UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________

FORM 10-K

x  ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2018
OR
 TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ____________to____________

Commission File No. 001-34220
__________________________

LOGO-3D.JPG
3D SYSTEMS CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
___________________________________________
DELAWARE
 
95-4431352
(State or Other Jurisdiction of
Incorporation or Organization)
 
(I.R.S. Employer
Identification No.)
333 THREE D SYSTEMS CIRCLE
ROCK HILL, SOUTH CAROLINA
 
29730
(Address of Principal Executive Offices)
 
(Zip Code)

(Registrant’s Telephone Number, Including Area Code): (803) 326-3900

Securities registered pursuant to Section 12(b) of the Act:
Title of each class
 
Name of each exchange on which registered
Common stock, par value $0.001 per share
 
The New York Stock Exchange

Securities registered pursuant to Section 12(g) of the Act:  None
_______________________

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes  x No ☐

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ☐ No  x

Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes  x  No ☐

Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).  Yes  x  No ☐

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ☐


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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.  (Check one): 
Large accelerated filer
x
 
Accelerated filer 
Non-accelerated filer
 
Smaller reporting company
Emerging growth company
 
 
 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act.) Yes ☐ No  x

APPLICABLE ONLY TO CORPORATE ISSUERS:

The aggregate market value of the registrant’s common stock held by non-affiliates of the registrant on June 30, 2018 was $1,466,778,357. For purposes of this computation, it has been assumed that the shares beneficially held by directors and executive officers of the registrant were “held by affiliates.” This assumption is not to be deemed an admission by these persons that they are affiliates of the registrant.

Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date.
Shares of Common Stock, par value $0.001, outstanding as of February 15, 2019 was 114,340,207.

DOCUMENTS INCORPORATED BY REFERENCE: Portions of the registrant’s definitive proxy statement for its 2019 Annual Meeting of Stockholders are incorporated by reference into Part III of this Form 10-K.
 

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3D SYSTEMS CORPORATION
Annual Report on Form 10‑K for the
Year Ended December 31, 2018

TABLE OF CONTENTS


 


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This Annual Report on Form 10-K (“Form 10-K”) contains forward-looking statements, within the meaning of the Private Securities Litigation Reform Act of 1995, that involve risks and uncertainties. Many of the forward-looking statements are located in Part II, Item 7 of this Form 10-K under the heading “Management’s Discussion and Analysis of Financial Condition and Results of Operations.” Forward-looking statements involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements to be materially different from historical results or from any future results expressed or implied by such forward-looking statements. In many cases, you can identify forward-looking statements by terms such as “believes,” “belief,” “expects,” “may”, “will”, “estimates,” “intends,” “anticipates,” or “plans” or the negative of these terms or other comparable terminology.  Forward-looking statements are based upon management’s beliefs, assumptions and current expectations concerning future events and trends, using information currently available, and are necessarily subject to uncertainties, many of which are outside our control.   Although we believe that the expectations reflected in the forward-looking statements are reasonable, forward-looking statements are not, and should not be relied upon as a guarantee of future performance or results, nor will they necessarily prove to be accurate indications of the times at or by which any such performance or results will be achieved. A number of important factors could cause actual results to differ materially from those expressed in or implied by the forward-looking statements.  Factors that could cause such differences include, but are not limited to, those discussed in Part I, Item 1A of this Form 10-K under the heading “Risk Factors.” All subsequent written and oral forward-looking statements attributable to the Company or to individuals acting on our behalf are expressly qualified in their entirety by this discussion. The Company assumes no obligation to revise or update any forward-looking statements for any reason, except as required by law.

PART I
Item 1. Business

General

3D Systems Corporation (“3D Systems” or the “Company” or “we” or “us”) is a holding company incorporated in Delaware in 1993 that markets our products and services through subsidiaries in North America and South America (collectively referred to as “Americas”), Europe and the Middle East (collectively referred to as “EMEA”) and the Asia Pacific region (“APAC”). We provide comprehensive 3D printing solutions, including 3D printers for plastics and metals, materials, software, on demand manufacturing services and digital design tools. Our solutions support advanced applications in a wide range of industries and verticals, including healthcare, aerospace, automotive and durable goods.

Customers can use our 3D solutions to design and manufacture complex and unique parts, eliminate expensive tooling, produce parts locally or in small batches and reduce lead times and time to market. A growing number of customers are shifting from prototyping applications to also using 3D printing for production. We believe this shift will be further driven by our continued advancement and innovation of 3D printing solutions that improve durability, repeatability, productivity and total cost of operations.

Our precision healthcare capabilities include simulation; Virtual Surgical Planning (“VSP™”); and printing of medical and dental devices, anatomical models, and surgical guides and instruments. We have over 30 years of experience and expertise which have proven vital to our development of end-to-end solutions that enable customers to optimize product designs, transform workflows, bring innovative products to market and drive new business models.

Products

We offer a comprehensive range of 3D printers, materials, software, haptic design tools, 3D scanners and virtual surgical simulators.

3D Printers and Materials

Our 3D printers transform digital data input generated by 3D design software, CAD software or other 3D design tools, into printed parts using several unique print engines that employ proprietary, additive layer by layer building processes with a variety of materials. We offer a broad range of 3D printing technologies including Stereolithography (“SLA”), Selective Laser Sintering (“SLS”), Direct Metal Printing (“DMP”), MultiJet Printing (“MJP”) and ColorJet Printing (“CJP”), which are discussed in more detail below.

Our printers utilize a wide range of materials, the majority of which are proprietary materials that we develop, blend and market. Our comprehensive range of materials includes plastic, nylon, metal, composite, elastomeric, wax, polymeric dental materials and Class IV bio-compatible materials. We augment and complement our portfolio of engineered materials with materials that we purchase or develop with third parties under private label and distribution arrangements.


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We work closely with our customers to optimize the performance of our materials in their applications. Our expertise in materials science and formulation, combined with our processes, software and equipment, enables us to provide unique and highly specialized materials and help our customers select the material that best meets their needs with optimal cost and performance results.

As part of our solutions approach, our currently offered printers, with the exception of direct metal printers, have built-in intelligence to make them integrated, closed systems. For these integrated printers, we furnish materials specifically designed for use in those printers which are packaged in smart cartridges and utilize material delivery systems. These integrated materials are designed to enhance system functionality, productivity, reliability and materials shelf life, in addition to providing our customers with a built-in quality management system and a fully integrated workflow solution.

SLA   Printers

Our SLA 3D printers cure liquid resin materials with light or a laser to produce durable plastic parts with surface smoothness, high resolution, edge definition and tolerances that rival the accuracy of machined or molded plastic parts. We offer SLA printers with a wide range of materials, sizes and price points, which are designed for prototyping, end-use part production, casting patterns, molds, tooling, fixtures and medical models.

Figure 4™, a light-based SLA platform, also sometimes referred to as digital light processing ("DLP"), is an ultra-fast additive manufacturing technology with a discrete module design. This design allows a range of products and configurations to meet customer needs from a stand-alone product to modular products to fully-automated solutions. Figure 4 is capable of manufacturing parts in hybrid materials (multi-mode polymerization) that offer toughness, durability, biocompatibility, high temperature deflection and elastomeric properties. Figure 4 is also the first additive manufacturing product which can achieve six sigma repeatability. These capabilities enable new end-use applications in healthcare, dental, durable goods, automotive, aerospace and other verticals.

For SLA printers, we offer a variety of liquid resin materials, primarily under the Accura® brand name. The resins are designed to mimic specific, engineered thermoplastics and provide a wide range of characteristics, including tough, durable, clear, castable, polypropylene-like, ABS-like, high-temperature resistant and Class IV bio-compatible materials. We also offer dental materials for light-based SLA 3D printers under our NextDent™ brand name.

SLS Printers

Our SLS 3D printers use a laser beam to melt and fuse powder-based nylon, engineered plastic and composite materials to produce very strong and durable parts. Customer uses of our SLS printers include functional test models and end-use parts, such as housings, machinery components, ducting, tooling, jigs and fixtures and medical devices and personalized surgery kits and guides. 

Our proprietary SLS materials include a range of flexible and rigid plastics, nylons and composite materials marketed under the DuraForm®, LaserForm® and CastForm™ brand names. These materials are available in a variety of lightweight, tough, versatile, high temperature, flexible and durable formulations.
 
DMP Printers

Our DMP solutions use a laser beam to sinter powders in a variety of metals to produce fully dense parts with outstanding purity, surface finish and resolution. We offer DMP solutions that can process a wide range of materials and powders, including materials with very fine granularity and proven manufacturing applications. We sell DMP systems in various sizes and configurations. Certain models are optimized for specific metals, including titanium, stainless steel and nickel super alloys. Our DMP printers are used in medical and dental implants, aerospace, automotive and hi-tech and industrial applications, such as conformal cooling, enhanced fluid flow and other complex, lightweight parts.

We offer metal powder materials for our DMP printers, including titanium, stainless steels, tool steels, super alloys, non-ferrous alloys, precious metals and aluminum.

MJP Printers

Our MJP 3D printers utilize jetting head technology to deliver precise, tough parts with exceptional resolution in plastic, wax, elastomeric and engineered materials that we sell under the VisiJet® brand name. Our MJP printers offer the capability to print in real wax as well as rigid and flexible plastics and multiple materials in one build, making them ideal for mechanical functional testing, rapid tooling, jigs and fixtures, casting and foundry patterns and medical models.


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CJP Printers

Our CJP 3D printers produce parts from our VisiJet branded, powder-based ceramic-like materials. CJP printers build high-definition, full-color parts that can be sanded, drilled, infiltrated, painted and electroplated, which further expands the options available for finished part characteristics. CJP printers are ideal for producing models used in mechanical design, healthcare, architecture, education, entertainment and packaging applications.

Software and Related Products

We provide digital design tools, including software, scanners and haptic devices. We offer solutions for product design, mold and die design, 3D scan-to-print, reverse engineering, production machining, metrology and inspection. These products are designed to enable a seamless workflow for customers, and are marketed under our Geomagic®, Cimatron® and GibbsCAM® brand names. We also offer 3D Sprint and 3DXpert, proprietary software to prepare and optimize CAD data and manage the additive manufacturing processes. These software products provide automated support building and placement, build platform management and print queue management capabilities.

Other Products

We offer 3D virtual reality simulators and simulator modules for medical applications. These 3D simulators are sold under our Simbionix™ brand name and offer clinicians a realistic, hands-on experience to master critical skills, prepare for upcoming procedures and create patient specific simulations and operating room environments through augmented reality and virtual reality. We also provide digitizing scanners for medical and mechanical applications.

