SEC Form PREM14A filed by Markforged Holding Corporation

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 14A

(RULE 14A-101)

SCHEDULE 14A INFORMATION

Proxy Statement Pursuant to Section 14(a) of the

Securities Exchange Act of 1934

 

 

Filed by the Registrant ☒

Filed by a Party other than the Registrant ☐

Check the appropriate box:

 

☒	Preliminary Proxy Statement

 

☐	Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))

 

☐	Definitive Proxy Statement

 

☐	Definitive Additional Materials

 

☐	Soliciting Material under § 240.14a-12

MARKFORGED HOLDING CORPORATION

(Name of Registrant as Specified in its Charter)

N/A

(Name of Person(s) Filing Proxy Statement, if other than the Registrant)

Payment of Filing Fee (Check all boxes that apply):

 

☐	No fee required

 

☐	Fee paid previously with preliminary materials

 

☒	Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11

 

 

 

PRELIMINARY PROXY STATEMENT — SUBJECT TO COMPLETION

DATED OCTOBER 21, 2024

 

MARKFORGED HOLDING CORPORATION

60 Tower Road

Waltham, MA 02451

MERGER PROPOSED—YOUR VOTE IS VERY IMPORTANT

   , 2024

Dear Stockholders of Markforged Holding Corporation:

You are cordially invited to attend a special meeting of the common stockholders of Markforged Holding Corporation, a Delaware corporation (“Markforged,” the “Company,” “we,” “us” or “our”), to be held virtually on    , 2024 at    a.m. Eastern Time (including any adjournments or postponements thereof, the “Special Meeting”). Common stockholders will be able to attend the Special Meeting by visiting www.virtualshareholdermeeting.com/MKFG2024SM and using the 16-digit control number included in your proxy materials. You will not be able to attend the Special Meeting in person. For purposes of attendance at the Special Meeting, all references in this proxy statement to “present” will mean virtually present at the Special Meeting.

We have entered into an Agreement and Plan of Merger (as it may be amended from time to time, the “Merger Agreement”), dated as of September 25, 2024, with Nano Dimension Ltd., an Israeli company (“Nano” or “Parent”), and Nano US II, Inc., a Delaware corporation and indirect wholly-owned subsidiary of Nano (“Merger Sub”). Pursuant to and subject to the terms and conditions of the Merger Agreement, Merger Sub will be merged with and into Markforged, with Markforged surviving the merger as an indirect wholly-owned subsidiary of Nano (the “Merger”).

At the Special Meeting, you will be asked to consider and vote on a proposal to adopt the Merger Agreement (the “Merger Agreement Proposal”). The affirmative vote of the holders of a majority of the outstanding shares of Markforged common stock, par value $0.0001 per share (the “Company Common Stock”), issued and outstanding as of the close of business on    , 2024 (the “Record Date”) is required to approve the Merger Agreement Proposal. At the Special Meeting, you also will be asked to consider and vote on a proposal to approve the adjournment of the Special Meeting to a later date or dates, if necessary or appropriate, to solicit additional proxies if there are insufficient votes in person or by proxy to approve the Merger Agreement Proposal at the time of the Special Meeting (the “Adjournment Proposal”). The affirmative vote of the holders of a majority of the voting power of the Company Common Stock present in person or represented by proxy at the Special Meeting is required to approve the Adjournment Proposal.

If the Merger is consummated, you will be entitled to receive $5.00 in cash, without interest, for each share of Company Common Stock that you own (unless you have properly exercised appraisal rights, including by not voting in favor of the Merger Agreement Proposal). Such merger consideration represents a premium of approximately 83% over the closing price of the Company Common Stock of $2.73 on September 24, 2024, the last trading day before the public announcement that Markforged entered into the Merger Agreement.

The Board of Directors of Markforged (the “Company Board”), after considering the factors more fully described in the enclosed proxy statement, has unanimously (i) determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, are advisable, fair to, and in the best interests of Markforged and the holders of Company Common Stock (the “Company Stockholders”), (ii) approved the Merger and the execution, delivery and performance by Markforged of

the Merger Agreement and the transactions contemplated thereby, including the consummation of the Merger, (iii) resolved to recommend that the Company Stockholders vote to adopt and approve the Merger Agreement, and (iv) directed that the adoption of the Merger Agreement Proposal be submitted to a vote of the Company Stockholders at the Special Meeting. The Company Board unanimously recommends that holders of Company Common Stock vote “FOR” the Merger Agreement Proposal and “FOR” the Adjournment Proposal.

The enclosed proxy statement provides detailed information about the Special Meeting, the Merger Agreement and the Merger. A copy of the Merger Agreement is attached as Annex A to the proxy statement. We encourage you to read the accompanying proxy statement, including all documents incorporated by reference into the proxy statement, and its annexes, including the Merger Agreement, carefully and in their entirety, as they contain important information. You may also obtain more information about Markforged from documents we file with the Securities and Exchange Commission from time to time.

Whether or not you plan to attend the Special Meeting, please complete, sign, date and return, as promptly as possible, the enclosed proxy card in the accompanying postage prepaid envelope or grant your proxy electronically over the Internet or by telephone. Only your last-dated proxy will be counted, and any proxy may be revoked prior to its exercise at the Special Meeting. If you attend the Special Meeting and vote thereat, your vote will revoke any proxy that you have previously submitted.

Your vote is very important, regardless of the number of Company Common Stock that you own. We cannot consummate the Merger unless the Merger Agreement Proposal is approved by the affirmative vote of the holders of at least a majority of the issued and outstanding shares of Company Common Stock as of the Record Date.

If you have questions or need assistance voting your shares of Company Common Stock, please contact:

Sodali & Co. LLC

430 Park Ave., 14^th Floor

New York, NY10022

Email: [email protected]

(203) 658-9400

or

Toll-Free 800-662-5200

On behalf of the Company Board, I thank you for your support and appreciate your consideration of this matter.

Very truly yours,

/s/ Shai Terem

Shai Terem

President & Chief Executive Officer

Neither the Securities and Exchange Commission nor any state securities regulatory agency has approved or disapproved of the transactions described in this document, including the Merger, or determined if the information contained in this document is accurate or adequate. Any representation to the contrary is a criminal offense.

PLEASE COMPLETE, SIGN, DATE AND RETURN THE ENCLOSED PROXY CARD PROMPTLY. This proxy statement is dated    , 2024 and, together with the enclosed form of proxy card, is first being mailed to common stockholders on or about    , 2024.

PRELIMINARY PROXY STATEMENT — SUBJECT TO COMPLETION

DATED OCTOBER 21, 2024

 

MARKFORGED HOLDING CORPORATION

60 Tower Road

Waltham, MA 02451

 

 

NOTICE OF SPECIAL MEETING OF COMMON STOCKHOLDERS

TO BE HELD ON     , 2024

 

 

NOTICE IS HEREBY GIVEN that a special meeting of the common stockholders of Markforged Holding Corporation, a Delaware corporation (“Markforged,” the “Company,” “we,” “us” or “our”), will be held virtually via live webcast at    on    , 2024 at    a.m. Eastern Time (including any adjournments or postponements thereof, the “Special Meeting”). The Special Meeting is being held for the following purposes:

 

1.

To consider and vote on a proposal (the “Merger Agreement Proposal”) to adopt the Agreement and Plan of Merger (as it may be amended from time to time, the “Merger Agreement”), dated as of September 25, 2024, by and among Nano Dimension Ltd., a Israeli company (“Nano”), Nano US II, Inc., a Delaware corporation and indirect wholly-owned subsidiary of Nano (“Merger Sub”), and Markforged, pursuant to which Merger Sub will be merged with and into Markforged, with Markforged surviving as an indirect wholly-owned subsidiary of Nano (the “Merger”); and

 

2.

To consider and vote on a proposal (the “Adjournment Proposal”) to approve the adjournment of the Special Meeting to a later date or dates, if necessary or appropriate, to solicit additional proxies if there are insufficient votes in person or by proxy to approve the proposal to adopt the Merger Agreement at the time of the Special Meeting.

Only Markforged common stockholders of record as of the close of business on    , 2024 (the “Record Date”) are entitled to notice of the Special Meeting and to vote at the Special Meeting or at any adjournment or postponement thereof.

The Company’s Board of Directors unanimously recommends that you vote:

 

1.

“FOR” the Merger Agreement Proposal; and

 

2.

“FOR” the Adjournment Proposal.

Your vote is very important, regardless of the number of shares of Markforged common stock, par value $0.0001 per share (“Company Common Stock”), that you own. Whether or not you plan to attend the Special Meeting, please complete, sign, date and return, as promptly as possible, the enclosed proxy card in the accompanying prepaid reply envelope or grant your proxy electronically over the Internet or by telephone. If you fail to return your proxy card, grant your proxy electronically over the Internet or by telephone or attend the Special Meeting, your shares of Company Common Stock will not be counted for purposes of determining whether a quorum is present at the Special Meeting and, if a quorum is present, will have the same effect as a vote “AGAINST” the Merger Agreement Proposal.

Under Delaware law, common stockholders and beneficial owners who do not vote in favor of the Merger Agreement Proposal will have the right to seek appraisal of the fair value of their issued and outstanding shares

of Company Common Stock as determined by the Delaware Court of Chancery if the Merger is consummated, but only if they submit a written demand for such an appraisal to Markforged before the vote on the Merger Agreement Proposal and comply with the other Delaware law procedures explained in the accompanying proxy statement.

By Order of the Board of Directors,

/s/ Stephen Karp

Stephen Karp

General Counsel & Secretary

Waltham, MA

    , 2024

YOUR VOTE IS VERY IMPORTANT!

Whether or not you plan to attend the Special Meeting, please submit your proxy as soon as possible, whether over the Internet, by telephone or by completing, signing and returning the enclosed proxy card by mail in the prepaid reply envelope. You may revoke your proxy or change your vote before it is voted at the Special Meeting.

If your shares of Company Common Stock are held in the name of a bank, broker or other nominee, you should instruct your bank, broker or other nominee how to vote your shares in accordance with the voting instruction form provided to you by your bank, broker or other nominee. Your broker or other agent cannot vote on any of the proposals, including the Merger Agreement Proposal, without your instructions.

If your shares of Company Common Stock are registered directly in your name, voting electronically at the Special Meeting will revoke any proxy that you previously submitted. If you hold your shares of Company Common Stock through a bank, broker or other nominee and do not have a 16-digit control number, you must obtain a “legal proxy” in order to vote in person at the Special Meeting.

If you fail to return your proxy card, grant your proxy electronically over the Internet or by telephone or vote by virtual ballot at the Special Meeting, your shares will not be counted for purposes of determining whether a quorum is present at the Special Meeting, and if a quorum is present, will have the same effect as a vote “AGAINST” the Merger Agreement Proposal.

We encourage you to read the accompanying proxy statement, including all documents incorporated by reference into the accompanying proxy statement, and its annexes, carefully and in their entirety. If you have any questions concerning the Merger, the Special Meeting or the accompanying proxy statement, would like additional copies of the accompanying proxy statement or require assistance in submitting your proxy or voting your shares of Company Common Stock, please contact our proxy solicitor by using the contact information provided below:

Sodali & Co. LLC

430 Park Ave., 14^th Floor

New York, NY10022

Email: [email protected]

(203) 658-9400

or

Toll-Free: 800-662-5200

TABLE OF CONTENTS

 

		Page
QUESTIONS AND ANSWERS			1
SUMMARY			13
SELECTED FINANCIAL DATA			26
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS			28
THE COMPANIES			30
Markforged Holding Corporation.			30
Nano Dimension Ltd.			30
Nano US II, Inc.			30
THE SPECIAL MEETING			31
Date, Time and Place of the Special Meeting			31
Purpose of the Special Meeting			31
Record Date; Shares Entitled to Vote; Quorum			31
Vote Required; Abstentions and Broker Non-Votes			32
Company Common Stock Held by Directors and Executive Officers			32
Voting; Proxies			32
Revocability of Proxies			34
Abstentions			34
Adjournments and Postponements			35
Board Recommendation			35
Solicitation of Proxies			35
Anticipated Date of Consummation of the Merger			36
Appraisal Rights			36
Householding of Special Meeting Materials			37
Questions and Additional Information			37
THE MERGER			38
Certain Effects of the Merger on Markforged			38
Effect on Markforged if the Merger Is Not Consummated			38
Merger Consideration			39
Background of the Merger			39
Recommendation of the Markforged Board of Directors and Reasons for the Merger			49
Opinion of Evercore Group L.L.C.			53
Certain Unaudited Prospective Financial Information			61
Interests of the Directors and Executive Officers of Markforged in the Merger			63
Severance Entitlements			66
Financing of the Merger			67
Closing and Effective Time of the Merger			68
Appraisal Rights			68
Material U.S. Federal Income Tax Consequences of the Merger to Holders of Company Common Stock			72
Material Israeli Withholding Tax Consequences of the Merger to Holders of Company Common Stock			76
Regulatory Approvals Required for the Merger			77
Delisting and Deregistration of Company Common Stock and Company Warrants			77
THE MERGER AGREEMENT			78
Explanatory Note Regarding the Merger Agreement			78
When the Merger Becomes Effective			78
Structure of the Merger; Certificate of Incorporation; Bylaws; Directors and Officers			79
Effect of the Merger on Company Common Stock and Company Preferred Stock			79
Treatment of Converted Stock; Adjustments			79
Merger Sub Capital Stock			80
Treatment of Equity Awards and the ESPP			80
Treatment of Company Warrants			80

 

i

		Page
Dissenting Shares			81
Exchange of Merger Consideration			81
Termination of Exchange Fund			82
Representations and Warranties			82
Conduct of Business by Markforged Pending the Merger			84
Conduct of Business by Nano Pending the Merger			86
Other Covenants and Agreements			87
Change in Recommendation of the Company Board			89
Proxy Statement			91
Reasonable Best Efforts and Regulatory Approvals			92
Takeover Laws			95
Indemnification, Exculpation and Insurance			95
Transaction Litigation			96
Public Announcements			97
Conditions to the Closing of the Merger			97
Termination of Merger Agreement			99
Termination Fee; Certain Expenses			100
Transaction Expenses			101
Specific Performance			101
Third Party Beneficiaries			101
Governing Law and Jurisdiction			101
THE SUPPORT AGREEMENTS			103
Voting Provisions			103
Restrictions on Transfer			103
Waiver of Appraisal Rights			103
Termination			103
Stockholder Capacity Only			104
PROPOSAL NO. 1: APPROVAL OF THE MERGER PROPOSAL			105
The Merger Agreement Proposal			105
Vote Required			105
Board Recommendation			105
PROPOSAL NO. 2: ADJOURNMENT OF THE SPECIAL MEETING			106
The Adjournment Proposal			106
Vote Required			106
Board Recommendation			106
MARKET PRICES AND DIVIDEND DATA			107
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT			108
FUTURE STOCKHOLDER PROPOSALS			112
WHERE YOU CAN FIND MORE INFORMATION			113
MISCELLANEOUS			114
ANNEX A MERGER AGREEMENT			A-1
ANNEX B VOTING AND SUPPORT AGREEMENT			B-1
ANNEX C OPINION OF EVERCORE GROUP L.L.C.			C-1
ANNEX D §262. APPRAISAL RIGHTS			D-1

 

ii

QUESTIONS AND ANSWERS

The following questions and answers address some commonly asked questions regarding the Special Meeting, the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger. Please refer to the “Summary” beginning on page 13 of this proxy statement and the more detailed information contained elsewhere in this proxy statement, the annexes to this proxy statement and the documents incorporated by reference or referred to in this proxy statement, which you should read carefully and in their entirety.

Except as otherwise specifically noted in this proxy statement or as the context otherwise requires, “Markforged,” “we,” “our,” “us,” the “Company” and similar words in this proxy statement refer to Markforged Holding Corporation. Throughout this proxy statement, we refer to Nano Dimension Ltd. as “Nano” and Nano US II, Inc. as “Merger Sub.” In addition, throughout this proxy statement, we refer to: (1) the Agreement and Plan of Merger, dated as of September 25, 2024, as it may be amended from time to time, by and among Nano, Merger Sub and Markforged, as the “Merger Agreement”; (2) the merger of Merger Sub with and into Markforged, with Markforged surviving as an indirect wholly-owned subsidiary of Nano, as the “Merger”; (3) shares of our common stock, par value $0.0001 per share, as the “Company Common Stock”; (4) warrants to purchase shares of Company Common Stock as the “Company Warrants”; (5) the holders of Company Common Stock as the “Company Stockholders”; and (6) the special meeting of Company Stockholders described in this proxy statement, including any adjournments or postponements thereof, as the “Special Meeting.” Unless indicated otherwise, any other capitalized term used herein but not otherwise defined herein has the meaning assigned to such term in the Merger Agreement.

 

Q:	Why am I receiving these materials?

 

A:

On September 25, 2024, Markforged entered into the Merger Agreement providing for the merger of Merger Sub, an indirect wholly-owned subsidiary of Nano, with and into Markforged, with Markforged surviving the Merger as an indirect wholly-owned subsidiary of Nano. The Board of Directors of Markforged (the “Company Board”) is furnishing this proxy statement and form of proxy card to the holders of shares of Company Common Stock in connection with the solicitation of proxies to be voted at the Special Meeting to approve the Merger.

 

Q:	What is the proposed transaction?

 

A:

The proposed transaction is the acquisition of Markforged by Nano pursuant to the Merger Agreement. If the proposal to adopt the Merger Agreement (the “Merger Agreement Proposal”) is approved by the holders of a majority of the shares of Company Common Stock issued and outstanding as of the Record Date and the other closing conditions set forth in the Merger Agreement have been satisfied or, to the extent permitted by applicable law, waived, Merger Sub will be merged with and into Markforged, with Markforged surviving the Merger as an indirect wholly-owned subsidiary of Nano. As a result of the Merger, the Company Common Stock will no longer be publicly traded and will be delisted from the New York Stock Exchange (“NYSE”). In addition, the Company Common Stock will be deregistered under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Markforged will no longer file periodic reports with the U.S. Securities and Exchange Commission (the “SEC”).

 

Q:	What will holders of Company Common Stock receive if the Merger is consummated?

 

A:

Upon consummation of the Merger, you will be entitled to receive $5.00 in cash, without interest (the “Per Share Merger Consideration”), less any applicable withholding taxes, for each share of Company Common Stock that you own as of the effective time of the Merger (the “Effective Time”), unless you have properly exercised and not failed to perfect, waived, withdrawn or otherwise lost your right to appraisal in accordance with Section 262 of the General Corporation Law of the State of Delaware (the “DGCL”). For

 

1

example, if you own 100 shares of Company Common Stock as of the Effective Time, you will receive $500.00 in cash in exchange for your shares of Company Common Stock (less any applicable withholding taxes). As a holder of Company Common Stock, you will not be entitled to receive any equity consideration in the surviving corporation or in Nano as Merger consideration.

 

Q:	How does the Per Share Merger Consideration compare to the market price of the Company Common Stock as of a recent trading date?

 

A:

The Per Share Merger Consideration represents a premium of approximately 83% over the closing price of the Company Common Stock on NYSE of $2.73 on September 24, 2024, the last trading day before the public announcement that Markforged had entered into the Merger Agreement. On    , 2024, the last practicable day before the printing of this proxy statement, the closing price of the Company Common Stock on the NYSE was $    per share. You are encouraged to obtain current market quotations for the Company Common Stock.

 

Q:	When and where is the Special Meeting?

 

A:

The Special Meeting will take place virtually on    , 2024, at    a.m. Eastern Time. There will not be a physical meeting location. Company Stockholders will be able to virtually attend and vote at the Special Meeting by visiting www.virtualshareholdermeeting.com/MKFG2024SM and by using the 16-digit control number included in their proxy materials. For purposes of attendance at the Special Meeting, all references in this proxy statement to “present” will mean virtually present at the Special Meeting.

 

Q:	Who is entitled to vote at the Special Meeting?

 

A:

Only holders of record of shares of Company Common Stock as of the close of business on    , 2024 (the “Record Date”) will be entitled to notice of, and to vote at, the Special Meeting. As of the close of business on the Record Date, there were    shares of Company Common Stock issued and outstanding. Each issued and outstanding share of Company Common Stock on that date will entitle its holder to one vote, in person or by proxy, on all matters to be voted on at the Special Meeting.

 

Q:	What are Company Stockholders being asked to vote on at the Special Meeting?

 

A:	You are being asked to consider and vote on the following proposals:

 

•

The Merger Agreement Proposal; and

 

•

A proposal to approve the adjournment of the Special Meeting to a later date or dates, if necessary or appropriate, to solicit additional proxies if there are insufficient votes in person or by proxy to adopt the Merger Agreement Proposal at the time of the Special Meeting (the “Adjournment Proposal”).

Pursuant to the Company Bylaws, the only business that will be transacted at the Special Meeting is the Merger Agreement Proposal and the Adjournment Proposal, as stated in the accompanying notice of the Special Meeting.

 

Q:	What vote is required to approve the proposal to adopt the Merger Agreement?

 

A:

The affirmative vote of the holders of a majority of the shares of Company Common Stock issued and outstanding as of the Record Date is required to approve the Merger Agreement Proposal. As a result, the failure to grant a proxy to vote your shares of Company Common Stock by submitting a signed proxy card, granting a proxy electronically over the Internet or by telephone or to vote virtually at the Special Meeting will have the same effect as a vote “AGAINST” the Merger Agreement Proposal.

 

2

Q:	What factors did the Company Board consider in deciding to enter into the Merger Agreement and recommending the adoption of the Merger Agreement Proposal by the Company Stockholders?

 

A:

In reaching its decision to unanimously adopt, approve and declare advisable the Merger Agreement and the transactions contemplated thereby, including the Merger, and to recommend that the Company Stockholders approve the Merger Agreement Proposal, the Company Board consulted with our senior management, as well as our legal and financial advisors, and considered the terms of the proposed Merger Agreement and the transactions contemplated thereby, including the Merger, as well as other alternatives. For a more detailed description of these factors, see “The Merger—Recommendation of the Markforged Board of Directors and Reasons for the Merger” beginning on page 49 of this proxy statement.

 

Q:	What is a quorum and how many shares of Company Common Stock are needed to constitute a quorum?

 

A:

A quorum of Company Stockholders is the presence of Company Stockholders holding the minimum number of shares necessary to transact business at the Special Meeting. The holders of a majority of the shares of Company Common Stock entitled to vote at the Special Meeting, either present in person or represented by proxy, will constitute a quorum at the Special Meeting. If a quorum is not present, then under the Company Bylaws, either (i) the holders of Company Common Stock holding a majority of the voting power of the Company Stockholders entitled to vote at the Special Meeting, present at the Special Meeting in person or represented by proxy, or (ii) the presiding officer of the Special Meeting, may adjourn the meeting, and the meeting may be held as adjourned without further notice other than an announcement at the meeting at which the adjournment is taken of the hour, date and place, if any, and the means of remote communications, if any, by which Company Stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting.

 

Q:	What vote is required to approve the proposal to approve the adjournment of the Special Meeting to a later date or dates if necessary or appropriate to solicit additional proxies?

 

A:	The affirmative vote of the holders of a majority of voting power of the Company Common Stock present in person or represented by proxy at the Special Meeting is required to approve the Adjournment Proposal.

 

Q:	Are there any Company Stockholders who have already committed to voting in favor of any of the proposals?

 

A:

Yes. In connection with the execution of the Merger Agreement, Nano entered into voting and support agreements (the “Support Agreements”) with certain of Markforged’s executive officers, directors and certain of their affiliates under which such stockholders agreed, among other things, to vote, or cause to be voted, all of the shares of Company Common Stock beneficially owned by such Company Stockholders in favor of the Merger Agreement Proposal and the Adjournment Proposal at the Special Meeting. As of September 25, 2024, the Company Stockholders party to the Support Agreements collectively held approximately 37% of the total voting power of the outstanding shares of Company Common Stock.

 

Q:	How does the Company Board recommend that I vote?

 

A:

The Company Board, after considering the various factors described under “The Merger—Recommendation of the Markforged Board of Directors and Reasons for the Merger” beginning on page 49 of this proxy statement, unanimously (i) determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, are advisable, fair to, and in the best interests of Markforged and the Company Stockholders, (ii) approved the Merger and the execution, delivery and performance by Markforged of the Merger Agreement and the transactions contemplated thereby, including the consummation of the Merger, (iii) resolved to recommend that the Company Stockholders vote to adopt and approve the Merger Agreement, and (iv) directed that the adoption of the Merger Agreement Proposal be submitted to a vote of the Company Stockholders at the Special Meeting.

 

3

The Company Board unanimously recommends that you vote “FOR” the Merger Agreement Proposal and “FOR” the Adjournment Proposal.

 

Q:	What do I need to do now?

 

A:

We encourage you to read this proxy statement, the annexes to this proxy statement, including the Merger Agreement, and the documents we incorporate by reference and refer to in this proxy statement carefully and consider how the Merger affects you, and then sign, date and return, as promptly as possible, the enclosed proxy card in the accompanying reply envelope, or grant your proxy electronically on the Internet or by telephone, so that your shares of Company Common Stock can be voted at the Special Meeting. If you hold your shares of Company Common Stock in “street name,” please refer to the voting instruction forms provided by your bank, broker or other nominee to vote your shares of Company Common Stock. Please do not send your stock certificates with your proxy card.

 

Q:	How do I vote?

 

A:	If you are a stockholder of record (that is, if your shares of Company Common Stock are registered in your name with our transfer agent, Continental Stock Transfer & Trust Company (“Continental”)), there are four ways to cause your shares of Company Common Stock to be voted at the Special Meeting:

 

•

by visiting the Internet at the address on your proxy card and granting your proxy;

 

•

by calling toll-free (within the U.S. or Canada) at the phone number on your proxy card and granting your proxy;

 

•

by completing, dating, signing and returning the enclosed proxy card in the accompanying prepaid reply envelope; or

 

•

by voting virtually at the Special Meeting; shares of Company Common Stock held directly in your name as a stockholder of record may be voted at the Special Meeting via the Special Meeting website. Shares of Company Common Stock held in “street name” may be voted at the Special Meeting via the Special Meeting website using the 16-digit control number included in your proxy materials. If you did not receive a 16-digit control number, you should follow the instructions from your bank, brokerage firm or other nominee, including any requirement to obtain a legal proxy.

If you sign, date and return your proxy card without indicating how you wish to vote, your proxy will be voted “FOR” each of the Merger Agreement Proposal and the Adjournment Proposal.

A control number, located on your proxy card, is designed to verify your identity and allow you to grant a proxy to vote your shares of Company Common Stock, and to confirm that your voting instructions have been properly recorded when granting a proxy electronically over the Internet or by telephone. Please be aware that, although there is no charge for granting a proxy to vote your shares of Company Common Stock, if you grant a proxy electronically over the Internet or by telephone, you may incur costs such as telephone and Internet access charges for which you will be responsible. Even if you plan to attend the Special Meeting, you are strongly encouraged to grant a proxy to vote your shares of Company Common Stock.

If your shares of Company Common Stock are held in “street name” through a bank, broker or other nominee, you should follow the directions provided by your bank, broker or other nominee regarding how to instruct your bank, broker or other nominee to vote your shares of Company Common Stock. Without those instructions, your shares of Company Common Stock will not be voted, which will have the same effect as voting “AGAINST” the Merger Agreement Proposal.

 

4

Q:	What is the difference between holding shares of Company Common Stock as a stockholder of record and as a beneficial owner?

 

A:

If your shares of Company Common Stock are registered directly in your name with our transfer agent, Continental, you are considered, with respect to those shares of Company Common Stock to be the “stockholder of record.” In this case, this proxy statement and your proxy card have been sent directly to you by or on behalf of Markforged.

If your shares of Company Common Stock are held through a bank, broker or other nominee, you are considered the “beneficial owner” of such shares of Company Common Stock and are considered to hold them in “street name.” In that case, this proxy statement has been forwarded to you by your bank, broker or other nominee who is considered, with respect to those shares of Company Common Stock, to be the stockholder of record. As the beneficial owner, you have the right to direct your bank, broker or other nominee on how to vote your shares by following their instructions for voting. You are also invited to attend the Special Meeting and may vote via the Special Meeting website using the 16-digit control number included in your proxy materials. If you did not receive a 16-digit control number, you should follow the instructions from your bank, broker or other nominee, including any requirement to obtain a legal proxy.

 

Q:	Will my shares of Company Common Stock held in “street name” or another form of record ownership be combined for voting purposes with shares of Company Common Stock I hold as the stockholder of record?

 

A:

No. Because any shares of Company Common Stock you may hold in “street name” will be deemed to be held of record by a different stockholder than any shares of Company Common Stock you hold directly as the stockholder of record, any shares of Company Common Stock held in “street name” will not be combined for voting purposes with the shares of Company Common Stock you hold as the stockholder of record. Similarly, if you own shares of Company Common Stock in various registered forms, such as jointly with your spouse, as trustee of a trust or as custodian for a minor, you will receive, and will need to sign and return, a separate proxy card for those shares of Company Common Stock because they are held in a different form of record ownership. Shares of Company Common Stock held by a corporation or business entity must be voted by an authorized officer of the entity. Shares of Company Common Stock held in an individual retirement account must be voted under the rules governing the account.

 

Q:	If I hold my shares of Company Common Stock in “street name,” will my bank, broker or other nominee vote my shares of Company Common Stock for me on the proposals to be considered at the Special Meeting?

 

A:

Not without your direction. Your bank, broker or other nominee will only be permitted to vote your shares of Company Common Stock on any “non-routine” proposal if you instruct your bank, broker or other nominee on how to vote. Under applicable stock exchange rules, banks, brokers or other nominees have the discretion to vote your shares of Company Common Stock on routine matters if you fail to instruct your bank, broker or other nominee on how to vote your shares of Company Common Stock with respect to such matters. The proposals in this proxy statement are non-routine matters, and banks, brokers and other nominees therefore cannot vote on these proposals without your instructions. Therefore, it is important that you instruct your bank, broker or other nominee on how you wish to vote your shares of Company Common Stock.

You should follow the procedures provided by your bank, broker or other nominee to instruct them, as applicable, to vote your shares of Company Common Stock. Without such instructions, your shares of Company Common Stock will not be voted at the Special Meeting. A failure to vote will have the same effect as if you voted “AGAINST” the Merger Agreement Proposal.

 

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Q:	What happens if I do not vote?

 

A:

The required vote to approve the Merger Agreement Proposal is based on the total number of shares of Company Common Stock issued and outstanding as of the close of business on the Record Date, not just the shares of Company Common Stock that are voted at the Special Meeting. If you do not vote in person or by proxy, it will have the same effect as a vote “AGAINST” the Merger Agreement Proposal.

 

Q:	May I change my vote after I have mailed my signed proxy card or otherwise submitted my vote by proxy?

 

A:	Yes. If you are a stockholder of record, you may change your vote or revoke your proxy by:

 

•

delivering a written notice of revocation of your proxy to our Corporate Secretary at Markforged Holding Corporation, Attention: Corporate Secretary, 60 Tower Road, Waltham, Massachusetts 02451, prior to the Special Meeting;

 

•

signing a new proxy card with a date later than the date of the previously submitted proxy card relating to the same shares of Company Common Stock and returning it to us by mail prior to the Special Meeting;

 

•

submitting a new proxy by telephone prior to 11:59 p.m. Eastern Time on    , 2024, the day preceding the Special Meeting;

 

•

submitting a new proxy by Internet prior to 11:59 p.m. Eastern Time on    , 2024, the day preceding the Special Meeting; or

 

•

attending the Special Meeting and voting thereat (simply attending the Special Meeting will not cause your proxy to be revoked).

Please note, however, that only your last-dated proxy will count. Attending the Special Meeting without taking one of the actions described above will not in itself revoke your proxy. Please note that if you want to revoke your proxy by mailing a new proxy card to Markforged or by sending a written notice of revocation to Markforged, you should ensure that you send your new proxy card or written notice of revocation in sufficient time for it to be received by Markforged before the Special Meeting.

Please note that if you hold your shares of Company Common Stock in “street name,” and you have instructed a bank, broker or other nominee to vote your shares of Company Common Stock, the above-described options for revoking your voting instructions do not apply, and instead you should contact your bank, broker or other nominee for instructions regarding how to change or revoke your vote.

 

Q:	What is a proxy?

 

A:

A “proxy” is your legal designation of another person to vote your shares of Company Common Stock. This written document describing the matters to be considered and voted on at the Special Meeting is called a “proxy statement.” The document used to designate a proxy to vote your shares of Company Common Stock is called a “proxy card.” The Company Board has designated each of Shai Terem, President, Chief Executive Officer and Director of Markforged, and Stephen Karp, General Counsel of Markforged, with full power of substitution, as proxies for the Special Meeting.

 

Q:	If a Company Stockholder gives a proxy, how are the shares of Company Common Stock voted?

 

A:

Regardless of the method you choose to grant a proxy to vote your shares of Company Common Stock, the individuals named on the enclosed proxy card, or your proxies, will vote your shares of Company Common Stock in the way that you indicate. When completing the Internet or telephone process or the proxy card, you may specify whether your shares of Company Common Stock should be voted “FOR” or “AGAINST” or to abstain from voting on the specific items of business to come before the Special Meeting.

 

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If you properly sign your proxy card but do not mark the boxes showing how your shares of Company Common Stock should be voted on a matter, the shares of Company Common Stock represented by your properly signed proxy will be voted “FOR” the Merger Agreement Proposal and “FOR” the Adjournment Proposal.

 

Q:	May I attend the Special Meeting and vote in person?

 

A:

All Company Stockholders as of the Record Date may attend and vote at the virtual Special Meeting by visiting www.virtualshareholdermeeting.com/MKFG2024SM and by using the 16-digit control number included in their proxy materials. You will not be able to attend the Special Meeting physically in person.

 

•

Stockholders of record: If you are a stockholder of record, in order to participate in the Special Meeting, you will need your 16-digit control number included on the proxy notice, proxy card or the voting instruction form previously distributed to you. If you are a stockholder of record, you may vote electronically during the Special Meeting by following the instructions available at www.virtualshareholdermeeting.com/MKFG2024SM.

