, at any relevant time, has
been or would be) considered a single employer with the Company or any of its Subsidiaries under Section 414 of the Code.
(xx) “Exchange Act” means the Securities Exchange Act of 1934, as amended. (yy) “Families First Act” means the Families First Coronavirus Response Act,
as signed into law by the President of the United States on March 18, 2020.
(zz) “FCPA” means the Foreign Corrupt Practices Act of 1977.
(aaa) “GAAP” means generally accepted accounting principles, consistently applied, in the United States.
(bbb) “Governmental Authority” means any government, government- sponsored entity, governmental or regulatory entity or body, department, commission, board, agency or instrumentality, and any court, tribunal, arbitral body (public or private) or judicial body, in each case whether federal, state, county or provincial, national or supra-national, and whether local or foreign.
(ccc) “Hazardous Material” means any material, chemical, emission, substance, constituent or waste regulated, or for which Liability or standards of conduct may be imposed, under Environmental Law, or that has been designated by any Governmental Authority acting under Environmental Law to be radioactive, toxic, hazardous, corrosive, reactive, explosive, flammable, a medical or biological waste, a pollutant or otherwise a danger to health, reproduction or the environment, including petroleum or petroleum products or by-products, oil, radon gas, coal ash, urea formaldehyde foam insulation, asbestos or asbestos containing materials, polychlorinated biphenyls, per- and polyfluoroalkyl substances, toxic mold or radiation.
(ddd) “Hazardous Materials Activity” means the transportation, handling, transfer, recycling, management, storage, use, treatment, manufacture, removal, remediation, release, spill, leak, leach, migration, disposal, or exposure of Persons to, any Hazardous Material or any product or waste containing a Hazardous Material.
(eee) “Holdings” means Fathom Guarantor, LLC, a Delaware limited liability
company.
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(fff) “Inquiry” means an inquiry, request for discussions or negotiations or request to review non-public information that would reasonably be expected to indicate an interest in making or effecting an Acquisition Proposal or an Acquisition Transaction.
(ggg) “Intellectual Property” means all intellectual property rights anywhere in the world, including all of the following (i) patents, patent disclosures, inventions and improvements thereto (whether or not patentable or reduced to practice), and patent applications and all reissues, divisions, re-examinations, renewals, extensions, provisionals, continuations and continuations-in-part thereof (“Patents”), (ii) copyrights and copyrightable works or authorship, copyright registrations and copyright applications, “moral” rights and mask work rights (“Copyrights”), (iii) trade secrets, know-how, processes, methods, techniques, formulae, technologies, algorithms, layouts, designs, protocols, specifications, data compilations and databases, and proprietary rights in confidential information, (iv) trademarks, trade names, logos, slogans, trade dress, corporate names, and service marks, and other indicia of source, and any applications or registration of the same, and all related goodwill associated therewith (“Marks”),
(v) domain names, uniform resource locators, other names and locators associated with the Internet, and all registrations therefor, (vi) Software, (vii) industrial designs, (viii) analogous rights to those set forth above, and (ix) rights of publicity, including the right to use the name, likeness, image, signature and biographical information of any natural Person.
(hhh) “Interim Company Balance Sheet” means the consolidated balance sheet of the Company and its Subsidiaries as of September 30, 2023 set forth in the Company’s Quarterly Report on Form 10-Q filed by the Company with the SEC for the fiscal period ended September 30, 2023
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thereto.
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(jjj) “Knowledge” of the Company, with respect to any matter in question,
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means the actual knowledge of Carey Chen, Mark Frost, Caprice Perez and Eric Zimmerman, in each case after reasonable inquiry.
(kkk) “Law” means any law (including common law), act, statute, rule, regulation, Order, constitution, treaty, convention, ordinance or code of any Governmental Authority.
(lll) “Legal Proceeding” means any claim, action, charge, complaint, suit, litigation, audit, subpoena, investigation, arbitration, inquiry or other legal action or proceeding brought by or pending before any Governmental Authority mediator or other tribunal.
(mmm)“Liabilities” means any liability, obligation or commitment of any kind, whether absolute, accrued, fixed or contingent, matured or unmatured, determined or determinable or otherwise and whether or not required to be recorded or reflected on a balance sheet prepared in accordance with GAAP.
(nnn) “Lien” means, with respect to any property or asset, any mortgage, pledge, lien, encumbrance, charge, security interest, license or other similar adverse claim of any kind in respect of such property or asset.
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(ooo) “Non-U.S. Employee Plan” means any Employee Plan maintained on behalf of any current or former non-United States director, officer, employee or other individual service provider of any of the Company Group Members, in each case, excluding any plan, program, contract or arrangement required by applicable Law and maintained by a Governmental Authority.
(ppp) “NYSE” means the New York Stock Exchange.
(qqq) “OpCo Class A Units” means the units of OpCo LLC designated as the “Class A Units” in the OpCo LLC Agreement.
(rrr) “OpCo LLC Agreement” means that certain Second Amended and Restated Limited Liability Company Agreement of OpCo LLC, dated as of December 23, 2021 (and, as the context requires, as amended by the OpCo LLC Agreement Amendment), by and among the Company, the other Members (as defined therein) whose names are set forth on the Schedule of Members thereto, and CORE Industrial Partners Management LP, a Delaware limited partnership, in its capacity as the Continuing Member Representative (as defined therein).
(sss) “Open Source Software” means any Software that is licensed pursuant to:
(i) any license that is a license approved by the Open Source Initiative and listed at http://www.opensource.org/licenses, which licenses include all versions of the GNU General Public License (GPL), the GNU Lesser General Public License (LGPL), the GNU Affero GPL, the MIT license, the Eclipse Public License, the Common Public License, the CDDL, the Mozilla Public License (MPL), the Artistic License, the Netscape Public License, the Sun Community Source License (SCSL), the Sun Industry Standards License (SISL), and the Server Side Public License (SSPL); or (ii) any license to Software that is classified as “free” or “open source software” by the Open Source Foundation or the Free Software Foundation or that otherwise self-identifies as “freeware” or “open source software” and is licensed under terms comparable to licenses of any of the Software that is classified as “free” or “open source software” by the Open Source Foundation or the Free Software Foundation (as those terms are generally understood in the Software industry).
(ttt) “Order” means any judgment, decision, decree, injunction, ruling, writ, award, assessment or order, whether temporary, preliminary or permanent, of any Governmental Authority that is binding on any Person or its property under Law.
(uuu) “Permitted Lien” means any of the following: (i) Liens for Taxes, assessments and governmental charges or levies either not yet delinquent or that are being contested in good faith, by appropriate proceedings and, in each case, for which appropriate reserves have been established on the Interim Company Balance Sheet, (ii) mechanics, carriers’, workmen’s, warehouseman’s, repairmen’s, materialmen’s or other similar Liens incurred in the ordinary course of business consistent with past practice and securing obligations that are not overdue by more than sixty (60) days or that are being contested in good faith, by appropriate proceedings and, in each case, for which appropriate reserves have been established on the Interim Company Balance Sheet, (iii) pledges or deposits to secure obligations pursuant to workers’ compensation Laws or similar legislation, (iv) pledges and deposits to secure the performance of bids, trade contracts, leases, surety and appeal bonds, performance bonds and other obligations of
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a similar nature, in each case in the ordinary course of business consistent with past practice that, in the aggregate, do not materially impair the value or the Company’s and its Subsidiaries’ use and operation of the assets to which they relate, (v) defects, imperfections or irregularities in title, easements, covenants and rights of way (unrecorded and of record) and other similar Liens, and zoning, building and other similar codes or restrictions, in each case that do not adversely affect in any material respect the current use of the applicable property owned, leased, used or held for use by the Company or any of its Subsidiaries, (vi) statutory, common law or contractual Liens (or other similar encumbrances) of landlords or Liens against the interests of the landlord or owner of any leased real property incurred in the ordinary course of business (and which are, individually or in the aggregate, not material to the Company and its Subsidiaries), unless caused by the Company or any of its Subsidiaries, (vii) non-exclusive licenses of Intellectual Property entered into in the ordinary course of business or (viii) Liens created under the Credit Agreement and the other Loan Documents (as defined in the Credit Agreement) (other than those Liens arising from a default under the Credit Agreement).