Services

Maintenance and Training Services

We provide a variety of customer services, local application support and field support on a worldwide basis for our products, including installation of new printers at customers’ sites, maintenance agreements, periodic hardware upgrades and software updates. We also provide services to assist our customers and partners in developing new applications for our technologies, to facilitate the use of our technology for specific applications, to train customers on the use of our printers and to maintain our printers at customers’ sites.

We provide these services, spare parts and field support either directly or through a network of reseller partners. We employ customer-support sales engineers to support our worldwide customer base, and we are continuing to strengthen and enhance our partner network and service offerings.

Our 3D printers are sold with a warranty period ranging from 90 days to one year. After the warranty period, we generally offer service contracts that enable our customers to continue service and maintenance coverage. These service contracts are offered with various levels of support and options, and are priced accordingly. Our service engineers provide regularly scheduled preventive maintenance visits to customer sites, we provide training to our partners to enable them to perform these services, and we are adding remote monitoring and maintenance capabilities through our 3DConnect software.

From time to time, we also offer upgrade kits for certain of our printers that enable our existing customers to take advantage of new or enhanced printer capabilities. In some cases, we have discontinued upgrade support and maintenance agreements for certain of our older legacy printers.

On Demand Solutions

We provide on demand manufacturing services through facilities worldwide in the Americas, EMEA and APAC. We provide a broad range of prototyping, production and finishing capabilities for precision plastic and metal parts and tooling with a wide range of additive and traditional manufacturing processes.

In addition to the sales of parts to customers, we, and our partners, utilize our on demand services as a sales and lead generation tool. Third party preferred service providers also use our on demand manufacturing service as their comprehensive order-fulfillment center, and customers can use our facilities as fulfillment centers in disaster recovery plans. We also provide professional 3D scanning, printing and parts production related to the entertainment industry through our Gentle Giant™ brand.


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Software Services

In addition to our software license products described above, we offer software maintenance, which includes updates and support for our software products. Our software is sold with maintenance service that generally covers a period of one year. After this initial period, we offer single and multi-year maintenance contracts that enable our customers to continue coverage. These software service contracts typically include free software updates and various levels of technical support.

Healthcare Services

As part of our precision healthcare services, we provide surgical planning, modeling, prototyping and manufacturing services. We offer printing and finishing of medical and dental devices, anatomical models and surgical guides and tools, as well as modeling, design and planning services, including virtual surgical planning, VSP™. We also provide service and maintenance for our surgical simulator products.

Global Operations

We operate in the Americas, EMEA and APAC regions, and market our products and services in those areas as well as to other parts of the world.

In maintaining operations outside the United States  (the “U.S.”), we expose our business to risks inherent in such operations, including currency exchange rate fluctuations. Information on foreign exchange risk appears in Part I, Item 1A, “Risk Factors”, Part II, Item 7A, “Quantitative and Qualitative Disclosures about Market Risk” and Part II, Item 8, “Financial Statements and Supplementary Data,” of this Form 10-K.

Marketing and Customers

Our sales and marketing strategy focuses on an integrated approach that is directed at providing comprehensive solutions designed to meet customer needs. We use a full range of marketing and lead generation tools to promote our products and services on a worldwide basis. Our marketing department supports our global sales organization and distribution channels by providing marketing materials, targeted marketing campaigns, sales leads and demand generation activities.

We sell our solutions globally through a direct sales force, partner channel and in certain geographies, appointed distributors. Our go-to-market and sales organization includes regional general managers, channel managers, direct sales people and application engineers and other support staff throughout the Americas, EMEA and APAC, who are responsible for the sale of products and services and for the management of our network of channel partners.

Additionally, our application engineers provide pre-sales and post-sales support, assist customers with leveraging our latest solutions and production techniques and help identify new applications and sales opportunities. Our on demand manufacturing service also expands our customer relationships and enables lead generation for future sales.

Our customers include major companies as well as small and midsize businesses in a broad range of industries, including medical, dental, automotive, aerospace, durable goods, government, defense, technology, jewelry, electronics, education, consumer goods, energy and others. For the year ended December 31, 2018 , one customer accounted for approximately 13% of our consolidated revenue. We expect to maintain our relationship with this customer. No single customer accounted for more than 10% of our consolidated revenue for the years ended December 31, 2017 or 2016 .

Production and Supplies

At our Rock Hill, South Carolina location, we assemble MJP, SLS, CJP and certain models of our SLA 3D printers, as well as other equipment related to these printers. We assemble certain models of our DMP printers in our Leuven, Belgium and Riom, France facilities. We produce our Simbionix branded 3D simulators in Airport City, Israel.


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We outsource certain SLA and DMP printer assembly and refurbishment activities to selected design, engineering and manufacturing companies in the U.S., Belgium and Taiwan. We purchase finished printers from these suppliers pursuant to forecasts and customer orders that we supply to them. These suppliers also carry out quality control procedures on our printers prior to their shipment to customers. As part of these activities, these suppliers have responsibility for procuring the components and sub-assemblies either from us or third-party suppliers. While the outsourced suppliers of our printers have responsibility for the supply chain and inventory of components for the printers they assemble, the components, parts and sub-assemblies that are used in our printers are generally available from several potential suppliers.

We produce materials at our facilities in Rock Hill, South Carolina, Marly, Switzerland and Soesterberg, Netherlands. We also have arrangements with third parties who blend certain materials according to our specifications that we sell under our own brand names, and we purchase certain materials from third parties for resale to our customers.

Our equipment assembly and materials blending activities, on demand manufacturing services and certain research and development activities are subject to compliance with applicable federal, state and local provisions regulating the storage, use and discharge of materials into the environment. We believe that we are in compliance, in all material respects, with such regulations as currently in effect, and we expect continued compliance with them will not have a material adverse effect on our capital expenditures, results of operations or consolidated financial position.

Research and Development

The 3D printing industry continues to experience rapid technological change and developments in hardware, software and materials. Consequently, we have ongoing research and development programs to develop new products and to enhance our portfolio of products and services, as well as to improve and expand the capabilities of our solutions. Our efforts are often augmented by development arrangements with research institutions, customers, suppliers, assembly and design firms, engineering companies, materials companies and other partners.

In addition to our internally developed technology platforms, we have acquired products and technologies developed by others by acquiring business entities that held ownership rights to such products and technologies. In other instances, we have licensed or purchased the intellectual property rights of technologies developed by third parties through agreements that may obligate us to pay a license fee or royalty, typically based upon a dollar amount per unit or a percentage of the revenue generated by such products.

Intellectual Property

We regard our technology platforms and materials as proprietary and seek to protect them through copyrights, patents, trademarks and trade secrets. At December 31, 2018 and 2017 we held 1,250 and 1,171 patents worldwide, respectively. At December 31, 2018 and 2017 , we had 295 and 271 pending patent applications worldwide, respectively. The principal issued patents covering aspects of our various technologies will expire at varying times through the year 2027.

In addition, we are a party to various licenses that have had the effect of broadening the range of the patents, patent applications and other intellectual property available to us.

We have also entered into licensing or cross-licensing arrangements with various companies in the U.S. and other countries that enable those companies to utilize our technologies in their products or that enable us to use their technologies in our products. Under certain of these licenses, we are entitled to receive, or we are obligated to pay, royalties for the sale of licensed products in the U.S. or in other countries. The amount of such royalties was not material to our results of operations or financial position for the three-year period ended December 31, 2018 .

We believe that, while our patents and licenses provide us with a competitive advantage, our success also depends on our marketing, business development, applications know-how and ongoing research and development efforts. Accordingly, we believe the expiration of any of the patents, patent applications or licenses discussed above would not be material to our business or financial position.

Competition

We compete with other suppliers of 3D printers, materials, software and healthcare solutions as well as with suppliers of conventional manufacturing solutions. We compete with these suppliers for customers as well as channel partners for certain of our products. We also compete with businesses and service bureaus that use such equipment to produce models, prototypes, molds and end-use

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parts.  Development of new technologies or techniques not encompassed by the patents that we own or license may result in additional future competition.

Our competitors operate both globally and regionally, and many of them have well-recognized brands and product lines. Additionally, certain of our competitors are well established and may have greater financial resources than us.

We believe principal competitive factors include technology capabilities, materials, process and application know-how, total cost of operation of solution, product reliability and the ability to provide a full range of products and services to meet customer needs. We believe that our future success depends on our ability to provide high quality solutions, introduce new products and services to meet evolving customer needs and market opportunities, and extend our technologies to new applications. Accordingly, our ongoing research and development programs are intended to enable us to continue technology advancement and develop innovative new solutions for the marketplace.

Employees

At December 31, 2018 , we had 2,620 full-time and part-time employees, compared to 2,666 at December 31, 2017 . None of our U.S. employees are covered by collective bargaining agreements, however, some of our employees outside the U.S. are subject to local statutory employment and labor arrangements. We have not experienced any material work stoppages and believe that our relations with our employees are satisfactory.

Available Information

Our website address is www.3DSystems.com. The information contained on our website is neither a part of, nor incorporated by reference into, this Form 10-K or any other document that we file with or furnish to the Securities and Exchange Commission (“SEC”). We make available free of charge through our website our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, amendments to those reports and other documents that we file with the SEC, as soon as reasonably practicable after we electronically file them with, or furnish them to, the SEC.

Many of our corporate governance materials, including our Code of Conduct, Code of Ethics for Senior Financial Executives and Directors, Corporate Governance Guidelines, current charters of each of the standing committees of the Board of Directors and our corporate charter documents and by-laws are available on our website. 

Executive Officers

The information appearing in the table below sets forth the position or positions held by each of our executive officers and his age as of February 28, 2019 . All of our executive officers serve at the pleasure of the Board of Directors. There are no family relationships among any of our executive officers or directors.
໿
Name and Current Position
Age as of February 28, 2019
Vyomesh I. Joshi
 
President and Chief Executive Officer
64
Charles W. Hull
 
Executive Vice President and Chief Technology Officer
79
Andrew M. Johnson
 
Executive Vice President, Chief Legal Officer and Secretary
44
Herbert Koeck
 
Executive Vice President, Global Go To Market
58
Kevin P. McAlea
 
Executive Vice President and General Manager, Metals and Healthcare
60
John N. McMullen
 
Executive Vice President, Chief Financial Officer
60
Philip C. Schultz
 
Executive Vice President, Operations
56


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Mr. Joshi was appointed the Company’s President and Chief Executive Officer, effective April 1, 2016. Prior to joining the Company, Mr. Joshi worked at Hewlett-Packard Company (“HP”) from 1980 until his retirement on March 21, 2012. From 2001 to 2012, he was Executive Vice President of HP’s Imaging and Printing Group, following two decades of research, engineering and management in HP’s imaging and printing systems. In addition to his service on our Board of Directors, Mr. Joshi currently serves on the Board of Directors of Harris Corporation and formerly served on the Board of Directors at Yahoo! Inc. and Wipro Ltd.