 

•

Stockholders holding shares in “street” name: If your shares are held in “street name” through a brokerage firm, bank, trust or other similar organization and you do not have a 16-digit control number, in order to participate in the Special Meeting, you must first obtain a legal proxy from your bank, broker or other nominee reflecting the number of shares of Company Common Stock you held as of the Record Date, your name and email address. If you hold your shares of Company Common Stock in “street name,” you must obtain the appropriate documents from your bank, broker or other nominee giving you the right to vote the shares at the Special Meeting.

Instructions on how to attend and participate in the Special Meeting via the webcast are posted at www.virtualshareholdermeeting.com/MKFG2024SM.

You should ensure that you have a strong Internet connection and allow plenty of time to log in and ensure that you can hear streaming audio prior to the start of the Special Meeting. We will offer live technical support for all Company Stockholders attending the meeting. Technical support phone numbers will be available on the virtual-only meeting platform at www.virtualshareholdermeeting.com/MKFG2024SM.

Even if you plan to attend the Special Meeting, we encourage you to complete, sign, date and return the enclosed proxy or grant a proxy electronically over the Internet or via telephone to ensure that your shares of Company Common Stock will be represented at the Special Meeting. If you hold your shares of Company Common Stock in “street name,” because you are not the stockholder of record, we encourage you to provide voting instructions to your bank, broker or other nominee.

 

Q:	What happens if I sell or otherwise transfer my shares of Company Common Stock before consummation of the Merger?

 

A:

If you sell or transfer your shares of Company Common Stock before consummation of the Merger, you will have transferred your right to receive the Per Share Merger Consideration in the Merger. In order to receive the Per Share Merger Consideration, you must hold your shares of Company Common Stock through consummation of the Merger.

The Record Date for stockholders entitled to vote at the Special Meeting is earlier than the date the Merger is anticipated to be consummated. Accordingly, if you sell or transfer your shares of Company Common Stock after the Record Date but before the Special Meeting, unless special arrangements (such as provision of a proxy) are made between you and the person or entity to whom you sell or otherwise transfer your shares of Company Common Stock and each of you notifies Markforged in writing of such special arrangements, you will transfer the right to receive the Per Share Merger Consideration, if the Merger is consummated, to the person or entity to whom you sell or transfer your shares of Company Common Stock, but you will have retained your right to vote these shares of Company Common Stock at the Special

 

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Meeting. Even if you sell or otherwise transfer your shares of Company Common Stock after the Record Date, we encourage you to complete, date, sign and return the enclosed proxy card or grant a proxy via the Internet or telephone.

 

Q:	How will I receive the Per Share Merger Consideration to which I am entitled?

 

A:

If you hold your shares of Company Common Stock in certificated form, you will receive a letter of transmittal shortly after the Merger is consummated instructing you how to surrender your stock certificates, to an exchange agent to be designated by Nano in order to receive the Per Share Merger Consideration to which you are entitled. Please do not send in your stock certificates now. If you hold your shares of Company Common Stock in book-entry form but not through the Depository Trust Company (“DTC”), you will receive instructions regarding delivery of an “agent’s message” with respect to such book-entry shares. If your shares of Company Common Stock are held in “street name” by your bank, broker or other nominee, you may receive instructions from your bank, broker or other nominee as to what action, if any, you need to take to effect the surrender of your “street name” shares of Company Common Stock in exchange for the Per Share Merger Consideration.

 

Q:	Should I send in my stock certificate(s) or other evidence of ownership now or with my proxy card?

 

A:

No. Please do not send in your stock certificates or other documents evidencing ownership of shares of Company Common Stock now or with your proxy card. After the Merger is completed, you will receive a letter of transmittal containing instructions for how to send your share certificates to the bank or trust company Nano selects to act as the exchange agent for the Merger (the “Exchange Agent”) in order to receive the appropriate cash payment for the Company Common Stock represented by your share certificates.

 

Q:	I do not know where my stock certificate is. How will I get the Per Share Merger Consideration for my shares of Company Common Stock?

 

A:

If the Merger is consummated, the transmittal materials you will receive after the consummation of the Merger will include the procedures that you must follow if you cannot locate your stock certificate. This will include an affidavit that you will need to sign attesting to the loss of your stock certificate. You may also be required to post a bond as indemnity against any potential loss.

 

Q:	When do you expect the Merger to be consummated?

 

A:

Consummation of the Merger is subject to various closing conditions, including, among others, adoption of the Merger Agreement by the holders of a majority of the shares of Company Common Stock issued and outstanding as of the Record Date, receipt of certain regulatory approvals by applicable governmental authorities, including the Committee on Foreign Investment in the United States (“CFIUS”), and certain other conditions.

We currently anticipate that the Merger will be consummated in the first quarter of 2025, assuming satisfaction or waiver of all of the conditions to the Merger. However, it is possible, including as a result of factors outside the control of Markforged and Nano, that the Merger will be consummated at a later time or not at all.

 

Q:	What effects will the Merger have on Markforged?

 

A:

The shares of Company Common Stock are currently registered under the Exchange Act, and are listed on the NYSE under the symbol “MKFG.” As a result of the Merger, Markforged will cease to be a publicly traded company and will become an indirect wholly-owned subsidiary of Nano. As soon as reasonably practicable following the consummation of the Merger, the shares of Company Common Stock will cease trading on and be delisted from the NYSE and will be deregistered under the Exchange Act, and Markforged will no longer be required to file periodic reports with the SEC.

 

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Q:	What happens if the Merger is not consummated?

 

A:

If the Merger Agreement is not adopted by the holders of a majority of the issued and outstanding shares of Company Common Stock entitled to vote as of the Record Date or if the Merger is not consummated for any other reason, Company Stockholders will not receive any payment for their shares of Company Common Stock pursuant to the Merger Agreement. Instead, Markforged will remain a public company, the shares of Company Common Stock will continue to be listed and traded on NYSE and registered under the Exchange Act, and we will continue to file periodic reports with the SEC.

Under specified circumstances, we may be required to pay Nano a (i) termination fee of $4,600,000 upon the termination of the Merger Agreement or (ii) an expense reimbursement up to $4,000,000 of reasonable, documented out-of-pocket fees, as described under “The Merger Agreement—Termination Fee; Certain Expenses” beginning on page 100 of this proxy statement.

 

Q:	Do any directors or executive officers have interests in the Merger that may differ from those of Company Stockholders generally?

 

A:

In considering the recommendation of the Company Board with respect to the Merger Agreement Proposal, you should be aware that our directors and executive officers may have interests in the Merger that may be different from, or in addition to, your interests as a stockholder. The Company Board was aware of these potential interests and considered them, among other matters, in approving the Merger Agreement and the Merger and in recommending that the Merger Agreement be adopted by the Company Stockholders. For a description of the potential interests of our directors and executive officers in the Merger, see “The Merger—Interests of the Directors and Executive Officers of Markforged in the Merger” beginning on page 62 of this proxy statement.

 

Q:	Who will count the votes obtained at the Special Meeting?

 

A:	The votes will be counted by the inspector of election appointed for the Special Meeting.

 

Q:	Who will solicit votes for and bear the cost and expenses of this proxy solicitation?

 

A:

We will bear the cost of the solicitation of proxies. We have retained Sodali & Co. LLC (“Sodali”), a proxy solicitation firm, to solicit proxies in connection with the Special Meeting at a cost of approximately $20,000, plus expenses. We will also indemnify the proxy solicitor against losses arising out of its provisioning of these services on our behalf. In addition, we may reimburse banks, brokers and other nominees representing beneficial owners of shares of Company Common Stock for their expenses in forwarding soliciting materials to such beneficial owners. Proxies may also be solicited by our directors, officers and employees, personally or by telephone, email, fax, over the Internet or other means of communication. No additional compensation will be paid for such services.

 

Q:	Where can I find the voting results of the Special Meeting?

 

A:

We intend to publish final voting results in a Current Report on Form 8-K that we will file with the SEC within four business days of the Special Meeting. All reports that we file with the SEC are publicly available when filed. See “Where You Can Find More Information” beginning on page 113 of this proxy statement.

 

Q:	What are the material U.S. federal income tax consequences to Company Stockholders of the exchange of shares of Company Common Stock for cash pursuant to the Merger?

 

A:

The exchange of shares of Company Common Stock for cash pursuant to the Merger will be a taxable transaction for U.S. federal income tax purposes. A “U.S. Holder” (as defined below under “The Merger—Material U.S. Federal Income Tax Consequences of the Merger to Holders of Company Common Stock” beginning on page 71 of this proxy statement) generally will recognize gain or loss for U.S. federal income tax purposes in an amount equal to the difference, if any, between the amount of cash received by

 

9

such U.S. Holder pursuant to the Merger and such U.S. Holder’s adjusted tax basis in the shares of Company Common Stock surrendered pursuant to the Merger. A “Non-U.S. Holder” (as defined below under “The Merger—Material U.S. Federal Income Tax Consequences of the Merger to Holders of Company Common Stock” beginning on page 71 of this proxy statement) generally will not be subject to U.S. federal income tax with respect to the exchange of shares of Company Common Stock for cash in the Merger unless such Non-U.S. Holder has certain connections to the United States, but may be subject to backup withholding unless the Non-U.S. Holder complies with certain certification procedures or otherwise establishes a valid exemption from backup withholding. You are urged to consult your tax advisors to determine the U.S. federal income tax consequences relating to the Merger in light of your own particular circumstances and any consequences arising under the laws of any state, local or non-U.S. taxing jurisdiction or other tax laws. A more complete description of the material U.S. federal income tax consequences of the Merger is provided under “The Merger—Material U.S. Federal Income Tax Consequences of the Merger to Holders of Company Common Stock” beginning on page 71 of this proxy statement.

 

Q.	Will the Per Share Merger Consideration payable to me be subject to Israeli capital gains tax?

 

A.

As a general rule, non-Israeli resident shareholders are not subject to Israeli capital gains tax with respect to their Per Share Merger Consideration, and Israeli resident shareholders are subject to Israeli capital gains tax with respect to their Per Share Merger Consideration. Such Israeli shareholders, as well as shareholders who were Israeli residents in the past, should consult their tax advisors regarding the tax consequences of the Merger to them.

 

Q.	Will the Per Share Merger Consideration payable to me be subject to Israeli tax withholding?

 

A.

According to Israeli law, unless it is provided with an exemption certificate issued by the Israel Tax Authority, Nano is required to withhold Israeli taxes from the Per Share Merger Consideration even if you are not subject to Israeli capital gains tax. Nano intends to submit an application to the Israel Tax Authority in order to clarify the withholding mechanism. As part of the application, Nano intends to request that non-Israeli shareholders who hold less than 5% of the outstanding shares of Company Common Stock be exempt from withholding to the extent that such shareholders provide the Exchange Agent with certain declarations and documents regarding their non-Israeli tax residency. We cannot assure you that Nano’s tax ruling application will be accepted. A more complete description of the Israeli withholding tax consequences of the Merger is provided under “The Merger—Material Israeli Withholding Tax Consequences of the Merger to Holders of Company Common Stock” beginning on page 75 of this proxy statement.

 

Q:	What will holders of Company Warrants receive in the Merger?

 

A:

Each Company Warrant that is outstanding and unexercised immediately prior to the Effective Time will, in accordance with its terms, automatically and without any action on the part of the holder of the Company Warrant or any other person, cease to represent a Company Warrant exercisable for shares of Company Common Stock and will become a warrant exercisable for the Per Share Merger Consideration that the holder of such Company Warrant would have received if such Company Warrant had been exercised immediately prior to the Effective Time. As soon as reasonably practicable following the consummation of the Merger, the Warrants will cease trading on and be delisted from the NYSE and will be deregistered under the Exchange Act. For additional information regarding the treatment of Company Warrants, see “The Merger Agreement—Treatment of Company Warrants” beginning on page 80 of this proxy statement.

 

Q:	What will the holders of Markforged equity awards receive in the Merger?

 

A:	Each Company Stock Option that has a per share exercise price less than the Per Share Merger Consideration that would be payable in respect of the shares of Company Common Stock underlying such

 

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Company Stock Option (each, a “In-the-Money Company Stock Option”), whether vested or unvested, that is outstanding and unexercised immediately prior to the Effective Time will be cancelled, and the holder of such In-the-Money Company Stock Option will be entitled to receive the Per Share Merger Consideration for each Net Share of Company Common Stock (as defined in the Merger Agreement) covered by such In-the-Money Company Stock Option, without interest and less applicable tax withholdings. Any Company Stock Option that has a per share exercise price that is equal to or greater than the Per Share Merger Consideration (each, an “Out-of-the-Money Company Stock Option”) that is outstanding and unexercised immediately prior to the Effective Time will be cancelled, and the holder thereof will receive no consideration therefor.

Each Company Restricted Stock Unit that is not vested as of immediately prior to the Effective Time (each a “Unvested Company RSU Award”) will automatically be cancelled and replaced with a grant by Nano of a restricted stock unit award (each a “Replacement RSU Award”) on similar terms and conditions as were applicable to the Unvested Company RSU Award under the Company’s 2021 Stock Option and Incentive Plan (the “Company Incentive Award Plan”) immediately prior to the Effective Time, except that (i) any continued employment or service requirement will be based on the applicable continuing Company employee’s continued employment or service with Nano or its subsidiaries, including the Surviving Corporation, (ii) unless otherwise agreed between Nano and the holder of the Unvested Company RSU Award, the existing vesting schedule for the applicable Unvested Company RSU Award will apply to the Replacement RSU Award replacing such Unvested Company RSU (provided that, certain holders of Unvested Company RSU Award will be entitled to maintain the vesting acceleration to which they are entitled under the Company’s Executive Severance and Change in Control Plan, and such protection will continue to apply to the Replacement RSU Award), and (iii) the number of Nano’s ordinary shares, par value NIS 5.00 per share (the “Nano Ordinary Shares”), underlying the Replacement RSU Award will be determined by multiplying the number of shares of Company Common Stock issuable upon vesting of the Unvested Company RSU Award immediately prior to the Effective Time by the quotient obtained by dividing (a) the Per Share Merger Consideration by (b) the volume weighted average price of an American Depositary Share of Nano (representing a beneficial interest in one (1) Nano Ordinary Share) for the ten (10) consecutive trading days ending on (and including) the trading day that is immediately preceding the day that is three (3) days prior to the Closing, rounding down to the nearest whole number of shares and subject to certain customary reductions.

 

Q:	Are holders of Company Common Stock entitled to appraisal rights in connection with the Merger under the DGCL?

 

A:

Yes. As a holder of record or beneficial owner of shares of Company Common Stock, you are entitled to exercise appraisal rights under the DGCL in connection with the Merger if you take certain actions and meet certain conditions. Under the DGCL, holders and beneficial owners of shares of Company Common Stock who do not vote for the adoption of the Merger Agreement have the right to seek appraisal of the fair value of their shares of Company Common Stock as determined by the Delaware Court of Chancery if the Merger is consummated. Appraisal rights are only available if the holder of the shares of Company Common Stock complies fully with all applicable requirements of Section 262 of the DGCL. Any appraisal amount determined by the court could be more than, the same as, or less than the value of the consideration that such holder of Company Common Stock may receive in the Merger. Any stockholder or beneficial owner intending to exercise appraisal rights must, among other things, submit a written demand for appraisal to Markforged before the vote on the adoption of the Merger Agreement is taken and must not vote or otherwise submit a proxy to vote in favor of adoption of the Merger Agreement. Failure to follow exactly the procedures specified under Section 262 of the DGCL will result in the loss of appraisal rights. Because of the complexity of the DGCL relating to appraisal rights, if you are considering exercising your appraisal rights, we encourage you to seek the advice of your own legal counsel. See “The Merger—Appraisal Rights” beginning on page 36 of this proxy statement.

 

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Q:	What should I do if I receive more than one set of voting materials?

 

A:

You may receive more than one set of voting materials, including multiple copies of this proxy statement and multiple proxy cards or voting instruction cards. For example, if your shares of Company Common Stock are held in more than one brokerage account or are registered differently, you will receive more than one proxy card or voting instruction card. Please complete, date, sign and return (or grant a proxy to vote via the Internet or telephone with respect to) each proxy card and voting instruction card that you receive to ensure that all of your shares of Company Common Stock are voted.

 

Q:	What is householding and how does it affect me?

 

A:

The SEC permits us to send a single set of proxy materials to any household at which two or more stockholders reside, unless contrary instructions have been received, but only if we provide advance notice and follow certain procedures. In such cases, each stockholder continues to receive a separate notice of the meeting and proxy card. Certain brokerage firms may have instituted householding for beneficial owners of shares of Company Common Stock held through brokerage firms. If your family has multiple accounts holding shares of Company Common Stock, you may have already received householding notification from your broker. Please contact your broker directly if you have any questions or require additional copies of this proxy statement. The broker will arrange for delivery of a separate copy of this proxy statement promptly upon your written or oral request. You may decide at any time to revoke your decision to household, and thereby receive multiple copies.

 

Q:	Who can help answer my questions?

 

A:

If you have any more questions concerning the Merger, the Special Meeting or this proxy statement, would like additional copies of this proxy statement or enclosed proxy card, or require assistance in submitting your proxy or voting your shares of Company Common Stock, please contact our proxy solicitor at the contact information provided below:

Sodali & Co. LLC

430 Park Ave., 14^th Floor

New York, NY10022

Email: [email protected]

(203) 658-9400

or

Toll-Free: 800-662-5200

If your bank, broker or other nominee holds your shares of Company Common Stock, you should also call your bank, broker or other nominee for additional information.

 

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SUMMARY

This summary highlights selected information contained in this proxy statement, including with respect to the Merger and the Merger Agreement. This summary may not contain all of the information that is important to you. To understand the Merger more fully and for a more complete description of the legal terms of the Merger, you should read carefully this entire proxy statement, the annexes, including the Merger Agreement, and the documents we incorporate by reference into this proxy statement. You may obtain the documents and information incorporated by reference into this proxy statement without charge by following the instructions under “Where You Can Find More Information” beginning on page 113 of this proxy statement. The Merger Agreement is attached as Annex A to this proxy statement and incorporated herein by reference.

The Companies (page 30)

Markforged Holding Corporation

Markforged is a Delaware corporation with its principal executive offices located at 60 Tower Road, Waltham, Massachusetts 02451, telephone number (866) 496-1805. Markforged’s platform, The Digital Forge, is an intuitive additive manufacturing platform powering engineers, designers and manufacturing professionals globally. The Digital Forge combines precise and reliable 3D printers and both metal and composite proprietary materials seamlessly with its cloud-based software to empower manufacturers to create more resilient and agile supply chains. The Company Common Stock is listed on the NYSE under the symbol “MKFG.” See “The Companies—Markforged Holding Corporation” beginning on page 30 of this proxy statement.

Additional information about Markforged is contained in certain of its public filings that are incorporated by reference into this proxy statement. See “Where You Can Find More Information” beginning on page 113 of this proxy statement.

Nano Dimension Ltd.

Nano Dimension Ltd. is an Israeli corporation with its principal executive offices located at 2 Ilan Ramon Street, Ness Ziona, 7403635, Israel, telephone number +972-073-7509142. Nano’s vision is to transform existing electronics and mechanical manufacturing into Industry 4.0 environmentally friendly & economically efficient precision additive electronics and manufacturing. Nano delivers solutions that convert digital designs to electronic or mechanical devices — on demand, anytime, anywhere. Founded in 2012, Nano has served over 2,000 customers across vertical target markets such as aerospace and defense, advanced automotive, high-tech industrial, specialty medical technology, R&D and academia. Nano designs and makes Additive Electronics, Additive Manufacturing 3D printing machines and consumable materials. Additive Electronics are manufacturing machines that enable the design and development of High-Performance-Electronic-Devices (Hi-PED^®s). Through the integration of its portfolio of products, Nano offers the advantages of rapid prototyping, high-mix-low-volume production, IP security, minimal environmental footprint and design-for-manufacturing capabilities. The American Depositary Shares (“ADSs”) of Nano are listed on the Nasdaq under the symbol “NNDM.” See “The Companies—Nano Dimension Ltd” beginning on page 30 of this proxy statement.

Nano US II, Inc.

Merger Sub is a Delaware corporation and an indirect wholly-owned subsidiary of Nano, with a registered office located at 251 Little Falls Drive, New Castle, Delaware 19808. Merger Sub was formed solely for the purpose of effecting the Merger and the transactions contemplated by the Merger Agreement. Upon completion of the Merger, Merger Sub will cease to exist. See “The Companies—Nano US II, Inc.” beginning on page 30 of this proxy statement.

 

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The Special Meeting (page 31)

This proxy statement is being furnished to Company Stockholders as part of the solicitation of proxies by the Company Board for use at the Special Meeting to be held virtually on    , 2024, at    a.m. Eastern Time, or at any adjournment or postponement thereof. Company Stockholders will be able to virtually attend and vote at the Special Meeting by visiting www.virtualshareholdermeeting.com/MKFG2024SM and by using the 16-digit control number included in their proxy materials. For purposes of attendance at the Special Meeting, all references in this proxy statement to “present” will mean virtually present at the Special Meeting.

Shares of Company Common Stock held directly in your name as a stockholder of record may be voted at the Special Meeting via the Special Meeting website. Shares held in “street name” may be voted at the Special Meeting via the Special Meeting website using the 16-digit control number included in your proxy materials. If you did not receive a 16-digit control number, you should follow the instructions from your bank, broker or other nominee, including any requirement to obtain a legal proxy.

At the Special Meeting, Company Stockholders of record as of the Record Date will be asked to vote on the Merger Agreement Proposal and the Adjournment Proposal, each as further described below.

The Merger Agreement Proposal (page 105)

Company Stockholders will be asked to consider and vote upon the proposal to adopt the Merger Agreement. The Merger Agreement provides, among other things, that, upon the terms and subject to the satisfaction or, to the extent permitted by applicable law, waiver of the conditions set forth therein, Merger Sub will be merged with and into Markforged, with Markforged surviving the Merger as an indirect wholly-owned subsidiary of Nano. At the Effective Time and as a result of the Merger, each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than shares of Preferred Stock of the Company, Company Common Stock held in the treasury of Markforged or owned by Nano or Merger Sub or any direct or indirect wholly-owned subsidiary of Nano or Markforged immediately prior to the Effective Time (the “Excluded Shares”) and shares held by stockholders who have perfected their statutory rights of appraisal under Section 262 of the DGCL) (the “Dissenting Shares”) will be cancelled and converted automatically into the right to receive $5.00 per share in cash, without interest and less any applicable withholding tax.

Following the Merger, the Company Common Stock will no longer be publicly listed and traded on the NYSE, the Company Common Stock will be deregistered under the Exchange Act, Markforged will no longer file periodic reports with the SEC and existing Company Stockholders will cease to have any ownership interest in Markforged.

Record Date; Shares Entitled to Vote; Quorum (page 31)

You are entitled to receive notice and to vote at the Special Meeting if you owned Company Common Stock as of the close of business on    , 2024, which is the Record Date for the Special Meeting. As of the Record Date, there were    shares of Company Common Stock issued and outstanding and entitled to vote at the Special Meeting. A quorum of Company Stockholders is necessary to transact business at the Special Meeting. The presence at the Special Meeting, in person or by proxy, of the holders of a majority of the voting power of our issued and outstanding shares of Company Common Stock entitled to vote at the Special Meeting, will constitute a quorum at the Special Meeting and permit Markforged to transact business at the Special Meeting.

Vote Required (page 32)

Each share of Company Common Stock issued and outstanding as of the close of business on the Record Date is entitled to one vote at the Special Meeting.

 

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Approval of the Merger Agreement Proposal requires the holders of a majority of the Company Common Stock issued and outstanding as of the Record Date to vote “FOR” the Merger Agreement Proposal. A failure to vote your shares of Company Common Stock or an abstention from voting for the Merger Agreement Proposal will have the same effect as a vote “AGAINST” the Merger Agreement Proposal. If you hold your shares of Company Common Stock in “street name,” the failure to instruct your bank, broker or other nominee on how to vote your shares of Company Common Stock on the Merger Agreement Proposal will have the same effect as a vote “AGAINST” the Merger Agreement Proposal.

Approval of the Adjournment Proposal requires the affirmative vote of the holders of a majority of voting power of the Company Common Stock present in person or represented by proxy at the Special Meeting. An abstention from voting for the Adjournment Proposal will have the same effect as a vote “AGAINST” the Adjournment Proposal. If you hold your shares of Company Common Stock in “street name,” the failure to instruct your bank, broker or other nominee on how to vote your shares of Company Common Stock on the Adjournment Proposal will have no effect on the Adjournment Proposal.

Support Agreements (page 103)

In connection with the execution of the Merger Agreement, certain of the directors and executive officers of Markforged (and certain of their affiliates) (collectively, the “Specified Stockholders”) entered into the Support Agreements. Subject to its terms, each Support Agreement obligates the Specified Stockholder to, among other things, vote (or cause to be voted) all shares of Company Common Stock beneficially owned by such Specified Stockholder in favor of the adoption of the Merger Agreement at the Special Meeting. Each Support Agreement will terminate automatically, without any notice or other action by any person, upon the earliest of (i) the Effective Time, (ii) the termination of the Merger Agreement in accordance with its terms, (iii) the date of any modification, waiver or amendment to any provision of the Merger Agreement that reduces the Per Share Merger Consideration or changes the form of consideration thereof to be paid in respect of the Company Common Stock, (iv) an adverse change in recommendation by the Company Board with respect to their recommendation to vote in favor of the Merger Agreement Proposal, and (v) the mutual written consent of the Specified Stockholder and Nano. As of September 25, 2024, the Specified Stockholders beneficially owned in the aggregate approximately 7,551,265 shares of Company Common Stock, representing approximately 37% of the total voting power of the outstanding shares of Company Common Stock. A copy of the form of Support Agreement is included as Annex B to this proxy statement.

Recommendation of the Markforged Board of Directors and Reasons for the Merger (page 49)

The Company Board recommends that the Company Stockholders vote “FOR” the Merger Agreement Proposal and “FOR” the Adjournment Proposal. In its determinations and in reaching its recommendations, the Company Board held a number of meetings, consulted with Markforged senior management and its outside legal and financial advisors, and considered a number of factors and a substantial amount of information. For a description of the factors considered by the Company Board in reaching this decision, including potentially negative factors against which the anticipated benefits of the Merger were weighed, and additional information on the recommendations of the Company Board and the Transactions Committee, see the section of this proxy statement titled “The Merger—Recommendation of the Markforged Board of Directors and Reasons for the Merger” beginning on page 49 of this proxy statement.

Opinion of Evercore Group L.L.C. (page 53)

The Company retained Evercore Group L.L.C. (“Evercore”) to act as its financial advisor in connection with the Company Board’s evaluation of strategic and financial alternatives, including the Merger. As part of this engagement, the Company requested that Evercore evaluate the fairness, from a financial point of view, of the Per Share Merger Consideration to be received by the holders of Company Common Stock (other than holders of shares of Company Common Stock owned by Parent, Merger Sub or any subsidiary of the Company or held by

 

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the Company as treasury stock (collectively, “Owned Company Shares”) and Dissenting Shares). At a meeting of the Company Board held on September 25, 2024, Evercore rendered to the Company Board its opinion to the effect that, as of that date and based upon and subject to the assumptions, limitations, qualifications and conditions described in Evercore’s opinion, the Per Share Merger Consideration of $5.00 to be received by the holders of Company Common Stock (other than holders of Owned Company Shares and Dissenting Shares) in the Merger was fair, from a financial point of view, to such holders.

The full text of the written opinion of Evercore, dated as of September 25, 2024, which sets forth, among other things, the procedures followed, assumptions made, matters considered and qualifications and limitations on the scope of review undertaken in rendering its opinion, is attached as Annex C to this proxy statement and is incorporated herein by reference. The Company encourages you to read this opinion carefully and in its entirety. Evercore’s opinion was addressed to, and provided for the information and benefit of, the Company Board (in its capacity as such) in connection with its evaluation of the proposed Merger. The opinion does not constitute a recommendation to the Company Board or to any other persons in respect of the Merger, including as to how any holder of shares of Company Common Stock should vote or act in respect of the Merger. Evercore’s opinion does not address the relative merits of the Merger as compared to other business or financial strategies that might be available to the Company, nor does it address the underlying business decision of the Company to engage in the Merger.

Certain Effects of the Merger on Markforged (page 38)

Upon the terms and subject to the conditions of the Merger Agreement, Merger Sub will be merged with and into Markforged, with Markforged surviving as an indirect wholly-owned subsidiary of Nano. Throughout this proxy statement, we use the term “Surviving Corporation” to refer to Markforged as the surviving corporation following the Merger. If the Merger is consummated, you will not own any shares of the capital stock of the Surviving Corporation. The Effective Time will occur, if it occurs, upon the filing of a certificate of merger with the Secretary of State of the State of Delaware (or at such later date and time as we and Nano may agree in writing and specify in such certificate of merger). Throughout this proxy statement, we use the term “Closing Date” to refer to the date on which the closing of the Merger occurs.

Effect on Markforged if the Merger Is Not Consummated (page 38)

If the Merger Agreement is not adopted by the holders of a majority of the issued and outstanding shares of Company Common Stock entitled to vote as of the Record Date or if the Merger is not consummated for any other reason, Company Stockholders will not receive any payment for their Company Common Stock pursuant to the Merger Agreement. Instead, Markforged will remain a public company, the Company Common Stock will continue to be listed and traded on the NYSE and registered under the Exchange Act, and we will continue to file periodic reports with the SEC. Under specified circumstances, upon termination of the Merger Agreement, Markforged may be required to pay Nano a termination fee of $4,600,000, as described under “The Merger Agreement—Termination Fee; Certain Expenses” beginning on page 100 of this proxy statement.

Furthermore, if the Merger is not consummated, depending on the circumstances that caused the Merger not to be consummated, the price of the Company Common Stock may decline significantly. If that were to occur, it is uncertain when, if ever, the price of the Company Common Stock would return to the price at which the Company Common Stock trades as of the date of this proxy statement.

Merger Consideration (page 39)

At the Effective Time, each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than the Excluded Shares and Dissenting Shares) will be cancelled and cease to exist and will be converted automatically into the right to receive $5.00 per share in cash, without interest and subject to applicable withholding taxes.

 

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After the Merger is consummated, holders of Company Common Stock will no longer have any rights as a Markforged stockholder as a result of the Merger, nor will they be entitled to receive any shares in Nano or the Surviving Corporation.

Treatment of Company Warrants (page 80)

At the Effective Time, each Company Warrant that is outstanding and unexercised immediately prior to the Effective Time will, in accordance with its terms, cease to represent a warrant exercisable for Company Common Stock and automatically will become a warrant exercisable for the Per Share Merger Consideration that the holder would have been entitled to receive if the Company Warrant had been exercised immediately prior to the Effective Time, and will not be entitled to receive any shares in Nano or the Surviving Company. As such, the Warrants will no longer be publicly listed and traded on the NYSE, the Warrants will be deregistered under the Exchange Act, and Markforged will no longer file periodic reports with the SEC.

Treatment of Equity Awards and the ESPP (page 80)

Markforged Stock Options

At the Effective Time, each In-the-Money Company Stock Option that is outstanding and unexercised immediately prior to the Effective Time will be cancelled and converted into the right to receive a cash payment equal to the Per Share Merger Consideration in respect of each net share of Company Common Stock (if any) covered by such In-the-Money Company Stock Option, without interest and less applicable tax withholding. Each Out-of-the-Money Company Stock Option that is outstanding and unexercised immediately prior to the Effective Time will be cancelled, and the holder thereof will receive no consideration therefor.

Treatment of Company RSUs

At the Effective Time, each Unvested Company RSU Award will be automatically cancelled and replaced with a grant by Nano of a Replacement RSU Award, which will be granted on similar terms and conditions as were applicable to the Unvested Company RSU Award prior to the Effective Time, except (i) any continued employment or service requirement will be based on the applicable continuing Company employee’s continued employment or service with Nano or its subsidiaries, including the Surviving Corporation; (ii) unless otherwise agreed between Nano and the holder of the Unvested Company RSU, the existing vesting schedule for the applicable Unvested Company RSU will apply to the Replacement RSU Award replacing such Unvested Company RSU (provided that, certain holders of Unvested Company RSU will be entitled to maintain the vesting acceleration to which they are entitled under the Company’s Executive Severance and Change in Control Plan, and such protection will continue to apply to the Replacement RSU Award), and (iii) the number of Nano Ordinary Shares underlying the Replacement RSU Award will be determined by multiplying the number of shares of Company Common Stock issuable upon vesting of the Unvested Company RSU immediately prior to the Effective Time by the quotient obtained by dividing (a) the Per Share Merger Consideration by (b) the volume weighted average price of an American Depositary Share of Nano (representing a beneficial interest in one (1) Nano Ordinary Share) for the ten (10) consecutive trading days ending on (and including) the trading day that is immediately preceding the day that is three (3) days prior to the Closing, rounding down to the nearest whole number of shares and subject to certain customary reductions.

Treatment of the Company ESPP

With respect to the Markforged Holding Corporation 2021 Employee Stock Purchase Plan (the “Company ESPP”), Markforged will take all necessary actions required to (i) terminate the ESPP, as of immediately prior to the Effective Time and (ii) provide that no offering period will commence after September 25, 2024. The Company ESPP will no longer have any force and effect on or after the Effective Time.

 

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Certain Actions

Prior to the Effective Time, Markforged will adopt such resolutions and take all other actions to effectuate the treatment of the Company Stock Options, Company RSU Awards, and the Company ESPP described above. In addition, Markforged will adopt such resolutions and take all other actions to terminate the Company Incentive Award Plan and the Company ESPP.