(vvv) “Person” means any individual, corporation (including any non-profit corporation), limited liability company, joint stock company, general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, firm, Governmental Authority or other enterprise, association, organization or entity.
(www) “Personal Information” means any data or information that identifies, relates to, is reasonably capable of being associated with, or could reasonably be linked to, directly or indirectly, an identified or identifiable natural person or household, including any such information specifically defined or identified in any privacy policy, or that can be used to contact an individual or serve advertisements to an individual, or any information under applicable Law as “personal information,” “personally identifiable information,” “personal data” or a similar term.
(xxx) “Processing” means to perform any operation or set of operations upon data, whether manually or by automatic means, including, but not limited to, blocking, erasing, destroying, collecting, compiling, combining, analyzing, enhancing, enriching, recording, sorting, organizing, structuring, accessing, storing, processing, adapting, retaining, retrieving, consulting, using, transferring, aligning, transmitting, disclosing, altering, distributing, disseminating or otherwise making available such data.
(yyy) “Registered Intellectual Property” means all United States, international and foreign (i) Patents and Patent applications (including provisional applications); (ii) registered Marks and applications to register Marks (including intent-to-use applications, or other registrations or applications related to Marks); and (iii) registered Copyrights and applications for Copyright registration.
(zzz) “Representatives” means, with respect to a Person, its directors, officers, employees, financial advisors, attorneys, accountants, consultants, and other representatives and advisors.
(aaaa) “Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002.
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(bbbb) “SEC” means the United States Securities and Exchange Commission or any successor thereto.
(cccc) “Securities Act” means the Securities Act of 1933.
(dddd) “Software” means all computer software (in object code or source code format) and databases, and related documentation and materials.
(eeee) “SPAC Class A Earnout Shares” means the shares of Company Class A Common Stock issued under the SPAC Merger Agreement and subject to vesting and forfeiture based on the achievement of earnout milestones as set forth in and pursuant to Section 3.03 of the SPAC Merger Agreement.
(ffff) “SPAC Class B Earnout Shares” means the shares of Company Class B Common Stock corresponding to each SPAC Earnout Unit subject to vesting and forfeiture based on the achievement of earnout milestones as set forth in and pursuant to Section 7.01(d) of the OpCo LLC Agreement.
(gggg) “SPAC Earnout Units” means the OpCo Class A Units issued under the SPAC Merger Agreement and subject to vesting and forfeiture based on the achievement of earnout milestones as set forth in and pursuant to Section 7.01(d) of the OpCo LLC Agreement.
(hhhh) “SPAC Merger Agreement” means that certain Business Combination Agreement, dated as of July 15, 2021, by and among the Company (formerly known as Altimar Acquisition Corp. II), OpCo LLC, Rapid Merger Sub, LLC, Rapid Blocker 1 Merger Sub, LLC, Rapid Blocker 2 Merger Sub, LLC, Rapid Blocker 3 Merger Sub, LLC, CORE Fund I Blocker-5 LLC, CORE Fund I Blocker-2 LLC and SG (MCT) Blocker, LLC.
(jjjj) “Sponsor Earnout Shares” means the shares of Company Class A Common Stock issued to the Sponsor and subject to vesting and forfeiture based on the achievement of earnout milestones as provided in Section 11 of the Sponsor Support Agreement.
(kkkk) “Sponsor Support Agreement” means that certain Forfeiture and Support Agreement, dated as of July 15, 2021, by and among the Company (formerly known as Altimar Acquisition Corp. II), Altimar Sponsor II, LLC, a Delaware limited liability company (the “Sponsor”), the “Individual Class B Holders” party thereto and certain other parties.
(llll) “Subsidiary” of any Person means (i) a corporation more than 50% of the combined voting power of the outstanding voting stock of which is owned, directly or indirectly, by such Person or by one or more other Subsidiaries of such Person or by such Person and one or more other Subsidiaries of such Person; (ii) a partnership of which such Person or one or more other Subsidiaries of such Person or such Person and one or more other Subsidiaries thereof, directly or indirectly, is the general partner and has the power to direct the policies, management and affairs of such partnership; (iii) a limited liability company of which such Person or one or more other Subsidiaries of such Person or such Person and one or more other Subsidiaries of such
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Person, directly or indirectly, is the managing member and has the power to direct the policies, management and affairs of such company; or (iv) any other Person (other than a corporation, partnership or limited liability company) in which such Person or one or more other Subsidiaries of such Person or such Person and one or more other Subsidiaries of such Person, directly or indirectly, has at least a majority ownership and the power to direct the policies, management and affairs thereof. For the avoidance of doubt, any direct or indirect Subsidiary of OpCo LLC shall be deemed Subsidiaries of the Company for purposes of this Agreement.
(mmmm) “Superior Proposal” means any bona fide written Acquisition Proposal for an Acquisition Transaction that (i) was not the result or effect of a violation of Section 5.3(a) and (ii) is on terms that the Company Board, acting upon the recommendation of the Special Committee, or the Special Committee has determined in good faith based on the information then available (after consultation with its financial advisor and outside legal counsel) would be more favorable from a financial point of view to the Company Stockholders (in their capacity as such) than the Transactions (taking into account (A) any revisions to this Agreement made or proposed in writing by Parent prior to the time of such determination in accordance with Section 5.3(a) and
(B) those factors and matters deemed relevant in good faith by the Company Board, acting upon the recommendation of the Special Committee, or the Special Committee, which factors may include the identity of the Person making the proposal and other aspects of the Acquisition Proposal, likelihood of consummation in accordance with the terms of such Acquisition Proposal, and legal, financial (including the financing terms), regulatory, timing and other aspects of such Acquisition Proposal. For purposes of the reference to an “Acquisition Proposal” in this definition,
(x) all references to “20%” in the definition of “Acquisition Transaction” will be deemed to be references to “50%” and (y) all references to “80%” in the definition of “Acquisition Transaction” will be deemed to be references to “50%.”
(nnnn) “Tax” or “Taxes” means any United States federal, state, local and non- United States taxes, assessments and similar governmental charges in the nature of taxes imposed, in each case, by any Governmental Authority with respect thereto (including gross receipts, income, profits, sales, use, goods, occupation, value added, ad valorem, transfer, franchise, withholding, payroll, social security (or similar), pension, employment, severance, workers compensation excise, estimated, stamp, custom, duty, license, alternative or add-on, minimum, real property and personal property taxes, however denominated, and whether or not disputed, together with all interest, penalties, fines, and additions imposed with respect to (or in lieu of) such amounts).
(oooo) “Tax Returns” means any return, statement, report, tax filing or form (including estimated Tax returns and reports, withholding Tax returns and reports, any schedule or attachment, and information returns and reports) filed or required to be filed with respect to Taxes, and any amendments or supplements thereto.
(pppp) “Third Person” means any Person or “group” (within the meaning of Section 13(d) of the Exchange Act), other than (i) the Company or any of its controlled Affiliates or (ii) Parent, the Merger Subs, any Guarantor or any their respective Affiliates or any “group” including Parent, the Merger Subs, any Guarantor or any their respective Affiliates.
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(qqqq) “TRA” means that certain Amended and Restated Tax Receivable Agreement, dated as of April 4, 2023, by and among the Company and the Majority TRA Parties (as defined therein).