Mr. Hull is a founder of the Company and has served on our Board of Directors since 1993. He has served as Chief Technology Officer since 1997 and as Executive Vice President since 2000. He has also previously served in various other executive capacities at the Company since 1986, including Chief Executive Officer, Vice Chairman of the Board of Directors and President and Chief Operating Officer.

Mr. Johnson has served as Executive Vice President and Chief Legal Officer since November 2014. He served as Interim President and Chief Executive Officer, Chief Legal Officer and Secretary from October 2015 to April 2016 and as Vice President, General Counsel and Secretary from April 2012 to November 2014.  Previously, he served as Assistant General Counsel and Assistant Secretary.

Mr. Koeck currently serves as Executive Vice President, Global Go To Market. He joined the Company in September 2016 as General Manager for 3D Systems Europe, Middle East, Africa and India. Mr. Koeck worked at HP from 1987 to 2016, where he served as Managing Director Hewlett-Packard Europe/Middle East and Africa and Senior Vice President for HP’s combined Printing and PC business in the same region from 2013 to 2016.

Dr. McAlea currently serves as Executive Vice President and General Manager, Metals & Healthcare. Dr. McAlea joined the Company in 2001 and has served in various executive positions since that time. 

Mr. McMullen joined the Company as Executive Vice President, Chief Financial Officer in July 2016. From 2014 to 2016, he was Chief Financial Officer of Eastman Kodak Company, a technology company focused on imaging. Before that, Mr. McMullen had a 32 year career at HP and its acquired companies, including positions as Senior Vice President of Finance and Corporate Treasurer of HP, Chief Financial Officer of HP’s Imaging and Printing Group and Vice President of Finance and Strategy for Compaq’s Worldwide Sales and Services Group.

Mr. Schultz has served as Executive Vice President, Operations, since December 2018. He served as Senior Vice President, On Demand Solutions from September 2016 to December 2018. From 2014 to 2016, Mr. Schultz served as the Business Administrator for a non-profit, Grace Lutheran Church and Christian School.  Previously, he served as Senior Vice President and General Manager of FoxConn from 2009 to 2014.  Prior to that, Mr. Schultz held multiple roles at HP during a 25-year career.

Item 1A. Risk Factors  

The risks and uncertainties described below are not the only risks that we face. Additional risks not currently known to us or that we currently deem not to be material also may impair our business operations, results of operations and financial condition. If any of the risks described below or if any other risks not currently known to us or that we currently deem not to be material actually occurs, our business, results of operations and financial condition could be materially adversely affected. In that event, the trading price of our common stock could decline, and you could lose all or part of your investment in our common stock.  

We face significant competition in many aspects of our business, which could cause our revenue and gross profit margins to decline. Competition could also cause us to reduce sales prices or to incur additional marketing or production costs, which could result in decreased revenue, increased costs and reduced margins.

We compete for customers with a wide variety of producers of equipment and software for models, prototypes, other three-dimensional objects and end-use parts as well as producers of materials and services for this equipment. Some of our existing and potential competitors are researching, designing, developing and marketing other types of competitive equipment and software, materials and services. Certain of these competitors may have financial, marketing, manufacturing, distribution and other resources substantially greater than ours.

We also expect that future competition may arise from the development of allied or related techniques for equipment and materials that are not encompassed by our patents, from the issuance of patents to other companies that may inhibit our ability to develop certain products and from improvements to existing materials and equipment technologies.


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Some of our patents have recently expired and others will expire in coming years. Upon expiration of those patents, our competitors may introduce products using the technology previously protected by the expired patents and those products may have lower prices than those of our products. To compete, we may need to reduce our prices for those products, which could adversely affect our revenues, margins and profitability. Additionally, the expiration of our patents could reduce barriers to entry into additive manufacturing, which could result in the reduction of our sales and earnings potential. If competitors using technology previously protected by our expired patents were to introduce products of inferior quality, our potential customers may view the technology negatively, which would have an adverse effect on our image and reputation and on our ability to compete with systems using other additive fabrication technologies.

We intend to follow a strategy of continuing product development to enhance our position to the extent practicable. We cannot assure you that we will be able to maintain our current position in the field or continue to compete successfully against current and future sources of competition. If we do not keep pace with technological change and introduce new products, we may lose revenue and demand for our products. We also incur significant costs associated with the investment in our product development activities in furtherance of our strategy that may not result in increased revenue or demand for our products and that could negatively affect our operating results.

We believe that our future success depends on our ability to deliver products and services that meet changing technology and customer needs.

Our business may be affected by rapid technological change, changes in user and customer requirements and preferences, frequent new product and service introductions embodying new technologies and the emergence of new standards and practices, any of which could render our existing products and proprietary technology obsolete. Accordingly, our ongoing research and development programs are intended to enable us to maintain technological leadership. We believe that to remain competitive we must continually enhance and improve the functionality and features of our products, services and technologies. However, there is a risk that we may not be able to:

Develop or obtain leading technologies useful in our business;

Enhance our existing products;

Develop new products, services and technologies that address the increasingly sophisticated and varied needs of prospective customers, particularly in the area of printer speeds and materials functionality;

Respond to technological advances and emerging industry standards and practices on a cost-effective and timely basis; or

Recruit or retain key technology employees.

If we are unable to meet changing technology and customer needs, our competitive position, revenue, results of operations and financial condition could be adversely affected.

If we do not generate net cash flow from operations and if we are unable to raise additional capital, our financial condition could be adversely affected and we may not be able to execute our growth strategy.

We cannot assure you that we will generate cash from operations or other potential sources to fund future working capital needs and meet capital expenditure requirements.

If we are unable to generate such cash flow, we may be required to adopt one or more alternatives, such as selling assets, restructuring or incurring additional debt or obtaining additional equity capital on terms that may be onerous or highly dilutive. Our ability to obtain additional capital or refinance any indebtedness will depend on, among other things, the capital markets, our financial condition at such time and the terms and conditions of any such financing or indebtedness. We may not be able to engage in any of these activities or engage in these activities on desirable terms, which could result in a default on our debt obligations.

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The lack of additional capital resulting from any inability to generate cash flow from operations or to raise equity or debt financing could force us to substantially curtail or cease operations and would, therefore, have an adverse effect on our business and financial condition. Furthermore, we cannot assure you that any necessary funds, if available, would be available on attractive terms or that they would not have a significantly dilutive effect on our existing stockholders. If our financial condition were to worsen and we become unable to attract additional equity or debt financing or enter into other strategic transactions, we would not be able to execute our growth strategy and we could become insolvent or be forced to declare bankruptcy.

Our business could be adversely impacted in the event of a failure of our information technology infrastructure or adversely impacted by a successful cyber-attack.

We have experienced cyber security threats, threats to our information technology infrastructure and unauthorized attempts to gain access to our sensitive information. Prior cyber-attacks directed at us have not had a material impact on our business or financial results; however, this may not continue to be the case in the future. Cyber security assessment analyses undertaken by us have identified and prioritized steps to enhance our cyber security safeguards. We have implemented additional security measures and processes in the last year which enhance our ability to detect and respond to a cyber-attack. We have increased our cyber breach insurance and implemented company-wide cyber security awareness training. Despite the implementation of these new safeguards, there can be no assurance that we will adequately protect our information or that we will not experience any future successful attacks. The threats we face vary from attacks common to most industries to more advanced and persistent, highly organized adversaries who target us because of the products and services we provide. If we are unable to protect sensitive information, our customers or governmental authorities could question the adequacy of our threat mitigation and detection processes and procedures. Due to the evolving nature of these security threats, however, the impact of any future incident cannot be predicted.

We may be required to expend significant additional resources to modify our cyber security protective measures, to investigate and remediate vulnerabilities or other exposures or to make required notifications, and we may be subject to litigation and financial losses. These costs related to cyber or other security threats or disruptions may not be fully insured or indemnified by other means. Occurrence of any of these events could adversely affect our internal operations, the services we provide to our customers, our financial results or our reputation; or such events could result in the loss of competitive advantages derived from our research and development efforts or other intellectual property or early obsolescence of our products and services.

We are subject to U.S. and other anti-corruption laws, trade controls, economic sanctions and similar laws and regulations. Our failure to comply with these laws and regulations could subject us to civil, criminal and administrative penalties and harm our reputation. 

Doing business on a worldwide basis requires us to comply with the laws and regulations of the U.S. government and various foreign jurisdictions. These laws and regulations place restrictions on our operations, trade practices, partners and investments.

In particular, our operations are subject to U.S. and foreign anti-corruption and trade control laws and regulations, such as the Foreign Corrupt Practices Act (“FCPA”) and United Kingdom Bribery Act (the “Bribery Act”), export controls and economic sanctions programs, including those administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), the State Department's Directorate of Defense Trade Controls (“DDTC”) and the Bureau of Industry and Security (“BIS”) of the Department of Commerce. As a result of doing business in foreign countries and with foreign customers, we are exposed to a heightened risk of violating anti-corruption and trade control laws and sanctions regulations.

As part of our business, we may deal with state-owned business enterprises, the employees of which are considered foreign officials for purposes of the FCPA’s prohibition on providing anything of value to foreign officials for the purposes of obtaining or retaining business or securing any improper business advantage. In addition, the provisions of the Bribery Act extend beyond bribery of foreign public officials and also apply to transactions with individuals that a government does not employ. Some of the international locations in which we operate lack a developed legal system and have higher than normal levels of corruption. Our continued expansion outside the U.S., including in Brazil, China, India and developing countries, and our development of new partnerships and joint venture relationships worldwide, could increase the risk of FCPA, OFAC or Bribery Act violations in the future.

As an exporter, we must comply with various laws and regulations relating to the export of products and technology from the U.S. and other countries having jurisdiction over our operations. In the U.S., these laws include the International Traffic in Arms Regulations (“ITAR”) administered by the DDTC, the Export Administration Regulations (“EAR”) administered by the BIS and trade sanctions against embargoed countries and destinations administered by OFAC. The EAR governs products, parts, technology and software which present military or weapons proliferation concerns, so-called “dual use” items, and ITAR governs military items listed on the United States Munitions List. Prior to shipping certain items, we must obtain an export license or verify that

12



license exemptions are available. Any failures to comply with these laws and regulations could result in fines, adverse publicity and restrictions on our ability to export our products, and repeat failures could carry more significant penalties. 