Interests of the Directors and Executive Officers of Markforged in the Merger (page 62)

Certain of Markforged’s directors and executive officers may have financial interests in the Merger that are different from, or in addition to, the interests of stockholders of Markforged generally. The Company Board was aware of these potential interests and considered them, among other matters, in evaluating and negotiating the Merger Agreement and in reaching its decision to approve the Merger Agreement and the Merger, and to recommend that the Company Stockholders adopt the Merger Agreement. These interests include the following, among others:

 

•

Each right of Markforged’s executive officers and non-employee members of the Company Board to receive Company Earnout Shares (as defined in the Merger Agreement) will be cancelled in exchange for the right to receive a cash payment equal to the Per Share Merger Consideration;

 

•

The Company Stock Options and Company RSUs held by Markforged’s directors and executive officers will accelerate and vest and be treated as detailed above;

 

•

Pursuant to the Company’s Non-Employee Director Compensation Policy, all Company Stock Options and Company RSU Awards held by Markforged’s non-employee directors will accelerate at the Effective Time;

 

•

Pursuant to the Company’s Executive Severance and Change in Control Plan (the “Severance and CIC Plan”), certain of Markforged’s executive officers are eligible for severance payments and benefits upon their qualifying termination of employment within a certain period following the Merger; and

 

•

Markforged’s directors and executive officers are entitled to continued indemnification following the Merger.

The interests of Markforged’s directors and executive officers are described in more detail in the section titled “The Merger—Interests of the Directors and Executive Officers of Markforged in the Merger” beginning on page 62 of this proxy statement.

Financing of the Merger (page 67)

The consummation of the Merger is not conditioned upon receipt of financing by Nano. Nano has represented in the Merger Agreement that it has access to, and will cause Merger Sub to have, at the closing of the Merger (the “Closing”) and the Effective Time, sufficient funds for the consummation of the Merger and other transactions contemplated by the Merger Agreement, including payment in cash of the aggregate consideration payable under the Merger Agreement, and to pay all related fees and expenses required to be paid by Nano and Merger Sub pursuant to the terms of the Merger Agreement.

Appraisal Rights (page 67)

If the Merger is consummated, stockholders who do not wish to accept the Per Share Merger Consideration are entitled to seek appraisal of their Company Common Stock under Section 262 of the DGCL and, if all procedures described in Section 262 of the DGCL are strictly complied with, to receive payment in cash for the fair value of their Company Common Stock exclusive of any element of value arising from the accomplishment or expectation of the Merger, as determined by the Delaware Court of Chancery, together with interest, if any, to be paid upon the amount determined to be the fair value. The “fair value” of Company Common Stock as

 

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determined by the Delaware Court of Chancery may be more or less than, or the same as, the consideration that you are otherwise entitled to receive under the Merger Agreement. These rights are known as “appraisal rights.” This proxy statement serves as a notice of such appraisal rights pursuant to Section 262 of the DGCL.

Persons who exercise appraisal rights under Section 262 of the DGCL will not receive the consideration that they would otherwise be entitled to receive pursuant to the Merger Agreement. They will receive an amount determined to be the “fair value” of their Company Common Stock, as applicable, following petition to, and an appraisal by, the Delaware Court of Chancery. Persons considering seeking appraisal should recognize that the fair value of their Company Common Stock determined under Section 262 of the DGCL could be more than, the same as or less than the consideration they would otherwise be entitled to receive pursuant to the Merger Agreement. Strict compliance with the procedures set forth in Section 262 of the DGCL is required. Failure to comply strictly with all of the procedures set forth in Section 262 of the DGCL may result in the withdrawal, loss or waiver of appraisal rights. Consequently, and in view of the complexity of the provisions of Section 262 of the DGCL, Company Stockholders wishing to exercise appraisal rights are urged to consult their legal and financial advisors before attempting to exercise such rights.

A holder of record of Company Common Stock and a beneficial owner who:

 

•

continuously holds or beneficially owns, as applicable, such shares through the Effective Time;

 

•

has not consented to the Merger in writing or otherwise voted in favor of the Merger or otherwise withdrawn, lost or waived appraisal rights;

 

•

strictly complies with the procedures under Section 262 of the DGCL;

 

•

does not thereafter withdraw his, her or its demand for appraisal of such shares; and

 

•

in the case of a beneficial owner, a person who (1) reasonably identifies in his, her or its demand the holder of record of the shares for which the demand is made, (2) provides documentary evidence of such beneficial owner’s beneficial ownership and a statement that such documentary evidence is a true and correct copy of what it purports to be, and (3) provides an address at which such beneficial owner consents to receive notices given by Markforged and to be set forth on the Chancery List (as defined in the section entitled “The Merger—Appraisal Rights” beginning on page 67 of this proxy statement);

will be entitled to receive the fair value of his, her or its Company Common Stock exclusive of any element of value arising from the accomplishment or expectation of the Merger, as determined by the Delaware Court of Chancery, together with interest, if any, to be paid upon the amount determined to be the fair value.

A copy of Section 262 of the DGCL is attached to this proxy statement as Annex D. The foregoing summary is not a complete statement of the law relating to appraisal rights and is qualified in its entirety by reference to Section 262 of the DGCL and any amendments thereto after the date of this proxy statement. Any person who desires to exercise his, her or its appraisal rights should review carefully Section 262 of the DGCL and is urged to consult his, her or its legal advisor before electing or attempting to exercise such rights. For more information, please see the section entitled “The Merger—Appraisal Rights” beginning on page 67 of this proxy statement and Annex D.

Material U.S. Federal Income Tax Consequences of the Merger to Holders of Company Common Stock (page 71)

The receipt of cash for shares of Company Common Stock pursuant to the Merger will be a taxable transaction for U.S. federal income tax purposes. The receipt of cash by a U.S. Holder (as defined below under “The Merger—Material U.S. Federal Income Tax Consequences of the Merger to Holders of Company Common Stock”) in exchange for such U.S. Holder’s shares of Company Common Stock in the Merger generally will

 

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result in such U.S. Holder’s recognition of gain or loss in an amount equal to the difference, if any, between the cash such U.S. Holder receives in the Merger and such U.S. Holder’s adjusted tax basis in the shares of Company Common Stock surrendered in the Merger. A Non-U.S. Holder (as defined below under “The Merger—Material U.S. Federal Income Tax Consequences of the Merger to Holders of Company Common Stock” beginning on page 71 of this proxy statement) generally will not be subject to U.S. federal income tax with respect to the exchange of shares of Company Common Stock for cash in the Merger unless such Non-U.S. Holder has certain connections to the United States, but may be subject to backup withholding unless the Non-U.S. Holder complies with certain certification procedures or otherwise establishes a valid exemption from backup withholding. For more information, stockholders should refer to the discussion under “The Merger—Material U.S. Federal Income Tax Consequences of the Merger to Holders of Company Common Stock” beginning on page 71 of this proxy statement and consult their tax advisors concerning the U.S. federal income tax consequences relating to the Merger in light of their particular circumstances and any consequences arising under the laws of any state, local or non-U.S. taxing jurisdiction or other tax laws.

Material Israeli Withholding Tax Consequences of the Merger to Holders of Company Common Stock (page 75)

The payment of the Per Share Merger Consideration by Nano in exchange for Company Common Stock pursuant to the Merger is generally subject to Israeli withholding tax. However, Nano intends to apply for a ruling from the Israel Tax Authority requesting that non-Israeli shareholders who hold less than 5% of the outstanding shares of Company Common Stock be exempt from withholding to the extent that such shareholders provide the Exchange Agent with certain declarations and documents regarding their non-Israeli tax residency. Any Company Stockholder holding 5% or more of the outstanding shares of Company Common Stock (and any other Company Stockholder who will be excluded from the scope of the ruling, if obtained) who it is entitled to an exemption from Israeli withholding tax, may separately apply to the Israel Tax Authority to obtain a certificate of exemption from withholding or an individual tax ruling providing an exemption from withholding or withholding at a reduced rate, and submit such certificate of exemption or ruling to the Exchange Agent at least three business days prior to the date that is 180 days following the Closing.

For more information, stockholders should refer to the discussion under “The Merger—Material Israeli Withholding Tax Consequences of the Merger to Holders of Company Common Stock” beginning on page 75 of this proxy statement and consult their tax advisors concerning the Israeli withholding tax consequences relating to the Merger in light of their particular circumstances.

Regulatory Approvals Required for the Merger (page 76)

Under the Merger Agreement, the Merger cannot be consummated until the required regulatory approvals are received, such as approval from the Committee on Foreign Investment in the United States and foreign direct investment approval in Sweden and the United Kingdom. We currently do not expect that any other clearance, approval or consent would be required under any other applicable antitrust law in connection with the Merger.

Israeli Tax Ruling

Nano and Markforged have agreed that Nano will use reasonable commercial efforts to request a ruling from the Israel Tax Authority in order to clarify the withholding mechanism. For more information, please refer to the section of this proxy statement captioned “Material Israeli Withholding Tax Consequences of the Merger to Holders of Company Common Stock.”

No Solicitation of Acquisition Proposals (page 20)

During the period from September 25, 2024 until the earlier of the Effective Time and the valid termination of the Merger Agreement (the “Pre-Closing Period”), Markforged will not and will cause its Subsidiaries (as

 

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defined in the Merger Agreement) and its and their respective directors and officers not to, and will use reasonable best efforts to cause its other Representatives not to, directly or indirectly:

 

•

solicit, initiate, induce, facilitate, or knowingly encourage any Acquisition Proposal (as described under “The Merger Agreement—Other Covenants and Agreements—Change in Recommendation of the Company Board” beginning on page 89 of this proxy statement) with respect to the Company or any inquiry, expression of interest, proposal or offer that could reasonably be expected to lead to such an Acquisition Proposal;

 

•

take any action to make the provisions of any potentially applicable takeover laws of any state, including any “moratorium,” “control share,” “fair price,” “takeover” or “interested stockholder” or similar anti-takeover Law, including, without limitation, Section 203 of the DGCL (each a “Takeover Statute”) (including approving any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the DGCL) (as described under “The Merger Agreement—Other Covenants and Agreements—Change in Recommendation of the Company Board” beginning on page 89 of this proxy statement) inapplicable to any transaction contemplated by an Acquisition Proposal with respect to Markforged;

 

•

enter into, participate in, maintain or continue any communications, discussions or negotiations regarding, or deliver or make available to any person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal with respect to Markforged;

 

•

enter into any letter of intent or any other contract, agreement, memorandum of understanding, commitment or other arrangement contemplating or otherwise relating to any Acquisition Proposal with respect to Markforged (whether binding or nonbinding);

 

•

terminate, amend, release, modify or fail to enforce any provision (including any standstill or similar provision) of, or grant any permission, waiver or request under, any confidentiality, standstill or similar agreement; or

 

•

resolve, propose or agree to do any of the foregoing.

However, if before obtaining approval of the Merger Agreement Proposal by the Company Stockholders, Markforged or any of its representatives has received an unsolicited bona fide written Acquisition Proposal made by a third party after September 25, 2024 and prior to obtaining such approval, in circumstances not involving a breach of Markforged’s obligations under the non-solicit provisions of the Merger Agreement, and the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisor) that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal (as described under “The Merger Agreement—Other Covenants and Agreements—Change in Recommendation of the Company Board” beginning on page 89 of this proxy statement) and that the failure to take such action would be inconsistent with its fiduciary duties under applicable law, then Markforged may, at any time prior to obtaining such approval, subject to certain requirements:

 

•

enter into confidentiality agreement, containing provisions that is in the aggregate not less favorable (including nondisclosure provisions and use restrictions) to Markforged as the provisions of the confidentiality agreement with Nano as in effect immediately prior to the execution of the Merger Agreement, with the third party making such an Acquisition Proposal and thereafter; and

 

•

furnish information and data with respect to Markforged and enter into discussions and negotiations with the third party making such an Acquisition Proposal.

 

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No Change in Recommendation (page 22)

Subject to certain exceptions described below, the Company Board may not make a change in its recommendation to Company Stockholders to vote in favor of the Merger Agreement Proposal as set forth in this proxy statement. Prior to the approval of the Merger Agreement Proposal by the Company Stockholders:

 

•

The Company Board may make a change in recommendation in connection with an Intervening Event (as described under “The Merger Agreement—Other Covenants and Agreements—Change in Recommendation of the Company Board” beginning on page 89 of this proxy statement) if (1) the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to make a change in recommendation would reasonably be expected to constitute a breach of its fiduciary duties and (2) certain other conditions are met, as described in the section of this proxy statement titled “The Merger Agreement—Other Covenants and Agreements—Change in Recommendation of the Company Board.”

 

•

The Company Board may make a change in recommendation with respect to an Acquisition Proposal or terminate the Merger Agreement to enter into a definitive agreement with a third party, in each case, if (1) such Acquisition Proposal did not result from a breach of Markforged’s obligations under the non-solicit provisions of the Merger Agreement, (2) the Company Board determines that such Acquisition Proposal is a Superior Proposal, (3) the Company Board determines in good faith, after consultation with its outside legal counsel and financial advisor, that the failure take such action would reasonably be expected to constitute a breach of its fiduciary duties, and (4) certain other conditions are met, as described in the section of this proxy statement titled “The Merger Agreement—Other Covenants and Agreements—Change in Recommendation of the Company Board.”

For a further discussion of the limitations on changing the Board Recommendation, approving or recommending a Superior Proposal, or terminating the Merger Agreement to enter into a definitive agreement for a Superior Proposal, see “The Merger Agreement—Other Covenants and Agreements—Change in Recommendation of the Company Board” beginning on page 89 of this proxy statement.

Conditions to the Closing of the Merger (page 97)

The respective obligations of Markforged, Nano and Merger Sub to consummate the Merger are subject to the satisfaction (or, to the extent permitted by applicable law, waiver by Markforged and Nano) on or prior to the Closing Date of the following conditions:

 

•

the affirmative votes of the holders of a majority of the outstanding shares of Company Common Stock as of the Record Date for the Special Meeting, represented at a stockholder meeting of the Company in person or by proxy and voting thereon, approving the adoption of the Merger Agreement Proposal (the “Company Stockholder Approval”) will have been obtained;

 

•

the CFIUS Approval (as defined in the Merger Agreement) will have been obtained and any waiting period (including any extensions thereof) applicable to the consummation of the Merger in respect of any required regulatory approvals will have been terminated or will have expired; and

 

•

no governmental restraints enjoining, making illegal or otherwise prohibiting the consummation of the Merger will be in effect and all conditions set forth in any order, injunction (temporary or permanent) or decree or other similar legal restraint issued by any court or governmental entity of competent jurisdiction in order to consummate the transactions contemplated by the Merger Agreement will have been met.

The obligations of Nano and Merger Sub to consummate the Merger are subject to the satisfaction (or, to the extent permitted by applicable law, waiver by Nano) on or prior to the Closing Date of the following conditions:

 

•

the representations and warranties made by Markforged in the Merger Agreement with respect to the occurrence of a Company Material Adverse Effect (as described in the section of this proxy statement titled “The Merger Agreement—Representations and Warranties” beginning on page 82 of this proxy

 

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statement) being true and correct as of and at the Closing Date as though made as of such date and that any such fact, circumstance, effect, change, event or development giving rise to the breach of such representation will not be continuing as of the Closing Date;

 

•

except for any inaccuracies that are, individually or in the aggregate, (i) relating solely to the impact of Markforged’s 10-for-1 reverse stock split effective September 19, 2024 and would not result in an increase in the fully diluted capitalization of Markforged as of September 24, 2024 by more than 250,000 shares of Company Common Stock, in the aggregate, or (ii) de minimis in the context of the transactions contemplated by the Merger Agreement, certain specified representations and warranties made by Markforged in the Merger Agreement with respect to the capitalization of Markforged being true and correct as of and at the Closing Date as though made as of such date;

 

•

the representations and warranties made by Markforged in the Merger Agreement with respect to corporate organization, standing and power, authority; execution and delivery; enforceability, intellectual property contracts, and broker’s fees and expenses being true and correct in all material respects as of and at the Closing Date as though made at and as of such date (except to the extent expressly made as of an earlier date, in which case as of such earlier date);

 

•

except where any failures of any such representations and warranties to be true and correct would not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the other representations and warranties made by Markforged in the Merger Agreement being true and correct (without giving effect to any qualification as to “materiality” or Company Material Adverse Effect qualifiers set forth therein) as of and at the Closing Date as though made as of such date (except to the extent expressly made as of an earlier date, in which case, at and as of such earlier date);

 

•

Markforged will have performed or complied in all material respects with the obligations and covenants required to be performed or complied with by it under the Merger Agreement at or prior to the Closing Date, and Nano will have received a certificate signed on behalf of the Chief Executive Officer or the Chief Financial Officer of Markforged to such effect; and

 

•

since September 25, 2024, No Company Material Adverse Effect will have occurred.

The obligations of Markforged to consummate the Merger are subject to the satisfaction (or, to the extent permitted by applicable law, waiver by Markforged) on or prior to the Closing Date of the following conditions:

 

•

except for any inaccuracies that are, individually or in the aggregate, de minimis in the context of the transactions contemplated by the Merger Agreement, certain specified representations and warranties made by Nano in the Merger Agreement with respect to the capitalization of Nano being true and correct as of and at the Closing Date as though made as of such date;

 

•

the representations and warranties of Nano made in the Merger Agreement with respect to corporate organization, standing and power, authority; execution and delivery, enforceability and broker’s fees and expenses being true and correct in all material respects as of and at the Closing Date as though made as of such date (except to the extent expressly made as of an earlier date, in which case as of such earlier date);

 

•

the other representations and warranties of Nano made in the Merger Agreement being true and correct (without giving effect to any qualification as to “materiality” qualifiers set forth therein) as of and at the Closing Date as though made as of such date (except to the extent expressly made as of an earlier date, in which case, at and as of such earlier date), except, in each case, where the failure to be so true and correct would not, and would not reasonably be expected to, have, individually or in the aggregate, result in a Parent Material Adverse Effect;

 

•

Nano and Merger Sub will have performed or complied in all material respects with the obligations and covenants required to be performed or complied with by them under the Merger Agreement at or prior to the Closing Date; and

 

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•

the delivery by Nano of a certificate signed on behalf of Nano by its Chief Executive Officer or Chief Financial Officer certifying that the conditions described in the preceding four bullets have been satisfied.

Termination (page 99)

The Merger Agreement may be terminated and the transactions contemplated thereby may be abandoned at any time prior to the Effective Time as follows:

 

•

by mutual written agreement of Markforged and Nano;

 

•

by either Markforged or Nano, if:

 

•

the Effective Time will not have occurred on or before June 25, 2025 (the “Outside Date”); however, if at the time of the original Outside Date, all of the conditions to Closing have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, but such conditions are then capable of being satisfied) except for the conditions related to the receipt of required regulatory approvals, then either Nano or Markforged, upon written notice to the other prior to the original Outside Date, will be entitled to extend the Outside Date to September 25, 2025;

 

•

(i) any governmental entity that must grant a required regulatory approval has denied approval of the Merger and such denial has become final and non-appealable or (ii) any restraint enjoining, making illegal or otherwise prohibiting the consummation of the Merger will have become final and non-appealable; or

 

•

the Special Meeting will have been held and the Company Stockholder Approval will not have been obtained;

 

•

by Markforged, if:

 

•

at any time prior to the Effective Time, for an uncured breach of any representation or warranty or failure to perform any covenant or agreement on the part of Nano or Merger Sub set forth in the Merger Agreement that would cause the conditions to closing with respect to the accuracy of representations and warranties or the performance of covenants of Nano and Merger Sub not to be satisfied; or

 

•

at any time prior to obtaining Company Stockholder Approval, in order to accept a Superior Proposal (as defined in the section of this proxy statement titled “The Merger Agreement—Other Covenants and Agreements—Change in Recommendation of the Company Board” beginning on page 89 of this proxy statement) and enter into a written definitive acquisition agreement providing for the consummation of a transaction constituting a Superior Proposal (a “Specified Agreement”), subject to certain conditions.

 

•

by Nano, if:

 

•

at any time prior to the Effective Time, for an uncured breach of any representation or warranty or failure to perform any covenant or agreement on the part of Markforged set forth in the Merger Agreement that would cause the conditions to closing with respect to the accuracy of representations and warranties or the performance of covenants of Markforged not to be satisfied; or

 

•

at any time prior to obtaining Company Stockholder Approval, if a Change in Recommendation of the Company Board (as described in the section of this proxy statement titled “The Merger Agreement—Other Covenants and Agreements—Change in Recommendation of the Company Board” beginning on page 89 of this proxy statement) will have occurred.

 

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Termination Fee (page 100)

Under certain circumstances, Markforged will be required to pay Nano a termination fee equal to $4,600,000 (the “Termination Fee”), including upon:

 

•

termination of the Merger Agreement by Nano due to a Company Change in Recommendation;

 

•

termination of the Merger Agreement by Nano or Markedforged if, following a Company Change in Recommendation, the Special Meeting has been held and the Company Stockholder Approval is not obtained;

 

•

termination of the Merger Agreement by Markforged to enter into a Specified Agreement relating to a Superior Proposal, subject to certain conditions; and

 

•

termination of the Merger Agreement by Nano or Markforged under certain circumstances where (1) an Acquisition Proposal will have been made, proposed or otherwise communicated to Markforged or the Company Stockholders or will have become publicly known after September 25, 2024 and will not have been withdrawn prior to the termination of the Merger Agreement or the date of the Special Meeting, as applicable, and (2) within 12 months of such termination, Markforged consummates, or enters into a binding written definitive agreement with respect to, an Acquisition Proposal (replacing “15%” in the definition thereof with “50%”).

Additionally, in the event that the Merger Agreement is terminated by Markforged or Nano as a result of the failure to obtain the Company Stockholder Approval, Markforged will be required to pay Nano a fee of up to $4,000,000 to reimburse Nano for reasonable, documented out-of-pocket fees and expenses, incurred or paid by or on behalf of Nano and its subsidiaries in connection with the transactions contemplated by the Merger Agreement, or related to the authorization, preparation, negotiation, execution and performance of the Merger Agreement.

For more information, please see “The Merger Agreement—Termination Fee; Certain Expenses” beginning on page 100 of this proxy statement.

Transaction Expenses (page 101)

Except as otherwise described in this proxy statement, including under “The Merger Agreement—Termination Fee; Certain Expenses” beginning on page 100 of this proxy statement and “The Merger Agreement—Transaction Expenses” beginning on page 101 of this proxy statement, whether or not the Merger is consummated, Markforged, Nano and Merger Sub are each responsible for all of their respective costs and expenses incurred in connection with the Merger and the transactions contemplated by the Merger Agreement.

Market Prices and Dividend Data (page 107)

The Company Common Stock is listed on the NYSE under the symbol “MKFG.” On September 24, 2024, the last trading day prior to the public announcement of the execution of the Merger Agreement, the closing price of the Company Common Stock on the NYSE was $2.73 per share. On    , 2024, the latest practicable trading day before the printing of this proxy statement, the closing price of the Company Common Stock on the NYSE was $     per share. You are encouraged to obtain current market quotations for the Company Common Stock.

Markforged has never declared or paid any cash dividends on the Company Common Stock, and Markforged does not currently intend to pay, nor under the Merger Agreement may Markforged pay without the prior written consent of Nano, any cash dividends on its capital stock.

Delisting and Deregistration of Company Common Stock and Company Warrants (page 77)

If the Merger is consummated, following the Effective Time, the Company Common Stock and Company Warrants will cease trading on the NYSE and will be deregistered under the Exchange Act. As such, we would no longer file periodic reports with the SEC.

 

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SELECTED FINANCIAL DATA

Reverse Stock Split

On September 19, 2024, we effected a 10-for-1 reverse stock split of Company Common Stock. In connection with the reverse stock split, the total number of authorized shares of Company Common Stock was reduced from 1,000,000,000 to 100,000,000. The par value per share of Company Common Stock remained unchanged at $0.0001 per share. Our audited consolidated financial statements included in our Annual Report on Form 10-K for the year ended December 31, 2023 and our unaudited condensed consolidated financial statements included in our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2024 and June 30, 2024 that are incorporated by reference into this proxy statement are presented without giving effect to the reverse stock split. Share numbers in this prospectus reflect the 10-for-1 reverse stock split of Company Common Stock.

The following selected financial data has been derived from our audited consolidated financial statements included in our Annual Report on Form 10-K filed with the SEC on March 15, 2024, unaudited Quarterly Reports on Form 10-Q for the quarter ended March 31, 2024, filed with the SEC on May 8, 2024, and the quarter ended June 30, 2024, filed with the SEC on August 8, 2024, as adjusted to reflect the reverse stock split. Our historical results are not indicative of the results that may be expected in the future.

AS REPORTED (dollars in thousands, except per share amounts):

 

		Year Ended December 31,
		2023				2022
Total net loss		$	(103,567	)		$	(25,388	)
Net loss per common share, basic and diluted		$	(0.53	)		$	(0.13	)
Weighted-average shares used to compute basic and diluted net loss per share			196,896,011				189,747,367
Common shares outstanding at year end			198,581,263				194,560,946

AS ADJUSTED FOR 10-for-1 REVERSE STOCK SPLIT (unaudited, dollars in thousands, except per share amounts):

 

		Year Ended December 31,
		2023				2022
Total net loss		$	(103,567	)		$	(25,388	)
Net loss per common share, basic and diluted		$	(5.26	)		$	(1.34	)
Weighted-average shares used to compute basic and diluted net loss per share			19,689,601				18,974,736
Common shares outstanding at year end			19,858,127				19,456,095

 

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AS REPORTED (dollars in thousands, except per share amounts):

 

		Three Months Ended March 31,
		2024				2023
Total net loss		$	(35,946	)		$	(19,019	)
Net loss per common share, basic and diluted		$	(0.18	)		$	(0.10	)
Weighted-average shares used to compute basic and diluted net loss per share			199,290,500				195,369,245
Common shares outstanding at period end			199,399,503				195,643,620

AS ADJUSTED FOR 10-for-1 REVERSE STOCK SPLIT (unaudited, dollars in thousands, except per share amounts):

 

		Three Months Ended March 31,
		2024				2023
Total net loss		$	(35,946	)		$	(19,019	)
Net loss per common share, basic and diluted		$	(1.80	)		$	(0.97	)
Weighted-average shares used to compute basic and diluted net loss per share			19,929,050				19,536,925
Common shares outstanding at period end			19,939,951				19,564,363

AS REPORTED (dollars in thousands, except per share amounts):

 

		Three Months Ended June 30,								Six Months Ended June 30,
		2024				2023				2024				2023
Total net loss		$	(14,398	)		$	(18,988	)		$	(50,344	)		$	(38,007	)
Net loss per common share, basic and diluted		$	(0.07	)		$	(0.10	)		$	(0.25	)		$	(0.19	)
Weighted-average shares used to compute basic and diluted net loss per share			201,252,969				196,372,157				200,273,880				195,873,471
Common shares outstanding at period end			202,549,293				196,880,964				202,549,293				196,880,964

AS ADJUSTED FOR 10-for-1 REVERSE STOCK SPLIT (unaudited, dollars in thousands, except per share amounts):

 

		Three Months Ended June 30,								Six Months Ended June 30,
		2024				2023				2024				2023
Total net loss		$	(14,398	)		$	(18,988	)		$	(50,344	)		$	(38,007	)
Net loss per common share, basic and diluted		$	(0.72	)		$	(0.97	)		$	(2.51	)		$	(1.94	)
Weighted-average shares used to compute basic and diluted net loss per share			20,125,296				19,637,215				20,027,388				19,587,347
Common shares outstanding at period end			20,254,931				19,688,099				20,254,931				19,688,099

 

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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS

This proxy statement, and the documents to which we refer you in this proxy statement, as well as information included in oral statements or other written statements made or to be made by us or on our behalf, contain “forward-looking statements” that do not directly or exclusively relate to historical facts. Forward-looking statements can usually be identified by the use of terminology such as “anticipate,” “believe,” “continue,” “could,” “estimate,” “evolve,” “expect,” “forecast,” “intend,” “looking ahead,” “project,” “may,” “might,” “opinion,” “plan,” “possible,” “potential,” “should,” “will,” “would” and similar words or expressions. Stockholders are cautioned that any such forward-looking statements, such as statements about the consummation of the proposed Merger and the anticipated benefits thereof, are not guarantees of future performance and may involve significant risks and uncertainties, and that actual results may vary materially from those in the forward-looking statements. These risks and uncertainties include, but are not limited to, the risks detailed in our filings with the SEC, including in our most recent Annual Report on Form 10-K and Quarterly Reports on Form 10-Q, factors and matters described or incorporated by reference into this proxy statement, and the following factors:

 

•

the inability to consummate the Merger within the anticipated time period, or at all, including, but not limited to, as a result of the failure to obtain the Company Stockholder Approval or the failure to satisfy the other conditions to the consummation of the Merger;

 

•

the risk that the parties may be unable to obtain the regulatory approval required to complete the Merger, or that the required regulatory approval may delay the consummation of the Merger or result in the imposition of conditions that could cause the parties to abandon the Merger;

 

•

the occurrence of any event, change or other circumstance or condition that could give rise to the termination of the Merger Agreement, including, but not limited to, the risk that the Merger Agreement may be terminated in circumstances requiring us to pay a termination fee to Nano;

 

•

the risk that our stock price may decline significantly, including below our stock price prior to the public announcement of the execution of the Merger Agreement, if the Merger is not consummated;

 

•

the effect of the announcement, pendency or consummation of the Merger on our business relationships (including, but not limited to, employees, suppliers, vendors, other business partners and governmental entities), operating results, cash flows and business generally;

 

•

risks that the proposed Merger may disrupt our current plans and operations or affect our ability to retain or recruit key employees;

 

•

the response of our competitors to the proposed Merger;

 

•

the amount of the costs, fees, expenses and charges incurred by Markforged related to the Merger Agreement or the Merger;

 

•

risks related to the diversion of the attention of our management and employees from ongoing business operations;

 

•

the effect of the restrictions placed on our business activities pursuant to the Merger Agreement and the limitations on our ability to pursue certain business opportunities and alternatives to the Merger during the pendency of the Merger;

 

•

the nature, cost and outcome of any litigation and other legal proceedings, including, but not limited to, any such proceedings related to the Merger and instituted against us and others;

 

•

the fact that under the terms of the Merger Agreement, we are unable to solicit other Acquisition Proposals during the pendency of the Merger;

 

•

the fact that receipt of the all-cash Per Share Merger Consideration would be taxable to our stockholders that are treated as U.S. Holders for United States federal income tax purposes;

 

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•

the fact that the payment of the Per Share Merger Consideration by Nano in exchange for Company Common Stock pursuant to the Merger is generally subject to Israeli withholding tax;

 

•

risks related to the implementation of our business model and strategic plans for our business and product candidates;

 

•

risks related to general industry conditions and competition; and

 

•

risks related to the potential impact of general economic, political and market factors on the parties to the proposed Merger.

Consequently, there can be no assurance that the actual results or developments anticipated by such forward-looking statements will be realized or, even if substantially realized, that they will have the expected consequences to, or effects on, Markforged or its businesses or operations. No assurance can be given that these are all of the factors that could cause actual results to vary materially from the forward-looking statements. The foregoing review of risks and uncertainties that could cause actual events to differ from expectations should not be construed as exhaustive and should be read in conjunction with statements that are included in this proxy statement and elsewhere, including the risk factors included in Markforged’s most recent Annual Report on Form 10-K and Quarterly Reports on Form 10-Q, factors and matters described or incorporated by reference in this proxy statement, and other reports filed with the SEC.

Any forward-looking statement made in this proxy statement speaks only as of the date on which it is made. Markforged can give no assurance that the conditions to the Merger will be satisfied. You should not put undue reliance on any forward-looking statements. Markforged undertakes no obligation, and expressly disclaims any obligation, to update, alter or otherwise revise any forward-looking statement, whether written or oral, that may be made from time to time, whether as a result of new information, future developments or otherwise, except as may be required by law. If Markforged does update one or more forward-looking statements, no inference should be drawn that it will make additional updates with respect to those or other forward-looking statements.

 

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THE COMPANIES

Markforged Holding Corporation

Markforged is a Delaware corporation with its principal executive offices located at 60 Tower Road, Waltham, Massachusetts 02451, telephone number (866) 496-1805. Markforged’s platform, The Digital Forge, is an intuitive additive manufacturing platform powering engineers, designers and manufacturing professionals globally. The Digital Forge combines precise and reliable 3D printers and both metal and composite proprietary materials seamlessly with its cloud-based software to empower manufacturers to create more resilient and agile supply chains. The Company Common Stock is listed on the NYSE under the symbol “MKFG.” Additional information about Markforged is contained in certain of its public filings that are incorporated by reference into this proxy statement. See “Where You Can Find More Information” beginning on page 113 of this proxy statement.

Nano Dimension Ltd.

Nano Dimension Ltd. is an Israeli corporation with its principal executive offices located at 2 Ilan Ramon Street, Ness Ziona, 7403635, Israel, telephone number +972-073-7509142. Nano’s vision is to transform existing electronics and mechanical manufacturing into Industry 4.0 environmentally friendly & economically efficient precision additive electronics and manufacturing. Nano delivers solutions that convert digital designs to electronic or mechanical devices — on demand, anytime, anywhere. Founded in 2012, Nano has served over 2,000 customers across vertical target markets such as aerospace and defense, advanced automotive, high-tech industrial, specialty medical technology, R&D and academia. Nano designs and makes Additive Electronics, Additive Manufacturing 3D printing machines and consumable materials. Additive Electronics are manufacturing machines that enable the design and development of High-Performance-Electronic-Devices (Hi-PED^®s). Through the integration of its portfolio of products, Nano offers the advantages of rapid prototyping, high-mix-low-volume production, IP security, minimal environmental footprint and design-for-manufacturing capabilities. The ADSs of Nano are listed on the Nasdaq under the symbol “NNDM.”

Nano US II, Inc.

Merger Sub is a Delaware corporation and an indirect wholly-owned subsidiary of Nano, with a registered office located at 251 Little Falls Drive, New Castle, Delaware 19808. Merger Sub was formed solely for the purpose of effecting the Merger and the transactions contemplated by the Merger Agreement. Upon completion of the Merger, Merger Sub will cease to exist.