(rrrr) “Transaction Litigation” means any Legal Proceeding commenced or threatened in writing against a Party or any of its Subsidiaries or Affiliates (or any of their respective directors or executive officers) or otherwise relating to, involving or affecting such Party or any of its Subsidiaries or Affiliates, in each case in connection with, arising from or otherwise relating to or regarding the Transactions, including any Legal Proceeding alleging or asserting any misrepresentation or omission in the Proxy Statement, any Other Required Company Filing or any other communications to the Company Stockholders, other than any Legal Proceedings among the Parties or their Affiliates related to this Agreement or the Equity Commitment Letter.
(ssss) “Unaffiliated Stockholders” means the holders of Company Common Stock, excluding those shares of Company Common Stock held, directly or indirectly, by or on behalf of (i) the CORE Funds, (ii) those members of the Company Board who are employees of CORE or one of its investment fund Affiliates, (iii) any person that the Company has determined to be an “officer” of the Company within the meaning of Rule 16a-1(f) of the Exchange Act and
(iv) those Persons holding Rollover Shares.
(tttt) “WARN” means the Worker Adjustment and Retraining Notification Act of 1988, or any similar Laws.
(uuuu) “Warrant Agreement” means that certain Warrant Agreement, dated as of February 4, 2021, by and between the Company (formerly known as Altimar Acquisition Corporation II) and Continental Stock Transfer & Trust Company, a New York limited purpose trust company, as warrant agent.
(vvvv) “Willful Breach” means a material breach that is a consequence of an intentional act or intentional failure to act undertaken by the breaching party with actual knowledge that such party’s act or failure to act would, or would reasonably be expected to, cause, result in or constitute a breach.
Term Section Reference
Agreement Preamble
Agreement Date Preamble
Alternative Acquisition Agreement 5.3(a)
Applicable Termination 8.3(b)(i)
Bylaws 3.3(a)
Capitalization Date 3.5(a)
Charter 2.6(c)
Chosen Courts 9.10(a)
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Term Section Reference
Class A Unit Exchange 2.1(a)
Closing 2.4
Closing Date 2.4
Company Preamble
Company Board Recommendation 3.2(d)
Company Board Recommendation Change 5.3(c)(i)
Company Breach Notice Period 8.1(e)
Company Certificate of Merger 2.3(b)
Company Disclosure Letter Article III
Company Equity Awards Capitalization Table 3.5(c)
Company In Licenses 3.13(e)
Company Intellectual Property 3.13(b)
Company IP Contracts 5.2(n)
Company IP Licenses 3.13(f)
Company Material Real Property Leases 3.11
Company Merger Recitals
Company Merger Effective Time 2.3(b)
Company Merger Sub Preamble
Company Merger Sub Stockholder Approval Recitals
Company Out Licenses 3.13(f)
Company Real Property Leases 3.11
Company Related Parties 8.3(e)(i)
Company Relationship Contracts 5.2(n)
Company SEC Reports 3.7
Company Subsidiary Documents 3.4
Company Termination Fee 8.3(b)(i)
Converted Cash Award 2.10(b)
Copyrights 1.1(ggg)
Covered Persons 6.9(a)
COVID-19 1.1(x)(vi)
COVID-19 Measures 1.1(x)(xi)
DGCL Recitals
Dissenting Shares 2.9(a)(ii)
DLLCA Recitals
DTC 2.12(c)(i)
Effect 1.1(x)
Electronic Delivery 9.13
Enforceability Limitations 3.2(c)
Enforcement Expenses 8.3(d)
Equity Commitment Letter Recitals
Equity Financing Recitals
Event Notice Period 5.3(d)(i)(A)
Exchange Fund 2.12(b)
Export Controls 3.20(c)(i)
Financing Conditions 4.9(b)
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Term Section Reference
Guarantor Recitals
Import Restrictions 3.20(c)(i)
Inducement Award Agreements 1.1(ff)
Interim Period 5.1
Intervening Event 5.3(d)(i)
Labor Agreement 3.14(a)(vii)
LLC Certificate of Merger 2.3(a)
LLC Merger Recitals
LLC Merger Effective Time 2.3(a)
LLC Merger Sub Preamble
Malicious Code 3.13(n)
Marks 1.1(ggg)
Material Contract 3.14(a)
Material Customer 3.14(a)(ix)
Material Supplier 3.14(a)(x)
Maximum Premium 6.9(c)
Merger Subs Preamble
Mergers Recitals
Non-U.S. Employee Plan 3.17(h)
OpCo LLC Preamble
OpCo LLC Agreement Amendment 6.21
Option Consideration 2.10(a)
Other Required Company Filing 6.2(c)
Other Required Parent Filing 6.2(d)
Owned Company Shares 2.9(a)(iii)
Parent Preamble
Parent Breach Notice Period 8.1(g)
Parent Disclosure Letter Article IV
Parent Liability Limitation 8.3(e)(iii)
Parent Related Parties 8.3(e)(i)
Party Preamble
Patents 1.1(ggg)
Payment Agent 2.12(a)
Per Share Price 2.9(a)(ii)
Permits 3.20(a)
Proposal Notice Period 5.3(d)(ii)(C)
Proxy Statement 6.2(a)
PSU Inducement Award Agreement 1.1(aa)
Required Amounts 4.9(e)
Requisite Stockholder Approval 3.2(b)
Rollover Shares 2.1(c)
Sanctioned Person 3.20(d)(i)
Sanctions 3.20(d)(i)
Schedule 13E-3 6.2(b)
Special Committee Recitals
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Term Section Reference
Sponsor 1.1(kkkk)
Subject Shares 2.12(c)(i)
Support Agreement Recitals
Surviving Corporation 2.2(b)
Surviving LLC 2.2(a)
Takeover Statute 3.26
Termination Date 8.1(c)
TRA Amendment 6.20
Transaction Legal Proceeding 9.10(a)
Transactions Recitals
Warrant Adjustment 2.10(f)
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the SEC and available to view through SEC's online EDGAR system, in each case, at least one (1) Business Day prior to the execution and delivery of this Agreement.
ARTICLE II
THE EXCHANGES AND THE MERGERS
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LLC”). From and after the LLC Merger Effective Time, the LLC Merger will have the effects as set forth in this Agreement, the LLC Certificate of Merger and the applicable provisions of the DLLCA.
(2) Business Days after the satisfaction or waiver (to the extent permitted hereunder) of the last to be satisfied or waived of the conditions set forth in Article VII (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver (to the extent permitted hereunder) of such conditions) or (b) such other time, location and date as Parent, the Merger Subs and the Company (with the prior written consent of the Special Committee) mutually agree in writing. The date on which the Closing actually occurs is referred to as the “Closing Date.”
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(ii) debts, liabilities and duties of the Company and Company Merger Sub will become the debts, liabilities and duties of the Surviving Corporation.
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Sub will thereafter represent ownership of shares of common stock of the Surviving Corporation;
(B) owned by Parent or Merger Sub or any of its Affiliates (including, for the avoidance of doubt, the Rollover Shares) or (C) owned, directly or indirectly, by the CORE Funds (collectively, the “Owned Company Shares”) will be cancelled and extinguished without any conversion thereof or consideration paid therefor;
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Company Merger Effective Time in accordance with the terms of the OpCo LLC Agreement or for the Warrant Adjustment or the other transactions involving Company Warrants pursuant to Section 2.10(f); provided, further, that nothing in this Section 2.9(b) shall be construed to permit the Company or any Subsidiary of the Company to take any action otherwise prohibited by the terms of this Agreement.
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the amounts due pursuant to this Section 2.10(a) (the “Option Consideration”) as promptly as practicable following the Closing Date, but in no event later than the second (2nd) regularly scheduled payroll date following the Closing Date. Any Company Option that has a per share exercise price that is equal to or greater than the Per Share Price shall be cancelled for no consideration as of the Company Merger Effective Time.