Violations of anti-corruption and trade control laws and sanctions regulations are punishable by civil penalties, including fines, denial of export privileges, injunctions, asset seizures, debarment from government contracts and revocations or restrictions of licenses, as well as criminal fines and imprisonment and could harm our reputation, create negative shareholder sentiment and affect our share value. We have established policies and procedures designed to assist our compliance with applicable U.S. and international anti-corruption and trade control laws and regulations, including the FCPA, the Bribery Act and trade controls and sanctions programs administered by OFAC, the DDTC and BIS, and have trained our employees to comply with these laws and regulations. However, there can be no assurance that all of our employees, consultants, agents or other associated persons will not take actions in violation of our policies and these laws and regulations. Additionally, there can be no assurance that our policies and procedures will effectively prevent us from violating these regulations in every transaction in which we may engage or provide a defense to any alleged violation. In particular, we may be held liable for the actions that our joint venture partners take inside or outside of the United States, even though our partners may not be subject to these laws. Such a violation, even if our policies prohibit it, could have an adverse effect on our reputation, business, financial condition and results of operations. In addition, various state and municipal governments, universities and other investors maintain prohibitions or restrictions on investments in companies that do business with sanctioned countries, persons and entities, which could adversely affect our reputation, business, financial condition and results of operations.

The costs and effects of litigation, investigations or similar matters involving us or our subsidiaries, or adverse facts and developments related thereto, could materially affect our business, operating results and financial condition .

We may be involved from time to time in a variety of litigation, investigations, inquiries or similar matters arising out of our business, including those described in Note 22 to the Consolidated Financial Statements. We cannot predict the outcome of these or any other legal matters.  In the future, we may need to record litigation reserves with respect to these matters because our insurance may not cover all claims that may be asserted against us. Should the ultimate judgments or settlements in any litigation or investigation significantly exceed our insurance coverage, they could have a material adverse effect on our business, financial condition and results of operations.

We disclosed potential violations of U.S. export controls laws to BIS and DDTC, and the Company is reviewing its export control, trade sanctions, and government contracting compliance risks and potential violations.

In October 2017, we received an administrative subpoena from BIS requesting the production of records in connection with possible violations of U.S. export control laws, including with regard to our Quickparts.com, Inc. subsidiary. In addition, while collecting information responsive to the above-referenced subpoena, we identified potential violations of ITAR administered by DDTC and potential violations of the Export Administration Regulations administered by BIS. On June 8, 2018 and thereafter, we submitted voluntary disclosures to BIS and DDTC identifying numerous potentially unauthorized exports of technical data, which supplemented an initial notice of voluntary disclosure that we submitted to DDTC in February 2018. We are conducting an internal review of our export control, trade sanctions, and government contracting compliance risks and potential violations; implementing associated compliance enhancements; and cooperating with DDTC and BIS, as well as the U.S. Departments of Justice, Defense and Homeland Security. Although we cannot predict the ultimate resolution of these matters, we have incurred and expect to continue to incur significant legal costs and other expenses in connection with responding to the U.S. government agencies.

Throughout 2018, we implemented new compliance procedures to identify and prevent potential violations of export controls laws, trade sanctions, and government contracting laws and regulations. As a result of these compliance enhancements, we identified additional potential violations of ITAR, and submitted related voluntary disclosures to DDTC. As we continue to implement additional compliance enhancements throughout 2019, we may discover additional potential violations of export controls laws, trade sanctions, and/or government contracting laws in the future. If we identify any additional potential violations, we will submit voluntary disclosures to the relevant agencies and cooperate with such agencies on any related investigations.

If the U.S. government finds that we have violated one or more export controls laws, trade sanctions, or government contracting laws, we could be subject to various civil or criminal penalties. By statute, these penalties can include but are not limited to fines, which by statute may be significant, denial of export privileges, and suspension or debarment from participation in U.S. government contracts. We may also be subject to contract claims based upon such violations. Any assessment of penalties or other liabilities incurred in connection with these matters could harm our reputation and customer relationships, create negative investor sentiment, and affect our share value. In connection with any resolution, we may also be required to undertake additional remedial compliance measures and program monitoring. We cannot at this time predict when the U.S. government agencies will conclude their investigations or determine an estimated cost, if any, or range of costs, for any penalties, fines or other liabilities to third parties that may be incurred in connection with these matters.

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We may incur substantial costs enforcing or acquiring intellectual property rights and defending against third-party claims as a result of litigation or other proceedings.

In connection with the enforcement of our own intellectual property rights, the acquisition of third-party intellectual property rights or disputes related to the validity or alleged infringement of third-party intellectual property rights, including patent rights, we have been, and may in the future be, subject to claims, negotiations or complex, protracted litigation. Intellectual property disputes and litigation may be costly and can be disruptive to our business operations by diverting attention and energies of management and key technical personnel, and by increasing our costs of doing business. Although we have successfully defended or resolved past litigation and disputes, we may not prevail in any ongoing or future litigation and disputes, which could adversely affect our results of operations and financial condition.  

Third-party intellectual property claims asserted against us could subject us to significant liabilities, require us to enter into royalty and licensing arrangements on unfavorable terms, prevent us from assembling or licensing certain of our products, subject us to injunctions restricting our sale of products, cause severe disruptions to our operations or the marketplaces in which we compete or require us to satisfy indemnification commitments with our customers, including contractual provisions under various license arrangements. In addition, we may incur significant costs in acquiring the necessary third-party intellectual property rights for use in our products. Any of these could seriously harm our business.

We may not be able to protect our intellectual property rights and confidential information, including our digital content, from third-party infringers or unauthorized copying, use or disclosure.

Although we defend our intellectual property rights and endeavor to combat unlicensed copying and use of our digital content and intellectual property rights through a variety of techniques, preventing unauthorized use or infringement of our rights (“piracy attacks”) is inherently difficult. If our intellectual property becomes subject to piracy attacks, our business may be harmed.

Additionally, we endeavor to protect the secrecy of our digital content, confidential information and trade secrets. If unauthorized disclosure of our trade secrets occurs, we could potentially lose trade secret protection. The loss of trade secret protection could make it easier for third parties to compete with our products by copying previously confidential features, which could adversely affect our business, results of operations, revenue and operating margins. We also seek to protect our confidential information and trade secrets through the use of non-disclosure agreements. However, there is a risk that our confidential information and trade secrets may be disclosed or published without our authorization, and in these situations it may be difficult and/or costly for us to enforce our rights. 

Our uneven sales cycle makes planning and inventory management difficult and future financial results less predictable.

Our quarterly sales often have reflected a pattern in which a disproportionate percentage of each quarter’s total sales occurs towards the end of the quarter, in particar for sales of hardware. This uneven sales pattern makes predicting net revenue, earnings, cash flow from operations and working capital for each financial period difficult, increases the risk of unanticipated variations in our quarterly results and financial condition and places pressure on our inventory management and logistics systems. If predicted demand is substantially greater than orders, there may be excess inventory. Alternatively, if orders substantially exceed predicted demand, we may not be able to fulfill all of the orders received in each quarter and such orders may be cancelled. Depending on when they occur in a quarter, developments such as an information systems failure, component pricing movements, component shortages or global logistics disruptions could adversely impact our inventory levels and results of operations in a manner that is disproportionate to the number of days in the quarter affected.

The variety of products that we sell could cause significant quarterly fluctuations in our gross profit margins, and those fluctuations in margins could cause fluctuations in operating income or loss and net income or loss.

We continuously work to expand and improve our products, materials and services offerings, geographic areas in which we operate and the distribution channels we use to reach various target product applications and customers. This variety of products, applications, channels and regions involves a range of gross profit margins that can cause substantial quarterly fluctuations in gross profit and gross profit margins depending upon the mix of product shipments from quarter to quarter. Additionally, the introduction of new products or services may further heighten quarterly fluctuations in gross profit and gross profit margins due to manufacturing ramp-up and start-up costs. We may experience significant quarterly fluctuations in gross profit margins or operating income or loss due to the impact of the mix of products, channels or geographic areas in which we sell our products from period to period.


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We derive a significant portion of our revenue from business conducted outside the U.S. and are subject to the risks of doing business outside the U.S.

We face many risks inherent in conducting business activities outside the U.S. that, unless managed properly, may adversely affect our profitability, including our ability to collect amounts due from customers. While most of our operations outside the U.S. are conducted in highly developed countries, our operations could be adversely affected by, among others, the following:

Unexpected changes in laws, regulations and policies of non-U.S. governments relating to investments and operations, as well as U.S. laws affecting the activities of U.S. companies abroad;

Changes in regulatory requirements, including export controls, tariffs and embargoes, other trade restrictions, competition, corporate practices and data privacy concerns;

Political policies, political or civil unrest, terrorism or epidemics and other similar outbreaks;

Fluctuations in currency exchange rates;

Limited protection for the enforcement of contract and intellectual property rights in some countries;

Difficulties in staffing and managing foreign operations;

Operating in countries with a higher incidence of corruption and fraudulent business practices;

Potentially adverse changes in taxation;  and

Other factors, depending upon the specific country in which we conduct business.

These uncertainties may make it difficult for us and our customers to accurately plan future business activities and may lead our customers in certain countries to delay purchases of our products and services. More generally, these geopolitical, social and economic conditions could result in increased volatility in global financial markets and economies.

The consequences of terrorism or armed conflicts are unpredictable, and we may not be able to foresee events that could have an adverse effect on our market opportunities or our business. We are uninsured for losses and interruptions caused by terrorism, acts of war and similar events.

While the geographic areas outside the U.S. in which we operate are generally not considered to be highly inflationary, our foreign operations are sensitive to fluctuations in currency exchange rates arising from, among other things, certain intercompany transactions that are generally denominated, for example, in U.S. dollars rather than their respective functional currencies.

Moreover, our operations are exposed to market risk from changes in interest rates and foreign currency exchange rates and commodity prices, which may adversely affect our results of operations and financial condition. We seek to minimize these risks through regular operating and financing activities and, when we consider it to be appropriate, through the use of derivative financial instruments. However, our efforts to minimize our exposure to market risks from changes in interest rates, foreign currency exchange rates and commodity prices may prove to be insufficient or unsuccessful.

We depend on our supply chain for components and sub-assemblies used in our 3D printers and other products and for raw materials used in our materials. If these relationships were to terminate or be disrupted, our business could be disrupted while we locate alternative suppliers and our expenses may increase.

We  have outsourced the assembly of certain of our printers to third party suppliers. In addition, we purchase components and sub-assemblies for our printers from third-party suppliers, and we purchase raw materials that are used in our materials, as well as certain of those materials, from third-party suppliers.