 

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THE SPECIAL MEETING

We are furnishing this proxy statement to Company Stockholders as part of the solicitation of proxies by the Company Board for use at the Special Meeting or any adjournment or postponement thereof.

Date, Time and Place of the Special Meeting

This proxy statement is being furnished to Company Stockholders as part of the solicitation of proxies by the Company Board for use at the Special Meeting to be held virtually on    , 2024, at    a.m. Eastern Time. Company Stockholders will be able to virtually attend and vote at the Special Meeting by visiting www.virtualshareholdermeeting.com/MKFG2024SM.

Company Common Stock held directly in your name as a stockholder of record may be voted at the Special Meeting via the Special Meeting website. Shares held in “street name” may be voted at the Special Meeting via the Special Meeting website using the 16-digit control number included in your proxy materials. If you did not receive a 16-digit control and wish to vote at the Special Meeting, you should follow the instructions from your bank, broker or other nominee, including any requirement to obtain a legal proxy.

Purpose of the Special Meeting

At the Special Meeting, we will ask the Company Stockholders as of the Record Date to vote on the Merger Agreement Proposal and the Adjournment Proposal. If holders of Company Common Stock fail to adopt the Merger Agreement by approving the Merger Agreement Proposal, the Merger will not occur. A copy of the Merger Agreement is attached to this proxy statement as Annex A and incorporated herein by reference, and the material provisions of the Merger Agreement are described under “The Merger Agreement” beginning on page 78 of this proxy statement.

This proxy statement and the enclosed form of proxy are first being mailed to stockholders on or about    , 2024.

Record Date; Shares Entitled to Vote; Quorum

Only Company Stockholders of record as of the close of business on    , 2024, the Record Date for the Special Meeting, are entitled to notice of and to vote at the Special Meeting or at any adjournments or postponements thereof. A list of stockholders entitled to vote at the Special Meeting will be available in our offices located at 60 Tower Road, Waltham, MA 02451, during regular business hours for a period of at least 10 days before the Special Meeting.

As of the Record Date, there were    shares of Company Common Stock issued and outstanding and entitled to be voted at the Special Meeting.

A quorum of Company Stockholders is necessary to transact business at the Special Meeting. Our bylaws provide that the presence at the Special Meeting, in person, by remote communication, or by proxy, of the holders of a majority of the voting power of our outstanding shares of Company Common Stock entitled to vote at the Special Meeting will constitute a quorum for Markforged to transact business at the Special Meeting. In general, Company Common Stock that were issued and outstanding as of the Record Date and are represented by a properly signed and returned proxy card will be counted as Company Common Stock present and entitled to vote at the Special Meeting for purposes of determining a quorum. Company Common Stock represented by proxies received but marked “ABSTAIN” will be included in the calculation of the number of Company Common Stock considered to be present at the Special Meeting for purposes of determining a quorum. If a beneficial owner of Company Common Stock held in street name gives voting instructions to the bank, broker or other nominee with respect to at least one of the proposals, but gives no instruction as to one or more of the other

 

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proposals, then those Company Common Stock will be deemed present at the Special Meeting and for purposes of establishing a quorum at the Special Meeting, will be voted as instructed with respect to any proposal as to which instructions were given, and will not be voted with respect to any other proposal.

In the event that a quorum is not present at the Special Meeting, it is expected that the meeting would be adjourned to a later date to solicit additional proxies, and a quorum will have to be established at such adjourned date.

Vote Required; Abstentions and Broker Non-Votes

Each share of Company Common Stock issued and outstanding as of the close of business on the Record Date is entitled to one vote at the Special Meeting.

Approval of the Merger Agreement Proposal requires the affirmative vote of the holders of a majority of the Company Common Stock that are outstanding as of the Record Date. Adoption of the Merger Agreement by Company Stockholders is a condition to the closing of the Merger. A failure to vote your shares of Company Common Stock or an abstention from voting for the Merger Agreement Proposal will have the same effect as a vote “AGAINST” the Merger Agreement Proposal. If you hold your shares of Company Common Stock in “street name,” the failure to instruct your bank, broker or other nominee on how to vote your shares of Company Common Stock on the Merger Agreement Proposal will have the same effect as a vote “AGAINST” the Merger Agreement Proposal.

Approval of the Adjournment Proposal requires the affirmative vote of the holders of a majority of voting power of the Company Common Stock present in person or represented by proxy at the Special Meeting. An abstention from voting for the Adjournment Proposal will have the same effect as a vote “AGAINST” the Adjournment Proposal. If you hold your shares of Company Common Stock in “street name,” the failure to instruct your bank, broker or other nominee on how to vote your shares of Company Common Stock on the Adjournment Proposal will have no effect on the Adjournment Proposal.

Company Common Stock Held by Directors and Executive Officers

As of the close of business on the Record Date, directors and executive officers of Markforged and their affiliates beneficially owned and were entitled to vote, in the aggregate,    shares of Company Common Stock, which represented approximately    % of the Company Common Stock issued and outstanding on that date. Certain of our directors and executive officers (and certain of their affiliates) have entered into Support Agreements obligating them to vote all of their Company Common Stock “FOR” the Merger Agreement Proposal and “FOR” the Adjournment Proposal.

See the section entitled “The Support Agreements” beginning on page 103 of this proxy statement for further information.

Voting; Proxies

Voting at the Special Meeting

You can vote at the virtual Special Meeting, which will be held on    , 2024 at    a.m. Eastern Time, at www.virtualshareholdermeeting.com/MKFG2024SM (unless the Special Meeting is adjourned or postponed).

You also may authorize the persons named as proxies on the proxy card to vote your shares by returning the proxy card in advance by mail, over the Internet or by telephone. Although Markforged offers multiple different voting methods, Markforged encourages you to vote over the Internet or by phone as Markforged believes they are the most cost-effective methods. We also recommend that you vote as soon as possible, even if you are planning to attend the Special Meeting, so that the vote count will not be delayed.

 

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Providing Voting Instructions by Proxy

To ensure that your shares of Company Common Stock are voted at the Special Meeting, we recommend that you submit your proxy or provide voting instructions for your shares of Company Common Stock held in “street name” to your bank, broker or other nominee promptly, even if you plan to attend the Special Meeting.

Company Common Stock Held by Record Holders

If you are a stockholder of record and your shares of Company Common Stock are registered in your name with our transfer agent, Computershare, you may submit your proxy using one of the methods described below.

Submit a Proxy by Telephone or via the Internet. This proxy statement is accompanied by a proxy card with instructions for submitting a proxy. You can grant a proxy by telephone by calling the toll-free number 1-800-690-6903 or via the Internet by following the instructions specified on the enclosed proxy card. Votes submitted by telephone or via the Internet for the matters brought before the Special Meeting as described in this proxy statement must be received by     p.m. Eastern Time on     , 2024, the day preceding the Special Meeting. Your shares of Company Common Stock will be voted as you direct, and in the same manner as if you had completed, signed, dated and returned your proxy card, as described below. You must have the enclosed proxy card available, and follow the instructions on the proxy card, in order to submit a proxy electronically over the Internet or by telephone.

Submit a Proxy Card. If you complete, sign, date and return the enclosed proxy card by mail so that it is received prior to 11:59 p.m. Eastern Time on     , 2024, the day preceding the Special Meeting, your shares of Company Common Stock will be voted in the manner directed by you on your proxy card.

Voting instructions are included on your proxy card. All shares of Company Common Stock represented by properly executed proxies received in time for the Special Meeting will be voted at the Special Meeting in accordance with the instructions of the stockholder. If you sign, date and return your proxy card without indicating how you wish to vote, such Company Common Stock represented by your properly signed proxy card will be voted “FOR” each of the Merger Agreement Proposal and the Adjournment Proposal. If you fail to return your proxy card and you are a holder of record as of the close of business on the Record Date, unless you attend the Special Meeting, your shares of Company Common Stock will not be considered present at the Special Meeting for purposes of determining whether a quorum is present, and your failure to vote will have the same effect as a vote “AGAINST” the Merger Agreement Proposal and will have no effect on the vote regarding the Adjournment Proposal.

Company Common Stock Held in “Street Name”

If your shares of Company Common Stock are held in “street name” through a bank, broker or other nominee, your bank, broker or other nominee will send you instructions as to how to provide voting instructions for your shares of Company Common Stock. You may cause your shares of Company Common Stock to be voted through your bank, broker or other nominee by completing and returning the voting form provided by your bank, broker or other nominee, or by the Internet or telephone through your bank, broker or other nominee by following the instructions provided to you by them if such a service is available, or by attending the Special Meeting and voting using your control number, or, if you did not obtain a control number, by contacting your bank, broker or other nominee to obtain a control number so that you may vote.

Under applicable stock exchange rules, banks, brokers or other nominees have the discretion to vote your shares of Company Common Stock on “routine” matters if you fail to instruct your bank, broker or other nominee on how to vote your shares of Company Common Stock with respect to such matters. A so-called “broker non-vote” results when banks, brokers and other nominees return a valid proxy voting upon a matter or matters for which the applicable rules provide discretionary authority but do not vote on a particular proposal because they do not have discretionary authority to vote on the matter and have not received specific voting

 

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instructions from the beneficial owner of the relevant shares. Markforged does not expect any broker non-votes at the Special Meeting because the Merger Agreement Proposal and the Adjournment Proposal described in this proxy statement are “non-routine” matters, and your bank, broker or other nominee therefore cannot vote on these proposals without your instructions. Accordingly, if you do not return your bank’s, broker’s or other nominee’s voting form, do not provide voting instructions via the Internet or telephone through your bank, broker or other nominee, if applicable, or do not attend the Special Meeting and vote in person with a “legal proxy” from your bank, broker or other nominee, your shares of Company Common Stock will not be considered present at the Special Meeting for purposes of determining whether a quorum is present at the Special Meeting, and your failure to vote will have the same effect as if you voted “AGAINST” the Merger Agreement Proposal and will have no effect on the Adjournment Proposal. However, if a beneficial owner of shares of Company Common Stock held in street name gives voting instructions to the bank, broker or other nominee with respect to one of the proposals, but gives no instruction as to the other proposal, then those shares will be deemed present at the Special Meeting and for purposes of establishing a quorum at the Special Meeting, will be voted as instructed with respect to any proposal as to which instructions were given, and will not be voted with respect to any other proposal. For Company Common Stock held in “street name,” only Company Common Stock affirmatively voted “FOR” the Merger Agreement Proposal or the Adjournment Proposal will be counted as a vote in favor of such proposal.

Revocability of Proxies

Any person giving a proxy pursuant to this solicitation has the power to revoke and change it any time before it is voted at the Special Meeting. If you are a stockholder of record, you may change your vote or revoke your proxy by:

 

•

delivering a written notice of revocation of your proxy to our Corporate Secretary at Markforged Holding Corporation, Attention: Corporate Secretary, 60 Tower Road, Waltham, MA 02451, prior to the Special Meeting;

 

•

signing a new proxy card with a date later than the date of the previously submitted proxy card relating to the same Company Common Stock and returning it to us by mail prior the Special Meeting;

 

•

submitting a new proxy by telephone prior to 11:59 p.m. Eastern Time on     , 2024, the day preceding the Special Meeting; or

 

•

attending the Special Meeting and voting thereat (simply attending the Special Meeting will not cause your proxy to be revoked).

Please note, however, that only your last-dated proxy will count. Attending the Special Meeting without taking one of the actions described above will not in itself revoke your proxy. Please note that if you want to revoke your proxy by mailing a new proxy card to Markforged or by sending a written notice of revocation to Markforged, you should ensure that you send your new proxy card or written notice of revocation in sufficient time for it to be received by Markforged before the Special Meeting.

If you hold your shares of Company Common Stock in “street name,” you should contact your bank, broker or other nominee for instructions regarding how to change your vote or submit new voting instructions. You may also vote in person at the Special Meeting with your control number, or, if you did not obtain a control number, by contacting your bank, broker or other nominee to obtain a control number. Any adjournment or postponement of the Special Meeting for the purpose of soliciting additional proxies will allow Company Stockholders who have already sent in their proxies to revoke them at any time prior to their use at the Special Meeting, as adjourned or postponed.

Abstentions

An abstention occurs when a stockholder attends a meeting, either in person or by proxy, but abstains from voting. Abstentions will be included in the calculation of the number of Company Common Stock represented at

 

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the Special Meeting for purposes of determining whether a quorum has been achieved. Abstaining from voting will have the same effect as a vote “AGAINST” the Merger Agreement Proposal, but will have no effect on the Adjournment Proposal.

Adjournments and Postponements

Although it is not currently expected, subject to certain restrictions in the Merger Agreement, the Special Meeting may be adjourned or postponed, among other reasons, for the purpose of soliciting additional proxies. If a quorum is not present, then under our bylaws, (1) the chairperson of the Special Meeting or (2) the majority of the voting power of the shares present in person or represented by proxy at the Special Meeting, will have power to adjourn the Special Meeting until a quorum is present or represented, and notice need not be given of the adjourned meeting if the time, place, if any, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken. However, our bylaws provide that if any such adjournment is for more than 30 days, or if after an adjournment a new record date for determining stockholders entitled to vote is fixed for the adjourned meeting, a notice of the adjourned meeting will be given to each stockholder of record entitled to vote at the adjourned meeting.

If the Special Meeting is adjourned or postponed to solicit additional proxies, stockholders who have already submitted their proxies will be able to revoke them at any time prior to their use at the Special Meeting, as adjourned or postponed.

In the event that there is present at the Special Meeting, in person or by proxy, sufficient favorable voting power to secure the vote of the Company Stockholders necessary to adopt the Merger Agreement, we do not currently anticipate that we will adjourn or postpone the Special Meeting.

Board Recommendation

The Company Board, after considering the various factors more fully described under “The Merger—Recommendation of the Markforged Board of Directors and Reasons for the Merger” beginning on page 49 of this proxy statement, unanimously (i) determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, are advisable, fair to, and in the best interests of Markforged and the Company Stockholders, (ii) approved the Merger and the execution, delivery and performance by Markforged of the Merger Agreement and the transactions contemplated thereby, including the consummation of the Merger, (iii) resolved to recommend that the Company Stockholders vote to adopt and approve the Merger Agreement, and (iv) directed that the adoption of the Merger Agreement Proposal be submitted to a vote of the Company Stockholders at the Special Meeting (the matters described in clauses (i) through (iv), the “Company Board Recommendation”).

The Company Board unanimously recommends that you vote “FOR” the Merger Agreement Proposal and “FOR” the Adjournment Proposal.

Solicitation of Proxies

The Company Board is soliciting your proxy, and we will bear the cost of the solicitation of proxies.

We have retained Sodali, a proxy solicitation firm, to solicit proxies in connection with the Special Meeting at a cost of approximately $20,000 plus expenses. We will also indemnify the proxy solicitor against losses arising out of its provisions of these services on our behalf. In addition, we may reimburse banks, brokers and other nominees representing beneficial owners of Company Common Stock for their expenses in forwarding soliciting materials to such beneficial owners. Proxies may also be solicited by our directors, officers and employees, personally or by telephone, email, fax, over the Internet or other means of communication. No additional compensation will be paid for such services.

 

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Anticipated Date of Consummation of the Merger

We currently anticipate that the Merger will be consummated in the first quarter of 2025, assuming satisfaction or, to the extent permitted by applicable law, waiver of all of the conditions to the Merger. However, the Merger is subject to various conditions, and it is possible, including as a result of factors outside the control of Markforged and Nano, that the Merger will be consummated at a later time or not at all.

Appraisal Rights

If the Merger is consummated, stockholders who do not wish to accept the Per Share Merger Consideration are entitled to seek appraisal of their Company Common Stock under Section 262 of the DGCL and, if all procedures described in Section 262 of the DGCL are strictly complied with, to receive payment in cash for the fair value of their Company Common Stock exclusive of any element of value arising from the accomplishment or expectation of the Merger, as determined by the Delaware Court of Chancery, together with interest, if any, to be paid upon the amount determined to be the fair value. The “fair value” of Company Common Stock as determined by the Delaware Court of Chancery may be more or less than, or the same as, the consideration that such holder of Company Common Stock may receive in the Merger. These rights are known as “appraisal rights.” This proxy statement serves as a notice of such appraisal rights pursuant to Section 262 of the DGCL.

Persons who exercise appraisal rights under Section 262 of the DGCL will not receive the consideration that they would otherwise be entitled to receive pursuant to the Merger Agreement. They will receive an amount determined to be the “fair value” of their Company Common Stock following petition to, and an appraisal by, the Delaware Court of Chancery. Persons considering seeking appraisal should recognize that the fair value of their Company Common Stock determined under Section 262 of the DGCL could be more than, the same as or less than the consideration they would otherwise be entitled to receive pursuant to the Merger Agreement. Strict compliance with the procedures set forth in Section 262 of the DGCL is required. Failure to comply strictly with all of the procedures set forth in Section 262 of the DGCL may result in the withdrawal, loss or waiver of appraisal rights. Consequently, and in view of the complexity of the provisions of Section 262 of the DGCL, Company Stockholders wishing to exercise appraisal rights are urged to consult their legal and financial advisors before attempting to exercise such rights.

A holder of record of Company Common Stock and a beneficial owner who (1) continuously holds or beneficially owns, as applicable, such shares through the Effective Time, (2) has not consented to the Merger in writing, voted in favor of the Merger or otherwise withdrawn, lost or waived appraisal rights, (3) strictly complies with the procedures under Section 262 of the DGCL, (4) does not thereafter withdraw his, her or its demand for appraisal of such shares and (5) in the case of a beneficial owner, is a person who (A) reasonably identifies in his, her or its demand the holder of record of the shares for which the demand is made, (B) provides documentary evidence of such beneficial owner’s beneficial ownership and a statement that such documentary evidence is a true and correct copy of what it purports to be and (C) provides an address at which such beneficial owner consents to receive notices given by Markforged and to be set forth on the Chancery List (as defined in the section entitled “The Merger—Appraisal Rights” beginning on page 36 of this proxy statement), will be entitled to receive the fair value of his, her or its Company Common Stock exclusive of any element of value arising from the accomplishment or expectation of the Merger, as determined by the Delaware Court of Chancery, together with interest, if any, to be paid upon the amount determined to be the fair value.

A copy of Section 262 of the DGCL is attached to this proxy statement as Annex D. The foregoing summary is not a complete statement of the law relating to appraisal rights and is qualified in its entirety by reference to Section 262 of the DGCL and any amendments thereto after the date of this proxy statement. Any person who desires to exercise his, her or its appraisal rights should review carefully Section 262 of the DGCL and is urged to consult his, her or its legal advisor before electing or attempting to exercise such rights. For more information, please see the section entitled “The Merger—Appraisal Rights” beginning on page 36 of this proxy statement and Annex D.

 

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Householding of Special Meeting Materials

Unless we have received contrary instructions, we may send a single copy of this proxy statement to any household at which two or more stockholders reside if we believe the stockholders are members of the same family. Each stockholder in the household will continue to receive a separate proxy card. This process, known as “householding,” reduces the volume of duplicate information received at your household and helps to reduce our expenses.

We will promptly deliver a separate copy of our proxy statement to any stockholder without charge upon a written request or verbal request to Markforged Holding Corporation, Attention: Corporate Secretary, 60 Tower Road, Waltham, MA 02451, telephone number (866) 496-1805. Stockholders sharing an address that are receiving multiple copies of this proxy statement can request delivery of a single copy of the proxy materials by contacting their bank, broker or other intermediary or sending a written request to us at the address above.

Questions and Additional Information

If you have more questions about the Merger or how to submit your proxy, or if you need additional copies of this proxy statement or the enclosed proxy card or voting instructions, please contact our proxy solicitor:

Sodali & Co. LLC

430 Park Ave., 14^th Floor

New York, NY10022

Email: [email protected]

(203) 658-9400

or

Toll-Free: 800-662-5200

If your bank, broker or other nominee holds your shares of Company Common Stock, you should also call your bank, broker or other nominee for additional information.

 

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THE MERGER

This discussion of the Merger does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, which is attached to this proxy statement as Annex A and incorporated by reference into this proxy statement. You should read the entire Merger Agreement carefully as it is the legal document that governs the Merger.

Certain Effects of the Merger on Markforged

If the Merger Agreement is adopted by the Company Stockholders and the other conditions to the closing of the Merger are either satisfied or waived, Merger Sub will be merged with and into Markforged, with Markforged continuing as the Surviving Corporation and an indirect wholly-owned subsidiary of Nano.

The Company Common Stock is listed and trades on the NYSE under the symbol “MKFG.” As a result of the Merger, Markforged will cease to be a publicly traded company and will become an indirect wholly-owned subsidiary of Nano. Prior to the Effective Time, we will cooperate with Nano to delist the Company Common Stock and Company Warrants from the NYSE and deregister the Company Common Stock and Company Warrants under the Exchange Act, provided that such delisting and termination will not be effective until after the Effective Time. Upon such delisting and deregistration, we will no longer be a publicly traded company and will no longer be required to file periodic reports with the SEC, in each case in accordance with applicable law, rules and regulations. If the Merger is consummated, you will not own any shares of the capital stock of the Surviving Corporation or Nano.

Effect on Markforged if the Merger Is Not Consummated

If the Merger Agreement is not adopted by the holders of a majority of the issued and outstanding shares of Company Common Stock entitled to vote as of the Record Date or if the Merger is not consummated for any other reason, Company Stockholders will not receive any payment for their Company Common Stock pursuant to the Merger Agreement. Instead, Markforged will remain a public company, the Company Common Stock will continue to be listed and traded on the NYSE and registered under the Exchange Act, and we will continue to file periodic reports with the SEC.

Furthermore, if the Merger is not consummated, depending on the circumstances that caused the Merger not to be consummated, the price of the Company Common Stock may decline significantly. If that were to occur, it is uncertain when, if ever, the price of the Company Common Stock would return to the price at which the Company Common Stock traded prior to the public announcement of the execution of the Merger Agreement on September 25, 2024 or as of the date of this proxy statement.

Accordingly, if the Merger is not consummated, there can be no assurance as to the effect of these risks and opportunities on the future value of your shares of Company Common Stock. If the Merger is not consummated, the Company Board will continue to evaluate and review our business, operations, assets, operating results, financial condition, prospects and business strategy, among other things, and make such changes as are deemed appropriate and continue to seek to enhance stockholder value. If the Merger Agreement is not adopted by the Company Stockholders or if the Merger is not consummated for any other reason, there can be no assurance that any other transaction acceptable to Markforged will be offered or that our business, prospects or results of operations will not be adversely impacted.

In addition, upon termination of the Merger Agreement, under specified circumstances, Markforged may be required to pay Nano a termination fee, as described under the section titled “The Merger Agreement—Termination Fee; Certain Expenses” beginning on page 100 of this proxy statement.

 

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Merger Consideration

At the Effective Time, each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than Excluded Shares and Dissenting Shares) will be cancelled and automatically cease to exist and will be converted into the right to receive in the case of the Company Common Stock, $5.00 per share in cash, without interest and subject to applicable withholding taxes.

Each share of Company Common Stock held in the treasury of Markforged or owned by Nano or Merger Sub or any direct or indirect wholly-owned subsidiary of Nano or Markforged immediately prior to the Effective Time will automatically be cancelled without any conversion and will cease to exist and no payment or distribution will be made.

At the Effective Time, (1) each In-the-Money Company Stock Option, whether vested or unvested, that is outstanding and unexercised immediately prior to the Effective Time will be cancelled and the holder of such Company Stock Option will be entitled to receive, in full satisfaction of the rights of such holder with respect thereto, a cash payment equal to the Per Share Merger Consideration in respect of each net share of Company Common Stock (if any) covered by such Company Stock Option, without interest and less applicable tax withholdings.

Each unvested Company RSU that is outstanding immediately prior to the Effective Time will be cancelled and converted automatically into a restricted stock unit award of Nano, which will be granted on similar terms and conditions as were applicable to the unvested Company RSU that were cancelled.

Each Company Warrant that is outstanding and unexercised immediately prior to the Effective Time will, in accordance with its terms, cease to represent a warrant exercisable for Company Common Stock and automatically will become a warrant exercisable for the Per Share Merger Consideration that such holder would have been entitled to receive if such Company Warrant had been exercised immediately prior to the Effective Time. Following the Effective Time, no holder of any Company Warrant will have any right to acquire any Markforged securities or any securities in the Surviving Corporation, Nano or any of their respective affiliates.

After the Merger is consummated, under the terms of the Merger Agreement, you will have the right to receive the Per Share Merger Consideration, but you will no longer have any rights as a Company Stockholder as a result of the Merger (except that any holder of Appraisal Shares (as defined in the Merger Agreement) will have those rights granted under Section 262 of the DGCL), nor will you be entitled to receive any shares in Nano or the Surviving Corporation.

Each of the paying agent, the Surviving Corporation, Merger Sub, and Nano will be entitled to deduct and withhold from any amounts payable pursuant to the Merger Agreement such amounts as are required to be deducted and withheld therefrom under applicable tax laws. If the paying agent, the Surviving Corporation, Merger Sub, or Nano, as the case may be, so deducts and withholds amounts and timely and properly remits such amounts to the applicable governmental authority, such amounts will be treated for all purposes under the Merger Agreement as having been paid to the person to whom such amounts would otherwise have been paid.

Background of the Merger

The following chronology summarizes the key meetings and events that led to the signing of the Merger Agreement. The following chronology does not purport to catalog every conversation among the Company Board or the representatives of Markforged, Nano and other parties.

Markforged, as part of its business strategy, seeks to identify companies, patents, technologies, products and services to acquire or engage with in order to develop its businesses and enhance value for Company Stockholders.

 

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The Company Board, in consultation with members of Markforged’s management team and its outside financial and legal advisors, periodically reviews such strategic opportunities and seeks to consummate acquisitions and business combinations on favorable terms. As part of such review, the Company Board has, from time to time, evaluated and considered various potential strategic alternatives with the goal of maximizing value for Company Stockholders, including potential acquisitions, dispositions and strategic business combination transactions, including evaluating Nano as a potential business combination partner.

In the ordinary course of business, the Company Board and Markforged management, with the assistance of outside advisors, have regularly reviewed the near- and long-term strategy of the business, and the performance, positioning and operating prospects of Markforged with a view toward enhancing stockholder value. These reviews have included evaluations of current and anticipated business and industry trends, regulatory conditions, the Company’s future short- and long-term growth prospects, the current and expected financing environment (including the financing challenges from time-to-time associated with the broad weakness in publicly traded technology company stock prices, including those in the additive manufacturing industry), Markforged’s need for additional capital and the overall strategic direction of the business. From time to time, Markforged evaluates potential alternatives for its achieving long-term strategic goals, including strengthening Markforged’s balance sheet and obtaining financing to support Markforged’s business growth, diversification of products beyond the current product module portfolio, continued investment in research and development in order to maintain Markforged’s competitiveness and increasing the liquidity of the publicly-traded shares of Company Common Stock. These reviews have also included, at times, consideration of, and discussions with other companies regarding, potential strategic alternatives, including business combinations, acquisitions and dispositions, to further Markforged’s strategic objectives.

On August 9, 2022, the Company Board held a regularly scheduled meeting in person at Goodwin Procter LLP’s (“Goodwin”), Markforged’s outside legal counsel, offices in Boston, Massachusetts and via videoconference at which members of senior management, including Mr. Shai Terem, Director, President and Chief Executive Officer of Markforged, Mr. Assaf Zipori, Chief Financial Officer of Markforged, and Mr. Stephen Karp, General Counsel of Markforged, and representatives of Goodwin were present. At the meeting, the Company Board discussed a number of matters relating to the business and operations of the Company, including the Company’s position in the additive manufacturing industry, risks and opportunities in management’s long-term business plan, the competitive landscape and potential strategic alternatives to remaining an independent public company. Representatives of Evercore participated in a portion of the meeting and reviewed its preliminary financial analyses of the Company.

On August 15, 2022, Greenhill facilitated an introductory call between Mr. Yoav Stern, then-Chairman of the Board and Chief Executive Officer of Nano, Mr. Terem and Mr. Zipori at which the parties agreed to schedule a time to meet in person.

On August 21, 2022, Mr. Zivi Nedivi, President of Nano, Mr. Stern and Mr. Terem had a dinner in Chestnut Hill, Massachusetts. At this dinner, the discussion centered on the general business prospects of the additive manufacturing industry and did not include discussions specifically related to a strategic transaction between the parties.

Between December of 2022 through early April 2023, Nano sent several unsolicited proposals to Markforged with respect to a potential strategic transaction. These proposals valued Markforged at between $1.85 per share and $3.10 per share. The Company Board considered all of these unsolicited proposals and declined to move forward with any potential transaction with Nano given that the Company Board perceived, at the time, that the bids (i) fundamentally undervalued Markforged, (ii) Markforged had more favorable financial prospects associated with continuing as an independent standalone company and (iii) there was perceived significant execution risk at the time with respect to Nano’s ability to consummate a transaction with Markforged based on the fact that Nano was engaged in discussions regarding other transactions with peers in the industry. No further discussions between Markforged and Nano resulted from these proposals and discussions ceased between the parties in April 2023.

 

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In February 2023, following unsolicited outreach by Party D’s financial advisor, Party D’s senior management team had an introductory visit to Markforged’s headquarters in Watertown, Massachusetts, in which both companies provided preliminary high level diligence to one another. Party D indicated that it was interested mainly in a potential transaction to merge Markforged into a business segment of Party D with the consideration to be issued in the transaction in the form of equity of Party D.

In May 2023, there were additional discussions between Messrs. Nedivi, Stern, Terem and Zipori, during which such representatives again explored a potential strategic transaction between the parties. As part of these discussions, Nano engaged in basic preliminary diligence with Markforged management. These discussions and preliminary due diligence continued from May 2023 until June 2023. However, these discussions did not result in a formal offer from Nano and discussions between the parties ceased in June 2023.

On August 9, 2023, the Company Board held a regularly-scheduled meeting in person at the Company’s headquarters in Waltham, Massachusetts and via videoconference at which members of senior management, including Messrs. Terem, Zipori and Karp, and representatives of Evercore and Goodwin were present. At the meeting, the Company Board discussed a number of matters relating to the business and operations of the Company, including the Company’s position in the additive manufacturing industry, risks and opportunities in management’s long-term business plan, the competitive landscape and potential strategic alternatives to remaining as an independent public company, including the general expressions of interest from Nano.

On August 15, 2023, Messrs. Nedivi, Stern, Terem and Zipori met in Newton, Massachusetts to discuss the potential of a strategic transaction. The discussions consisted of potential next steps with respect to a transaction.

On August 17, 2023, Markforged and Nano executed a confidentiality agreement that included a customary “standstill” provision that prohibited Nano from offering to acquire or acquiring Markforged, and from taking certain other actions, including soliciting proxies, without the prior written consent of Markforged, and did not include a “sunset” provision that would allow Nano to submit a competing acquisition proposal after the date on which Markforged entered into a change of control provision, such as the Merger, with any other counterparty (the “August 17 NDA”).

On September 5, 2023, Messrs. Nedivi and Stern, as well as other members of Nano senior management visited the Markforged headquarters in Waltham, Massachusetts for a facilities tour and a management presentation.

Following this meeting, throughout the month of September 2023, there were multiple additional diligence calls between representatives of Nano and representatives of Markforged to discuss Markforged’s general business strategy and review certain financial information related to Markforged. Additionally, on October 3, 2023, Mr. Terem visited Nano’s facilities in Israel and also met on October 5, 2023, in Tel Aviv, Israel, with Mr. Nedivi to follow-up with additional business discussions regarding Markforged.

On October 16, 2023, Nano, through its financial advisor, Greenhill & Co. (“Greenhill”), delivered a draft non-binding letter of intent (the “October LOI”) which provided that (i) Nano would acquire 100% of the outstanding equity of Markforged in the range of $285 million to $335 million in aggregate cash, which would include any cash and cash equivalents of Markforged, less any indebtedness and any debt like instruments and (ii) Nano and Markforged would have an exclusivity period of 30 days from October 16, 2023, through November 15, 2023. Additionally, Nano delivered a draft exclusivity agreement to Markforged that memorialized the 30 day exclusivity period until November 15, 2023, which could be extended unilaterally by Nano for an additional 15 day period upon the meeting of certain mutual conditions with respect to the satisfactory nature of diligence and efforts to enter into an definitive agreement.

On October 25, 2023, the Company Board held a meeting in person at the Company’s headquarters in Waltham, Massachusetts and via videoconference at which members of senior management, including Messrs.

 

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Terem, Zipori and Karp, and representatives of Evercore and Goodwin were present, to discuss the October LOI, as well as to discuss general market updates and to continue a review of strategic alternatives. The Company Board instructed Markforged management to continue negotiating with Nano and continue exchanging confirmatory diligence information as a formal offer within the indicative range of the October LOI could potentially warrant entering into exclusive negotiations with Nano and continue discussions with Nano. While Markforged senior management negotiated the terms of the October LOI, there were multiple diligence sessions held between representatives of Nano and representatives of Markforged, which were held virtually and on-site at the Company’s headquarters in Waltham, MA to review Markforged’s business operations and company structure. In addition, Nano and Greenhill were granted access to the Company’s virtual data room in early November 2023.

On November 1, 2023, the Company Board held a meeting in person at the Company’s headquarters in Waltham, Massachusetts and via videoconference at which members of senior management, including Messrs. Terem, Zipori and Karp, representatives of Evercore and Goodwin were present, to discuss, among other things, formalizing the relationship between the Company and Evercore. The Company Board approved a substantially final form of the engagement letter with Evercore.

On November 6, 2023, representatives from Greenhill informed representatives of Evercore that, based on Nano’s due diligence to date, Nano would not be presenting any further proposals to the Company regarding a strategic transaction, as the current market conditions were not conducive for Nano to complete a transaction with the Company at the prior valuation and any revised proposal would be below the low-end of the range set forth in the October LOI. Following these discussions, Nano’s access to the Company’s virtual data room was terminated.