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Company Performance Stock Unit Award with respect to which the applicable performance vesting criteria has been satisfied immediately prior to the Company Merger Effective Time. The Converted Cash Award shall vest based on the same time-based vesting schedule as applied to the applicable Company Performance Stock Unit Award (or applicable portion thereof) from which it was converted and shall otherwise remain subject to the same terms and conditions as applied to the corresponding Company Performance Stock Unit Award (or applicable portion thereof) immediately prior to the Company Merger Effective Time, excluding any terms rendered inoperative by reason of this Section 2.10(d) or the Transactions and for such other administrative or ministerial changes as in the reasonable and good faith determination of Parent are appropriate to conform the Converted Cash Award.
(B) the Black-Scholes Warrant Value (as defined in the Warrant Agreement) (such adjustment, the “Warrant Adjustment”).
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payroll contributions on or following the date of this Agreement; (iii) no new Offering Period (as defined in the Company ESPP) or Purchase Period (as defined in the Company ESPP) will commence or be extended pursuant to the Company ESPP, in each case, after the date of this Agreement; (iv) each Company ESPP participant’s accumulated contributions under the Company ESPP shall be returned to the participant without interest thereon in accordance with the terms of the Company ESPP prior to the Company Merger Effective Time; and (v) the Company ESPP will terminate, in accordance with its terms, no later than immediately prior to the Company Merger Effective Time.
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if any, of transfer as the Payment Agent may reasonably request) and (B) are Subject Shares held, directly or indirectly, through DTC, in accordance with DTC’s customary surrender procedures and such other procedures as agreed to by the Company, Parent, the Payment Agent, DTC, DTC’s nominees and such other necessary or desirable third-party intermediaries, the holder of such Subject Shares shall be entitled to receive in exchange therefor, and Parent shall cause the Payment Agent to deliver to each such holder, as promptly as reasonably practicable after the Company Merger Effective Time, by wire transfer or a check in an amount equal to the product obtained by multiplying (1) the aggregate number of Subject Shares represented by such holder’s transferred Subject Shares; by (2) the Per Share Price (less any applicable withholding Taxes payable in respect thereof), and the transferred Subject Shares so surrendered will be cancelled. The Payment Agent will accept such Subject Shares upon compliance with such reasonable terms and conditions as the Payment Agent may impose to cause an orderly exchange thereof in accordance with normal exchange practices. No interest will be paid or accrued for the benefit of holders of the Subject Shares on the Per Share Price payable upon the surrender of such Subject Shares pursuant to this Section 2.12(c). Until so surrendered, outstanding Subject Shares will be deemed from and after the Company Merger Effective Time to evidence only the right to receive the Per Share Price, without interest thereon, payable in respect thereof pursuant to Section 2.9.
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permitted by applicable Law, become the property of the Surviving Corporation free and clear of any claims or interest of any such holders (and their successors, assigns or personal representatives) previously entitled thereto.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except (i) as set forth in the disclosure letter that has been prepared by the Company and delivered by the Company to Parent and the Merger Subs in connection with the execution and delivery of this Agreement, dated as of the Agreement Date (the “Company Disclosure Letter”), which expressly identifies the Section (or, if applicable, subsection) to which such exception relates (it being understood and hereby agreed that any disclosure in the Company Disclosure Letter relating to one Section or subsection shall also apply to any other Sections and subsections if and to the extent that it is reasonably apparent on the face of such disclosure (without reference to the underlying documents referenced therein) that such disclosure also relates to such other Sections or subsections), or (ii) as set forth in any Company SEC Reports publicly available on or prior to the Agreement Date (other than in any “risk factors” or other disclosure statements included therein to the extent that they are cautionary, predictive or forward looking in nature and not statements of historical fact) it being acknowledged that nothing set forth or disclosed in any Company SEC Reports will be deemed to modify or qualify the representations and warranties set forth in Section 3.5, Section 3.6 or Section 3.10(b), the Company hereby represents and warrants to Parent and the Merger Subs as follows:
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and such filings with Governmental Authorities as may be required to satisfy the appliable Laws of states in which the Company and OpCo LLC are qualified to do business and (iv) such other consents, approvals, orders, registrations, declarations, permits, filings and notifications which, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(vi) 227,444 shares of Company Class A Common Stock were reserved for issuance pursuant to outstanding Company Performance Stock Unit Awards, assuming satisfaction of any performance vesting conditions at target levels, (vii) 35,282 shares of Company Class A Common Stock were reserved for issuance pursuant to the Company ESPP (including shares that may be subject to employee elections under the plan), (viii) 926,212 shares of Company Class A Common Stock were reserved for issuance pursuant to 18,524,242 outstanding Company Warrants, including 495,000 shares of Company Class A Common Stock underlying the Private Placement Private Warrants and 431,212 shares of Company Class A Common Stock underlying the Public Warrants,
(ix) 199,611.80 Company Class A Earnout Shares were issued and outstanding, (x) 6,854,172.45 OpCo Class A Units were issued and outstanding, (xi) 313,763.2 SPAC Earnout Units were issued and outstanding, which if vested, would be exchangeable for 313,763.2 shares of Class A Common Stock pursuant to the OpCo LLC Agreement, (xii) 313,763.20 SPAC Class B Earnout Shares were issued and outstanding and (xiii) no shares of Company Class A Common Stock and no shares of Company Class B Common Stock were issued and held in the treasury of the Company. Since the Capitalization Date, neither the Company nor OpCo LLC has issued any Equity Securities except for shares of Company Class A Common Stock (x) issued upon exercise of or settlement of any Company Equity Awards outstanding on the Capitalization Date and set forth in this Section 3.5(a), (y) issued in connection with a Class A Exchange (as defined in the OpCo LLC Agreement)
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pursuant to the OpCo LLC Agreement or (z) issued pursuant to purchase rights outstanding as of the date hereof under the Company ESPP.
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Subsidiaries is a party, or by which the Company or any of its Subsidiaries is bound, obligating the Company or any of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional Equity Securities of the Company or any of its Subsidiaries or obligating the Company or any of its Subsidiaries to grant, extend or accelerate the vesting of or enter into any such option, warrant, call, right, commitment, agreement, arrangement or understanding. There are no stockholder agreements, voting trusts, proxies or other similar agreements, arrangements or understandings to which the Company or any of its Subsidiaries is a party, or by which it or they are bound, obligating the Company or any of its Subsidiaries with respect to any Equity Securities of the Company or any of its Subsidiaries, other than the Company Investor Rights Agreement, the SPAC Merger Agreement, the Sponsor Support Agreement and the OpCo LLC Agreement. Except as set forth in the OpCo LLC Agreement, there are no rights or obligations, contingent or otherwise (including rights of first refusal in favor of the Company), of the Company or any of its Subsidiaries, to repurchase, redeem or otherwise acquire any Equity Securities of the Company or any of its Subsidiaries or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any such Subsidiary or any other entity. Other than the Company Investor Rights Agreement and the Company Registration Rights Agreement there are no registration rights or other agreements, arrangements or understandings to which the Company or any of its Subsidiaries is a party, or by which it or they are bound, obligating the Company or any of its Subsidiaries with respect to any Equity Securities of any such Subsidiary.