While there are several potential suppliers of the components, parts and sub-assemblies for our products, we currently choose to use only one or a limited number of suppliers for several of these components, including our lasers, materials and certain jetting components. Our reliance on a single or limited number of suppliers involves many risks, including, among others, the following:


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Potential shortages of some key components;

Disruptions in the operations of these suppliers;

Product performance shortfalls; and

Reduced control over delivery schedules, assembly capabilities, quality and costs.

While we believe that we can obtain all the components necessary for our products from other manufacturers, we require any new supplier to become “qualified” pursuant to our internal procedures, which could involve evaluation processes of varying durations. We generally have our printers and other products assembled based on our internal forecasts and the supply of raw materials, assemblies, components and finished goods from third parties, which are subject to various lead times.  In addition, at any time, certain suppliers may decide to discontinue production of an assembly, component or raw material that we use. Any unanticipated change in the sources of our supplies, or unanticipated supply limitations, could increase production or related costs and consequently reduce margins.

If our forecasts exceed actual orders, we may hold large inventories of slow-moving or unusable parts, which could have an adverse effect on our cash flow, profitability and results of operations. Inversely, we may lose orders if our forecast is low and we are unable to meet demand.

We have engaged selected design and manufacturing companies to assemble certain of our printers. In carrying out these outsourcing activities, we face a number of risks, including, among others, the following:

The risk that the parties that we retain to perform assembly activities may not perform in a satisfactory manner;

The risk of disruption in the supply of printers or other products to our customers if such third parties either fail to perform in a satisfactory manner or are unable to supply us with the quantity of printers or other products that are needed to meet then current customer demand; and

The risk of insolvency of suppliers, as well as the risks that we face, as discussed above, in dealing with a limited number of suppliers.

Our operations could suffer if we are unable to attract and retain key management or other key employees.

Our success depends upon the continued service and performance of our senior management and other key personnel. Our senior executive team is critical to the management of our business and operations, as well as to the development and execution of our strategy. High demand exists for senior management and other key personnel (including scientific, technical and sales personnel) in the 3D printing industry, and there can be no assurance that we will be able to retain such personnel. We experience intense competition for qualified personnel.

While we intend to continue to provide competitive compensation packages to attract and retain key personnel and engage in regular succession planning for these positions, some of our competitors for these employees have greater resources and more experience, making it difficult for us to compete successfully for key personnel. If we cannot attract and retain sufficiently qualified technical employees for our research and development and manufacturing operations, we may be unable to develop and commercialize new products or new applications for existing products. Furthermore, possible shortages of key personnel, including engineers, in the regions surrounding our facilities could require us to pay more to hire and retain key personnel, thereby increasing our costs.


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We rely on our management information systems for inventory management, distribution and other key functions. If our information systems fail to adequately perform these functions, or if we experience an interruption in their operation, our business and operating results could be adversely affected.

The efficient operation of our business is dependent on our management information systems. We rely on our management information systems to, among other things, effectively manage our accounting and financial functions, including maintaining our internal controls; to manage our manufacturing and supply chain processes; and to maintain our research and development data. The failure of our management information systems to perform properly could disrupt our business and product development, which may result in decreased sales, increased overhead costs, excess or obsolete inventory, and product shortages, causing our business and operating results to suffer. Although we take steps to secure our management information systems, including our computer systems, intranet and Internet sites, email and other telecommunications and data networks, the security measures we have implemented may not be effective and our systems may be vulnerable to theft, loss, damage and interruption from a number of potential sources and events, including unauthorized access or security breaches, natural or man-made disasters, cyber-attacks, computer viruses, power loss or other disruptive events. Our reputation and financial condition could be adversely affected if, as a result of a significant cyber event or otherwise, our operations are disrupted or shut down; our confidential, proprietary information is stolen or disclosed; we incur costs or are required to pay fines in connection with stolen customer, employee, or other confidential information; we must dedicate significant resources to system repairs or increase cyber security protection; or we otherwise incur significant litigation or other costs.

Our products and services may experience quality problems from time to time that can result in decreased sales and operating margin, product returns, product liability, warranty or other claims that could result in significant expenses and harm to our reputation.

We sell complex hardware and software products, materials and services that can contain undetected design and manufacturing defects or errors when first introduced or as enhancements are released that, despite testing, are not discovered until after the product has been installed and used by customers. Sophisticated software and applications, such as those sold by us, may contain “bugs” that can unexpectedly interfere with the software’s intended operation. Defects may also occur in components and products we purchase from third parties. There can be no assurance we will be able to detect and fix all defects in the hardware, software, materials and services we sell. Failure to do so could result in lost revenue, product returns, product liability, delayed market acceptance of those products and services, claims from distributors, end-users or others, increased end-user service and support costs, and significant warranty claims and other expenses to correct the defects, diversion of management time and attention and harm to our reputation.

Regulation in the areas of privacy, data protection and information security could increase our costs and affect or limit our business opportunities and how we collect and/or use personal information.

As privacy, data protection and information security laws, including data localization laws, are interpreted and applied, compliance costs may increase, particularly in the context of ensuring that adequate data protection and data transfer mechanisms are in place. In recent years, there has been increasing regulatory enforcement and litigation activity in the areas of privacy, data protection and information security in the U.S. and in various countries in which we operate.

In addition, state and federal legislators and/or regulators in the U.S. and other countries in which we operate are increasingly adopting or revising privacy, data protection and information security laws that potentially could have significant impact on our current and planned privacy, data protection and information security-related practices, our collection, use, sharing, retention and safeguarding of consumer and/or employee information, and some of our current or planned business activities. New legislation or regulation could increase our costs of compliance and business operations and could reduce revenues from certain business initiatives. Moreover, the application of existing or new laws to existing technology and practices can be uncertain and may lead to additional compliance risk and cost.

Compliance with current or future privacy, data protection and information security laws relating to consumer and/or employee data could result in higher compliance and technology costs and could restrict our ability to provide certain products and services, which could materially and adversely affect our profitability. Our failure to comply with privacy, data protection and information security laws could result in potentially significant regulatory and/or governmental investigations and/or actions, litigation, fines, sanctions, ongoing regulatory monitoring, customer attrition, decreases in the use or acceptance of our products and services and damage to our reputation and our brand.


17



Global economic, political and social conditions and financial markets may harm our ability to do business, adversely affect our sales, costs, results of operations and cash flow. 

We are subject to global economic, political and social conditions that may cause customers to delay or reduce technology purchases due to economic downturns, difficulties in the financial services sector and credit markets, geopolitical uncertainties, tariffs and other macroeconomic factors affecting spending behavior. We face risks that may arise from financial difficulties experienced by our suppliers, resellers or customers, including, among others, the following:

Customers or partners to whom we sell our products and services may face financial difficulties or may become insolvent, which could lead to our inability to obtain payment of accounts receivable that those customers may owe;

Customers and potential customers may experience deterioration of their businesses, which may result in the delay or cancellation of plans to purchase our products;

Key suppliers of raw materials, finished products or components used in the products that we sell may face financial difficulties or may become insolvent, which could lead to disruption in the supply of printers, materials or spare parts to our customers; and

The inability of customers, including resellers, suppliers and contract manufacturers, to obtain credit financing to finance purchases of our products and raw materials used to build those products.

Changes in, or interpretation of, tax rules and regulations may impact our effective tax rate and future profitability. 

We are a U.S. based, multinational company subject to taxation in multiple U.S. and foreign tax jurisdictions. Our future effective tax rates could be adversely affected by changes in statutory tax rates or interpretation of tax rules and regulations in jurisdictions in which we do business, changes in the amount of revenue or earnings in the countries with varying statutory tax rates, or by changes in the valuation of deferred tax assets and liabilities. The U.S. Tax Cuts and Jobs Act (“Tax Act”) is one such example of recent legislation that impacts the effective tax rate and tax posture of the Company. For additional details see Note 20 to the Consolidated Financial Statements.

In addition, we are subject to audits and examinations of previously filed income tax returns by the Internal Revenue Service and other domestic and foreign tax authorities. We regularly assess the potential impact of such examinations to determine the adequacy of our provision for income taxes and have reserved for potential adjustments that we expect may result from the current examinations. We believe such estimates to be reasonable; however, there is no assurance that the final determination of any examination will not have an adverse effect on our operating results and financial position.

We have made, and may make in the future, strategic acquisitions and divestitures that may involve significant risks and uncertainties.  We may not realize the anticipated benefits of past or future acquisitions and integration of these acquisitions may disrupt our business and divert management attention. Likewise, our potential future divestitures may be unsuccessful and negatively impact our business.

From time to time, we evaluate acquisition candidates that fit our business objectives. Acquisitions involve certain risks and uncertainties, including, among others, the following:

Difficulty in integrating newly acquired businesses and operations in an efficient and cost-effective manner, which may also impact our ability to realize the potential benefits associated with the acquisition;

The risk that significant unanticipated costs or other problems associated with integration may be encountered;

The challenges in achieving strategic objectives, cost savings and other anticipated benefits;

The risk that our marketplaces do not evolve as anticipated and that the technologies acquired do not prove to be those needed to be successful in the marketplaces that we serve;

The risk that we assume significant liabilities that exceed the limitations of any applicable indemnification provisions or the financial resources of any indemnifying party;

The inability to maintain a relationship with key customers, vendors and other business partners of the acquired businesses;

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The difficulty in maintaining controls, procedures and policies during the transition and integration;

The potential loss of key employees of the acquired businesses;

The risk of diverting management attention from our existing operations;

Difficulties in coordinating geographically disparate organizations and corporate cultures and integrating management personnel with different business backgrounds;

The potential failure of the due diligence process to identify significant problems, liabilities or other challenges of an acquired company or technology;

The risk that we incur significant costs associated with such acquisition activity that may negatively impact our operating results before the benefits of such acquisitions are realized, if at all;

The entry into marketplaces where we have no or limited direct prior experience and where competitors have stronger marketplace positions;

The exposure to litigation or other claims in connection with our assuming claims or litigation risks from terminated employees, customers, former shareholders or other third parties; and

The risk that historical financial information may not be representative or indicative of our results as a combined company.

Historically, we have grown organically and from acquisitions, and we intend to continue to grow. Our infrastructure will require, among other things, continued development of our financial and management controls and management information systems, management of our sales channel, continued capital expenditures, the ability to attract and retain qualified management personnel and the training of new personnel. We cannot be sure that our infrastructure, systems, procedures, business processes and managerial controls will be adequate to support the growth in our operations. Any delays in, or problems associated with, implementing, or transitioning to, new or enhanced systems, procedures, or controls to accommodate and support the requirements of our business and operations and to effectively and efficiently integrate acquired operations may adversely affect our ability to meet customer requirements, manage our product inventory, and record and report financial and management information on a timely and accurate basis. These potential negative effects could prevent us from realizing the benefits of an acquisition transaction or other growth opportunity.