On December 14, 2023, the Company Board held a regularly scheduled meeting at the Company’s headquarters in Waltham, Massachusetts and via videoconference at which members of senior management, including Messrs. Terem, Zipori and Karp, and representatives of Goodwin were present. At this meeting, the Company Board discussed the fact that during the fall of 2023, Nano had continued to express an interest in pursuing a potential strategic transaction with the Company, as evidenced by the October LOI. The Company Board also discussed the current state of the Company’s business, including its financial condition, and 2024 operating plan goals and expectations for product delivery and innovation and the current competitive environment. Additionally, the Company Board had discussions relating to the ongoing patent litigation matter. Thereafter, Goodwin reviewed with the Company Board the terms of the previously approved engagement letter with Evercore and the Company Board discussed certain of those terms. The Company Board confirmed its approval of the engagement of Evercore as its financial advisor based on Evercore’s qualifications, expertise and reputation, its knowledge of and involvement in recent transactions in the industry and its knowledge of the Company’s business and affairs.

On January 9, 2024, the Company and Evercore executed an engagement letter.

On April 11, 2024, a jury found that Markforged had infringed upon the patents of Continuous Composites Inc. (“Continuous Composites”) and awarded monetary damages to Continuous Composites in the amount of $17.34 million (the “Patent Litigation Decision”).

On April 12, 2024, following delivery of the jury’s Patent Litigation Decision, the Company Board held a meeting in person at the Company’s headquarters in Waltham, Massachusetts and via videoconference, at which members of senior management, including Messrs. Terem, Zipori and Karp, and representatives of Goodwin and Quinn Emanuel LLP, litigation counsel for Markforged, were present. At this meeting, the Company Board was provided an update on the Patent Litigation Decision and potential next steps with respect to the Patent Litigation Decision.

 

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On May 21, 2024, Messrs. Terem and Zipori had lunch with Mr. Nedivi at the Company’s headquarters in Waltham, Massachusetts, to discuss the possibility for a potential strategic transaction. No specific terms of a potential transaction were discussed between the parties.

On June 25, 2024, Mr. Terem met with a member of senior management of Party D at the Rapid TCT Conference in Los Angeles, California (the “2024 Rapid Conference”). No discussions with respect to a potential strategic transaction occurred and after which discussions with Party D ceased. Mr. Terem also met with senior management representatives of Nano at the 2024 Rapid Conference.

On July 9, 2024, Nano, through representatives of Greenhill, submitted a formal indicative offer to Markforged to acquire Markforged upon the following terms (i) the acquisition of 100% of the outstanding equity interests in Markforged in exchange for 19.99% of Nano’s outstanding shares at an assumed Nano share price of $2.50 plus the cash and cash equivalents on the Company’s balance sheet, which was subject to adjustment for expenses relating to the proposed transaction and for expenses relating to the settlement of the Patent Litigation Decision, (ii) a 30-day due diligence period and (iii) a 90-day exclusivity period (the “July 9 Proposal”).

On July 12, 2024, the Company Board held a meeting at the Company’s headquarters in Waltham, Massachusetts and via videoconference at which members of senior management, including Messrs. Terem, Zipori and Karp, and representatives of Evercore and Goodwin were present to discuss the July 9 Proposal. At this meeting, representatives of Goodwin provided an overview of the Company Board’s fiduciary duties in connection with its evaluation of a potential transaction with Nano, and representatives of Evercore reviewed its preliminary financial analyses of the Company and the July 9 Proposal. The Company Board also discussed potential additional counterparties that might be able to offer a value in excess of the price offered by Nano. The Company Board discussed with representatives of Evercore and management a list of potentially interested parties, including Party A, Party B, Party C, Party E and Party F, and an assessment of those parties’ strategic rationale for potentially acquiring the Company. The Company Board also considered the risk of leaks that might arise from making contact with other parties in the Company’s industry and the potential impact on the Company’s business of such leaks, including the potential loss of partners and employees. The Company Board determined, if outreach were to be made to other parties, it should include only those parties that had the ability to consummate a transaction of this size and nature. The Company Board discussed and evaluated the benefits of contacting such third parties regarding their potential interest in an acquisition of the Company and to indicate that the Company was in the process of reviewing a potential business combination with another counterparty. Following this discussion, the Company Board directed the representatives of Evercore and senior management to contact each of Party A, Party B, Party C, Party E and Party F regarding their interest in an acquisition of the Company and to invite each party to engage in preliminary due diligence, subject to their respective execution of an appropriate confidentiality agreement. Following further discussion among the Company Board, the Company Board concluded that the July 9 Proposal was inadequate with respect to price and that an exclusivity arrangement between Nano and the Company was premature based on the July 9 Proposal. However, the Company Board authorized Evercore and management to further explore a transaction with Nano by encouraging Nano to offer all-cash consideration and a more compelling price that would warrant exclusivity, and also authorized the Company’s senior management to engage in limited, additional due diligence discussions with Nano in order to provide Nano with information necessary to enable Nano to increase its offer price. The Company Board also directed the Company management to finalize and then review with the Company Board, Markforged management’s view of the Company’s stand-alone business plan and prospects.

Over the course of the next month, at the direction of the Company Board, (i) representatives of Evercore contacted Parties A, C, E and F, and (ii) Mr. Terem contacted Party B.

Party E indicated to representatives of Evercore that it was unlikely to be interested in pursuing a transaction with Markforged.

 

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Party F never responded to the initial outreach from representatives of Evercore and no further discussions were conducted with Party F.

After Markforged management and representatives of Evercore provided the Company Board’s direction that in order for an offer to warrant exclusivity, Nano would have to offer all-cash consideration and a more compelling price, on July 17, 2024, Nano submitted a revised proposal to Markforged, which indicated that Nano would acquire Markforged for an aggregate of $80 million in cash, plus the cash and cash equivalents on the Company’s balance sheet, which was subject to adjustment for expenses relating to the proposed transaction and for expenses relating to the settlement of the Patent Litigation Decision (the “July 17 Proposal”). The July 17 Proposal also included a request for 90 days of exclusivity with 30 days to complete due diligence.

On July 23, 2024 and July 30, 2024, the Company Board held meetings in person at the Company’s headquarters in Waltham, Massachusetts and via teleconference, at which members of Markforged management, including Messrs. Terem, Zipori and Karp, and representatives of Goodwin were present. Mr. Terem provided updates on the Patent Litigation Decision, and the Company Board discussed strategy around continuing to engage potential strategic partners with respect to a possible strategic transaction in light of the ongoing appeal related to the Patent Litigation Decision.

On August 7, 2024, the Company Board held a meeting in person at Goodwin’s offices in Boston, Massachusetts and via videoconference, at which members of senior management, including Messrs. Terem, Zipori and Karp, and representatives of Evercore and Goodwin were present. At this meeting, management provided an update regarding the status of discussions with Nano including with respect to the July 17 Proposal. At this meeting, representatives of Goodwin provided an overview of the Company Board’s fiduciary duties in connection with its evaluation of a potential transaction with Nano. The Company Board concluded that the July 17 Proposal was inadequate with respect to price, as the Company Board noted the aggregate price proposal by Nano was subject to adjustments that could materially reduce price per share, including adjustment for expenses relating to the proposed transaction and for expenses relating to the settlement of the Patent Litigation Decision, and that an exclusivity arrangement between Nano and the Company was premature based on the July 17 Proposal. However, the Company Board authorized Evercore and management to further explore a transaction with Nano by encouraging Nano to offer a more compelling price on a per share basis that would warrant exclusivity, and also authorized the Company’s senior management to engage in limited, additional due diligence discussions with Nano in order to provide Nano with information, including detailed capitalization information with respect to Markforged, necessary to enable Nano to revise its proposal to bid on a per share basis. The Company Board also directed the Company management to finalize and then review with the Company Board management’s view of the Company’s stand-alone business plan and prospects. Additionally, the Company Board continued to instruct Markforged management not to, and Markforged management did not, discuss any post-Closing employment offers for any of the members of Markforged management until a definitive price was agreed upon.

On August 8, 2024, Messrs. Nedivi and Terem held a call to discuss the terms of the July 17 Proposal.

Also on August 8, 2024, Markforged and Nano entered into an amended non-disclosure agreement, extending the term of the August 17 NDA by an additional 12 months, without changing any additional terms of the August 17 NDA.

On August 10, 2024, representatives of Nano delivered a updated proposal with respect to the July 17 Proposal, which included an aggregate offer price to acquire Markforged for the lesser of (i) $80 million or (ii) a 40% premium to the closing price of the Company Common Stock on August 9, 2024, which was $0.245 per share, less expenses related to the settlement of the patent litigation and any cash and cash equivalents on Markforged’s balance sheet.

On August 11, 2024, Messrs. Nedivi, Terem and Zipori, and representatives of Greenhill and Evercore had dinner in Boston, Massachusetts to continue to discuss the potential for a strategic transaction.

 

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On August 13, 2024, representatives of Nano delivered a further updated proposal (the “August 13 LOI”), which provided (i) for a purchase price of the lesser of (a) $88 million and (b) a 90% premium to the 10-day volume-weighted average price of the Company Common Stock, measured at the time of signing of definitive agreements, less expenses related to the settlement of the Patent Litigation and any cash and cash equivalents on Markforged’s balance sheet, and (ii) a 30 day exclusivity period.

Later on August 13, 2024, the Company Board held a meeting in person at the Company’s headquarters in Waltham, Massachusetts and via videoconference, at which members of senior management, including Messrs. Terem, Zipori and Karp, and representatives of Evercore and Goodwin were present. At this meeting, the Company Board had preliminary discussions with respect to the August 13 LOI. Representatives of Evercore also provided their preliminary analysis of the August 13 LOI. Both the Company Board and representatives of Evercore indicated that they would need additional time to properly review and provide an analysis of the August 13 LOI.

On August 14, 2024, the Company Board held a meeting in person at the Company’s headquarters in Waltham, Massachusetts and via videoconference, at which members of senior management, including Messrs. Terem, Zipori and Karp, and representatives of Evercore and Goodwin were present. At this meeting, the Company Board continued its discussions with respect to the August 13 LOI and Evercore provided their analysis of the August 13 LOI. The Company Board concluded that the August 13 LOI was still inadequate with respect to price, as (i) the August 13 LOI was still on an aggregate basis and not a per share basis and (ii) included adjustments for expenses relating to the proposed transaction and for expenses relating to the settlement of the Patent Litigation Decision. However, the Company Board authorized Evercore and management to further negotiate the terms of the August 13 LOI.

On August 14, 2024, Markforged and Party B entered into a non-disclosure agreement, which included customary “standstill” provision, that prohibited each party from offering to acquire or acquiring Markforged, and from taking certain other actions, including soliciting proxies, without the prior written consent of Markforged and a “sunset” provision that would allow the counterparty to submit a competing acquisition proposal after the date on which Markforged entered into a change of control provision, such as the Merger, with any other counterparty. After their entry into the non-disclosure agreement Party B was provided a preliminary due diligence information package with respect to Markforged.

Additionally on August 17, 2024, Markforged and Party A entered into a non-disclosure agreement, which included customary “standstill” provision, that prohibited each party from offering to acquire or acquiring Markforged, and from taking certain other actions, including soliciting proxies, without the prior written consent of Markforged and a “sunset” provision that would allow the counterparty to submit a competing acquisition proposal after the date on which Markforged entered into a change of control provision, such as the Merger, with any other counterparty. After their entry into the non-disclosure agreement Party A was provided a preliminary due diligence information package with respect to Markforged. After receiving the preliminary due diligence information package, Party A did not engage further with representatives of Evercore or Markforged and did not provide any formal or informal offers regarding a strategic transaction.

On August 18, 2024, the Company Board held a meeting in person at the Company’s headquarters in Waltham, Massachusetts and via videoconference at which members of senior management, including Messrs. Terem, Zipori and Karp, and representatives of Evercore and Goodwin were present, to continue to discuss the terms of the August 13 LOI. At this meeting, management provided an update regarding the status of discussions with Nano including with respect to the August 13 LOI. At this meeting, representatives of Goodwin provided an overview of the Company Board’s fiduciary duties in connection with its evaluation of a potential transaction with Nano. Representatives of Evercore reviewed its preliminary financial analyses of the Company. The Company Board once again concluded that the August 13 LOI was inadequate, as the Company Board reiterated that (i) the proposal in the August 13 LOI was still on an aggregate basis and not a per share basis and (ii) included adjustments for expenses relating to the proposed transaction and for expenses relating to the

 

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settlement of the Patent Litigation Decision, and that an exclusivity arrangement between Nano and the Company was premature based on the August 13 LOI. However, the Company Board continued their guidance to seek a proposal that was on a per share basis, and did not include adjustment for expenses relating to the proposed transaction and for expenses relating to the settlement of the Patent Litigation Decision, and authorized Evercore and management to respond to Nano that it would have to put forward a more compelling offer price on a per share basis in order for the Company Board to consider entering into exclusive negotiations with Nano, and to provide price guidance of $0.50 per share (or $5.00 per share after giving effect to the 10-for-1 reverse stock split of Company Common Stock (the “Reverse Stock Split”)) with no purchase price adjustments. Representatives of Evercore noted that Parties A and C had each expressed interest in evaluating a potential transaction, though after the provision of preliminary diligence information Party A made no additional contact with Evercore or Markforged, and no formal or informal offers were made by Party A with respect to a strategic transaction. Party C continued to engage in diligence (as described in further detail below), however, Party C never made a formal or informal offer with respect to a strategic transaction. Representatives of Evercore also discussed that Party E indicated that it was unlikely to be interested in pursuing a transaction with the Company and that Party F never responded to its outreach. Mr. Terem noted that Party B had expressed interest in evaluating a potential transaction.

On August 18, 2024, Messrs. Zipori and Nedivi held a telephone call to discuss that the Company Board was evaluating the August 13 LOI, but that Nano would need to present a more compelling price on a per share basis, in order for the Company Board to consider a transaction with Nano and provided price guidance of $0.50 per share (or $5.00 per share after giving effect to the Reverse Stock Split) with no purchase price adjustments, as directed by the Company Board. Mr. Nedivi indicated that although Nano believed that the August 13 LOI offered full value for the Company, Nano was nonetheless willing to increase its offer to $0.50 per share (or $5.00 per share after giving effect to the Reverse Stock Split) with no purchase price adjustments, provided that the Company agreed to enter into exclusivity with Nano prohibiting the Company from discussing or pursuing a strategic transaction with a third party for a 30-day period, in consideration for Nano’s evaluation of the transaction.

On August 19, 2024, at the direction of the Company Board, representatives of Evercore sent to Nano an updated LOI (the “August 19 Non-Binding LOI”), which provided (i) for a purchase price of $0.50 per share (or $5.00 per share after giving effect to the Reverse Stock Split) on a fully-diluted basis, assuming a fully diluted share count of approximately 23.4 million shares, (ii) for a diligence period of approximately 30 days after the date of the August 19 LOI and (iii) a 30-day exclusivity period subject to execution of a separate exclusivity agreement.

Later that day, Markforged and Nano executed the August 19 Non-Binding LOI.

On August 21, 2024, Messrs. Terem and Zipori met with senior members of management of Party B via videoconference to discuss general financial due diligence matters relating to Markforged. Following this meeting, Party B did not engage further with representatives of Evercore or Markforged and did not provide any formal or informal offers regarding a strategic transaction.

On August 21, 2024, representatives of Evercore provided customary relationship disclosures to senior management of the Company with respect to Nano and Party A.

On August 23, 2024, Markforged and Party C entered into a non-disclosure agreement, which included customary “standstill” provision, that prohibited each party from offering to acquire or acquiring Markforged, and from taking certain other actions, including soliciting proxies, without the prior written consent of Markforged and a “sunset” provision that would allow the counterparty to submit a competing acquisition proposal after the date on which Markforged entered into a change of control provision, such as the Merger, with any other counterparty. After their entry into the non-disclosure agreement Party C was provided a preliminary due diligence information package with respect to Markforged. Additionally, on August 23, 2024, the Chief

 

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Executive Officer of Party C visited Markforged’s headquarters in Waltham, Massachusetts. After their review of the preliminary due diligence information package and their visit, Party C noted that based upon its diligence to date, it was not prepared to submit a proposal at such time, and Markforged ceased discussions with Party C in August 2024 upon its entry into exclusivity with Nano.

On August 24, 2024, Nano, through its legal counsel, Greenberg Traurig, LLP (“Greenberg”), provided an initial draft of the Merger Agreement (the “Initial Draft”) which provided for among other things, (i) a purchase price of $0.50 per share (or $5.00 per share after giving effect to the Reverse Stock Split) on a fully diluted basis, (ii) the concept of a Termination Fee of an undetermined amount, and an expense reimbursement of an undetermined amount, (iii) certain restrictions upon Markforged during the pendency of the Merger (the “Interim Operating Covenants”), and (iv) a closing condition related to the filing of a CFIUS notice. In addition, Nano and Greenhill were granted access to the Company’s virtual data room in late August 2024.

On August 27, 2024, Markforged and Nano entered into an exclusivity agreement which provided that Nano would have an initial exclusivity period until September 25, 2024 which could be automatically extended to October 10, 2024 upon the meeting of certain conditions with respect to the confirmation of purchase price, the receipt by Markforged of certain proposed definitive documentation with respect to the Merger and continued good faith efforts with respect to negotiating the proposed Merger.

During this time, the parties continued to engage in due diligence discussions, including with respect to the patent litigation matter.

Between August 29, 2024 and the signing of the Merger Agreement, Markforged, Nano and their respective advisors held numerous diligence sessions and calls with respect to the potential Merger relating to, among other things, general corporate matters, employee benefits, financial statements, intellectual property, regulatory review and tax matters. Additionally, between September 3, 2024 and signing of the Merger Agreement, Markforged, Nano and their respective advisors held weekly update calls with respect to the status of the definitive documentation, due diligence and the potential Merger.

On August 31, 2024, the Company Board held a meeting at the Company’s headquarters in Waltham, Massachusetts and via videoconference at which members of senior management, including Messrs. Terem, Zipori and Karp, and representatives of Evercore and Goodwin were present, to discuss terms of the Initial Draft. At this meeting, representatives of Goodwin provided an overview of the Company Board’s fiduciary duties in connection with its evaluation of a potential transaction with Nano and provided an overview of the Initial Draft, including (i) the purchase price of $0.50 per share (or $5.00 per share after giving effect to the Reverse Stock Split) on a fully diluted basis, (ii) the Termination Fee and expense reimbursement, (iii) the Interim Operating Covenants, (iv) certain regulatory matters related to the CFIUS notice and (v) closing conditions. Additionally, representatives of Evercore reviewed its preliminary financial analyses of the Company and the proposed Merger. Following this discussion, the Company Board indicated its approval of the forecast information provided by Markforged management, including the methodology and assumptions, for use by Evercore in its analyses. See section titled “—Certain Unaudited Prospective Financial Information” for further information regarding the Markforged financial forecasts.

On August 31, 2024, representatives of Evercore provided customary relationship disclosures with respect to Nano, Party A, B, and C, to the Company Board. The Company Board considered the disclosures and determined that such relationships would not interfere with Evercore’s ability to provide financial advisory services to the Company Board.

On September 4, 2024, representatives of Goodwin, delivered a revised draft of the Merger Agreement (the “September 4 Draft”) to Nano and Greenberg. The September 4 Draft provided, among other things, that (i) In-the-Money Company Stock Options would be cancelled for the Per Share Merger Consideration and that Out-of-the-Money Company Stock Options would be assumed by Nano, (ii) Company Warrants would be

 

47

exercisable for Per Share Merger Consideration, (iii) certain covenants for a period of one year after the Closing with respect to the employment of Markforged’s employees, (iv) certain covenants with respect to the obtainment of CFIUS approval, (v) Markforged’s right to terminate the Merger Agreement in order to accept a Superior Proposal, (vi) removal of the payment of the Termination Fee for the failure to obtain the Company Stockholder Approval, (vii) a Termination Fee of 2% of equity value upon certain conditions, (viii) a reverse termination fee with respect to the failure to obtain regulatory approvals and (ix) various revisions to the Interim Operating Covenants.

On September 6, 2024, the Company Board held a meeting at the Company’s headquarters in Waltham, Massachusetts and via videoconference, at which members of senior management, including Messrs. Terem, Zipori and Karp, and representatives of Evercore and Goodwin were present, to continue to discuss the proposed Merger with Nano.

Also, on September 6, 2024, representatives of Greenberg, delivered a further revised draft of the Merger Agreement (the “September 6 Draft”) to Markforged and Goodwin. The September 6 Draft provided, among other things, (i) Out-of-the-Money Company Stock Options would be cancelled for no consideration, (ii) certain covenants for a period of six months after the Closing with respect to the employment of Markforged’s employees, (iii) removal of Markforged’s right to terminate the Merger Agreement in order to accept a Superior Proposal (iv) removal of the reverse termination fee with respect to the failure to obtain regulatory approvals, (v) a Termination Fee of 5% of equity value upon certain conditions and (vi) various revisions to the Interim Operating Covenants.

On September 9, 2024, Markforged issued a press release following the closing of the U.S. markets announcing that it intended to effect the Reverse Stock Split.

On September 10, 2024, representatives of Goodwin, delivered a further revised draft of the Merger Agreement (the “September 10 Draft”) to Nano and Greenberg. The September 10 Draft provided, among other things, that (i) certain covenants for a period of 1 year after the Closing with respect to the employment of Markforged’s employees, (ii) reinserted certain rights of Markforged to terminate the Merger Agreement in order to accept a Superior Proposal, (iii) a Termination Fee of 3% of equity value upon certain conditions and (iv) various revisions to the Interim Operating Covenants.

On September 11, 2024, representatives of Greenberg provided a draft form of the Support Agreement, which was to be executed by the Specified Stockholders, in order to ensure support for the Merger from major Company Stockholders and Markforged management.

Over the course of the next week, Nano, the Company and their respective advisors continued to discuss due diligence topics and to negotiate the Merger Agreement, including the treatment of the Company’s outstanding equity awards, the Interim Operating Covenants, the termination rights and related termination fees, and a closing condition with respect to the settlement of outstanding litigation with respect to the Patent Litigation Decision, and the Support Agreements and exchanged drafts of the same. The Company Board met regularly with representatives of Goodwin and Evercore to discuss the status of negotiations with Nano and the status of the draft Merger Agreement.

On September 19, 2024, the 10-for-1 reverse stock split of Company Common Stock went effective and the Company Common Stock began trading on the NYSE on a split-adjusted basis.

On September 20, 2024, Markforged entered into a settlement agreement with respect to the Patent Litigation Decision. Under the terms of the settlement agreement, Markforged is required to make an initial upfront payment of $18 million to Continuous Composites, which has been made, and three additional installment payments thereafter of $1 million, $2 million and $4 million in the fourth quarters of fiscal years 2025, 2026 and 2027, respectively.

 

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On September 23, 2024, representatives of Greenberg, delivered a further revised draft of the Merger Agreement to Markforged and Goodwin. From September 23, 2024 until the signing of the Merger Agreement, representatives of Nano and Markforged and their respective advisors, held numerous calls to finalize the Merger Agreement and the Support Agreement.

On September 25, 2024, the Company Board held a meeting in person at the Company’s headquarters in Waltham, Massachusetts and via videoconference, at which members of senior management, including Messrs. Terem, Zipori and Karp, and representatives of Evercore and Goodwin were present, to continue to discuss the proposed Merger with Nano. Representatives of Evercore reviewed with the Company Board its financial analysis of the Per Share Merger Consideration and delivered to the Company Board its opinion to the effect that, as of that date and based upon and subject to the assumptions, limitations, qualifications and conditions described in Evercore’s opinion, the Per Share Merger Consideration of $5.00 to be received by the holders of shares of Company Common Stock (other than Excluded Shares) in the Merger was fair, from a financial point of view, to such holders. Additionally, at such Company Board meeting, the Company Board (i) determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, are advisable, fair to, and in the best interests of Markforged and the Company Stockholders, (ii) approved the Merger and the execution, delivery and performance by Markforged of the Merger Agreement and the transactions contemplated thereby, including the consummation of the Merger, (iii) resolved to recommend that the Company Stockholders vote to adopt and approve the Merger Agreement, and (iv) directed that the adoption of the Merger Agreement Proposal be submitted to a vote of the Company Stockholders at the Special Meeting.

On September 25, 2024, the Company, Nano and Merger Sub executed and delivered the Merger Agreement and the Specified Stockholders and Nano executed and delivered the Support Agreements and filed the related Current Reports on Form 6-K and Form 8-K on September 26, 2024 and September 25, 2024, respectively. Subsequently, Nano and Markforged issued a joint press release announcing the execution of the Merger Agreement. For additional information regarding the final terms of the Merger Agreement, see the section entitled “The Merger Agreement” and the copy of the Merger Agreement attached as Annex A to this proxy statement.

Recommendation of the Markforged Board of Directors and Reasons for the Merger

Recommendation of Our Board of Directors

The Company Board, after consulting with its financial advisor and outside legal counsel and carefully reviewing and considering various factors described in “— Reasons for the Merger,” unanimously (i) determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, are advisable, fair to, and in the best interests of Markforged and the Company Stockholders; (ii) approved the Merger and the execution, delivery and performance by Markforged of the Merger Agreement and the transactions contemplated thereby, including the consummation of the Merger; (iii) resolved to recommend that the Company Stockholders vote to adopt and approve the Merger Agreement; and (iv) directed that the adoption of the Merger Agreement Proposal be submitted to a vote of the Company Stockholders at the Special Meeting.

Reasons for the Merger

At a meeting of the Company Board on September 25, 2024, the Company Board unanimously (i) determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, are advisable, fair to, and in the best interests of Markforged and the Company Stockholders; (ii) approved the Merger and the execution, delivery and performance by Markforged of the Merger Agreement and the transactions contemplated thereby, including the consummation of the Merger; (iii) resolved to recommend that the Company Stockholders vote to adopt and approve the Merger Agreement; and (iv) directed that the adoption of the Merger Agreement Proposal be submitted to a vote of the Company Stockholders at the Special Meeting.

In reaching its decision to approve the Merger Agreement and the Merger, and to recommend that the Merger Agreement be adopted by Company Stockholders, the Company Board evaluated the Merger Agreement

 

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and the Merger with Markforged’s management and Markforged’s legal and financial advisors and carefully considered a number of factors, including the following material factors (which are not intended to be exhaustive or listed in any relative order of importance):

 

•

the fact that the Per Share Merger Consideration before adjustments represents (i) a premium of approximately 83% over the closing price of the Company Common Stock on September 24, 2024, the last trading day before the merger was publicly announced, and (ii) a premium of 67.8% over the volume-weighted average price over the 90-day period ending on such date;

 

•

the Company Board’s belief that the value offered to the Company Stockholders pursuant to the Merger is more favorable to Company Stockholders than the potential value from other alternatives reasonably available to Markforged, including remaining an independent public company, after reviewing Markforged’s business, financial condition, results of operations, market trends, competitive landscape and execution risks, and discussions with Markforged’s management and advisors and considering;

 

•

current market dynamics, including industrial additive manufacturing’s cyclical downturn driven by eleven (11) interest-rate hikes that have delayed broader adoption of capital equipment technologies, such as industrial additive manufacturing. At this time, none of the publicly traded additive manufacturing companies outside China are generating consistent profitability or meaningful cash flow, and there is no single player in the additive manufacturing sector that has achieved significant scale. Valuations for most publicly traded additive manufacturing companies have contracted as much as 95% from their peak, with limited financing alternatives available outside of strategic consolidation. In this context, consolidation is viewed as one of the few ways for companies like Markforged to achieve necessary scale, accelerate revenue growth, and generate self-sustaining cash flow to reinvest in innovation and maintain long-term competitive advantages;

 

•

the historical, current and prospective financial condition, results of operations and business of Markforged and the execution risks and uncertainties associated with achieving Markforged’s stand-alone plan, including Markforged’s ability to attract and retain talent;

 

•

the increasingly competitive nature of Markforged’s industry; and

 

•

the risks and uncertainties of continuing on a stand-alone basis as an independent public company;

 

•

the fact that the Per Share Merger Consideration of $5.00 per share will be paid in cash (without interest and subject to applicable withholding taxes), and provides immediate value and liquidity to Markforged’s stockholders, enabling them to realize value for their interest in Markforged while eliminating business and execution risk inherent in Markforged’s business, including risks and uncertainties associated with achievement of the stand-alone plan;

 

•

the fact that the Merger Agreement was the product of arms’ length negotiations (conducted by Markforged with the knowledge and at the direction of the Company Board and with the assistance of its financial and legal advisors) and contained terms and conditions that are, in the Company Board’s view, advisable and favorable to Markforged and its stockholders, as well as the Company Board’s belief, based on these negotiations, that these are the most favorable terms available to Markforged and its stockholders on which Nano was willing to transact;

 

•

the Company Board considered the process conducted by Markforged, with the assistance of representatives of Evercore, to identify potential buyers taking into account the expected interest of parties in industrial additive manufacturing generally, their financial capability to pursue a transaction with Markforged, and their ability to move quickly and efficiently in a process. The Company Board’s belief that Nano has access to the resources needed to complete the Merger, is based on, among other factors, Nano’s cash balance;

 

•

the oral opinion of Evercore rendered to the Company Board on September 25, 2024, subsequently confirmed by delivery of its written opinion to the Company Board, and attached to this proxy

 

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statement as Annex C, to the effect that, as of the date of its opinion and subject to and based on the various assumptions made, procedures followed, matters considered, limitations of the review undertaken and qualifications contained in its opinion, the Per Share Merger Consideration to be paid to the holders of Company Common Stock (other than holders of Owned Company Shares and Dissenting Shares) pursuant to the Merger Agreement was fair, from a financial point of view, to such holders. For additional information, see the section entitled “The Merger — Opinion of Evercore Group L.L.C.” and the full text of the opinion of Evercore attached as Annex C to this proxy statement;

 

•

Markforged’s belief that the restrictions imposed on Markforged’s business and operations by the Merger Agreement during the pendency of the Merger are reasonable and not unduly burdensome;

 

•

the risks facing Markforged and its industry, including the inherent costs, risks and uncertainties associated with continuing to operate independently as a public company;

 

•

the likelihood of consummation of the Merger and the Company Board’s evaluation of the likely time period necessary to close the Merger;

 

•

that the Company Stockholders will have the opportunity to vote on the Merger Agreement Proposal, the approval of which is a condition precedent to the closing of the Merger;

 

•

the other terms and conditions of the Merger Agreement, including the following related factors;

 

•

the customary nature of the representations, warranties and covenants of Markforged in the Merger Agreement;

 

•

the ability of the Company Board, subject to certain limitations, to respond to a bona fide written Acquisition Proposal received from a third party following the date of the Merger Agreement and prior to obtaining the stockholder approval if the Company Board determines in good faith, after consultation with its financial advisors and outside legal counsel, that the Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal;

 

•

the ability of the Company Board, subject to certain limitations, to effect a Company Change in Recommendation in connection with the receipt of a Superior Proposal or the occurrence of an Intervening Event, and to terminate the Merger Agreement to accept a Superior Proposal and enter into a Specified Agreement with respect to such Superior Proposal, subject to payment to Nano of the Termination Fee;

 

•

the conclusion of the Company Board that the Termination Fee and the circumstances in which the Termination Fee may be payable are reasonable in light of the benefit of the Merger and would not be a significant impediment to third parties interested in making an Acquisition Proposal;

 

•

the conclusion of the Company Board that the circumstances in which the repayment to Nano for the Termination Expenses may be payable are reasonable in light of the benefit of the Merger;

 

•

the fact that Nano has agreed to use its best efforts to obtain regulatory approvals (the absence of which would not, individually or in the aggregate, reasonably be expected to cause a material adverse effect), including, if necessary, through litigation or divestiture of assets to resolve, avoid or eliminate each and every impediment under CFIUS and any antitrust, competition, foreign direct investment, trade regulation or similar law;

 

•

Nano’s ability to pay the Merger Consideration in cash, without the requirement for third-party debt financing;

 

•

the fact that, pursuant to the Merger Agreement, Markforged is entitled to specific performance and other equitable remedies to prevent breaches of the Merger Agreement and, under specified circumstances, may enforce Nano’s obligation to consummate the transactions, including the Merger, contemplated by the Merger Agreement;

 

•

the fact that the Outside Date (as it may be extended) under the Merger Agreement allows for sufficient time to complete the Merger; and

 

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•

the availability of statutory appraisal rights to Company Stockholders who do not vote in favor of the adoption of the Merger Agreement and otherwise comply with all required procedures under the DGCL.

The Company Board also considered a variety of risks and other potentially negative factors with respect to the Merger Agreement and the Merger, including the following (which are not listed in any relative order of importance):

 

•

the restrictions in the Merger Agreement on our soliciting competing bids to acquire Markforged following the date of the Merger Agreement;

 

•

the restrictions in the Merger Agreement on Markforged’s ability to terminate the Merger Agreement or effect a Company Change in Recommendation with the receipt of a Superior Proposal, including the fact that the Company Board must (i) provide five (5) business days’ written notice to Nano of its intention to effect Company Change in Recommendation or terminate the Merger Agreement in order to provide Nano with an opportunity to match a Superior Proposal; and (ii) negotiate in good faith with Nano during such period, and the discouraging effect such restrictions may have on other potential bidders;

 

•

the fact that, under certain circumstances in connection with the termination of the Merger Agreement (including if the Company Board effects a Company Change in Recommendation in light of a Superior Proposal or Intervening Event or if Markforged terminates the Merger Agreement to accept a Superior Proposal), Markforged will be required to pay Nano a Termination Fee of $4,600,000, and the potential effect of such Termination Fee to discourage other potential bidders from making an Acquisition Proposal for Markforged;

 

•

the fact that, under certain circumstances in connection with the termination of the Merger Agreement for the failure to obtain the Company Shareholder Approval, Markforged may be required to pay Nano an expense reimbursement of up to $4,000,000 for reasonable, documented out-of-pocket fees and expenses;

 

•

the fact that, if the Merger is completed, Company Stockholders would not have the opportunity to participate in the future performance of our assets, earnings growth and appreciation of the value of Company Common Stock;

 

•

the significant costs involved in connection with entering into and completing the Merger and the substantial time and effort of management required to complete the Merger and related disruptions to the operation of our business;

 

•

the risk that the conditions to the consummation of the Merger may not be satisfied and, as a result, the possibility that the Merger may not be completed in a timely manner or at all, even if the Merger Agreement is adopted by the Company Stockholders;

 

•

the potential negative effects if the Merger is not consummated, including:

 

•

the trading price of the Company Common Stock could be adversely affected;

 

•

we will have incurred significant transaction and opportunity costs attempting to complete the Merger;

 

•

we could lose customers, suppliers, business partners and employees, including key executives, sales and other personnel;

 

•

our business may be subject to significant disruption and decline;

 

•

the market’s perceptions of our prospects could be adversely affected; and

 

•

our directors, officers and other employees will have expended considerable time and efforts to consummate the Merger;

 

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•

the fact that receipt of the all-cash Per Share Merger Consideration would be taxable to our stockholders that are treated as U.S. holders (as defined in “The Merger — Material U.S. Federal Income Tax Consequences of the Merger to Holders of Company Common Stock”) for United States federal income tax purposes;

 

•

the restrictions in the Merger Agreement on the conduct of our business prior to the consummation of the Merger, which may delay or prevent us from undertaking business or other opportunities that may arise prior to completion of the Merger, including with respect to seeking other financing or transaction opportunities; and

 

•

the fact that our executive officers and directors may have interests in the Merger that may be different from, or in addition to, those of Company Stockholders. See “— Interests of the Directors and Executive Officers of Markforged in the Merger.”