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capital stock of, or other equity, voting or similar interest in, or any interest convertible into or exchangeable or exercisable for any equity, voting or similar interest in, any Person. Each Subsidiary of the Company is duly organized, validly existing and in good standing under the Law of its jurisdiction of organization (to the extent such concepts exist in such jurisdictions) and has all requisite corporate or other power and authority necessary to enable it to own, lease and operate the properties it purports to own, lease or operate and to conduct its business as it is currently conducted, except to the extent that the failure to be so organized or existing or in good standing or have such power or authority would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Subsidiary of the Company is duly qualified or licensed as a foreign entity to do business, and is in good standing, in each jurisdiction (to the extent such concepts exist in such jurisdictions) where the character or location of the properties owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary, except to the extent that the failure to be so qualified or licensed and in good standing would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
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respect thereto, was or will be prepared in accordance with GAAP (except as may be indicated in the notes thereto or as otherwise permitted by Form 10-Q with respect to any financial statements filed on Form 10-Q) applied on a consistent basis throughout the periods involved and fairly presented in all material respects or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the respective dates thereof and the consolidated results of its operations and cash flows for the periods indicated, except that any unaudited interim financial statements are subject to normal and recurring year-end adjustments which have not been and are not expected to be material in amount, individually or in the aggregate.
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Subsidiaries has any Liabilities of a nature required to be reflected on or reserved against in a balance sheet prepared in accordance with GAAP, other than (a) Liabilities incurred since the date of the Interim Company Balance Sheet in the ordinary course of business consistent with past practice, (b) Liabilities under this Agreement, expressly permitted to be incurred under this Agreement or otherwise incurred in connection with the Transactions, and (c) Liabilities that, individually and in the aggregate, have not had, and would not reasonably be expected to have, a Company Material Adverse Effect.
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comprise all of the real property used, occupied or otherwise held by the Company. Section 3.11 of the Company Disclosure Letter lists, for each Company Real Property Leases providing for the payment of annual rent in excess of $250,000 (each, a “Company Material Real Property Lease”), (i) the address of the property to which such Company Material Real Property Lease pertains, (ii) the annual rent and (iii) the purpose of the facility to which such Company Material Real Property Lease pertains.
(ii) compel or require the Company or any of its Subsidiaries to license or transfer any material Company Owned Intellectual Property. Since January 1, 2022, no indemnity claims have been asserted in writing or, to the Knowledge of the Company, threatened against the Company or any Subsidiary of the Company by any customer alleging that any Company Product infringes upon,
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misappropriates, violates or constitutes the unauthorized use of the Intellectual Property of any third Person.
(iii) non-exclusive licenses which are not the primary purpose of, or a material component of, the Contract and (iv) non-disclosure agreements entered into in the ordinary course of business (“Company Out Licenses,” and together with the Company In Licenses, the “Company IP Licenses”).
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Company or a Subsidiary of the Company who was or is involved in the creation or development of any material Company Owned Intellectual Property, has signed and delivered a written Contract that assigns to the Company or a Subsidiary of the Company such Company Owned Intellectual Property or the Company or a Subsidiary of the Company owns such Company Owned Intellectual Property by operation of law. To the Knowledge of the Company, no current or former employee, consultant, or independent contractor of the Company is in violation of such agreement.
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(12) months, there has not been any material failure with respect to any of the Company Systems that has not been remedied or replaced in all respects.
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(B) that cannot be terminated upon thirty (30) days’ or less prior notice without further Liability to the Company or any of its Subsidiaries;
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Company Group Member) under Section 1.1502-6 of the Treasury Regulations (or any similar provision of state, local or non-U.S. Law), as a transferee or successor, by Contract (other than any Contract the principal purpose of which does not relate to Taxes), or otherwise by operation of Law.
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Plan to the requirements of any applicable Law, as previously disclosed to Parent in writing or as required by this Agreement).
(iv) each insurance contract, trust agreement, group annuity contract, administration and similar material agreements, (v) the most recent summary plan description, including any summary of material modifications thereto, and (vi) all non-routine material correspondence to or from any Governmental Authority relating to any Employee Plan since January 1, 2022.
(ii) have timely made (or timely will make) or, if not yet due, accrued in accordance with applicable Law and GAAP all required contributions, distributions or other amounts payable with respect thereto. No Company Group Member has incurred any material penalty, Tax or other Liability (whether or not assessed) under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code.
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Member has any Liability by reason of at any time being considered a single employer under Section 414 of the Code with any other Person.
(i) entitle any current or former employee, director, officer or other service provider of any Company Group Member to any payment (whether in cash or property) or benefit, (ii) increase the amount of any compensation or benefit due to any such Person, (ii) accelerate the time of distribution, payment, funding or vesting of any compensation or benefit due to any such Person,
(iii) result in any forgiveness of indebtedness of any such Person to any Company Group Member,
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employees with respect to their employment with the Company or any of its Subsidiaries. Since January 1, 2022, (i) to the Knowledge of the Company, there have been no labor organizing activities with respect to any employees of the Company or any of its Subsidiaries, (ii) no labor union, labor organization, trade union, works council, or group of employees of the Company and/or any of its Subsidiaries has made a written demand for recognition or certification and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or, to the Knowledge of the Company, threatened to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority, and (iii) there have been no unfair labor practice charges, strikes, lockouts, material labor grievances, material labor arbitrations, work stoppages, slowdowns, picketing, handbilling, or other material labor disputes, or, to the Knowledge of the Company, threats thereof, against or affecting the Company or any of its Subsidiaries.
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U.S. Department of Commerce, the International Traffic in Arms Regulations, and any applicable anti-boycott compliance regulations, and (B) all applicable transfer or import
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Laws (“Import Restrictions”), including those administered by U.S. Customs and Border Protection.
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Products to the Company, except such arrangements as have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
3.28 of the Company Disclosure Letter, no broker, finder, investment banker or other Person engaged by or on behalf of the Company or any of its Subsidiaries is entitled to any brokerage, finder’s or other similar fee or commission in connection with the Transactions. Prior to the execution of this Agreement, the Company has made available to Parent a complete and accurate copy of all agreements between the Company and any Person pursuant to such Person would be entitled to any such payment.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND THE MERGER SUBS
Except as set forth in the disclosure letter delivered by Parent and the Merger Subs to the Company on the Agreement Date (the “Parent Disclosure Letter”), which expressly identifies the Section (or, if applicable, subsection) to which such exception relates (it being understood and hereby agreed that any disclosure in such disclosure letter relating to one Section or subsection shall also apply to any other Sections and subsections if and to the extent that it is reasonably apparent on the face of such disclosure (without reference to the underlying documents referenced therein) that such disclosure also relates to such other Sections or subsections), Parent and the Merger Subs hereby represent and warrant to the Company as follows:
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and deliver this Agreement, to perform its obligations hereunder, and to consummate the Mergers and the other Transactions in accordance with the terms hereof.
(ii) and (iii), as would not, individually or in the aggregate, reasonably be expected to prevent or materially impair, interfere with, hinder or delay the ability of Parent or the Merger Subs to perform their respective obligations under, or to consummate the Transactions contemplated by, this Agreement.
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(ii) such consents, approvals, orders, licenses, authorizations, registrations, declarations, permits, filings, and notifications as may be required under applicable United States federal and state securities Laws, (iii) the filing of the Company Certificate of Merger, the LLC Certificate of Merger or other documents as required by the DGCL or the DLLCA, as applicable and (iv) such other consents, approvals, orders, registrations, declarations, permits, filings and notifications, the failure of which to obtain would not, individually or in the aggregate, reasonably be expected to prevent or materially impair, interfere with, hinder or delay the ability of Parent or the Merger Subs to perform their respective obligations under, or to consummate the transactions contemplated by, this Agreement.