Likewise, we have in the past, and may in the future, divest certain business operations. Divestitures involve a number of risks, including the diversion of management's attention, significant costs and expenses, goodwill and other intangible asset impairment charges, the loss of customer relationships and cash flow, and the disruption of operations in the affected business. Failure to timely complete or consummate a divestiture may negatively affect valuation of the affected business or result in restructuring charges.

In the event an unsuccessful acquisition or divestiture, our competitive position, revenues, results of operations and financial condition could be adversely affected.

Changes in business conditions may cause goodwill and other intangible assets to become impaired.

Goodwill is subject to an impairment test on an annual basis and when circumstances indicate that an impairment is more likely than not. Such circumstances include a significant adverse change in the business climate or a decision to dispose of a business or product line. We face some uncertainty in our business environment due to a variety of challenges, including changes in customer demand. We may experience unforeseen circumstances that adversely affect the value of our goodwill or intangible assets and trigger an evaluation of the amount of the recorded goodwill and intangible assets. Future write-offs of goodwill or other intangible assets as a result of an impairment in the business could materially adversely affect our results of operations and financial condition.

We may be subject to product liability claims, which could result in material expense, diversion of management time and attention and damage to our business reputation. 

The sale and support of our products entails the risk of product liability claims.   From time to time,   we may become subject to product liability claims that could lead to significant expenses.  The risk may be heightened when we provide products into certain markets, such as healthcare, aerospace and automotive industries.

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This risk of product liability claims may also be greater due to the use of certain hazardous chemicals used in the production of certain of our products, including irritants, harmful chemicals and chemicals dangerous to the environment. We may also be subject to claims that our products have been, or may be used to, create parts that are not in compliance with legal requirements or that infringe on the intellectual property rights of others.

We attempt to include provisions in our agreements with customers that are designed to limit our exposure to potential liability for damages arising from defects or errors in our products and other issues. However, the nature and extent of these limitations vary from customer to customer. Their effect is subject to a variety of legal limitations and it is possible that these limitations may not be effective as a result of unfavorable judicial decisions or laws enacted in the future.

Any claim brought against us, regardless of its merit, could result in significant expense, diversion of management time and attention, damage to our business reputation and failure to retain existing customers or to attract new customers. Although we maintain product liability insurance, such insurance is subject to deductibles and there is no guarantee that such insurance will be available or adequate to protect against all such claims. Costs or payments made in connection with product liability claims could adversely affect our financial condition and results of operations.

Our business involves the use of hazardous materials, and we must comply with environmental, health and safety laws and regulations, which can be expensive and restrict how we do business. 

Our business involves the blending, controlled storage, use and disposal of hazardous materials. We and our suppliers are subject to federal, state, local and foreign laws and regulations governing the use, manufacture, storage, handling and disposal of these hazardous materials. Although we believe the safety procedures we utilized for handling and disposing of these materials comply with the standards prescribed by these laws and regulations, we cannot eliminate the risk of accidental contamination or injury from these materials. In the event of an accident, local, state, federal or foreign authorities may curtail the use of these materials and interrupt our business operations. If we are subject to any liability as a result of activities involving hazardous materials, our business and financial condition may be adversely affected and our reputation may be harmed.

Our common stock price has been and may continue to be volatile.

The market price of our common stock has experienced, and may continue to experience, considerable volatility. Between January 1, 2017 and December 31, 2018 , the trading price of our common stock has ranged from a low of $7.92 per share to a high of $23.70 per share. Numerous factors could have a significant effect on the price of our common stock, including those described or referred to in this “Risk Factors” section of this Form 10-K, as well as, among other things:

Our perceived value in the securities markets;

Overall trends in the stock market;

Announcements of changes in our forecasted operating results or the operating results of one or more of our competitors;

The impact of changes in our results of operations, our financial condition or our prospects;

Future sales of our common stock or other securities (including any shares issued in connection with earn-out obligations for any past or future acquisition);

Market conditions for providers of products and services such as ours;

Executive level management uncertainty or change;

Changes in recommendations or revenue or earnings estimates by securities analysts; and

Announcements of acquisitions by us or one of our competitors.

Item 1B.Unresolved Staff Comments

None.

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Item 2. Properties

Our headquarters is located in Rock Hill, South Carolina. As of December 31, 2018 , we owned minimal facilities and we leased approximately 1.1 million square feet, primarily located in the U.S., as summarized below.

 
Square Feet (in thousands)

 
Americas
 
EMEA
 
APAC
 
TOTAL

 
Leased
 
Owned
 
Leased
 
Owned
 
Leased
 
Owned
 
Leased
 
Owned
Primary Function Category:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Corporate headquarters
 
80

 

 

 

 

 

 
80

 

Manufacturing and warehouse
 
343

 

 
183

 

 

 

 
526

 

Research and development
 
167

 

 

 

 
28

 

 
195

 

Services
 
118

 
101

 
119

 

 
32

 

 
269

 
101

Sales, general and other administrative
 

 

 
12

 

 

 

 
12

 

Total square feet
 
708

 
101

 
314

 

 
60

 

 
1,082

 
101


Our headquarters also serves as a research and development site. Other major research and development locations include Cary, North Carolina; San Diego, California; Seoul, Korea; Tel Aviv, Israel; Valencia, California and Wilsonville, Oregon, among others. We believe our existing facilities and equipment are in good operating condition and are suitable for our business in the manner that it is currently conducted. We expect to continue to make investments in capital equipment as needed to meet anticipated demand for our products. See “Item 1. Business – Production and Supplies” and Notes 13 and 21 to the Consolidated Financial Statements for further discussion of our facilities.


Item 3. Legal Proceedings

Information relating to legal proceedings is included in Note 22 to the Consolidated Financial Statements in Item 8, which is incorporated by reference into this item 3.

Item 4. Mine Safety Disclosures

Not applicable.

21



PART II
Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities

Our common stock is listed on the New York Stock Exchange (“NYSE”) under the trading symbol “DDD.”

For information regarding securities authorized for issuance under our equity compensation plans, see Note 15 to the Consolidated Financial Statements contained in Item 8. We did not make any unregistered sales of equity securities in 2018.

As of February 15, 2019 , our outstanding common stock was held by approximately 1,100 s tockholders of record. This figure does not reflect the beneficial ownership of shares held in the nominee name.

Dividends

We do not currently pay, and have not paid, any dividends on our common stock, and we currently intend to retain any future earnings for use in our business. Any future determination as to the declaration of dividends on our common stock will be made at the discretion of the Board of Directors and will depend on our earnings, operating and financial condition, capital requirements and other factors deemed relevant by the Board of Directors, including the applicable requirements of the Delaware General Corporation Law, which provides that dividends are payable only out of surplus or current net profits.

The   payment of dividends on our common stock may be restricted by the provisions of credit agreements or other financing documents that we may enter into or the terms of securities that we may issue from time to time.  Currently, no such agreements or documents limit our declaration of dividends or payments of dividends, other than our $200.0 million 5-year term and revolving senior secured credit facility, which limits the amount of cash dividends that we may pay in any one fiscal year to $30.0 million.

Issuance of Unregistered Securities and Issuer Purchases of Equity Securities

We did not repurchase any of our equity securities during the year ended  2018 , except for unvested restricted stock awards repurchased or forfeited pursuant to our 2004 and 2015 Incentive Stock Plans. For information regarding the securities authorized for issuance under our equity compensation plans, see “Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters – Equity Compensation Plans” under Part III, Item 12 of this Form 10-K. Also see Note 15 to the Consolidated Financial Statements.

22



Issuer purchases of equity securities
໿

Total number of shares (or units) purchased
 
Average price paid per share (or unit)
 
Total number of shares (or units) purchased as part of publicly announced plans or programs
 
Maximum number (or approximate dollar value) of shares (or units) that may yet be purchased under the plans or programs
January 1, 2018 - January 31, 2018
12,433

 
9.69

 

 
$

February 1, 2018 - February 28, 2018
98,456

 
9.11

 

 

March 1, 2018 - March 31, 2018
3,966

 
11.51

 

 

April 1, 2018 - April 30, 2018
29,165

 
11.14

 

 

May 1, 2018 - May 31, 2018
48,711

 
12.66

 

 

June 1, 2018 - June 30, 2018
1,990

 
13.60

 

 

July 1, 2018 - July 31, 2018
113,978

 
13.09

 

 

August 1, 2018 - August 31, 2018
121,424

 
18.93

 

 

September 1, 2018 - September 30, 2018
6,449

 
18.69

 

 

October 1, 2018 - October 31, 2018
18,100

 
15.80

 

 

November 1, 2018 - November 31, 2018
43,526

 
12.65

 

 

December 1, 2018 - December 30, 2018
63,582

 
12.12

 

 

Total
561,780

(a)  
$
13.25

(b)  

 
$


(a)
Represents shares of common stock surrendered to the Company for payment of tax withholding obligations in connection with the vesting of restricted stock.

(b)
The average price paid reflects the average market value of shares withheld for tax purposes.


23



Stock Performance Graph 

The graph below shows, for the five years ended December 31, 2018 , the cumulative total return on an investment of $100 assumed to have been made on December 31, 2013 in our common stock. For purposes of the graph, cumulative total return assumes the reinvestment of all dividends. The graph compares such return with those of comparable investments assumed to have been made on the same date in (a) the NYSE Composite Index,  (b) the S&P 500 Information Technology Index (c) the S&P Mid-Cap 400 Index and (d) the S&P Small-Cap 600 Index which are published market indices with which we are sometimes compared.

Although total return for the assumed investment assumes the reinvestment of all dividends on December 31 of the year in which such dividends were paid, we paid no cash dividends on our common stock during the periods presented.

COMPARISON OF 5-YEAR CUMULATIVE TOTAL RETURN*
CHART-63E9B308054A5714829.JPG
*   Fiscal years ending December 31.
໿
໿
໿
໿

 
12/13
 
12/14
 
12/15
 
12/16
 
12/17
 
12/18
3D Systems Corporation
 
$
100

 
$
35

 
$
9

 
$
14

 
$
9

 
$
11

NYSE Composite Index
 
100

 
107

 
103

 
115

 
137

 
125

S&P 500 Information Technology Index
 
100

 
120

 
127

 
145

 
201

 
201

S&P Mid-Cap 400 Index
 
100

 
110

 
107

 
130

 
151

 
134

S&P Small-Cap 600 Index (a)
 
100

 
106

 
104

 
131

 
149

 
136

(a) The Company was moved from the S&P Mid-Cap 400 Index to the S&P Small-Cap 600 Index during the reporting period ending December 31, 2018 due the Company's change in market capitalization.