After taking into account the factors set forth above, as well as others, the Company Board concluded that the potential benefits of the Merger to Markforged’s stockholders outweighed the potentially negative factors associated with the Merger. Accordingly, the Company Board unanimously (i) determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, are advisable, fair to, and in the best interests of Markforged and the Company Stockholders; (ii) approved the Merger and the execution, delivery and performance by Markforged of the Merger Agreement and the transactions contemplated thereby, including the consummation of the Merger; (iii) resolved to recommend that the Company Stockholders vote to adopt and approve the Merger Agreement; and (iv) directed that the adoption of the Merger Agreement Proposal be submitted to a vote of the Company Stockholders at the Special Meeting.

The foregoing discussion summarizes the material factors considered by the Company Board but is not intended to be exhaustive. In light of the variety of factors considered in connection with its evaluation of the Merger, the Company Board did not find it practicable to, and did not, quantify or otherwise assign relative weights to the specific factors considered in reaching its determination and recommendation. Moreover, each member of the Company Board applied his or her own business judgment to the process and may have given different weight to different factors. The Company Board did not undertake to make any specific determination as to whether any factor, or any particular aspect of any factor, supported or did not support its ultimate determination and recommendation. The Company Board based its recommendation on the totality of the information presented, including its discussions with Markforged’s executive management and its financial advisors and outside legal counsel. This explanation of the reasoning of the Company Board and certain information presented in this section is forward-looking in nature and should be read in light of the factors set forth in “Cautionary Note Regarding Forward-Looking Statements.”

Opinion of Evercore Group L.L.C.

The Company retained Evercore to act as its financial advisor in connection with the Company Board’s evaluation of strategic and financial alternatives, including the Merger. As part of this engagement, the Company requested that Evercore evaluate the fairness, from a financial point of view, of the Per Share Merger Consideration to be received by the holders of Company Common Stock (other than holders of Owned Company Shares and Dissenting Shares) and Dissenting Shares. At a meeting of the Company Board held on September 25, 2024, Evercore rendered to the Company Board its opinion to the effect that, as of September 25, 2024 and based upon and subject to the assumptions, limitations, qualifications and conditions described in Evercore’s opinion, the Per Share Merger Consideration of $5.00 to be received by the holders of Company Common Stock (other than holders of Owned Company Shares and Dissenting Shares) in the Merger was fair, from a financial point of view, to such holders.

The full text of the written opinion of Evercore, dated as of September 25, 2024, which sets forth, among other things, the procedures followed, assumptions made, matters considered and qualifications and limitations on the scope of review undertaken in rendering its opinion, is attached as Annex C to this

 

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proxy statement and is incorporated herein by reference. The Company encourages you to read this opinion carefully and in its entirety. Evercore’s opinion was addressed to, and provided for the information and benefit of, the Company Board (in its capacity as such) in connection with its evaluation of the proposed Merger. The opinion does not constitute a recommendation to the Company Board or to any other persons in respect of the Merger, including as to how any holder of shares of Company Common Stock should vote or act in respect of the Merger. Evercore’s opinion does not address the relative merits of the Merger as compared to other business or financial strategies that might be available to the Company, nor does it address the underlying business decision of the Company to engage in the Merger.

In connection with rendering its opinion Evercore, among other things:

 

•

reviewed certain publicly available business and financial information relating to the Company that Evercore deemed to be relevant, including publicly available research analysts’ estimates;

 

•

reviewed certain internal projected financial data relating to the Company, including certain net operating loss carryforwards of the Company, prepared and furnished to Evercore by Markforged’s management, as approved for our use by the Company (referred to in this proxy statement as the “Markforged financial forecasts,” as described in more detail under “—Certain Unaudited Prospective Financial Information”);

 

•

discussed with Markforged’s management their assessment of the past and current operations of the Company, the current financial condition and prospects of the Company, and the Markforged financial forecasts;

 

•

reviewed the reported prices and the historical trading activity of the Company Common Stock;

 

•

compared the financial performance of the Company and its stock market trading multiples with those of certain other publicly traded companies that Evercore deemed relevant;

 

•

compared the financial performance of the Company and the valuation multiples relating to the Merger with the financial terms, to the extent publicly available, of certain other transactions that Evercore deemed relevant;

 

•

reviewed the financial terms and conditions of the Merger Agreement; and

 

•

performed such other analyses and examinations and considered such other factors that Evercore deemed appropriate.

For purposes of Evercore’s analyses and opinion, Evercore assumed and relied upon the accuracy and completeness of the financial and other information publicly available, and all of the information supplied or otherwise made available to, discussed with, or reviewed by Evercore, without any independent verification of such information (and Evercore did not assume responsibility or liability for any independent verification of such information), and further relied upon the assurances of Markforged’s management that they were not aware of any facts or circumstances that would make such information inaccurate or misleading. With respect to the Markforged financial forecasts, Evercore assumed with the Company’s consent that they had been reasonably prepared on bases reflecting the best currently available estimates and good faith judgments of Markforged’s management as to the future financial performance of the Company and the other matters covered thereby. Evercore expressed no view as to the Markforged financial forecasts or the assumptions on which they were based.

For purposes of Evercore’s analyses and opinion, Evercore assumed, in all respects material to its analyses, that the representations and warranties of each party contained in the Merger Agreement were true and correct, that each party would perform all of the covenants and agreements required to be performed by it under the Merger Agreement and that all conditions to the consummation of the Merger would be satisfied without waiver or modification thereof. Evercore further assumed, in all respects material to its analyses, that all governmental, regulatory or other consents, approvals or releases necessary for the consummation of the Merger would be

 

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obtained without any delay, limitation, restriction or condition that would have an adverse effect on the Company or the consummation of the Merger or reduce the contemplated benefits to the holders of shares of Company Common Stock of the Merger. In addition, Evercore relied, without independent verification, on the assessments of Markforged’s management as to (i) the validity of, and risks associated with, the Company’s intellectual property, technology, products and services, and (ii) the marketability, commercial viability and market adoption of the Company’s current and future products and services.

Evercore did not conduct a physical inspection of the properties or facilities of the Company and did not make or assume any responsibility for making any independent valuation or appraisal of the assets or liabilities (including any contingent, derivative or other off-balance sheet assets and liabilities) of the Company, nor was Evercore furnished with any such valuations or appraisals, nor did Evercore evaluate the solvency or fair value of the Company under any state or federal laws relating to bankruptcy, insolvency or similar matters. Evercore’s opinion is necessarily based upon information made available to Evercore as of September 25, 2024 and financial, economic, market and other conditions as they existed and as could be evaluated as of that date. It is understood that subsequent developments may affect Evercore’s opinion and that Evercore does not have any obligation to update, revise or reaffirm its opinion.

Evercore was not asked to pass upon, and expressed no opinion with respect to, any matter other than the fairness to the holders of the Company Common Stock (other than holders of Owned Company Shares and Dissenting Shares) from a financial point of view, of the Per Share Merger Consideration. Evercore did not express any view on, and Evercore’s opinion does not address, the fairness of the proposed Merger to, or any consideration received in connection therewith by, the holders of any other class of securities, creditors or other constituencies of the Company, nor as to the fairness of the amount or nature of any compensation to be paid or payable to any of the officers, directors or employees of the Company, or any class of such persons, whether relative to the Per Share Merger Consideration or otherwise. Evercore was not asked to, nor did Evercore express any view on, and Evercore’s opinion did not address, any other term or aspect of the Merger Agreement or the Merger, including, without limitation, the structure or form of the Merger, or any term or aspect of any other agreement or instrument contemplated by the Merger Agreement or entered into or amended in connection with the Merger Agreement. Evercore’s opinion did not address the relative merits of the Merger as compared to other business or financial strategies that might be available to the Company, nor did it address the underlying business decision of the Company to engage in the Merger. Evercore’s opinion did not constitute a recommendation to the Company Board or to any other persons in respect of the Merger, including as to how any holder of shares of the Company Common Stock should vote or act in respect of the Merger. Evercore is not a legal, regulatory, accounting or tax expert and has assumed the accuracy and completeness of assessments by the Company and its advisors with respect to legal, regulatory, accounting and tax matters.

Set forth below is a summary of the material financial analyses reviewed by Evercore with the Company Board on September 25, 2024 in connection with rendering its opinion. The following summary, however, does not purport to be a complete description of the analyses performed by Evercore. The order of the analyses described and the results of these analyses do not represent relative importance or weight given to these analyses by Evercore. Except as otherwise noted, the following quantitative information, to the extent that it is based on market data, is based on market data that existed on or before September 24, 2024 (the last trading date prior to the rendering of Evercore’s opinion), and is not necessarily indicative of current market conditions.

For purposes of its analyses and reviews, Evercore considered general business, economic, market and financial conditions, industry sector performance, and other matters, as they existed and could be evaluated as of the date of its opinion, many of which are beyond the control of the Company. The estimates contained in Evercore’s analyses and reviews, and the ranges of valuations resulting from any particular analysis or review, are not necessarily indicative of actual values or predictive of future results or values, which may be significantly more or less favorable than those suggested by Evercore’s analyses and reviews. In addition, analyses and reviews relating to the value of companies, businesses or securities do not purport to be appraisals or to reflect the prices at which companies, businesses or securities actually may be sold. Accordingly, the estimates used in, and the results derived from, Evercore’s analyses and reviews are inherently subject to substantial uncertainty.

 

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The following summary of Evercore’s financial analyses includes information presented in tabular format. In order to fully understand the analyses, the tables should be read together with the full text of each summary. The tables are not intended to stand alone and alone do not constitute a complete description of Evercore’s financial analyses. Considering the tables below without considering the full narrative description of Evercore’s financial analyses, including the methodologies and assumptions underlying such analyses, could create a misleading or incomplete view of such analyses.

Summary of Evercore’s Financial Analyses

Discounted Cash Flow Analysis

Evercore performed a discounted cash flow analysis of the Company to calculate the estimated present value of the standalone unlevered, after-tax free cash flows, defined as net operating profit after tax, plus depreciation and amortization, less share based compensation, less changes in net working capital and capital expenditures, less the additional intellectual property litigation settlement related payments through 2027 of approximately $7 million, that the Company was forecasted to generate during the Company’s calendar years 2025 through 2034 based on the Markforged financial forecasts. Evercore calculated terminal values for the Company by applying perpetuity growth rates of 5.0% to 7.0%, which range was selected based on Evercore’s professional judgment and experience, to a terminal year estimate of the unlevered, after-tax free cash flows that the Company was forecasted to generate based on the Markforged financial forecasts. The cash flows and terminal values in each case were then discounted to present value as of December 31, 2024 using discount rates ranging from 18.0% to 22.0%, which were based on an estimate of the Company’s weighted average cost of capital, and the mid-year cash flow discounting convention. In calculating implied enterprise values, Evercore included the present value of tax savings from the Company’s estimated usage of net operating losses, of an amount equal to $9 million, based on the Markforged financial forecasts. Based on this range of implied enterprise values, the Company’s total cash balance as of December 31, 2024 of $54 million and the number of fully diluted shares of Company Common Stock as of September 24, 2024 of approximately 23.1 million, in each case as provided by Markforged’s management, this analysis indicated a range of implied equity values per share of Company Common Stock of $1.34 to $2.55, compared to the Per Share Merger Consideration of $5.00.

Selected Public Company Trading Analysis

Evercore reviewed and compared certain financial information of the Company to corresponding financial multiples and ratios for the following selected publicly traded companies in the additive manufacturing industry (the “selected companies”):

 

•

Desktop Metal, Inc.

 

•

Stratasys Ltd.

 

•

3D Systems Corporation

For each of the selected companies, Evercore calculated enterprise value (defined as equity market capitalization plus total debt (excluding operating lease liabilities as debt), plus preferred equity and minority interest, less cash and cash equivalents) as a multiple of estimated revenue in calendar year 2024, which is referred to as “2024E Revenue” and estimated revenue in calendar year 2025, which is referred to as “2025E Revenue,” based on closing share prices as of September 24, 2024. Estimated financial data of the selected companies were based on publicly available research analysts’ estimates.

This analysis indicated the following:

 

Benchmark

High

Low

Median

2024E Revenue

1.2x

0.7x

0.9x

2025E Revenue

1.1x

0.7x

0.8x

 

 

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Based on the multiples it derived for the selected companies and based on its professional judgment and experience, Evercore applied an enterprise value / revenue multiple reference range of 0.5x to 1.5x to the Company’s estimated revenue in calendar year 2025 based on the Markforged financial forecasts and analyst consensus estimates, respectively. The analyst consensus estimate for the Company’s revenue in calendar year 2025 as utilized in this analysis was $100 million. Based on this range of implied enterprise values, the Company’s estimated cash and restricted cash balance as of December 31, 2024 of $54 million, additional intellectual property litigation settlement related payments through 2027 of approximately $7 million and the number of fully diluted shares of Company Common Stock as of September 24, 2024 of approximately 23.1 million, in each case as provided by Markforged’s management (other than the range of implied enterprise values derived from analyst consensus estimates), this analysis indicated a range of implied equity values per share of Company Common Stock of $4.41 to $9.12 (based on the Markforged financial forecasts) and $4.21 to $8.53 (based on analyst consensus estimates), compared to the Per Share Merger Consideration of $5.00.

Although none of the selected companies is directly comparable to the Company, Evercore selected these companies because they are publicly traded additive manufacturing companies that Evercore, in its professional judgment and experience, considered generally relevant to the Company for purposes of its financial analyses. In evaluating the selected companies, Evercore made judgments and assumptions with regard to general business, economic and market conditions affecting the selected companies and other matters, as well as differences in the selected companies’ financial, business, operating characteristics and trading performance. Accordingly, an evaluation of the results of this analysis is not entirely mathematical. Rather, this analysis involves complex considerations and judgments regarding many factors that could affect the relative values of the selected companies and the multiples derived from the selected companies. Mathematical analysis, such as determining the median, is not in itself a meaningful method of using the data of the selected companies.

Other Factors

Evercore also noted certain other factors, which were not considered material to its financial analyses with respect to its opinion, but were referenced for informational purposes only, including, among other things, the following:

Selected Transactions Analysis

Evercore reviewed financial information related to the following selected transactions and announced bids involving target companies in the additive manufacturing industry announced since the beginning of 2021 (the “selected transactions”). The selected transactions reviewed by Evercore, and the month and year each was announced, were as follows:

 

Month and Year Announced		Acquiror		Target
August 2021		Desktop Metal, Inc.		The ExOne Company
November 2021		3D Systems Corporation		Oqton
September 2022		Nikon Corporation		SLM Solutions Group
May 2023		Stratasys Ltd.		Desktop Metal, Inc.
July 2023*		Nano Dimension Ltd.		Stratasys Ltd.
September 2023*		3D Systems Corporation		Stratasys Ltd.
December 2023*		Nano Dimension Ltd.		Stratasys Ltd.
July 2024		Nano Dimension Ltd.		Desktop Metal, Inc.

 

*	Offer rejected / withdrawn.

 

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For each selected transaction, Evercore calculated the implied enterprise value (defined as the target company’s implied equity value based on the consideration paid in the applicable transaction plus total debt, plus preferred equity and minority interest, less cash and cash equivalents) as a multiple of last twelve-months revenue for the target company at the time of the announcement of the applicable transaction, which is referred to as “LTM Revenue.” Estimated financial data of the selected transactions were based on available information at the time of announcement of the relevant transaction.

This analysis indicated the following:

 

Benchmark

High

Low

Median

LTM Revenue

12.5x

1.1x

2.6x

Based on the multiples it derived from the selected transactions and based on its professional judgment and experience, Evercore selected a reference range of enterprise value to LTM Revenue multiples of 1.0x to 1.5x and applied this range of multiples to the Company’s estimated LTM Revenue as of December 31, 2024 of $95 million per the Markforged financial forecasts. Based on this range of implied enterprise values, the Company’s cash and restricted cash balance as of December 31, 2024 of $54 million, additional intellectual property litigation settlement related payments through 2027 of approximately $7 million and the number of fully diluted shares of Company Common Stock as of September 24, 2024 of approximately 23.1 million, in each case as provided by Markforged’s management, this analysis indicated a range of implied equity values per share of Company Common Stock of $6.19 to $8.26, compared to the Per Share Merger Consideration of $5.00.

Although none of the target companies or businesses reviewed in the selected transactions analysis is directly comparable to the Company and none of the selected transactions is directly comparable to the Merger, Evercore selected these transactions because they involve companies or businesses that Evercore, in its professional judgment and experience, considered generally relevant to the Company for purposes of its financial analyses. In evaluating the selected transactions, Evercore made judgments and assumptions with regard to general business, economic and market conditions and other factors existing at the time of the selected transactions, and other matters, as well as differences in financial, business and operating characteristics and other factors relevant to the target companies or businesses in the selected transactions. Accordingly, an evaluation of the results of this analysis is not entirely mathematical. Rather, this analysis involves complex considerations and judgments regarding many factors that could affect the relative values of the target companies or businesses in the selected transactions and the multiples derived from the selected transactions. Mathematical analysis, such as determining the mean or median, is not in itself a meaningful method of using the data of the selected transactions.

Premiums Paid Analysis

Using publicly available information, Evercore reviewed 109 transactions and announced bids for control of U.S. public targets in the technology industry announced since September 24, 2019. Using publicly available information, Evercore calculated the premiums paid as the percentage by which the per share consideration paid or proposed to be paid in each such transaction exceeded the closing market price per share of the target companies one day prior to announcement of each transaction and the volume weighted average price per share of the target companies over a period of thirty days (“30 Day VWAP”) prior to announcement of each transaction.

 

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This analysis indicated the following:

 

All Transactions (109 Transactions)		1 Day Prior				30 Day VWAP
25th Percentile			14	%			19	%
Median			30	%			35	%
Mean			42	%			45	%
75th Percentile			53	%			54	%

 

All Cash Transactions (100 Transactions)		1 Day Prior				30 Day VWAP
25th Percentile			14	%			18	%
Median			30	%			33	%
Mean			41	%			42	%
75th Percentile			51	%			54	%

 

Transactions with an Aggregate Value between $50 million and $150 million (10 Transactions)		1 Day Prior				30 Day VWAP
25th Percentile			41	%			27	%
Median			53	%			45	%
Mean			64	%			64	%
75th Percentile			68	%			69	%

Based on the premia of 25^th and 75^th percentiles derived from all 109 transactions, and its professional judgment and experience, Evercore applied a premium range of 20.0% to 55.0% to the closing price per share of Company Common Stock of $2.73 as of September 24, 2024 and the 30 Day VWAP of $2.23 as of September 24, 2024. This analysis indicated a range of implied equity values per share of Company Common Stock of $3.28 to $4.23 and $2.68 to $3.46, respectively, compared to the Per Share Merger Consideration of $5.00.

Equity Research Analyst Price Targets

Evercore reviewed selected public market trading price targets for the shares of Company Common Stock prepared and published by equity research analysts that were publicly available as of September 24, 2024, the last trading day prior to the delivery by Evercore of its opinion to the Company Board. These price targets reflect analysts’ estimates of the future public market trading price of the shares of Company Common Stock at the time the price target was published. As of September 24, 2024, the range of selected equity research analyst price targets per share of Company Common Stock was $5.00 to $10.00. Public market trading price targets published by equity research analysts do not necessarily reflect current market trading prices for the shares of Company Common Stock and these target prices and the analysts’ earnings estimates on which they were based are subject to risk and uncertainties, including factors affecting the financial performance of the Company and future general industry and market conditions.

Last 52-Week Trading Range

Evercore reviewed historical trading prices of shares of Company Common Stock during the twelve month period ended September 24, 2024, noting that the low and high closing prices during such period ranged from $1.80 to $14.50 per share of Company Common Stock, respectively.

Miscellaneous

The foregoing summary of Evercore’s financial analyses does not purport to be a complete description of the analyses or data presented by Evercore to the Company Board. In connection with the review of the Merger

 

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by the Company Board, Evercore performed a variety of financial and comparative analyses for purposes of rendering its opinion. The preparation of a fairness opinion is a complex process and is not necessarily susceptible to partial analysis or summary description. Selecting portions of the analyses or of the summary described above, without considering the analyses as a whole, could create an incomplete view of the processes underlying Evercore’s opinion. In arriving at its fairness determination, Evercore considered the results of all the analyses and did not draw, in isolation, conclusions from or with regard to any one analysis or factor considered by it for purposes of its opinion. Rather, Evercore made its determination as to fairness on the basis of its professional judgment and experience after considering the results of all the analyses. In addition, Evercore may have given various analyses and factors more or less weight than other analyses and factors, and may have deemed various assumptions more or less probable than other assumptions. As a result, the ranges of valuations resulting from any particular analysis or combination of analyses described above should not be taken to be the view of Evercore with respect to the actual value of the shares of Company Common Stock. Rounding may result in total sums set forth in this section not equaling the total of the figures shown.

Evercore prepared these analyses for the purpose of providing an opinion to the Company Board as to the fairness, from a financial point of view, of the Per Share Merger Consideration to the holders of shares of Company Common Stock (other than holders of Owned Company Shares and Dissenting Shares). These analyses do not purport to be appraisals or to necessarily reflect the prices at which the business or securities actually may be sold. Any estimates contained in these analyses are not necessarily indicative of actual future results, which may be significantly more or less favorable than those suggested by such estimates. Accordingly, estimates used in, and the results derived from, Evercore’s analyses are inherently subject to substantial uncertainty, and Evercore assumes no responsibility if future results are materially different from those forecasted in such estimates.

Evercore’s financial advisory services and its opinion were provided for the information and benefit of the Company Board (in its capacity as such) in connection with its evaluation of the proposed Merger. The issuance of Evercore’s opinion was approved by an Opinion Committee of Evercore.

Evercore did not recommend any specific amount of consideration to the Company Board or Markforged’s management or that any specific amount of consideration constituted the only appropriate consideration in the Merger for the holders of Company Common Stock.

Pursuant to the terms of Evercore’s engagement letter with the Company, the Company has agreed to pay Evercore a fee for its services in the amount of approximately $4.0 million, of which $1.0 million was paid upon delivery of Evercore’s opinion, and the balance of which will be payable contingent upon the consummation of the Merger. The Company has also agreed to reimburse Evercore for its expenses and to indemnify Evercore against certain liabilities arising out of its engagement.

During the two year period prior to the date of its opinion, Evercore and its affiliates have not been engaged to provide financial advisory or other services to the Company and Evercore has not received any compensation from the Company during such period. In addition, during the two year period prior to the date of its opinion, Evercore and its affiliates have not been engaged to provide financial advisory or other services to Parent and Evercore has not received any compensation from Parent during such period. Evercore may provide financial advisory or other services to the Company, Parent or any of their respective affiliates in the future, and in connection with any such services Evercore may receive compensation.

Evercore and its affiliates engage in a wide range of activities for its and their own accounts and the accounts of customers, including corporate finance, mergers and acquisitions, equity sales, trading and research, private equity, placement agent, asset management and related activities. In connection with these businesses or otherwise, Evercore and its affiliates and/or its or their respective employees, as well as investment funds in which any of them may have a financial interest, may at any time, directly or indirectly, hold long or short positions and may trade or otherwise effect transactions for their own accounts or the accounts of customers, in

 

60

debt or equity securities, senior loans and/or derivative products or other financial instruments of or relating to the Company or its affiliates, Parent, potential parties to the Merger and their respective affiliates or persons that are competitors, customers or suppliers of the Company.

The Company engaged Evercore to act as a financial advisor based on Evercore’s qualifications, experience and reputation in transactions similar to the Merger. Evercore is an internationally recognized investment banking firm and regularly provides fairness opinions to its clients in connection with mergers and acquisitions, leveraged buyouts and valuations for corporate and other purposes.

Certain Unaudited Prospective Financial Information

Markforged does not as a matter of course publicly disclose long-term projections as to future performance, earnings, or other results due to the inherent unpredictability and subjectivity of the underlying assumptions and estimates. However, in connection with the discussions regarding the proposed Merger, Markforged provided the Company Board, Evercore and Nano with certain financial forecasts which were prepared by and are the responsibility of the management of Markforged (the “Markforged financial forecasts”). Evercore was directed by Markforged management, with the approval of the Company Board, to use and rely upon the Markforged financial forecasts for purposes of its financial analysis and fairness opinion. The Markforged financial forecasts were prepared in August 2024. The Markforged financial forecasts treat Markforged on a stand-alone basis and do not give effect to the Merger, and were prepared as if the Merger were never contemplated. Additionally, the Markforged financial forecasts do not take into account (i) the expenses that may be incurred in connection with negotiating and consummating the Merger, (ii) the potential synergies that may be achieved by the combined company as a result of the Merger, (iii) the effect of any business or strategic decision or action that has been or will be taken as a result of the Merger Agreement having been executed, or (iv) the effect of any business or strategic decisions or actions which would likely have been taken if the Merger Agreement had not been executed but which were instead altered, accelerated, postponed or not taken in anticipation of the Merger.

The accompanying Markforged financial forecasts were not prepared with a view toward public disclosure or with a view toward compliance with the published guidelines established by the SEC or the American Institute of Certified Public Accountants for preparation or presentation of prospective financial information, or accounting principles generally accepted in the United States of America (“GAAP”), but, in the view of Markforged’s management, were prepared on a reasonable basis, reflected the best available estimates and judgments at the time of preparation, and presented as of the time of preparation, to the best of Markforged management’s knowledge and belief, the reasonable projections of the future financial performance of Markforged. However, this information is not factual and should not be relied upon as being necessarily indicative of future results, and readers of this proxy statement are cautioned not to place undue reliance on the Markforged financial forecasts. Although Markforged’s management believes there is a reasonable basis for the Markforged financial forecasts, Markforged cautions stockholders that future results could be materially different from the Markforged financial forecasts. The summary of the Markforged financial forecasts is not being included in this proxy statement to influence your decision whether to vote for the Merger Proposal, but because these Markforged financial forecasts were provided to the Company Board, as well as Nano’s management, for purposes of considering and evaluating the Merger and the Merger Agreement and to Evercore for its use in its financial analysis. The prospective financial information included in this document has been prepared by, and is the responsibility of, the Company’s management. PricewaterhouseCoopers LLP has not audited, reviewed, examined, compiled nor applied agreed-upon procedures with respect to the accompanying prospective financial information and, accordingly, PricewaterhouseCoopers LLP does not express an opinion or any other form of assurance with respect thereto. The PricewaterhouseCoopers LLP report incorporated by reference relates to the Company’s previously issued financial statements. It does not extend to the prospective financial information and should not be read to do so.

The Markforged financial forecasts are subject to estimates and assumptions in many respects and, as a result, subject to interpretation. While presented with numerical specificity, the Markforged financial forecasts

 

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are based upon a variety of estimates and assumptions that are inherently uncertain, though considered reasonable by Markforged’s management as of the date of their preparation. These estimates and assumptions may prove to be inaccurate for any number of reasons, including general economic conditions, competition, and the risks discussed in this proxy statement under the section entitled “Cautionary Note Regarding Forward-Looking Statements.” The Markforged financial forecasts also reflect assumptions as to certain business decisions that are subject to change. Because the Markforged financial forecasts were developed for Markforged on a stand-alone basis without giving effect to the Merger, they do not reflect any divestitures or other restrictions that may be imposed in connection with the receipt of any necessary governmental or regulatory approvals, any synergies that may be realized as a result of the Merger or any changes to Markforged’s operations or strategy that may be implemented after completion of the Merger. There can be no assurance that the projections will be realized, and actual results may differ materially from those shown. Generally, the further out the period to which financial forecasts by Markforged relate, the more unreliable the information becomes.

Markforged uses a variety of financial measures that are not in accordance with GAAP for forecasting, budgeting and measuring operating performance, including Adjusted EBITDA and Free Cash Flow. While Markforged believes that these non-GAAP financial measures provide meaningful information to help investors understand the operating results and to analyze Markforged’s financial business trends, there are limitations associated with the use of these non-GAAP financial measures. These non-GAAP financial measures are not prepared in accordance with GAAP and may not be directly comparable to similarly titled measures of Markforged’s competitors due to potential differences in the exact method of calculation. Further, these non-GAAP financial measures are not meant to be considered in isolation or as a substitute for comparable GAAP measures.

Financial measures included in forecasts (including the Markforged financial forecasts) provided to a financial advisor are excluded from the definition of “non-GAAP financial measures” under the rules of the SEC if and to the extent such financial measures are included in the forecasts provided to the financial advisor for the purpose of rendering an opinion that is materially related to a business combination transaction and the forecasts are being disclosed in order to comply with the SEC rules or requirements under state or foreign law, including case law regarding disclosure of the financial advisor’s analyses. Therefore, the Markforged financial forecasts are not subject to the SEC rules regarding disclosures of non-GAAP financial measures, which would otherwise require a reconciliation of a non-GAAP financial measure to a GAAP financial measure. Reconciliations of non-GAAP financial measures were not relied upon by Evercore for purposes of its opinion to the Company Board, as described above in the section entitled “The Merger—Opinion of Evercore Group L.L.C.,” or by the Company Board in connection with its consideration of the Merger. Accordingly, no reconciliation of the financial measures included in the Markforged financial forecasts is provided.

None of Markforged, Evercore, or their respective affiliates, advisors, officers, directors or other representatives can provide any assurance that actual results will not differ from the Markforged financial forecasts, and none of them undertakes any obligation to update, or otherwise revise or reconcile, the Markforged financial forecasts. Except as required by applicable securities laws, Markforged does not intend to make publicly available any update or other revision to the Markforged financial forecasts, even in the event that any or all assumptions are shown to be in error. None of Markforged, Evercore or their respective affiliates, advisors, officers, directors or other representatives has made or makes any representation to any stockholder or other person regarding Markforged’s ultimate performance compared to the information contained in the Markforged financial forecasts or that forecasted results will be achieved. Markforged has made no representation to Nano, in the Merger Agreement or otherwise, concerning the Markforged financial forecasts.

 

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Summary of the Markforged Financial Forecasts

In connection with the evaluation of the Merger, Markforged’s management prepared forecasts of Markforged’s financial results for calendar years 2024 through 2034. The following table presents a summary of the Markforged financial forecasts (dollars in millions):

 

Calendar Year Ended Dec 31		2024E				2025E				2026E				2027E				2028E				2029E				2030E				2031E				2032E				2033E				2034E
Revenue		$	95			$	109			$	126			$	148			$	171			$	194			$	217			$	242			$	266			$	292			$	320
Adjusted EBITDA(1)		($	38	)		($	9	)		($	2	)		$	5			$	13			$	20			$	28			$	37			$	46			$	56			$	68
Unlevered Free Cash Flow(2)			n/a			($	29	)		($	22	)		($	20	)		($	12	)		($	7	)		($	2	)		$	3			$	9			$	15			$	23

 

(1)	Adjusted EBITDA (non-GAAP) means net income before interest, taxes, depreciation and amortization and is presented before the impact of stock-based compensation.

(2)

Unlevered Free Cash Flow was calculated as net operating profit after tax, plus depreciation and amortization, less stock based compensation, less changes in net working capital and capital expenditures, less the additional IP litigation settlement related payments through 2027 of approximately $7 million.

Interests of the Directors and Executive Officers of Markforged in the Merger

Certain of Markforged’s executive officers and directors may have financial interests in the Merger that are different from, or in addition to, the interests of Company Stockholders generally. The Company Board was aware of these potential interests and considered them, among other matters, in evaluating and negotiating the Merger Agreement and in reaching its decision to approve the Merger Agreement and the Merger, and to recommend that the Company Stockholders approve the Merger Agreement as more fully discussed in “—Recommendation of the Markforged Board of Directors and Reasons for the Merger.”

Markforged’s current executive officers and their respective positions are as follows:

 

		Name		Position
		Shai Terem		Chief Executive Officer and Director
		Assaf Zipori		Chief Financial Officer
		Stephen Karp		General Counsel

Markforged’s current non-employee directors are as follows:

 

		Name
		Alan Masarek
		Carol Meyers
		Paul Milbury
		Antonio Rodriguez
		Edward Anderson
		Michael Medici
		Aaron VanDevender
		George Riedel

Treatment of Equity and Equity-Based Awards

Markforged’s directors and executive officers who own Company Common Stock will receive the Per Share Merger Consideration on the same terms and conditions, as the other holders of Company Common Stock in the Merger. The following table sets forth the number of shares of Company Common Stock owned, as of    , 2024, by each of Markforged’s executive officers and non-employee members of the Company Board (which, for this purpose, excludes (i) Company Earnout Shares, (ii) shares underlying Company Stock Options, whether or

 

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not currently exercisable, (iii) shares subject to outstanding and unvested Company RSU Awards, and (iv) shares held by affiliated entities of such persons).