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(b) compliance and performance by the Company with its covenants and agreements hereunder and (c) the most recent financial forecasts for the Company made available to Parent have been prepared in good faith based on upon assumptions that were and continue to be reasonable, (i) the
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amount of the “fair saleable value” of the present assets (measured on a going concern basis) of Parent and its Subsidiaries, taken as a whole, will not be less than the amount that will be required to pay the probable liabilities (including contingent liabilities) of Parent and its Subsidiaries, taken as a whole, as such liabilities become absolute and matured in the ordinary course of business; (ii) the present assets of Parent and its Subsidiaries, taken as a whole, at a fair valuation (measured on a going concern basis), will not be less than their liabilities (including the probable amount of all contingent liabilities), taken as a whole; (iii) the Parent and its Subsidiaries, taken as a whole, will not have an unreasonably small amount of capital for the operation of the businesses in which they are engaged or proposed to be engaged as of such date; and (iv) Parent and its Subsidiaries, taken as a whole, will not have incurred liabilities, including contingent and other liabilities, beyond their ability to pay such liabilities as they mature or become due in the ordinary course of business. For purposes of this Section 4.10, the amount of any contingent liability at any time shall be computed as the amount that would reasonably be expected to become an actual and matured liability.
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it is not acting (including, as applicable, by entering into this Agreement or consummating the Mergers) in reliance on:
ARTICLE V INTERIM OPERATIONS
(b) as set forth in Section 5.1 of the Company Disclosure Letter; (c) as required by applicable Law;
(d) for any reasonable actions taken in good faith to respond to COVID-19 Measures; or (e) as approved in writing in advance by Parent (which approval shall not be unreasonably withheld, conditioned or delayed), at all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Company Merger Effective Time (the “Interim Period”), the Company will, and will cause each of its Subsidiaries to (i) use its reasonable best efforts to carry on its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, (ii) use its commercially reasonable efforts to pay all fees owed to the members of the Special Committee and any fees and expenses of Vedder Price, P.C., Potter Anderson & Corroon LLP and Kroll, LLC, in their respective capacities as advisors to the Special Committee, and Winston & Strawn LLP (as counsel to the Company), in each case as and when they become due and (iii) use its commercially reasonable efforts to (A) preserve intact in all material respects its present business, (B) keep available the services of its present officers and employees and (C) preserve in all material respects its relationships with customers, suppliers, distributors, licensors, licensees and other Persons with which it has significant business dealings; provided, that no action taken by the Company or any of its Subsidiaries with respect to matters explicitly permitted by an exception to any of Section 5.2(a) through (w) shall be deemed a breach of this Section 5.1.
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individual service provider, (iii) grant any cash, equity or equity-based awards, (iv) hire, engage, promote, temporarily layoff, furlough or terminate (other than for cause) any director, officer, employee or other individual service provider, (v) accelerate the time of vesting, funding or payment of, or increase or decrease, any compensation or benefit payable or provided to any current or former director, officer, employee or other individual service provider, (vi) waive or release any noncompetition, nonsolicitation, nondisclosure, noninterference, nondisparagement, or other restrictive covenant obligation of any current or former employee or independent contractor of the Company or its Subsidiaries, or (vii) implement or announce any facility closings, employee layoffs, furloughs, reductions in force, reductions in compensation or other such actions that could implicate WARN;
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Material Contract described in (A) Section 3.14(a)(ix), Section 3.14(a)(x) or Section 3.14(a)(xi) (the “Company Relationship Contracts”), amend in any material respect any such Company Relationship Contract or grant any release or relinquishment of any material rights under any such Company Relationship Contract or (B) Section 3.14(a)(ii), or (iii) except in the ordinary course of business consistent with past practice, enter into any Contract that would be a Material Contract not described in sub-clauses (i) or (ii) of this Section 5.2(n), amend in any material respect any such Material Contract, as the case may be, or grant any release or relinquishment of any material rights under any such Material Contract;
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(ii) furnish to any Third Person any non-public information relating to the Company Group or afford to any Third Person access to the business, properties, assets, books, records or other non- public information, or to any personnel, of the Company Group, in any such case with the intent to induce, or that could reasonably be expected to result in, or in response to, the making, submission or announcement of, or to knowingly encourage, facilitate or assist any Inquiry or offer or proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal;
(iii) enter into, engage in, knowingly encourage, continue or otherwise participate in any discussions, communications or negotiations with any Third Person with respect to any Inquiry or offer or proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; (iv) approve, endorse or recommend any offer or proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal or (v) enter into any letter of intent, agreement in principle, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, other than an Acceptable Confidentiality Agreement (any such letter of intent, agreement in principle, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction (other than an Acceptable Confidentiality Agreement), an “Alternative Acquisition Agreement”). From the Agreement Date until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Company Merger Effective Time, the Company will
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be required to enforce, and will not be permitted to waive, terminate or modify, any provision of any standstill or confidentiality agreement that prohibits or purports to prohibit a proposal being made to the Company Board (or any committee thereof) (unless (i) the Company Board or the Special Committee has determined in good faith, based on the information then available, after consultation with its outside counsel, that failure to take such action would be inconsistent with its fiduciary duties under applicable Law and (ii) absent such action by the Company, the applicable provision would prevent any Person or group from making an unsolicited private Acquisition Proposal).
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Recommendation has not been changed); (B) adopt, authorize, approve, endorse, or otherwise declare advisable (or propose to adopt, authorize, approve, endorse, or otherwise declare advisable) an Acquisition Proposal; (C) fail to publicly reaffirm the Company Board Recommendation within three (3) Business Days after Parent so requests in writing (it being understood that the Company will have no obligation to make such reaffirmation on more than two (2) occasions); (D) fail to include the Company Board Recommendation in the Proxy Statement; (E) take or fail to take any formal action or make or fail to make any recommendation or public statement in connection with a tender or exchange offer, other than a recommendation against such offer or a “stop, look and listen” communication by the Company Board (or a committee thereof) to the Company Stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any substantially similar communication) (it being understood that the Company Board or the Special Committee may refrain from taking a position with respect to an Acquisition Proposal that is a tender offer or exchange offer until the close of business on the 10th Business Day after the commencement of a tender or exchange offer in connection with such Acquisition Proposal without such action being considered a violation of this Section 5.3;) or (F) formally resolve to effect, publicly announce an intention or resolution to, or agree to take any of the foregoing actions (any action described in clauses (A) through (F), a “Company Board Recommendation Change”); provided, however, that, for the avoidance of doubt, none of (1) a “stop, look and listen” communication by the Company Board or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any substantially similar communication) or (2) the delivery by the Company to Parent of any notice contemplated by Section 5.3(d), will constitute a Company Board Recommendation Change; or
(D) of the definition thereof solely in response to any positive material event, fact, circumstance, development or occurrence that was (A) not known to, or reasonably foreseeable by, the Company Board or the Special Committee as of the Agreement Date but becomes known to the Company Board or the Special Committee, as applicable, after the Agreement Date; and (B) does not relate to (w) any Inquiry or offer or proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal; (x)the fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period ending on or after the Agreement Date, or changes after the Agreement Date in the market price or trading volume of the Company Common Stock or the credit rating of the Company (it being understood that the underlying cause of any of the foregoing in this clause (x) may be considered and taken into account); (y) any fact relating to Parent or its Affiliates; or (z) any change in the composition of the Company Board (each such event, an “Intervening Event”), if the Company Board, acting upon the
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recommendation of the Special Committee, or the Special Committee, as applicable, determine in good faith based on the information then available (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law and if and only if:
(3) Business Days).