24



Item 6. Selected Financial Data 

The selected consolidated financial data set forth below for the five years ended December 31, 2018  have been derived from our historical Consolidated Financial Statements. You should read this information together with Management’s Discussion and Analysis of Financial Condition and Results of Operations, and our Consolidated Financial Statements and the notes thereto included in this Form 10-K.

 
Year ended December 31,
(in thousands, except per share amounts)
 
2018
 
2017
 
2016
 
2015
 
2014
Consolidated Statement of (Loss) Income Data:
 
 
 
 
 
 
 
 
 
 
Consolidated Revenue:
 
 
 
 
 
 
 
 
 
 
Products
 
$
259,124

 
$
222,750

 
$
238,011

 
$
271,078

 
$
297,781

Materials
 
170,091

 
168,846

 
156,839

 
150,740

 
158,859

Services
 
258,445

 
254,473

 
238,115

 
244,345

 
197,012

Total
 
687,660

 
646,069

 
632,965

 
666,163

 
653,652

Gross profit  
 
324,394

 
304,839

 
309,751

 
291,809

 
317,434

Impairment of goodwill and other intangible assets  (a)
 

 

 

 
537,179

 

(Loss) income from operations
 
(43,191
)
 
(53,973
)
 
(38,420
)
 
(641,924
)
 
26,315

Net (loss) income
 
(45,263
)
 
(65,323
)
 
(39,265
)
 
(663,925
)
 
11,946

Net (loss) income available to common stockholders
 
(45,505
)
 
(66,191
)
 
(38,419
)
 
(655,492
)
 
11,637

Net (loss) income available to common stockholders per share:
 
 

 
 

 
 

 
 

 
 

Basic and diluted
 
$
(0.41
)
 
$
(0.59
)
 
$
(0.35
)
 
$
(5.85
)
 
$
0.11


 
 

 
 

 
 

 
 

 
 

Consolidated Balance Sheet Data:
 
 

 
 

 
 

 
 

 
 

Working capital
 
$
233,414

 
$
231,293

 
$
302,545

 
$
286,996

 
$
432,864

Total assets
 
825,832

 
896,764

 
849,153

 
891,959

 
1,530,310

Current portion of debt and capitalized lease obligations
 
654

 
644

 
572

 
529

 
684

Long-term debt
 
25,000

 

 

 

 

Long-term portion of capitalized lease obligations
 
6,392

 
7,078

 
7,587

 
8,187

 
8,905

Total stockholders' equity
 
575,987

 
615,948

 
626,700

 
654,646

 
1,294,125


 
 

 
 

 
 

 
 

 
 

Other Data:
 
 

 
 

 
 

 
 

 
 

Depreciation and amortization
 
$
59,293

 
$
62,041

 
$
60,535

 
$
83,069

 
$
55,188

Interest expense
 
1,188

 
919

 
1,282

 
2,011

 
1,227

Capital expenditures
 
40,694

 
30,881

 
16,567

 
22,399

 
22,727



(a)
During the year ended December 31, 2015, non-cash, non-tax deductible Goodwill impairment charges equal to $382,271 and $61,388 were recorded for the Americas and EMEA, respectively, resulting from the annual impairment testing. Additionally during the year ended December 31, 2015, a non-cash Intangible asset charge equal to $93,520 was recorded arising from the Company's other intangible asset impairment testing.

25



Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations

The following discussion and analysis should be read together with the selected consolidated financial data and our Consolidated Financial Statements and notes thereto included in this Form 10-K. Certain statements contained in this discussion may constitute forward‑looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. These statements involve a number of risks, uncertainties and other factors that could cause actual results to differ materially from those reflected in any forward-looking statements, as discussed more fully in this Form 10-K. See “Forward-Looking Statements” and “Risk Factors” in Part I, Item 1A.

Overview and Strategy

We provide comprehensive 3D printing solutions, including 3D printers, materials, software, on demand manufacturing services and digital design tools. Our solutions support advanced applications in a wide range of industries and key verticals including healthcare, aerospace, automotive and durable goods. Our precision healthcare capabilities include simulation, Virtual Surgical Planning (“VSP™”), and printing of medical and dental devices, models, surgical guides and instruments. Our experience and expertise have proven vital to our development of an ecosystem and end-to-end digital workflow solutions which enable customers to optimize product designs, transform workflows, bring innovative products to market and drive new business models.

We are pursuing a strategy focused on offering a comprehensive ecosystem that provides solutions aimed at healthcare, dental, aerospace, automotive and durable goods verticals to address professional and industrial applications. We believe a shift in 3D printing from prototyping to also using additive manufacturing for production is underway. We are focused on innovation and new products to drive expansion into 3D production through improving durability, reliability, repeatability and total cost of operations of 3D printing solutions.

We have launched new 3D printers with increased speeds and capabilities as well as introduced materials with improved strength, durability, elasticity and high temperature capabilities, developments we believe are well suited for advanced and demanding applications. We have also expanded and strengthened our software portfolio to help enhance our customers’ workflows from digitize to design to simulate to manufacture, inspect and manage. We plan to continue to invest in development of hardware, software, materials and services to provide comprehensive solutions in plastics and metals to address significant market opportunities with a use-case by use-case approach, focusing on solving specific customer applications and needs within our targeted vertical markets.

To execute this strategy, we are focusing on an operating framework and go-to-market model that drives sustainable, long-term growth and profitability. We are balancing investments to support process improvements, infrastructure enhancements and focused innovation to transform the Company, while also driving an appropriate cost structure.  We expect to be able to support growth by prioritizing and focusing our resources, leveraging our technology and domain expertise and maintaining and expanding strong customer and partner relationships. As with any growth strategy, there can be no assurance that we will succeed in accomplishing our strategic initiatives.

Recent Developments

Throughout 2018, we launched several next generation additive manufacturing solutions, a range of materials and new software releases. In February 2018, we introduced the NextDent 5100, a Figure 4-based 3D printer specifically designed for dental labs, which we believe is a breakthrough product for digital dentistry in terms of cost and capabilities. At the same time, we launched several new materials, bringing the total number to 30 dental-specific materials for the NextDent 5100. Additionally we launched the FabPro 1000, a low cost, high productivity DLP-based 3D printer designed for dental and jewelry production as well as high functionality and throughput, industrial prototyping. We began shipping our next generation SLS printer, the ProX SLS 6100, with six production-grade materials to deliver superior part quality with greater efficiency and lower total cost of operation versus competitors. We launched the ProJet MJP 2500 IC designed to eliminate the cost and time of tooling and storage with 3D printed wax patterns that can be used seamlessly in existing foundry casting processes. We also commercialized Figure 4 stand alone and production solutions, innovative, high-speed production solutions capable of six sigma repeatability and matching injection molding part quality.

In June 2018, we announced a strategic partnership with GF Machining Solutions ("GF"), one of the world’s leading providers of complete solutions to the precision machining industry and to manufacturers of precision components. We believe this partnership greatly enhances our metals printing distribution, scalability and automation. In September 2018, we debuted the DMP Factory 500, the first joint solution developed as part of our partnership with GF. The DMP Factory 500 is optimized for scalability, repeatable high quality parts, high throughput and low total cost of operation with the ability to print the largest part diameter available today. We also began shipping the DMP Flex 350 and DMP Factory 350, designed for volume production of critical

26



components for industrial applications such as aerospace, healthcare, and transportation. Our DMP solutions offer durable and removable print modules, powder management modules, a broad range of metals materials and fully integrated 3DXpert software to help streamline the production of parts. All of the new products above were commercially available by December 31, 2018.

2018 Summary

Total consolidated revenue for the year ended December 31, 2018 increased by 6.4% , or $41.6 million , to $687.7 million , compared to $646.1 million for the year ended December 31, 2017 . These results reflect an increase in printers, materials and services revenue, as further discussed below.

For the year ended December 31, 2018 revenue from printers increased 24.5% to $153.7 million compared to $123.4 million in the prior year.

Healthcare revenue includes sales of products, materials and services for healthcare-related applications, including simulation, training, planning, 3D printing of anatomical models, surgical guides and instruments and medical and dental devices. For the year ended December 31, 2018 , healthcare revenue increased by 19.5% , to $225.5 million , and made up 32.8% of total revenue, compared to $188.7 million , or 29.2% of total revenue, for the year ended December 31, 2017 . The increase in healthcare revenue is driven by growth in products, including printers, materials and services, including virtual surgical planning and contract manufacturing services.

For the year ended December 31, 2018 , total software revenue, including haptics and scanners, from products and services increased 5.0% to   $96.3 million , and made up 14.0% of total revenue, compared to $91.7 million , or 14.2% of total revenue for the year ended December 31, 2017 .

Gross profit for the year ended December 31, 2018 increased by 6.4% , or $19.6 million , to $324.4 million , compared to $304.8 million for the year ended December 31, 2017 . Gross profit margin was 47.2% for the years ended December 31, 2018 and 2017 .

Operating expenses for the year ended December 31, 2018 increased by 2.4% , or $8.8 million , to $367.6 million , compared to $358.8 million for the year ended December 31, 2017 .  Selling, general and administrative expenses for the year ended December 31, 2018 increased by 3.1% , or $8.1 million , to $272.3 million , compared to   $264.2 million for the year ended December 31, 2017 ,  predominantly due to our investments in new product launches, go-to-market and IT infrastructure.

Research and development expenses for the year ended December 31, 2018 increased by 0.7% , or $0.7 million , to $95.3 million , compared to   $94.6 million for the year ended December 31, 2017 ,  predominantly due to investments related to the launch of several new products throughout 2018.  

Our operating loss for the year ended December 31, 2018 was $43.2 million , compared to an operating loss of $54.0 million for the year ended December 31, 2017 .

For the years ended December 31, 2018 and 2017 , we generated $4.8 million and $26.1 million of cash from operations, respectively, as further discussed below. In total, our unrestricted cash balance at December 31, 2018 and 2017 was $110.0 million and $136.3 million , respectively. The lower cash balance was the result of our investments in go-to-market, IT infrastructure, new product launches, and higher legal expenses related to compliance and regulatory matters and payments related to previous litigation settlements.