 

		Shares Owned (#)				Value of Shares Owned ($)
Executive Officers
Shai Terem			136,642			$	683,210
Assaf Zipori			33,031			$	165,155
Stephen Karp			20,406			$	102,030
Non-Employee Directors
Edward Anderson			20,424			$	102,120
Michael Medici			20,424			$	102,120
Paul Milbury			20,424			$	102,120
Antonio Rodriguez			20,424			$	102,120
Carol Meyers			23,424			$	117,120
Alan Masarek			25,424			$	127,120
Aaron VanDevender			9,901			$	49,505
George Riedel			—				—

Company Earnout Shares

At the Effective Time, the right of Markforged’s executive officers and non-employee members of the Company Board to receive any Company Earnout Shares will be cancelled and the holder of the rights to Company Earnout Shares will be entitled to receive a cash payment equal to the Per Share Merger Consideration.

The following table sets forth, for each of Markforged’s executive officers and the non-employee members of the Company Board, (i) the aggregate number of Company Earnout Shares such individual is eligible to receive as of October 11, 2024 and (ii) the estimated value that the executive officers and non-employee members of Company Board will receive in respect of such Company Earnout Shares in connection with the Merger.

 

		Total Earnout Shares (#)				Value of Earnout Shares Owned ($)
Executive Officers
Shai Terem			62,869			$	314,345
Assaf Zipori			7,536			$	37,680
Stephen Karp			2,660			$	13,300
Non-Employee Directors
Edward Anderson			—				—
Michael Medici			—				—
Paul Milbury			7,439			$	37,195
Antonio Rodriguez			—				—
Carol Meyers			—				—
Alan Masarek			—				—
Aaron VanDevender			—				—
George Riedel			—				—

Company Stock Options

At the Effective Time, (i) each In-the-Money Company Stock Option will be canceled and converted into the right to receive a cash payment equal to the Per Share Merger Consideration in respect of each Net Share (if any) covered by such Company Stock Option, without interest and less applicable tax withholding and (ii) each Out-of-the Money Company Stock Option that is then outstanding and unexercised will be canceled for no condensation.

 

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The following table sets forth, for each of Markforged’s executive officers and the non-employee members of the Company Board, (i) the aggregate number of shares of Company Common Stock underlying vested In-the-Money Company Stock Options held by such individual as of October 11, 2024, (ii) the aggregate number of shares of Company Common Stock underlying unvested In-the-Money Company Stock Options as of October 11, 2024 and (iii) the estimated value that the executive officers and non-employee members of the Company Board will receive in respect of such In-the-Money Company Stock Options in connection with the Merger.

 

		Unvested Stock Options (#)				Value of Unvested Stock Options ($)				Vested Stock Options (#)				Value of Vested Stock Options ($)
Executive Officers
Shai Terem			—				—				675,099				—
Assaf Zipori			—				—				80,939				—
Stephen Karp			—				—				28,567				—
Non-Employee Directors
Edward Anderson			—				—				—				—
Michael Medici			—				—				—				—
Paul Milbury			—				—				79,900				—
Antonio Rodriguez			—				—				—				—
Carol Meyers			—				—				—				—
Alan Masarek			—				—				—				—
Aaron VanDevender			—				—				—				—
George Riedel			—				—				—				—

Company RSU Awards

At the Effective Time, each Unvested Company RSU Award will be automatically cancelled and replaced with a grant by Nano of a Replacement RSU Award, which will be granted on similar terms and conditions as were applicable to the Unvested Company RSU Award prior to the Effective Time, except (i) any continued employment or service requirement will be based on the applicable continuing Company employee’s continued employment or service with Nano or its subsidiaries, including the Surviving Corporation, (ii) unless otherwise agreed between Nano and the holder of the Unvested Company RSU, the existing vesting schedule for the applicable Unvested Company RSU Award will apply to the Replacement RSU Award replacing such Unvested Company RSU Award (provided that, the executive officers will be entitled to maintain the vesting acceleration to which they are entitled under the Severance and CIC Plan, and such protection will continue to apply to the Replacement RSU Award), and (iii) the number of Nano Ordinary Shares, underlying the Replacement RSU Award will be determined by multiplying the number of shares of Company Common Stock issuable upon vesting of the Unvested Company RSU immediately prior to the Effective Time by the quotient obtained by dividing (a) the Per Share Merger Consideration by (b) the volume weighted average price of an American Depositary Share of Nano (representing a beneficial interest in one (1) Nano Ordinary Share) for the ten (10) consecutive trading days ending on (and including) the trading day that is immediately preceding the day that is three (3) days prior to the Closing, rounding down to the nearest whole number of shares and subject to certain customary reductions.

 

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The following table sets forth, for each of Markforged’s executive officers and the non-employee members of the Company Board, (i) the aggregate number of shares of Company Common Stock underlying Company RSU Awards held as of October 11, 2024, and (ii) the estimated value that the executive officers and non-employee members of the Company Board will receive in respect of such Company RSU Awards in connection with the Merger, assuming full acceleration of such awards at the Effective Time.

 

		Company RSU Awards (#)				Value of Company RSU Awards ($)
Executive Officers
Shai Terem			475,537			$	2,377,685
Assaf Zipori			119,487			$	597,435
Stephen Karp			74,187			$	370,935
Non-Employee Directors
Edward Anderson			26,000			$	130,000
Michael Medici			26,000			$	130,000
Paul Milbury			26,000			$	130,000
Antonio Rodriguez			26,000			$	130,000
Carol Meyers			26,000			$	130,000
Alan Masarek			26,000			$	130,000
Aaron VanDevender			45,802			$	229,010
George Riedel			38,781			$	193,905

Company ESPP

With respect to the Company ESPP, Markforged will take all necessary actions required to (A) terminate the Company ESPP, as of immediately prior to the Effective Time and (B) provide that no offering period will commence after September 25, 2024. The Company ESPP will no longer have any force and effect on or after the Effective Time.

Severance Entitlements

Each of Shai Terem, Assaf Zipori and Stephen Karp have entered into participation letter agreements with Markforged with respect to the Severance and CIC Plan. The Severance and CIC Plan provides for certain payments and benefits if the executive’s employment with Markforged is terminated by Markforged without “cause,” and other than as a result of the executive’s death or disability, or by the executive for “good reason” in any case, within the period commencing 3 months prior to and ending 12 months following a “change in control” of Markforged (as such terms are defined in the Severance and CIC Plan) (any such termination period, a “CIC Termination”). The Merger will qualify as a “change in control” under the Severance and CIC Plan.

Upon a CIC Termination, each of Messrs. Terem, Zipori and Karp will be entitled to receive the following payments and benefits:

 

•

a cash payment in an amount equal to one time (or, for Mr. Terem, 1.5 times) of the executive’s base salary then in effect plus the executive’s target bonus, prorated for the number of days the executive was employed during the year of termination, payable in a lump sum no later than the 60th day following the date of termination of employment;

 

•

in the event that the date of termination occurs between the end of a calendar year and the date a bonus is paid for such calendar year, the executive will receive the prior year’s bonus amount, determined in good faith by Markforged;

 

•

in the event that the executive elects continued group medical coverage under COBRA, continuation of payments for COBRA coverage (in an amount not to exceed the amount that Markforged then pays for health insurance coverage for active employees), until the earliest of (i) 12 months following the

 

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termination of employment (or 18 months for Mr. Terem), or (ii) the date the executive becomes eligible for health benefits through another employer or otherwise become ineligible for COBRA; and

 

•

acceleration of vesting of all outstanding time-based equity awards.

All of the severance payments and benefits described above are subject to, among other things, the executive’s timely execution and non-revocation of a general release of claims. The Severance and CIC Plan also provides that payments and benefits payable to each executive officer will be reduced so that no portion of such payments and benefits are subject to the excise tax under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), unless the executive officer would be better off on an after-tax basis receiving all such payments and benefits.

The following table sets forth the potential amounts payable to Markforged’s executive officers upon a CIC Termination under the Severance and CIC Plan based on the salary and bonus in effect on    , 2024.

 

Name		Cash Severance (Base Salary and Bonus) ($)				Value of COBRA Benefits ($)				Value of Equity Acceleration ($)
Shai Terem		$	1,350,000			$	30,263.94			$	2,377,685
Assaf Zipori		$	560,000			$	20,175.96			$	597,435
Stephen Karp		$	400,000			$	23,076.36			$	370,935

New Management Arrangements

As of the date of this proxy statement, neither the Markforged nor Nano Dimension has entered into any employment agreements with the Company’s executive officers in connection with the merger, and Markforged has not amended or modified any existing agreements or other arrangements with management.

Continuing Employee Benefits

The Merger Agreement provides that for ten months following the Effective Time, but not beyond the date on which the individual’s employment terminates (such period being the “benefits continuation period”), Nano will provide or cause to be provided, to each employee of Markforged who is retained by Nano (the “Continuing Employees”), at least the same annual base salary or wage rate, as applicable, as provided to such Continuing Employees immediately prior to the Effective Time (provided, however, that in the event there is a reduction in base salaries or wage rates that affects substantially all employees of Nano and its subsidiaries (including the Surviving Corporation and its subsidiaries) after the Effective Time, the annual base salary or wage rate of similarly situated Continuing Employees may be commensurately reduced), and employee benefits that are substantially similar, in the aggregate, to such benefits provided to the Continuing Employees immediately prior to the Effective Time (but excluding any equity and equity based compensation, change in control plans, defined benefit plans and retiree welfare plans). In addition, Nano agreed to cause the Surviving Corporation to honor the Severance and CIC Plan.

Financing of the Merger

The Merger Agreement is not conditioned upon receipt of financing by Nano. We anticipate that the total amount of funds necessary to consummate the Merger and the related transactions, not including fees and expenses, will be approximately $116 million, including the estimated funds needed to (1) pay our stockholders the consideration due to them under the Merger Agreement and (2) make payments in respect of outstanding equity awards of Markforged in accordance with their terms and pursuant to the Merger Agreement.

We understand that Nano expects to fund amounts needed for the acquisition of Markforged under the Merger Agreement through the use of cash on hand. Nano has represented in the Merger Agreement that it has access to, and will cause Merger Sub to have, at the Effective Time and at the Closing, sufficient funds for the

 

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consummation of the Merger and the other transactions contemplated by the Merger Agreement, including payment in cash of the aggregate Per Share Merger Consideration on the Closing Date, and to pay all related fees and expenses required to be paid by Nano and Merger Sub pursuant to the terms of the Merger Agreement.

Closing and Effective Time of the Merger

The closing of the Merger will take place remotely by electronic exchange of executed agreements and documents and other deliverables, at 8:00 a.m. Eastern Time on a date to be specified by the parties, which will be no later than the third business day after the date the conditions set forth in the Merger Agreement (other than any such conditions which by their nature are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted, waiver of those conditions at the Closing) have been satisfied or, to the extent permitted, waived by the party or parties entitled to the benefit of such conditions, at the offices of Greenberg Traurig, P.A., 401 East Las Olas Boulevard, Suite 2000, Ft. Lauderdale, Florida (or remotely through electronic exchange of signatures) or at such other place, at such other time, or on such other date as Nano and Markforged may mutually agree in writing. We currently anticipate that the Merger will be consummated in the first quarter of 2025, assuming satisfaction or, to the extent permitted by applicable law, waiver of all of the conditions to the Merger.

As soon as practicable on the Closing Date, the parties will cause the Merger to be consummated by filing with the Secretary of State of the State of Delaware the certificate of merger in such form as required by, and executed in accordance with, the relevant provisions of the DGCL and will make all other filings or recordings required under the DGCL to consummate the Merger. The Merger will become effective at such time as the certificate of merger is duly filed with such Secretary of State, or at such later time as Nano and Markforged agree and specify in the certificate of merger.

Appraisal Rights

If the Merger is consummated, stockholders who do not wish to accept the Per Share Merger Consideration are entitled to seek appraisal of their Company Common Stock under Section 262 of the DGCL and, if all procedures described in Section 262 of the DGCL are strictly complied with, to receive payment in cash for the fair value of their Company Common Stock exclusive of any element of value arising from the accomplishment or expectation of the Merger, as determined by the Delaware Court of Chancery, together with interest, if any, to be paid upon the amount determined to be the fair value. The “fair value” of Company Common Stock as determined by the Delaware Court of Chancery may be more or less than, or the same as, the consideration that such holder of Company Common Stock may receive in the Merger. These rights are known as “appraisal rights.” This proxy statement serves as a notice of such appraisal rights pursuant to Section 262 of the DGCL.

Persons who exercise appraisal rights under Section 262 of the DGCL will not receive the consideration that they would otherwise be entitled to receive pursuant to the Merger Agreement. They will receive an amount determined to be the “fair value” of their Company Common Stock following petition to, and an appraisal by, the Delaware Court of Chancery. Persons considering seeking appraisal should recognize that the fair value of their Company Common Stock determined under Section 262 could be more than, the same as or less than the consideration they would otherwise be entitled to receive pursuant to the Merger Agreement. Strict compliance with the procedures set forth in Section 262 is required. Failure to comply strictly with all of the procedures set forth in Section 262 may result in the withdrawal, loss or waiver of appraisal rights. Consequently, and in view of the complexity of the provisions of Section 262, Company Stockholders wishing to exercise appraisal rights are urged to consult their legal and financial advisors before attempting to exercise such rights.

A copy of Section 262 of the DGCL is attached to this proxy statement as Annex D. The following summary is not a complete statement of the law relating to appraisal rights and is qualified in its entirety by reference to Section 262 of the DGCL and any amendments thereto after the date of this proxy statement. Any person who

 

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desires to exercise his, her or its appraisal rights should review carefully Section 262 of the DGCL and is urged to consult his, her or its legal advisor before electing or attempting to exercise such rights. The following summary does not constitute legal or other advice, nor does it constitute a recommendation that persons seek to exercise their appraisal rights under Section 262 of the DGCL. A person who loses his, her or its appraisal rights will be entitled to receive the Per Share Merger Consideration under the Merger Agreement.

A holder of record of Company Common Stock and a beneficial owner who (1) continuously holds or beneficially owns, as applicable, such shares through the Effective Time, (2) has not consented to the Merger in writing or otherwise voted in favor of the Merger or otherwise withdrawn, lost or waived appraisal rights, (3) strictly complies with the procedures under Section 262 of the DGCL, (4) does not thereafter withdraw his, her or its demand for appraisal of such shares and (5) in the case of a beneficial owner, a person who (A) reasonably identifies in his, her or its demand the holder of record of the shares for which the demand is made, (B) provides documentary evidence of such beneficial owner’s beneficial ownership and a statement that such documentary evidence is a true and correct copy of what it purports to be and (C) provides an address at which such beneficial owner consents to receive notices given by Markforged and to be set forth on the Chancery List (as defined below), will be entitled to receive the fair value of his, her or its Company Common Stock exclusive of any element of value arising from the accomplishment or expectation of the Merger, as determined by the Delaware Court of Chancery, together with interest, if any, to be paid upon the amount determined to be the fair value.

Section 262 of the DGCL requires that where a proposed merger is to be submitted for approval at a meeting of stockholders, the corporation must notify stockholders that appraisal rights will be available not less than 20 days before the meeting to vote on the Merger. Such notice must include either a copy of Section 262 of the DGCL or information directing the stockholders to a publicly available electronic resource at which Section 262 of the DGCL may be accessed without subscription or cost. This proxy statement constitutes Markforged’s notice to our stockholders that appraisal rights are available in connection with the Merger, in compliance with the requirements of Section 262 of the DGCL. If you wish to consider exercising your appraisal rights, you should carefully review the text of Section 262 of the DGCL, which is attached to this proxy statement as Annex D. Failure to comply timely and properly with the requirements of Section 262 of the DGCL will result in the loss of your appraisal rights under the DGCL.

If you elect to demand appraisal of your shares of Company Common Stock, you must satisfy each of the following conditions: you must deliver to Markforged a written demand for appraisal of your shares of Company Common Stock prior to the Special Meeting, which must (1) reasonably inform us of the identity of the holder of record of such shares who intends to demand appraisal of his, her or its shares (and, for beneficial owners only, such demand is accompanied by documentary evidence of such beneficial owner’s beneficial ownership and a statement that such documentary evidence is a true and correct copy of what it purports to be, and provides an address at which such beneficial owner consents to receive notices given by Markforged and to be set forth on the Chancery List), and (2) that you intend to demand the appraisal of your shares. In addition, as described above, you must not vote or submit a proxy in favor of the proposal to adopt the Merger Agreement; you must hold or beneficially own, as applicable, your shares of Company Common Stock continuously through the effective date; and you must comply with the other applicable requirements of Section 262 of the DGCL.

A stockholder of Markforged who elects to exercise appraisal rights must mail or deliver his, her or its written demand for appraisal to the following address:

Markforged Holding Corporation

60 Tower Road

Waltham, Massachusetts 02451

Attention: Corporate Secretary

Within 10 days after the Effective Time, the Surviving Corporation must give written notice that the Merger has become effective to each stockholder of any class or series of stock of Markforged who is entitled to

 

69

appraisal rights that the Merger was approved and that appraisal rights are available for any or all shares of such class or series of stock.

Within 120 days after the Effective Time, but not thereafter, the Surviving Corporation and any person who has properly and timely demanded appraisal and otherwise complied with Section 262 of the DGCL may commence an appraisal proceeding by filing a petition in the Delaware Court of Chancery, with a copy served on the Surviving Corporation in the case of a petition filed by a person, demanding a determination of the fair value of the Company Common Stock held by all persons that have demanded appraisal. There is no present intent on the part of Markforged or the Surviving Corporation to file an appraisal petition and persons seeking to exercise appraisal rights should assume that Markforged and the Surviving Corporation will not file such a petition or initiate any negotiations with respect to the fair value of Company Common Stock. Accordingly, persons who desire to have their Company Common Stock appraised should initiate any petitions necessary for the perfection of their appraisal rights within the time periods and in the manner prescribed in Section 262 of the DGCL. If, within 120 days after the Effective Time, no petition has been filed as provided above, all rights to appraisal will cease and any person that previously demanded appraisal will become entitled only to the Per Share Merger Consideration under the Merger Agreement.

At any time within 60 days after the Effective Time, any person who has not commenced an appraisal proceeding or joined a proceeding as a named party may withdraw the demand and accept the Per Share Merger Consideration specified by the Merger Agreement for that person’s Company Common Stock by delivering to the Surviving Corporation a written withdrawal of the demand for appraisal. However, any such attempt to withdraw the demand made more than 60 days after the Effective Time will require written approval of the Surviving Corporation. Unless the demand is properly withdrawn by the person within 60 days after the effective date, no appraisal proceeding in the Delaware Court of Chancery will be dismissed as to any person without the approval of the Delaware Court of Chancery, with such approval conditioned upon such terms as the Delaware Court of Chancery deems just. If the Surviving Corporation does not approve a request to withdraw a demand for appraisal when that approval is required, or if the Delaware Court of Chancery does not approve the dismissal of an appraisal proceeding, the person will be entitled to receive only the fair value of such person’s Company Common Stock determined by the Delaware Court of Chancery in any such appraisal proceeding, which value could be less than, equal to or more than the Per Share Merger Consideration offered pursuant to the Merger Agreement.

In addition, within 120 days after the Effective Time, any person who has theretofore complied with the applicable provisions of Section 262 of the DGCL will be entitled, upon written request, to receive from the Surviving Corporation a statement setting forth the aggregate number of Company Common Stock not consented in writing or otherwise voted in favor of the Merger and with respect to which demands for appraisal were received by the Surviving Corporation and the aggregate number of holders of such shares. Such statement must be given within 10 days after the written request therefor has been received by the Surviving Corporation or within 10 days after the expiration of the period for the delivery of demands as described above, whichever is later.

Upon the filing of a petition by a person, service of a copy of such petition will be made upon the Surviving Corporation. The Surviving Corporation will be required to, within 20 days after such service, file in the office of the Register in Chancery in which the petition was filed a duly verified list containing the names and addresses of all persons who have demanded appraisal of their Company Common Stock and with whom the Surviving Corporation has not reached agreements as to the value of such shares (the “Chancery List”). The Register in Chancery, if so ordered by the Delaware Court of Chancery, will give notice of the time and place fixed for the hearing of such petition by registered or certified mail to the Surviving Corporation and to all such persons set forth on the Chancery List.

If a petition for an appraisal is timely filed by a person, at the hearing on such petition, the Delaware Court of Chancery will determine which persons have complied with Section 262 of the DGCL and have become

 

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entitled to appraisal rights provided thereby. The Delaware Court of Chancery may require the persons who have demanded an appraisal of their Company Common Stock and who hold such shares represented by certificates to submit their certificates to the Register in Chancery for notation thereon of the pendency of the appraisal proceedings; and if any person fails to comply with such direction, the Delaware Court of Chancery may dismiss the proceedings as to such person.

Upon application by the Surviving Corporation or any person entitled to participate in the appraisal proceedings, the Delaware Court of Chancery may, in its discretion, proceed to trial upon the appraisal prior to the final determination of the persons entitled to appraisal. Any person whose name appears on the Chancery List and may participate fully in all proceedings until it is finally determined that such person is not entitled to appraisal rights under Section 262 of the DGCL.

Where proceedings are not dismissed, the appraisal proceeding will be conducted in accordance with the rules of the Delaware Court of Chancery, including any rules specifically governing appraisal proceedings. Through such proceedings the Delaware Court of Chancery will determine the fair value of Company Common Stock taking into account all relevant factors, exclusive of any element of value arising from the accomplishment or expectation of the Merger, together with interest, if any, to be paid upon the amount determined to be the fair value. Unless the Delaware Court of Chancery, in its discretion, determines otherwise for good cause shown, interest on an appraisal award will accrue and compound quarterly from the Effective Time through the date the judgment is paid at 5% over the Federal Reserve discount rate (including any surcharge) as established from time to time during the period between the Effective Time and the date of payment of the judgment. At any time before the entry of judgment in the proceedings, the Surviving Corporation may pay to each person entitled to appraisal an amount in cash, in which case interest will accrue after such payment only on the sum of (1) the difference, if any, between the amount so paid and the fair value of the Company Common Stock as determined by the Delaware Court of Chancery, and (2) interest theretofore accrued, unless paid at that time.

When the fair value of the Company Common Stock is determined, the Delaware Court of Chancery will direct the payment of such value, with interest thereon, if any, to the persons entitled to receive the same.

Although Markforged believes that the Per Share Merger Consideration is fair, no representation is made as to the outcome of the appraisal of fair value as determined by the Delaware Court of Chancery and persons should recognize that such an appraisal could result in a determination of a value higher or lower than, or the same as, the Per Share Merger Consideration. Moreover, the Surviving Corporation does not anticipate offering more than the Per Share Merger Consideration to any person exercising appraisal rights and reserves the right to assert, in any appraisal proceeding, that, for purposes of Section 262 of the DGCL, the “fair value” of the relevant shares is less than the Per Share Merger Consideration.

In determining “fair value,” the Delaware Court of Chancery is required to take into account all relevant factors. In Weinberger v. 57e, Inc., the Delaware Supreme Court discussed the factors that could be considered in determining fair value in an appraisal proceeding, stating that “proof of value by any techniques or methods which are generally considered acceptable in the financial community and otherwise admissible in court” should be considered and that “[f]air price obviously requires consideration of all relevant factors involving the value of a company.” The Delaware Supreme Court has stated that in making this determination of fair value, the court must consider market value, asset value, dividends, earnings prospects, the nature of the enterprise and any other facts which were known or could be ascertained as of the date of the Merger which throw any light on future prospects of the merged corporation. The Delaware Supreme Court has indicated that transaction price is one of the relevant factors the Delaware Court of Chancery may consider in determining “fair value” and that absent deficiencies in the sale process the transaction price should be given “considerable weight.” Section 262 of the DGCL provides that fair value is to be “exclusive of any element of value arising from the accomplishment or expectation of the Merger.” In Cede & Co. v. Technicolor, Inc., the Delaware Supreme Court stated that such exclusion is a “narrow exclusion [that] does not encompass known elements of value,” but which rather applies only to the speculative elements of value arising from such accomplishment or expectation. In Weinberger, the Delaware Supreme Court construed Section 262 of the DGCL to

 

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mean that “elements of future value, including the nature of the enterprise, which are known or susceptible of proof as of the date of the Merger and not the product of speculation, may be considered.”

The cost of the appraisal proceeding may be determined by the Delaware Court of Chancery and taxed upon the parties as the Delaware Court of Chancery deems equitable in the circumstances. However, costs do not include attorneys’ and expert witness fees. Each person is responsible for his, her or its attorneys’ and expert witness fees, although, upon application of a person whose name appears on the Chancery List who participated in the proceeding and incurred expenses in connection therewith, the Delaware Court of Chancery may order that all or a portion of such expenses, including, without limitation, reasonable attorneys’ and expert witness fees, be charged pro rata against the value of all shares of Company Common Stock entitled to appraisal not dismissed pursuant to Section 262(k) of the DGCL or subject to such an award pursuant to a reservation of jurisdiction under Section 262(k) of the DGCL. Determinations by the Delaware Court of Chancery are subject to appellate review by the Delaware Supreme Court.

Any person who has duly demanded appraisal in compliance with Section 262 of the DGCL will not be entitled to vote for any purpose any Company Common Stock subject to such demand or to receive payment of dividends or other distributions on such shares, except for dividends or distributions payable to stockholders of record at a date prior to the Effective Time.

To the extent there are any inconsistencies between the foregoing summary, on the one hand, and Section 262, on the other hand, Section 262 of the DGCL will govern.

Failure to comply strictly with all of the procedures set forth in Section 262 of the DGCL will result in the loss of a stockholder’s statutory appraisal rights.

Material U.S. Federal Income Tax Consequences of the Merger to Holders of Company Common Stock

The following discussion is a summary of certain material U.S. federal income tax consequences of the Merger that may be relevant to holders of Company Common Stock whose shares of Company Common Stock are converted into the right to receive cash pursuant to the Merger. This discussion is based upon the Code, Treasury Regulations promulgated under the Code, court decisions, published positions of the Internal Revenue Service (the “IRS”), and other applicable authorities, all as in effect on the date of this proxy statement and all of which are subject to change or differing interpretations at any time, possibly with retroactive effect. This discussion is limited to holders that hold their Company Common Stock as “capital assets” within the meaning of Section 1221 of the Code (generally, property held for investment purposes). This summary of material U.S. federal income tax consequences is not a complete description of all potential U.S. federal income tax consequences of the Merger. This summary does not describe any of the tax consequences arising under the laws of any state, local or non-U.S. tax jurisdiction and does not consider any aspects of U.S. federal tax law other than income taxation (e.g., state, gift or alternative minimum tax, the Medicare net investment income surtax, or any withholding considerations under the Foreign Account Tax Compliance Act of 2010 (including regulations issued thereunder and intergovernmental agreements entered into pursuant thereto or in connection therewith)). In addition, this summary does not address the application of the rule applicable to “qualified small business stock” under Section 1202 of the Code or the gain rollover provisions of Section 1045 of the Code, the U.S. federal income tax consequences to holders of options, warrants, restricted stock units or other equity securities of the Company, or the U.S. federal income tax consequences to holders of Company Common Stock that exercise appraisal rights under the DGCL. Such Company Stockholders should consult their own tax advisors regarding their particular circumstances and the tax consequences of the Merger. For purposes of this discussion, a “holder” means either a U.S. Holder or a Non-U.S. Holder or both, as the context may require.

 

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This discussion is for general information only and does not address all of the U.S. federal income tax considerations that may be relevant to holders in light of their particular facts and circumstances, including, but not limited to:

 

•

holders that may be subject to special tax treatment under U.S. federal income tax laws, such as: financial institutions, tax-exempt organizations, governmental organizations, S corporations, partnerships or any other entities or arrangements treated as pass-through entities or partnerships for U.S. federal income tax purposes or any investor therein, banks, insurance companies, mutual funds, brokers or dealers in stocks, securities, commodities or currencies, traders in securities that elect to use the mark-to-market method of accounting for their securities, regulated investment companies, real estate investment trusts, or certain U.S. expatriates or former citizens or long-term residents of the United States;

 

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holders that are corporations that accumulate earnings to avoid U.S. federal income tax;

 

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holders holding their Company Common Stock as part of a hedging, straddle or other risk reducing transaction or as part of a conversion transaction or other integrated investment;

 

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holders deemed to have sold their Company Common Stock under the constructive sale provisions of the Code;

 

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holders that received their Company Common Stock in compensatory transactions;

 

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holders that hold their Company Common Stock through individual retirement or other tax-deferred accounts;

 

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holders that own an equity interest, actually or constructively, in Nano;

 

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U.S. Holders whose “functional currency” is not the U.S. dollar;

 

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holders that are required to report income no later than when such income is reported in an “applicable financial statement;” or

 

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holders that own or have owned (actually or constructively) 5% or more of the Company Common Stock.

If a partnership (including an entity or arrangement classified as a partnership for U.S. federal income tax purposes) is a beneficial owner of Company Common Stock, the U.S. federal income tax treatment of a partner in such partnership will generally depend upon the status of the partner and the activities of the partnership. Partnerships holding Company Common Stock and partners therein should consult their tax advisors regarding the particular tax consequences to them of the Merger.

We have not sought, and do not intend to seek, any ruling from the IRS with respect to the statements made and the conclusions reached in the following summary. No assurance can be given that the IRS will agree with the views expressed in this summary, or that a court will not sustain any challenge by the IRS in the event of litigation.

THIS DISCUSSION OF MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES IS PROVIDED FOR GENERAL INFORMATION ONLY AND DOES NOT CONSTITUTE LEGAL OR TAX ADVICE TO ANY HOLDER. A HOLDER SHOULD CONSULT ITS TAX ADVISORS CONCERNING THE U.S. FEDERAL INCOME TAX CONSEQUENCES RELATING TO THE MERGER IN LIGHT OF ITS PARTICULAR CIRCUMSTANCES AND ANY CONSEQUENCES ARISING UNDER THE LAWS OF ANY STATE, LOCAL OR NON-U.S. TAXING JURISDICTION OR OTHER TAX LAWS.

 

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U.S. Holders

For purposes of this proxy statement, a “U.S. Holder” is a beneficial owner of Company Common Stock who or that is, or is treated as, for U.S. federal income tax purposes:

 

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An individual who is a citizen or resident of the United States or someone treated as a citizen or resident of the United States for U.S. federal income tax purposes;

 

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A corporation (or any other entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States, any state thereof or the District of Columbia;

 

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An estate, the income of which is subject to U.S. federal income taxation regardless of its source; or

 

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A trust (i) that is subject to the primary supervision of a court within the United States and one or more United States persons (as defined in Section 7701(a)(30) of the Code) have the authority to control all substantial decisions of the trust or (ii) that has a valid election in effect under applicable Treasury Regulations to be treated as a United States person for U.S. federal income tax purposes.

The receipt of cash by a U.S. Holder in exchange for shares of Company Common Stock pursuant to the Merger will be a taxable transaction for U.S. federal income tax purposes. In general, such U.S. Holder will recognize gain or loss equal to the difference, if any, between the amount of cash received (determined before the deduction of any applicable withholding tax) and the U.S. Holder’s adjusted tax basis in the shares of Company Common Stock surrendered pursuant to the Merger. A U.S. Holder’s adjusted tax basis generally will equal the amount that such U.S. Holder paid for the shares of Company Common Stock. Any such gain or loss will be long-term capital gain or loss if such U.S. Holder’s holding period in such shares of Company Common Stock is more than one year at the time of the consummation of the Merger, and will be short-term capital gain or loss if such U.S. Holder held such shares of Company Common Stock for one year or less. If a U.S. Holder acquired different blocks of shares of Company Common Stock at different times or different prices, such U.S. Holder must determine its adjusted tax basis and holding period separately with respect to each block of shares of Company Common Stock. A reduced tax rate on capital gains generally will apply to long-term capital gains of non-corporate U.S. Holders, including individuals. Short-term capital gains are taxed at ordinary rates. There are limitations on the deductibility of capital losses.

Payments made to a U.S. Holder in exchange for shares of Company Common Stock pursuant to the Merger may be subject to information reporting to the IRS and backup withholding at a rate of 24%. To avoid backup withholding on such payments, each U.S. Holder that does not otherwise establish an exemption must complete and return to the exchange agent a properly executed IRS Form W-9 certifying under penalties of perjury that such holder is a United States person for U.S. federal income tax purposes, that the taxpayer identification number (“TIN”) provided is correct and that such holder is not subject to backup withholding. A U.S. Holder that does not provide its correct TIN may also be subject to penalties imposed by the IRS. Certain types of U.S. Holders (including, with respect to certain types of payments, corporations) generally are not subject to backup withholding.

Backup withholding is not an additional tax. Any amounts withheld from payments to a U.S. Holder under the backup withholding rules generally will be allowed as a refund or a credit against such U.S. Holder’s U.S. federal income tax liability, if any, provided the required information is timely furnished to the IRS. U.S. Holders should consult their tax advisors regarding their qualification for an exemption from backup withholding and the procedures for obtaining such an exemption.

As described below in the section entitled “Material Israeli Withholding Tax Consequences of the Merger to Holders of Company Common Stock,” a Withholding Tax Ruling (as defined below) stating that a non-Israeli Company Stockholder, such as a U.S. Holder, who holds less than 5% of the outstanding shares of Company Common Stock will be exempt from Israeli tax withholding to the extent that such U.S. Holder provides the

 

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Exchange Agent with certain declarations and documents regarding their non-Israeli residency will be requested from the Israeli Tax Authority. If the Withholding Tax Ruling were not to be granted or Israeli withholding tax otherwise applies, including after the application of the Convention between the Government of the United States of America and the Government of the State of Israel with respect to Taxes on Income (the “U.S. Israel Treaty”), cash paid in the Merger would be reduced at the source. Gain recognized by a U.S. Holder may constitute U.S.-source income for U.S. federal income tax purposes, taxes on which would not qualify for foreign tax credits. A U.S. Holder should consult with its tax adviser regarding the application of the U.S. Israel Treaty, the credibility of any Israeli taxes and any applicable limitations.