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recommendation of the Special Committee, or the Special Committee has concluded in good faith based on the information then available (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board or the Special Committee, as applicable, may (x) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (y) authorize the Company to terminate this Agreement pursuant to Section 8.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal substantially concurrently with the termination of this Agreement; provided, however, that the Company Board and the Special Committee shall not take any action described in the foregoing clauses (x) or (y) unless:
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however, that in the event of any material modifications to such Acquisition Proposal (it being understood that any change to the financial terms of such proposal shall be deemed a material modification), the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(C) with respect to such new written notice (it being understood that the “Proposal Notice Period” in respect of such new written notice will be two (2) Business Days);
(48) hours) notify Parent in writing if the Company, any of its Subsidiaries or any of their respective Representatives receives any Inquiry or offer or proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, or any material revisions to the terms and conditions of any pending Acquisition Proposals, including the identity of the Person making such Inquiry, Acquisition Proposal, offer or proposal, a summary of the material terms and conditions and copies of any written materials and documents relating thereto provided to the Company or its Representatives. Thereafter, the Company must keep Parent informed, on a reasonably prompt basis, or upon Parent’s reasonable request (and in any event within forty-eight
(48) hours thereafter), of the status (and supplementally provide the material terms) of any such Inquiries, Acquisition Proposals, offers or proposals (including any amendments thereto and any new, amended or revised written materials relating thereto provided by or to the Company or its Representatives) and inform Parent promptly (and in any event within forty-eight (48) hours) of any material correspondence with respect to such Inquiries, offers or proposals. The Company agrees that it shall not, and shall cause its Subsidiaries not to, enter into any confidentiality or other agreement subsequent to the Agreement Date which prohibits the Company from complying with this Section 5.3(e).
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listen” communication by the Company Board or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any substantially similar communication); (ii) complying with Item 1012(a) of Regulation M-A promulgated under the Exchange Act; or (iii) making any disclosure to the Company Stockholders with respect to an Acquisition Proposal as required by applicable Law, regulation or stock exchange rule or listing agreement; provided, that the Company Board or the Special Committee, as applicable, shall publicly reaffirm the Company Board Recommendation in such disclosure and nothing in the foregoing will be deemed to permit the Company or the Company Board or the Special Committee to effect a Company Board Recommendation Change other than in accordance with Section 5.3(d), and any public disclosure (other than any “stop, look and listen” statement) by the Company or the Company Board and the Special Committee thereof relating to any determination or other action by the Company Board or the Special Committee with respect to any Acquisition Proposal shall be deemed to be a Company Board Recommendation Change unless the Company Board or the Special Committee, as applicable, expressly publicly reaffirm the Company Board Recommendation in such disclosure; provided, further, that any such statement or disclosure made by the Company Board or the Special Committee pursuant to this Section 5.3(f) must be subject to the terms and conditions of this Agreement and will not limit or otherwise modify the effect, if any, that any such action has under this Agreement or the obligations of the Company or the Company Board or the Special Committee and the rights of Parent under this Section 5.3.
ARTICLE VI ADDITIONAL COVENANTS
satisfied; and
authorizations from Governmental Authorities; and (B) make all registrations, declarations and filings with Governmental Authorities, in each case that are necessary or advisable to consummate the Merger.
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in any Other Required Parent Filings will not, at the time that such Other Required Parent Filing is filed with the SEC, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.
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in light of the circumstances under which they were made, not misleading, then the Party that discovers such information will promptly notify the other, and an appropriate amendment or supplement to such filing describing such information will be promptly prepared and filed with the SEC by the appropriate Party (with assistance from the other Party or Parties as appropriate and consistent with this Section 6.2) and, to the extent required by applicable Law or the SEC or its staff, disseminated to the Company Stockholders.
(iii) assist and cooperate with the other Parties in doing (or causing to be done) all things, in each case as are necessary, proper or advisable to effectuate the Warrant Adjustment and any exercise of Company Warrants in accordance with the terms of the Warrant Agreement promptly after the Closing, including by (A) preparing communications to inform holders of the Company Warrants of the Warrant Adjustment and (B) coordinating with Continental Stock Transfer & Trust Company, as warrant agent of the Company Warrants, to disseminate such communications, receive and process the exercise of any Company Warrants and disburse funds to holders of such Company Warrants in each case in accordance with the terms of the Warrant Agreement and the Company Warrants. The Company may not file or disseminate any materials to holders of the
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Company Warrants without providing Parent and its counsel a reasonable opportunity to review and comment thereon and the Company shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the other Parties and their respective counsel.
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will submit this Agreement and the Mergers to the Company Stockholders at the Company Stockholder Meeting even if the Company Board or the Special Committee has effected a Company Board Recommendation Change.
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their power to ensure that no Takeover Statute is or becomes applicable to this Agreement, the Mergers or any of the Transactions; and (b) if any Takeover Statute becomes applicable to this Agreement, the Mergers or any of the other Transactions, take all action within their power to ensure that the Mergers and the other transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on the Mergers and the other Transactions.
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assessments and other charges paid or payable in connection with or in respect of any thereof) and out-of-pocket attorneys’ fees and all other out-of-pocket costs relating to or resulting from such D&O Claim. In addition, from and after the Company Merger Effective Time, each of the Surviving Corporation and Parent shall advance costs and expenses (including attorneys’ fees) as incurred by any Covered Person in connection with any D&O Claim after receipt by Parent of a written request for such advance to the fullest extent permitted under applicable Law; provided that the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined (after exhausting all available appeals) that such Person is not entitled to indemnification. Any Covered Person wishing to claim indemnification under this Section 6.9, upon learning of any claim, action or proceeding in respect of which such indemnification will be sought, shall notify Parent thereof in writing.
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continuing or surviving corporation or entity or transferee of such assets (and their respective successors and assigns), as the case may be, shall assume the obligations set forth in this Section 6.9.
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keep Parent reasonably informed with respect to the status thereof. The Company will (a) give Parent the opportunity to participate (at Parent’s expense) in the defense, settlement or prosecution of any Transaction Litigation; (b) reasonably cooperate and consult with Parent with respect to the defense, settlement and prosecution of any Transaction Litigation; and (c) provide Parent an opportunity to review and to propose comments to all filings or written responses to be made by the Company and give good-faith consideration to any comments proposed by Parent. The Company may not compromise, settle or come to an arrangement regarding, or agree to compromise, settle or come to an arrangement regarding, any Transaction Litigation unless Parent has consented thereto in writing. For the avoidance of doubt, any Legal Proceeding related to Dissenting Shares will be governed by Section 2.9(c).
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amendment to the OpCo LLC Agreement (the “OpCo LLC Agreement Amendment”) in the form attached hereto as Schedule 6.21.
ARTICLE VII CONDITIONS TO THE MERGERS
(iii) and (iv) in this Section 7.2(a), the representations and warranties of the Company set forth in Article III will be true and correct (without giving effect to any materiality, Company Material Adverse Effect or similar qualifications set forth therein) as of the Agreement Date and as of the Closing Date as if made at and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will be true and correct as of such earlier date), except for such failures to be true and correct that would not, individually or in the aggregate, have a Company Material Adverse Effect;
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earlier date); and (B) are qualified by Company Material Adverse Effect or other materiality qualifications will be true and correct in all respects (without disregarding such Company Material Adverse Effect or other materiality qualifications) as of the Agreement Date and as of the Closing Date as if made at and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will be true and correct in all respects as of such earlier date);
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ARTICLE VIII TERMINATION, AMENDMENT AND WAIVER
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to such time; it being understood that the right to terminate this Agreement pursuant to this Section 8.1(c) will not be available to any Party whose action or failure to act (which action or failure to act constitutes a breach by such Party of this Agreement)has been the primary cause of, or primarily resulted in, the failure of the Company Merger Effective Time to have occurred prior to the Termination Date;
(30) days prior to such termination (or such shorter period of time as remains prior to the Termination Date, the shorter of such periods, the “Company Breach Notice Period”), stating Parent’s intention to terminate this Agreement pursuant to this Section 8.1(e) and the basis for such termination, it being understood that Parent will not be entitled to terminate this Agreement if (i) such breach has been cured within the Company Breach Notice Period or (ii) the Company has the valid right to terminate this Agreement pursuant to Section 8.1(g);
(30) days prior to such termination (or such shorter period of time as remains prior to the Termination Date, the shorter of such periods, the “Parent Breach Notice Period”), stating the Company’s intention to terminate this Agreement pursuant to this Section 8.1(g) and the basis for such termination, it being understood that the Company will not be entitled to terminate this Agreement pursuant to this Section 8.1(g) if (i) such breach has been cured within the Parent Breach Notice Period or (ii) Parent has the valid right to terminate this Agreement pursuant to Section 8.1(e);
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(B) following the execution and delivery of this Agreement and prior to an Applicable Termination, the Company has received an Acquisition Proposal or an Acquisition Proposal has been publicly made or disclosed and shall not have been publicly withdrawn; and (C) within twelve (12) months following such Applicable Termination, an Acquisition Transaction is consummated or the Company enters into a definitive agreement with respect to such Acquisition Transaction then the Company will, concurrently with the earlier of the execution of the definitive agreement and the consummation of such Acquisition Transaction, pay to Parent an amount equal to $813,771 (the “Company Termination Fee”), in accordance with the payment instructions which have been provided to the Company by Parent by written notice. For purposes of this Section 8.3(b)(i), all references to “20%” and “80%” in the definition of “Acquisition Transaction” will be deemed to be references to “50%.”