Non-U.S. Holders

For purposes of this proxy statement, the term “Non-U.S. Holder” means a beneficial owner of Company Common Stock that is, for U.S. federal income tax purposes, (i) a foreign corporation, (ii) a nonresident alien individual, or (iii) a foreign estate or trust that in each case is not subject to U.S. federal income tax on a net-income basis on income or gain from Company Common Stock.

Non-U.S. Holders should consult their tax advisors to determine the U.S. federal, state, local, non-U.S. and other tax consequences that may be relevant to them in light of their particular circumstances.

Any gain realized by a Non-U.S. Holder pursuant to the Merger generally will not be subject to U.S. federal income tax unless:

 

•

the gain is effectively connected with a trade or business of such Non-U.S. Holder in the United States (and, if required by an applicable income tax treaty, is attributable to a permanent establishment maintained by such Non-U.S. Holder in the United States), in which case the Non-U.S. Holder generally will be subject to United States federal income tax on a net income basis with respect to such gain in the same manner as if such Non-U.S. Holder were a U.S. Holder, and, if the Non-U.S. Holder is a corporation, such gain may also be subject to an additional branch profits tax at a rate of 30% (or a lower rate specified under an applicable tax treaty), subject to certain adjustments;

 

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such Non-U.S. Holder is an individual who is present in the United States for 183 days or more in the taxable year of the disposition, and certain other specified conditions are met, in which case such gain will be subject to U.S. federal income tax at a rate of 30% (or a lower rate specified under an applicable tax treaty), which may be offset by U.S.-source capital losses of such Non-U.S. Holder recognized in the same taxable year (if any) provided the Non-U.S. Holder timely files U.S. federal income tax returns with respect to such losses; or

 

•

Company Common Stock held by such Non-U.S. Holder constitute a United States real property interest (a “USRPI”) by reason of Markforged’s status as a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code (a “USRPHC”), at any time during the shorter of the five-year period ending on the date of the Effective Time or the period that the Non-U.S. Holder held the applicable Company Common Stock.

With respect to the third bullet point above, Markforged believes it is not a USRPHC. Because the determination of whether Markforged is a USRPHC depends, however, on the fair market value of its USRPIs relative to the fair market value of its non-U.S. real property interests and other business assets, there can be no assurance Markforged is not a USRPHC. Even if Markforged is a USRPHC, gain arising from the sale or other taxable disposition of Company Common Stock by a Non-U.S. Holder will not be subject to U.S. federal income tax if Company Common Stock is “regularly traded,” as defined by applicable Treasury Regulations, on an established securities market and such Non-U.S. Holder owned, actually and constructively, 5% or less of Company Common Stock throughout the shorter of the five-year period ending on the date of the sale or other taxable disposition or the Non-U.S. Holder’s holding period.

Non-U.S. Holders should consult their tax advisors regarding potentially applicable income tax treaties that may provide for different rules.

 

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Payments made to a Non-U.S. Holder in exchange for shares of Company Common Stock pursuant to the Merger may be subject to information reporting to the IRS and backup withholding at a rate of 24%. A Non-U.S. Holder generally can avoid information reporting and backup withholding by providing the exchange agent with the applicable and properly completed and executed IRS Form W-8 certifying the holder’s non-U.S. status or by otherwise establishing an exemption. Copies of information returns that are filed with the IRS may be made available under an applicable tax treaty or information exchange agreement to the tax authorities of the country in which the Non-U.S. Holder resides or is established.

Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules generally will be allowed as a refund or a credit against a Non-U.S. Holder’s U.S. federal income tax liability, if any, provided the required information is timely furnished to the IRS.

Material Israeli Withholding Tax Consequences of the Merger to Holders of Company Common Stock

The following is a summary discussion of certain material Israeli withholding tax considerations in connection with the Merger. The following summary is presented for general information purposes only and should not be conceived as tax advice to any particular holder of Company Common Stock. This summary is based upon current Israeli tax law. No assurance can be given that new or future legislation, regulations or interpretations will not significantly change the withholding tax considerations described below, and any such change may apply retroactively. This summary does not discuss all material aspects of Israeli withholding tax consequences that may apply to particular holders of Company Common Stock in light of their particular circumstances, such as investors subject to special tax rules or other investors referred to below. You are encouraged to consult your own tax advisor regarding the specific withholding tax consequences of the Merger to you.

The payment of the Per Share Merger Consideration by Nano in exchange for Company Common Stock pursuant to the Merger is generally subject to Israeli withholding tax. However, as contemplated in the Merger Agreement, Nano and Markforged agreed that Nano will prepare and file with the Israel Tax Authority (in coordination with Markforged and its advisors) an application for a ruling requesting that the Israel Tax Authority exempt Parent, the Merger Sub, the Exchange Agent, the Surviving Corporation (and their respective agents) from the obligation to withhold Israeli tax at source from any consideration payable under the Merger Agreement, or provide detailed instructions on how such withholding at source is to be implemented in connection with the Merger (the “Withholding Tax Ruling”). The request will ask that non-Israeli Company Stockholders who hold less than 5% of the outstanding shares of Company Common Stock will be exempt from Israeli tax withholding to the extent that such Company Stockholders will provide the Exchange Agent with certain declarations and documents regarding their non-Israeli residency. Such request will also ask that the Israel Tax Authority provide a process for exempting non-Israeli holders of Company Stock Options and Company RSU Awards from Israeli withholding tax.

Regardless of whether Nano obtains the Withholding Tax Ruling from the Israel Tax Authority, any holder of Company Common Stock who believes that it is entitled to an exemption from Israeli withholding tax (or a reduced tax rate) may separately apply to the Israel Tax Authority to obtain a certificate of exemption from withholding or an individual tax ruling providing an exemption from withholding or withholding at a reduced rate, and submit such certificate of exemption or ruling to the Exchange Agent at least three business days prior to the date that is 180 days following the Closing. If Nano or the Exchange Agent receives a valid exemption certificate or tax ruling (in form and substance reasonably satisfactory to Nano, the Exchange Agent and the Surviving Corporation) at least three business days prior to the date that is 180 days following the Closing, then the withholding (if any) of any Israeli tax from the Per Share Merger Consideration will be made in accordance with the provisions of such tax certificate or tax ruling.

Markforged cannot assure you that the Withholding Tax Ruling will be obtained before the closing or at all or that, if obtained, such ruling will be granted under the conditions requested.

 

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If obtained, the Withholding Tax Ruling may contain such provisions, terms and conditions as the ITA may prescribe, which may be different from those detailed above. Certain categories of Company Stockholders, such as holders of 5% or more of the outstanding shares of Company Common Stock, holders of record of Company Certificates, and Company Stockholders receiving an aggregate Per Share Merger Consideration of more than $500,000, are expected to be excluded from the scope of the Withholding Tax Ruling (if obtained), and the final determination of the type of holders of Company Common Stock who will be included in such categories will be based on the outcome of the discussions with the Israel Tax Authority. Any Company Stockholder who will be excluded from the scope of the Withholding Tax Ruling (if obtained), and who believes it is entitled to an exemption from Israeli withholding tax, may separately apply to the Israel Tax Authority to obtain a certificate of exemption from withholding or an individual tax ruling providing an exemption from withholding or withholding at a reduced rate, and submit such certificate of exemption or ruling to the Exchange Agent at least three business days prior to the date that is 180 days following the Closing.

Regulatory Approvals Required for the Merger

Other Regulatory Approvals

Foreign direct investment filings or clearances are required or advisable in other jurisdictions. The Merger cannot be consummated until after the mandatory approval requirements have been obtained under applicable foreign direct investment laws. The relevant authorities could take such actions under the applicable foreign direct investment laws as they deem necessary or desirable, including seeking to enjoin the completion of the merger, seeking divestiture of substantial assets of one or both of the parties, requiring the parties to license or hold separate assets or termination existing relationships and contractual rights, or requiring the parties to agree to other remedies. Any one of these requirements, limitations, costs, divestitures or restrictions could jeopardize or delay the completion, or reduce the anticipated benefits, of the Merger.

Although Nano and Markforged believe that the Merger will not violate the foreign direct investment laws and expect that all required regulatory approvals will be obtained, Nano and Markforged cannot assure that these regulatory approvals will be timely obtained, obtained at all or that the granting of these regulatory approvals will not involve the imposition of additional conditions, restrictions, qualifications, requirements or limitations on the completion of the Merger, including the requirement to divest assets, license or hold separate assets or terminate existing relationships and contractual rights, or agree to other remedies, or require changes to the terms of the Merger Agreement, or that a challenge to the Merger on foreign investment grounds will not be made, or if such challenge is made, what the result will be. These conditions or changes could result in the conditions to the Merger not being satisfied. There is currently no way to predict how long it will take to obtain all of the required regulatory approvals or whether such approvals will ultimately be obtained and there may be a substantial period of time between the approval of the proposal to approve and adopt the merger agreement by stockholders and the completion of the Merger.

Israeli Tax Ruling

Nano and Markforged have agreed that Nano will use reasonable commercial efforts to request a ruling from the Israel Tax Authority in order to clarify the withholding mechanism. For more information, please refer to the section of this proxy statement captioned “Material Israeli Withholding Tax Consequences of the Merger to Holders of Company Common Stock.”

Delisting and Deregistration of Company Common Stock and Company Warrants

If the Merger is consummated, following the Effective Time, the Company Common Stock and Company Warrants will cease trading on the NYSE and will be deregistered under the Exchange Act. As such, we would no longer file periodic reports with the SEC.

 

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THE MERGER AGREEMENT

The following summary describes certain material provisions of the Merger Agreement. This summary is not complete and is qualified in its entirety by reference to the Merger Agreement, which is attached to this proxy statement as Annex A and incorporated into this proxy statement by reference. We encourage you to read the Merger Agreement carefully in its entirety because this summary may not contain all the information about the Merger Agreement that is important to you. The rights and obligations of the parties are governed by the express terms of the Merger Agreement and not by this summary or any other information contained in this proxy statement.

Explanatory Note Regarding the Merger Agreement

The Merger Agreement and this summary of its terms have been included to provide you with information regarding the terms of the Merger Agreement. Factual disclosures about Markforged contained in this proxy statement or in Markforged’s public reports filed with the SEC may supplement, update or modify the factual disclosures about Markforged contained in the Merger Agreement and described in this summary. The representations, warranties, covenants, and agreements made in the Merger Agreement by Markforged and Nano were qualified and subject to important limitations agreed to by Markforged and Nano in connection with negotiating the terms of the Merger Agreement. In particular, in your review of the representations, warranties, covenants, and agreements contained in the Merger Agreement and described in this summary, it is important to bear in mind that the representations, warranties, covenants, and agreements were negotiated with the principal purposes of establishing the circumstances in which a party to the Merger Agreement may have the right to not close the Merger if the representations and warranties of the other party prove to be untrue (or such covenants and agreements were not complied with), due to a change in circumstance or otherwise, and allocating risk between the parties to the Merger Agreement, rather than establishing matters as facts. The representations, warranties, covenants, and agreements may also be subject to a contractual standard of materiality different from those generally applicable to stockholders and reports and documents filed with the SEC, and in some cases were qualified by disclosures contained in the disclosure schedule delivered by Markforged to Nano in connection with the Merger Agreement (the “Company Disclosure Schedule”), which disclosures are not reflected in the Merger Agreement. Moreover, information concerning the subject matter of the representations and warranties, which do not purport to be accurate as of the date of this proxy statement, may have changed since the date of the Merger Agreement, and subsequent developments or new information qualifying a representation or warranty may have been included in this proxy statement or in the respective public filings made by each of Markforged or Nano with the SEC. For the foregoing reasons, the representations, warranties, covenants, and agreements and any descriptions of those provisions should not be read alone or relied upon as characterizations of the actual state of facts or condition of Markforged, Nano or any of their respective subsidiaries or affiliates. Instead, such provisions or descriptions should be read only in conjunction with the other information provided elsewhere in this proxy statement or incorporated by reference into this proxy statement.

Additional information about Markforged may be found elsewhere in this proxy statement and Markforged’s other public filings. See “Where You Can Find More Information” beginning on page 113 of this proxy statement.

When the Merger Becomes Effective

The closing of the Merger will take place at the offices of Greenberg Traurig, P.A., 401 East Las Olas Boulevard, Suite 2000, Ft. Lauderdale, Florida (or remotely through electronic exchange of signatures) at 8:00 a.m. Eastern Time on a date that is the third (3^rd) business day following the satisfaction or (to the extent permitted by law) waiver of the conditions set forth in the Merger Agreement (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or (to the extent permitted by law) waiver of those conditions, or at such other place, at such other time, or on such other date as Nano and Markforged may mutually agree in writing.

 

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Subject to the provisions of the Merger Agreement, at the Closing, Markforged and Merger Sub will file with the Secretary of State of the State of Delaware a certificate of merger, executed in accordance with the relevant provisions of the DGCL, and as soon as practicable thereafter, make all other filings or recordings required by the DGCL in connection with the Merger. The Merger will become effective at the time that the certificate of merger has been duly filed with the Secretary of State of the State of Delaware, or at such later time as Nano and Markforged may agree and specify (or cause to be specified) in the certificate of merger.

Structure of the Merger; Certificate of Incorporation; Bylaws; Directors and Officers

At the Effective Time, on the terms and subject to the conditions of the Merger Agreement and in accordance with the DGCL, Merger Sub, an indirect wholly-owned subsidiary of Nano, will be merged with and into Markforged, with Markforged surviving the Merger as the Surviving Corporation and an indirect wholly-owned subsidiary of Nano. At the Effective Time, the certificate of incorporation of the Surviving Corporation and the bylaws of the Surviving Corporation will be amended and restated in their entirety substantially in the form of Merger Sub’s certificate of incorporation and bylaws as in effect immediately prior to the Effective Time, or as otherwise to be mutually agreed upon between Nano and Markforged, in each case until thereafter amended in accordance with their respective terms and with applicable law.

Except as may be otherwise determined by Nano, the directors of Merger Sub immediately prior to the Effective Time will be the directors of the Surviving Corporation as of the Effective Time, until such director’s successor is elected and qualified or such director’s earlier death, resignation or removal, in each case, in accordance with the bylaws of the Surviving Corporation.

Except as may be otherwise determined by Nano, the officers of Markforged immediately prior to the Effective Time will be, as of the Effective Time, the officers of the Surviving Corporation, in each case, until such officer’s successor is elected and qualified or such officer’s earlier death, resignation, retirement, disqualification or removal, in each case, in accordance with the bylaws of the Surviving Corporation. For the avoidance of doubt, the Board of Directors of Markforged will resign from office at the Effective Time.

Effect of the Merger on Company Common Stock and Company Preferred Stock

Any shares of Company Preferred Stock and Excluded Shares will, as of immediately prior to the Effective Time, be cancelled and will cease to exist, and no consideration will be paid or payable in respect thereof.

At the Effective Time, each share of Company Common Stock that is issued and outstanding immediately prior to the Effective Time, other than the Excluded Shares, will be converted into the right to receive an amount of cash equal to the Per Share Merger Consideration.

Treatment of Converted Stock; Adjustments

All shares of Company Common Stock, when converted, will no longer be outstanding, will automatically be cancelled and will cease to exist, and each holder of a certificate or certificates which immediately prior to the Effective Time represented outstanding shares of Company Common Stock (the “Company Certificates”) and each holder of a non-certificated outstanding share of Company Common Stock represented by book entry (“Company Book Entry Shares”), will cease to have any rights with respect thereto, except the right to receive the Per Share Merger Consideration to be issued in consideration therefor. Notwithstanding the foregoing, if between the date of the Merger Agreement and the Effective Time, the outstanding shares of Company Common Stock represented by the Company Equity Awards changes into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, or any additional capital stock is issued upon any exercise of rights under any shareholder rights plan, as applicable, or any similar event has occurred, then any number or amount contained herein that is based upon the number of shares of Company Common Stock will be appropriately adjusted, without duplication, to provide the same economic effect as contemplated by the Merger Agreement prior to such event.

 

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Merger Sub Capital Stock

At the Effective Time, by virtue of the Merger and without any action on the part of the parties or any of their respective shareholders or stockholders, each share of common stock, par value $0.0001, of Merger Sub issued and outstanding immediately prior to the Effective Time, and all rights in respect thereof, will be cancelled and cease to exist and be converted into one fully paid and nonassessable share of common stock of the Surviving Corporation, which will constitute the only outstanding shares of capital stock of the Surviving Corporation.

Treatment of Equity Awards and the ESPP

Options. Each In-the-Money Company Stock Option, whether vested or unvested, that is outstanding and unexercised immediately prior to the Effective Time will be cancelled, and the holder of such In-the-Money Company Stock Option will be entitled to receive the Per Share Merger Consideration for each Net Share (as defined in the Merger Agreement) covered by such In-the-Money Company Stock Option, without interest and less applicable tax withholdings. Any Out-of-the-Money Company Stock Option that is outstanding and unexercised immediately prior to the Effective Time will be cancelled, and the holder thereof will receive no consideration therefor.

Restricted Stock Units. Each Unvested Company RSU Award will automatically be cancelled and replaced with a grant by Nano of a Replacement RSU Award on similar terms and conditions as were applicable to the Unvested Company RSU Award under the Company Incentive Award Plan immediately prior to the Effective Time, except that (i) any continued employment or service requirement will be based on the applicable continuing Company employee’s continued employment or service with Nano or its subsidiaries, including the Surviving Corporation, (ii) unless otherwise agreed between Nano and the holder of the Unvested Company RSU Award, the existing vesting schedule for the applicable Unvested Company RSU Award will apply to the Replacement RSU Award replacing such unvested Company RSU Award (provided that, with certain holders of Unvested Company RSU will be entitled to maintain the vesting acceleration to which they are entitled under the Company’s Executive Severance and Change in Control Plan, and such protection will continue to apply to the Replacement RSU Award), and (iii) the number of Nano Ordinary Shares, underlying the Replacement RSU Award will be determined by multiplying the number of shares of Company Common Stock issuable upon vesting of the Unvested Company RSU Award immediately prior to the Effective Time by the quotient obtained by dividing (a) the Per Share Merger Consideration by (b) the volume weighted average price of an American Depositary Share of Nano (representing a beneficial interest in one (1) Nano Ordinary Share) for the ten (10) consecutive trading days ending on (and including) the trading day that is immediately preceding the day that is three (3) days prior to the Closing, rounding down to the nearest whole number of shares and subject to certain customary reductions.

Markforged ESPP. Pursuant to the Merger Agreement, Markforged will take all actions necessary to (i) terminate the Company ESPP, as of immediately prior to the Effective Time and (ii) provide that no offering period will commence after September 25, 2024.

Treatment of Company Warrants

As of the Effective Time, by virtue of the Merger, each Company Warrant that is outstanding and unexercised immediately prior to the Effective Time will, in accordance with its terms, automatically and without any required action on the part of the holder thereof or any other person, cease to represent a Company Warrant exercisable for Company Common Stock and will become a warrant exercisable for the Per Share Merger Consideration that such holder would have received if such Company Warrant had been exercised immediately prior to the Effective Time.

 

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Dissenting Shares

The Merger Agreement provides that Dissenting Shares (as defined in the Merger Agreement) will not be converted into or be exchangeable for the right to receive the Per Share Merger Consideration, but instead will be entitled to payment of the fair value of such Dissenting Shares in accordance with the provisions of Section 262 of the DGCL (and, at the Effective Time, such Dissenting Shares will no longer be outstanding and will automatically be cancelled and will cease to exist, and such Dissenting Stockholder (as defined in the Merger Agreement) will cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262 of the DGCL), unless and until such Dissenting Stockholder fails to perfect or otherwise waives, withdraws or loses the right to appraisal under the DGCL. If any Dissenting Stockholder fails to perfect or otherwise waives, withdraws or loses such rights, each Dissenting Share held by such Dissenting Stockholder will automatically be deemed to have been converted into, as of the Effective Time, the right to receive the Per Share Merger Consideration, and immediately following such conversion will be automatically cancelled and cease to exist. The Company will give Nano prompt notice of any written demands for appraisal of any shares of Company Common Stock, attempted withdrawals of such demands and any other instruments served pursuant to the DGCL and received by the Company relating to stockholders’ rights of appraisal in accordance with the provisions of Section 262 of the DGCL, and will give Nano the opportunity to participate in all negotiations and proceedings with respect to all such demands. The Company will not, except with the prior written consent of Nano, make any payment with respect to, settle or offer or agree to settle any such demands.

Exchange of Merger Consideration

Prior to the Effective Time, Nano will engage an exchange and paying agent (the “U.S. Exchange Agent”) reasonably acceptable to Markforged and, at Nano’s discretion, an Israeli sub-paying agent (the “Israeli Exchange Agent,” and together with the U.S. Exchange Agent, the “Exchange Agent”), in connection with the Merger for the purpose of exchanging certificates or uncertificated shares for the Per Share Merger Consideration payable in respect of the shares of Company Common Stock and the payment of the Per Share Merger Consideration with respect to any In-the-Money Company Stock Option. At or prior to the Effective Time, Nano will deposit, or cause to be deposited, with the Exchange Agent, cash sufficient to pay the aggregate Per Share Merger Consideration. All cash deposited with the Exchange Agent is referred to as the “Exchange Fund.”

Company Certificates. As promptly as practicable after the Effective Time, Nano will cause the Exchange Agent to mail to each holder of record of Company Certificates, which at the Effective Time were converted into the right to receive the Per Share Merger Consideration with respect to each share of Company Common Stock held by it immediately prior to the Effective Time, a form of letter of transmittal (the “Letter of Transmittal”) (specifying that delivery will be effected, and risk of loss and title to Company Certificates will pass, only upon delivery of the same (or affidavits of loss in lieu thereof) to the Exchange Agent and will be in such form and have such other provisions as Nano may specify subject to Markforged’s reasonable approval), together with instructions thereto, all information required by Exchange Agent for the payor securing the withholding tax ruling and/or such other forms as are required under any applicable tax law, in which the beneficial owner of Company Common Stock provides certain information (and, if applicable, supporting documentation) necessary for Nano or the Exchange Agent, as applicable, to determine whether any amounts need to be withheld from the consideration payable to such beneficial owner hereunder pursuant to the terms of the ordinance (in each case, subject to the terms of the withholding tax ruling, if obtained, the Code, if applicable, or any provision of applicable law).

Company Book-Entry Shares. Any holder of the Company Book Entry Shares whose shares of Company Common Stock were converted into the right to receive the Per Share Merger Consideration will not be required to deliver a Company Certificate (nor an affidavit of loss in lieu thereof nor an indemnity bond) or an executed Letter of Transmittal to the Exchange Agent to receive the Per Share Merger Consideration. In lieu thereof, each registered holder of one or more Company Book Entry Shares will automatically upon the Effective Time be

 

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entitled to receive, and Nano will cause the Exchange Agent to pay and deliver as promptly as practicable after the Effective Time, the Per Share Merger Consideration with respect to each share of Company Common Stock held by such registered holder immediately prior to the Effective Time, for each share of Company Common Stock formerly represented by such Company Book Entry Share.

Upon (i) the surrender of Company Certificates for cancellation to the Exchange Agent, or (ii) in the case of Company Book Entry Shares, the receipt of an “agent’s message” by the Exchange Agent, and in the case of Company Certificates (together with a duly, completely and validly executed Letter of Transmittal, and such other documents as may reasonably be required by the Exchange Agent), the holder of such shares will be entitled to receive in exchange therefor the Per Share Merger Consideration with respect to each share of Company Common Stock held by such holder immediately prior to the Effective Time, subject to any tax withholding and without any interest. In the event of a transfer of ownership of Company Common Stock that is not registered in the transfer records of Markforged, until surrendered, each share of Company Common Stock (including any Company Certificate with respect thereto) will be deemed at any time from and after the Effective Time to represent only the right to receive upon such surrender the Per Share Merger Consideration that the holder of such share of Company Common Stock was entitled to receive in respect of such shares. No interest will be paid or will accrue on any cash payable upon surrender of any Company Certificate or in respect of Company Book Entry Shares.

Termination of Exchange Fund

Subject to any tax withholding ruling, any portion of the Exchange Fund (including any interest received) that remains undistributed to the holders of Company Common Stock or Company Stock Options who have not complied with the relevant provisions of the Merger Agreement for twelve (12) months after the Closing Date will be delivered to Nano, and any holder of Company Common Stock or In-the-Money Company Stock Options who has not before that time complied with the relevant terms of the Merger Agreement will thereafter look only to Nano for payment of its claim for Per Share Merger Consideration, and thereafter any withholding in connection with the payment of the Per Share Merger Consideration to such holder will be made in accordance with the procedures outlined in the Merger Agreement.

In addition, under the Merger Agreement, any portion of the Exchange Fund that remains unclaimed by the holders of Company Certificates or the holders of evidence of Company Book Entry Shares for five (5) years after the Effective Time (or immediately prior to such earlier date on which the Exchange Fund would otherwise escheat to, or become the property of, any governmental entity) will become, to the extent permitted by applicable law, the property of Nano, free and clear of all claims or interest of any person previously entitled thereto.

Representations and Warranties

The Merger Agreement contains representations and warranties made by Markforged (subject to certain qualifications or exceptions in the Merger Agreement and related Company Disclosure Schedule) as to, among other things:

 

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organization, standing and power;

 

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Markforged subsidiaries;

 

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capitalization;

 

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authority to execute and deliver the Merger Agreement and perform obligations thereunder and enforceability of the Merger Agreement;

 

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absence of conflicts of the Merger Agreement with, or any default or violation under, organizational documents, material contracts and instruments or applicable law or regulation;

 

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filings with the SEC and financial statements; absence of undisclosed liabilities;

 

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accuracy of information supplied for SEC filings;

 

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absence of certain changes or events from June 30, 2024 through the date of the Merger Agreement;

 

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employee benefit plans;

 

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labor matters;

 

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litigation, product defects and warranties;

 

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compliance with applicable laws;

 

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environmental matters;

 

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contracts;

 

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intellectual property matters;

 

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real property matters;

 

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tax matters;

 

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related party transactions;

 

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insurance;

 

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broker fees and expenses;

 

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receipt of the opinion of a financial advisor; and

 

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stock ownership; antitakeover states.

The Merger Agreement contains representations and warranties made by Nano and Merger Sub (subject to certain qualifications or exceptions in the Merger Agreement and related disclosure schedule of Nano and Merger Sub (the “Parent Disclosure Schedule”) as to, among other things:

 

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organization, standing and power;

 

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formation of Merger Sub and absence of engagement in any business or activity other than activities related to its corporate organization and the execution and delivery of the Merger Agreement;

 

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authority to execute and deliver the Merger Agreement and perform obligations thereunder and enforceability of the Merger Agreement;

 

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absence of conflicts of the Merger Agreement with, or any default or violation under, organizational documents, material contracts and instruments or applicable law or regulation; no required registrations or consents in connection with the Merger;

 

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accuracy of information supplied for SEC filings;

 

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absence of certain changes;

 

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litigation matters;

 

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brokers’ fees and expenses due in connection with the Merger;

 

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the adoption of resolutions by the Board of Directors of Merger Sub with respect to the Merger Agreement;

 

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stock ownership; and

 

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financial capacity to perform its, and cause Merger Sub to perform its, obligations under the Merger Agreement and to have sufficient funds to pay the Merger Consideration.

 

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Some of the representations and warranties in the Merger Agreement are qualified by materiality qualifications or a “Company Material Adverse Effect” clause.

For purposes of the Merger Agreement, a “Company Material Adverse Effect” means any effect, change, event, circumstance, condition, occurrence or development that, either individually or in the aggregate, has had or would reasonably be expected to have a material adverse effect on the business, properties, results of operations or financial condition of Markforged and its subsidiaries, taken as a whole; provided, however, that a Company Material Adverse Effect will not be deemed to include the impact of (i) changes, after the date hereof, in GAAP or applicable regulatory accounting requirements; (ii) changes, after the date hereof, in applicable laws, or interpretations thereof by courts or governmental entities; (iii) changes, after the date hereof, in global, national or regional political conditions (including the outbreak of war or acts of terrorism, or the escalation of any conflict, including the current conflicts between (A) the Russian Federation and Ukraine and (B) Israel and Palestine, or any change, escalation or worsening thereof) or in economic, market (including equity, credit and debt markets, as well as changes in interest rates) or other general industry-wide conditions affecting the industries in which Markforged and its subsidiaries operate; (iv) the announcement or the existence of, compliance with, pendency of or performance under, the Merger Agreement or the transactions contemplated thereby or the identity of the parties to the Merger Agreement or any of their affiliates (provided that the exception in this clause (iv) will not apply to any representation or warranty to the extent the purpose of such representation or warranty is to address the consequences resulting from the execution of or performance under the Merger Agreement or the consummation of the transactions contemplated thereby and will not apply to any covenant to use commercially reasonable efforts to operate in the ordinary course); (v) a decline in the trading price of Markforged’s capital stock or any failure of Markforged to meet any internal or public projections, forecasts, guidance, budgets, predictions or estimates of or relating to Markforged or any of its subsidiaries for any period, but not including any underlying causes thereof to the extent not otherwise excluded pursuant to subclauses (i) through (ix) herein; (vi) any natural disaster, earthquake, hurricane, tsunami, tornado, flood, mudslide, wild fire or other similar event; (vii) any epidemic, disease outbreak or pandemic (including COVID-19 (and, for the avoidance of doubt, any loss of customers, suppliers, orders, contracts or other business relationships resulting from, or in connection with, COVID-19 or any COVID-19 measures)), public health emergency or widespread occurrence of infectious disease or other acts of God; (viii) any action taken by Markforged or any of its subsidiaries at the written request of Nano or failure to take action due to Nano’s unreasonable failure to grant consent; and (ix) any stockholder litigation or claims commenced on or after the date of the Merger Agreement against Markforged or its directors or officers or Nano or its directors or officers, as applicable, relating to the Merger and the other transactions contemplated by the Merger Agreement; except, with respect to subclause (i) to (iii), (vi) and (vii), to the extent that such effect, change, event, circumstance, condition, occurrence or development disproportionately affects the business, properties, results of operations or financial condition of Markforged and its subsidiaries, taken as a whole, as compared to other companies in the industry in which Markforged and its subsidiaries operate. For purposes of the Merger Agreement, “material adverse effect” means, with respect to Nano (a “Parent Material Adverse Effect”), means any effect, change, event, circumstance, condition, occurrence or development that, either individually or in the aggregate, has or would reasonably be expected to materially impair or prevent the ability of Nano or Merger Sub to consummate the transactions contemplated by the Merger Agreement.

Conduct of Business by Markforged Pending the Merger

The Merger Agreement provides that, subject to certain exceptions, between the date of the Merger Agreement and the Effective Time (or the earlier valid termination of the Merger Agreement), Markforged will, and will cause its respective subsidiaries to, use commercially reasonable efforts to (x) conduct its business in the ordinary course consistent with past practice in all material respects, and (y) preserve intact its business organization and advantageous business relationships and keep available the services of its current officers and key employees and maintain its relationships with key customers, suppliers, licensors, licensees, distributors and others having material business dealings with them.

 

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Without limiting the generality of the foregoing, subject to certain exceptions, between the date of the Merger Agreement and the Effective Time (or the earlier valid termination of the Merger Agreement), Markforged will not, and will not permit any of its respective subsidiaries to, do any of the following without the prior written consent of Nano (which will not be reasonably withheld, conditioned or delayed):

 

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declare, set aside or pay any dividends or make other distributions; split, combine, subdivide or reclassify any of its capital stock, or securities convertible into or exchangeable or exercisable for its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock; or repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of its or its affiliates’ capital stock or any securities convertible into or exchangeable or exercisable its or its subsidiaries’ capital stock;

 

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issue, deliver, sell, grant, pledge or otherwise encumber or subject to any lien (other than certain permitted liens) any shares of capital stock of it or its subsidiaries, including without limitation granting any new awards, or amending or modifying the terms of any outstanding awards, under the Company Incentive Award Plan and/or take any action to accelerate the vesting or lapsing of restrictions or payment of compensation or benefits under the Company Incentive Award Plan;

 

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amend, modify or supplement the certificate of incorporation or bylaws (whether by merger, consolidation or otherwise) of Markforged, or any of the organizational documents of any of its subsidiaries (whether by merger, consolidation or otherwise);

 

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adopt a plan of complete or partial liquidation, dissolution, recapitalization or restructuring (other than transactions solely among Markforged’s subsidiaries);

 

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make any material change in financial accounting methods, principles or practices;

 

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change or modify in any manner the existing credit, collection and payment policies, procedures and practices in respect to accounts receivable and accounts payable;

 

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merge or consolidate with, or directly or indirectly acquire in any transaction, any equity interest in or business of, any person;

 

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sell, lease (as lessor), license, mortgage, sell and leaseback or otherwise encumber or subject to any lien (other than certain permitted liens), or otherwise dispose of any properties or assets (other than sales of products or services in the ordinary course of business consistent with past practice) or any interests therein;

 

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form or create a subsidiary;

 

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authorize, make or incur any capital expenditures or obligations or liabilities in connection therewith;

 

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incur or refinance any indebtedness (except for any indebtedness solely between Markforged and its subsidiaries or between its subsidiaries);

 

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make any material loans, advances or capital contributions to, or investments in, any other Person, other than loans, advances, capital contributions or investments (A) by Markforged to or in, as applicable, one or more of its subsidiaries, (B) by any subsidiary of Markforged to or in, as applicable, Markforged or any subsidiary of Markforged, or (C) advancement of expenses under the Company Charter or Company Bylaws;

 

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waive, release, assign, settle or compromise any claim, action or proceeding, other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (A) equal to or lesser than the amounts specifically reserved with respect thereto on the balance sheet included in its SEC Documents; or (B) that do not exceed $250,000 in the aggregate;

 

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voluntarily terminate, suspend, abrogate, amend, let lapse or modify any material Markforged permit in a manner materially adverse to Markforged and its subsidiaries, taken as a whole;

 

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