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Proceeding that results in a judgment against the Company for the amount set forth in Section 8.3(a) then the Company will pay or cause to be paid to the other party the reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) of Parent in connection with such Legal Proceeding, together with interest on such amount or portion thereof at an annual rate equal to the prime rate (as published in The Wall Street Journal (or other authoritative source to the extent no such figure is published by The Wall Street Journal) on the date that such payment or portion thereof was required to be made) plus five percent through the date that such payment or portion thereof was actually received, or a lesser rate that is the maximum permitted by applicable Law (collectively, “Enforcement Expenses”).
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Related Party relating to or arising out of this Agreement or the Transactions. Notwithstanding the foregoing, this Section 8.3(e)(i) will not relieve Parent from liability for any Willful Breach of this Agreement.
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of this Agreement, the failure to consummate the Mergers or any claims or actions under applicable law arising out of any such breach, termination or failure. Other than the Guarantor’s obligations under the Equity Commitment Letter and other than the obligations of Parent and the Merger Subs under this Agreement and the Support Agreement, in no event will Parent, the Merger Subs, any of the Parent Related Parties or any other Person other than Parent, the Merger Subs or the Guarantor have any liability for monetary damages to the Company or any other Person relating to or arising out of this Agreement or the Mergers.
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ARTICLE IX GENERAL PROVISIONS
c/o CORE Industrial Partners, LLC 110 N Wacker Drive
Suite 2000
Chicago, Illinois 60606 Attention: John May Email: john@coreipfund.com
with copies (which will not constitute notice) to: Kirkland & Ellis LLP
300 North LaSalle
Chicago, Illinois 65654
Attention: Benjamin P. Clinger, P.C. Adam M. Wexner, P.C.
Lee M. Blum
Email: bclinger@kirkland.com adam.wexner@kirkland.com lee.blum@kirkland.com
-and-
Kirkland & Ellis LLP 601 Lexington Avenue
New York, New York 10022 Attention: Edward J. Lee, P.C.
Carlo Zenkner, P.C.
Email: edward.lee@kirkland.com carlo.zenkner@kirkland.com
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Time) to:
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Fathom Digital Manufacturing Corporation 1050 Walnut Ridge Drive
Hartland, WI 53029
Attention: Carey Chen, CEO Email: Carey.Chen@fathommfg.com
with copies (which will not constitute notice) to: Winston & Strawn LLP
35 W. Wacker Drive
Chicago, Illinois 60601
Attention: Steven J. Gavin, Partner Email: SGavin@winston.com
-and-
Winston & Strawn LLP 200 Park Avenue
New York, New York 10166
Attention: Jason D. Osborn, Partner Email: JOsborn@winston.com
-and-
Vedder Price P.C.
222 North LaSalle Street, Suite 2400
Chicago, Illinois 60601
Attention: Michael A. Nemeroff Email: mnemeroff@vedderprice.com
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Any notice received at the addressee’s location, or by email at the addressee’s email address on any day that is not a Business Day (or that is received after 5:00 p.m. at the addressee's local time on a Business Day) will be deemed to have been received at 9:00 a.m., Eastern time, on the next Business Day. From time to time, any Party may provide notice to the other Parties of a change in its address or email address through a notice given in accordance with this Section 9.2, except that that notice of any change to the address, email address or any of the other details specified in or pursuant to this Section 9.2 will not be deemed to have been received until, and will be deemed to have been received upon, the later of the date (A) specified in such notice; or (B) that is five (5) Business Days after such notice would otherwise be deemed to have been received pursuant to this Section 9.2.
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its rights and obligations pursuant to this Agreement to its Affiliates, it being understood that such assignment will not (a) relieve Parent of any of its obligations hereunder, (b) affect the obligations of the parties to the Equity Commitment Letter, (c) impede or delay the consummation of the Transactions or (d) otherwise impede the rights of the holders of Company Common Stock. Any purported assignment of this Agreement without the consent required herein is null and void.
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9.8(b)(i), (A) the Parties will be entitled, in addition to any other remedy to which they are entitled at law or in equity, to an injunction, specific performance and other equitable relief to prevent breaches (or threatened breaches) of this Agreement and to enforce specifically the terms and provisions hereof (including the right of the Company to enforce the consummation of the Mergers and the Closing and to cause Parent to enforce the funding of the Equity Financing); (B) the provisions of Section 8.3 are not intended to and do not diminish or otherwise impair in any respect any Party’s right to an injunction, specific performance and other equitable relief; and (C) the right of specific enforcement is an integral part of the Mergers. Notwithstanding anything else to the contrary in this Agreement , it is explicitly agreed that the right of the Company to seek an injunction, specific performance or other equitable remedies in connection with enforcing Parent’s obligation to consummate the Mergers and the Closing and to cause the Equity Financing to be funded to fund the Required Amounts, any Damages Payment (as defined in the Equity Commitment Letter) and Debt Paydown Payment shall be subject to the requirements that (i) all of the conditions set forth in Section 7.1 and Section 7.2 have been satisfied (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver (to the extent permitted hereunder) of such conditions) and the Closing is required to occur pursuant to Section 2.4, and (ii) the Company has irrevocably confirmed in writing that if the Equity Financing is funded, the Company is ready, willing and able to consummate the Mergers and the Closing and take all actions that are required of it by this Agreement to consummate the Mergers and the Closing pursuant to the terms of this Agreement on the date of such written notice and throughout the immediately subsequent five (5) Business Day period.
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(ii) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER;
(iii) IT MAKES THIS WAIVER VOLUNTARILY; AND (iv) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
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information regarding its terms and conditions and not to provide any other factual information regarding the Company or its business. Consequently, Persons other than the Parties may not rely upon the representations and warranties in this Agreement or any description thereof as characterizations of actual facts or circumstances as of the Agreement Date or as of any other date. The information in this Agreement should be considered together with the Company’s public reports filed with the SEC.
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered by their respective duly authorized officers as of the date first written above.
FATHOM DIGITAL MANUFACTURING INTERMEDIATE, LLC
By: /s/ John May
Name: John May
Title: President
FATHOM DIGITAL MANUFACTURING MERGER SUB, INC.
By: /s/ John May
Name: John May
Title: President
FATHOM DIGITAL MANUFACTURING MERGER SUB 2, LLC
By: /s/ John May
Name: John May
Title: President
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered by their respective duly authorized officers as of the date first written above.
FATHOM DIGITAL MANUFACTURING CORPORATION
By: /s/ Carey Chen Name: Carey Chen Title: CEO
FATHOM HOLDCO, LLC
By: /s/ Carey Chen Name: Carey Chen Title: CEO