27



Results of Operations for 2018 ,   2017 and 2016

Comparison of revenue by geographic region

2018 compared to 2017

The following table sets forth the change in revenue by geographic region for the years ended December 31, 2018 and 2017 :

Table 1
(Dollars in thousands)
 
Americas
 
EMEA
 
Asia Pacific
 
Total
Revenue – 2017
 
$
333,776

 
51.7
 %
 
$
220,357

 
34.1
 %
 
$
91,936

 
14.2
%
 
$
646,069

 
100
 %
Change in revenue:
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

Volume
 
28,915

 
8.7
 %
 
18,458

 
8.4
 %
 
10,995

 
12.0
%
 
58,368

 
9.0
 %
Price/Mix
 
(20,978
)
 
(6.3
)%
 
(8,047
)
 
(3.7
)%
 
4,864

 
5.3
%
 
(24,161
)
 
(3.7
)%
Foreign currency translation
 
(948
)
 
(0.3
)%
 
6,694

 
3.0
 %
 
1,638

 
1.8
%
 
7,384

 
1.1
 %
Net change
 
6,989

 
2.1
 %
 
17,105

 
7.7
 %
 
17,497

 
19.1
%
 
41,591

 
6.4
 %
Revenue – 2018
 
$
340,765

 
49.6
 %
 
$
237,462

 
34.5
 %
 
$
109,433

 
15.9
%
 
$
687,660

 
100
 %

Consolidated revenue increased 6.4% , predominantly driven by higher sales volume across all geographic regions, including recently commercialized new 3D printers, partially offset by an unfavorable impact of price/mix in the Americas and EMEA regions, which was driven by product mix, and the unfavorable impact of foreign currency. The increased sales volume across all
geographic regions is due to higher demand from healthcare customers as well as a range of customers across other key verticals. The negative price/mix impact across the Americas and EMEA regions is driven by higher sales of lower priced printer models and mix of materials sales.

For the years ended December 31, 2018 and 2017 , revenue from operations outside the U.S., including Latin America, EMEA and APAC, was 51.6% and 50.1% of total revenue, respectively.

2017 compared to 2016

The following table sets forth the change in revenue by geographic region for the years ended December 31, 2017 and 2016 :

Table 2
(Dollars in thousands)
 
Americas
 
EMEA
 
Asia Pacific
 
Total
Revenue – 2016
 
$
340,885

 
53.9
 %
 
$
193,141

 
30.5
 %
 
$
98,939

 
15.6
 %
 
$
632,965

 
100
 %
Change in revenue:
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

Volume
 
3,808

 
1.1
 %
 
25,240

 
13.1
 %
 
11,281

 
11.4
 %
 
40,329

 
6.4
 %
Price/Mix
 
(11,420
)
 
(3.4
)%
 
(2,515
)
 
(1.3
)%
 
(17,809
)
 
(18.0
)%
 
(31,744
)
 
(5.0
)%
Foreign currency translation
 
503

 
0.1
 %
 
4,491

 
2.3
 %
 
(475
)
 
(0.5
)%
 
4,519

 
0.7
 %
Net change
 
(7,109
)
 
(2.2
)%
 
27,216

 
14.1
 %
 
(7,003
)
 
(7.1
)%
 
13,104

 
2.1
 %
Revenue – 2017
 
$
333,776

 
51.7
 %
 
$
220,357

 
34.1
 %
 
$
91,936

 
14.2
 %
 
$
646,069

 
100
 %

Consolidated revenue increased 2.1%, driven by higher sales volume in the EMEA and Asia Pacific regions as well as the favorable impact of foreign currency, offset by a shift in product mix and average selling price across all geographic regions.  The increase in revenue in the EMEA region primarily reflects higher sales volume, including the addition of Vertex and NextDent branded dental materials, and the favorable impact of foreign currency, partially offset by a shift in product mix and average selling price. The decrease in revenue in the Americas and Asia Pacific regions are primarily due to a shift in product mix and average selling price, partially offset by an increase in sales volume in the Asia Pacific region.

For the years ended December 31, 2017 and 2016, revenue from operations outside the U.S., including Latin America, EMEA and APAC, was 50.1% and 47.9%  of total revenue, respectively.


28



Comparison of revenue by class

We earn revenue from the sale of products, materials and services. The products category includes 3D printers, healthcare simulators and digitizers, as well as software, 3D scanners and haptic devices. The materials category includes a wide range of materials to be used with our 3D printers, the majority of which are proprietary, as well as acquired conventional dental materials. The services category includes warranty and maintenance on 3D printers and simulators, software maintenance, on demand manufacturing solutions and healthcare services.

Due to the relatively high price of certain 3D printers and a corresponding lengthy selling cycle and relatively low unit volume of the higher priced printers in any particular period, a shift in the timing and concentration of orders and shipments from one period to another can affect reported revenue in any given period. Revenue reported in any particular period is also affected by timing of revenue recognition under rules prescribed by U.S. generally accepted accounting principles (“GAAP”).

In addition to changes in sales volumes and the impact of revenue from acquisitions, there are two other primary drivers of changes in revenue from one period to another: (1) the combined effect of changes in product mix and average selling prices, sometimes referred to as price and mix effects, and (2) the impact of fluctuations in foreign currencies. As used in this Management’s Discussion and Analysis, the price and mix effects relate to changes in revenue that are not able to be specifically related to changes in unit volume.

2018 compared to 2017

The following table sets forth the change in revenue by class for the years ended December 31, 2018 and 2017 .

Table 3
໿
໿
(Dollars in thousands)
 
Products
 
Materials
 
Services
 
Totals
Revenue – 2017
 
$
222,750

 
34.5
 %
 
$
168,846

 
26.1
 %
 
$
254,473

 
39.4
%
 
$
646,069

 
100.0
 %
Change in revenue:
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

Volume
 
43,208

 
19.4

 
13,870

 
8.2

 
1,290

 
0.5

 
58,368

 
9.0

Price/Mix
 
(8,656
)
 
(3.9
)
 
(15,505
)
 
(9.2
)
 

 

 
(24,161
)
 
(3.7
)
Foreign currency translation
 
1,822

 
0.8

 
2,880

 
1.7

 
2,682

 
1.1

 
7,384

 
1.1

Net change
 
36,374

 
16.3

 
1,245

 
0.7

 
3,972

 
1.6

 
41,591

 
6.4

Revenue – 2018
 
$
259,124

 
37.7
 %
 
$
170,091

 
24.7
 %
 
$
258,445

 
37.6
%
 
$
687,660

 
100.0
 %

Consolidated revenue increased 6.4% , predominantly driven by higher sales volume across all revenue categories, including the
impact of new printers launched in 2018, and the favorable impact of foreign currency, partially offset by a shift in sales mix which impacted average selling price for both products and materials.

Products revenue increased due to higher demand from healthcare and a wide range of other key verticals and for products across our portfolio, including the recently commercialized new products; partially offset by changes in sales mix which impacted average selling prices, including the impact of higher sales of lower priced printers. Revenue from printers increased 24.5% to $153.7 million for the year ended December 31, 2018 compared to $123.4 million in the prior year. For the year ended December 31, 2018, software revenue included in the products category, including scanners and haptic devices, contributed $51.7 million , an increase of 8.2% , compared to $47.8 million for the year ended December 31, 2017.

The increase in materials revenue for the year ended December 31, 2018 primarily reflects demand for materials driven by healthcare and industrial customers for our core and new materials, coupled with a favorable impact from foreign currency. The unfavorable price/mix impact is primarily driven by mix of sales during the year, including the impacts of product mix, geographic sales mix and volume purchase pricing.

The increase in services revenue for the year ended December 31, 2018 was primarily driven by growth in healthcare, on demand manufacturing and software services revenue. Despite headwinds related to export compliance and changes in on demand outsourcing procedures and strategy in the second half of 2018, on demand manufacturing services revenue increased 2.2% to $107.1 million for the year ended December 31, 2018, compared to $104.7 million for the year ended December 31, 2017. For the years ended December 31, 2018 and 2017, software revenue included in the services category contributed $44.6 million and $43.9 million , respectively.


29



2017 compared to 2016

The following table sets forth the change in revenue by class for the years ended December 31, 2017 and 2016

Table 4
(Dollars in thousands)
 
Products
 
Materials
 
Services
 
Totals
Revenue – 2016
 
$
238,011

 
37.6
 %
 
$
156,839

 
24.8
 %
 
$
238,115

 
37.6
%
 
$
632,965

 
100
 %
Change in revenue:
 
 

 


 
 

 
 

 
 

 
 

 
 

 
 

Volume
 
(2,316
)
 
(1.0
)
 
27,501

 
17.5

 
15,144

 
6.4

 
40,329

 
6.4

Price/Mix
 
(15,979
)
 
(6.7
)
 
(15,765
)
 
(10.1
)
 

 

 
(31,744
)
 
(5.0
)
Foreign currency translation
 
3,034

 
1.3

 
271

 
0.2

 
1,214

 
0.5

 
4,519

 
0.7

Net change
 
(15,261
)
 
(6.4
)
 
12,007

 
7.6

 
16,358

 
6.9

 
13,104

 
2.1

Revenue – 2017
 
$
222,750

 
34.5
 %
 
$
168,846

 
26.1
 %
 
$
254,473

 
39.4
%
 
$
646,069

 
100
 %

Consolidated revenue increased 2.1%, driven by increased sales volume in both materials and services as well as the favorable impact of foreign currency, offset by a shift in product mix and average selling prices.

Products revenue decreased due to changes in product mix and average selling prices, including a shift in demand for lower priced printers and a moderate decrease in sales volume.  For the years ended December 31, 2017 and 2016, revenue from printers contributed  $123.4 million and $133.3 million, respectively. Software revenue included in the products category, including scanners and haptic devices, contributed $47.8 million and $44.5 million for the years ended December 31, 2017 and 2016, respectively.

The increase in materials revenue reflects continued utilization by the installed base and demand from healthcare customers, including acquired Vertex and NextDent dental materials. This increased demand was partially offset by a decrease related to a shift in product mix and average selling prices.

Services revenue increased primarily due to higher demand for healthcare services. For the years ended December 31, 2017 and 2016, revenue from on demand manufacturing services contributed $104.6 million and $104.4 million, respectively. For the years ended December 31, 2017 and 2016, software services revenue contributed $43.9 million and $43.2 million, respectively.

Gross profit and gross profit margins

2018 compared to 2017

The following table sets forth gross profit and gross profit margins for the years ended December 31, 2018 and 2017 .

Table 5

 
Year Ended December 31,
 
 
 
 
 
 
 
 

 
2018
 
2017
 
Change in Profit
 
Change in Gross Profit Margin
(Dollars in thousands)
 
Gross Profit
 
Gross Profit Margin
 
Gross Profit
 
Gross Profit Margin
 
$
 
%
 
Percentage Points
 
%
Products
 
$
79,928

 
30.8
%
 
$
52,136

 
23.4
%
 
$
27,792

 
53.3
 %
 
7.4

 
31.6
 %
Materials
 
119,494

 
70.3
%
 
123,014

 
72.9
%
 
(3,520
)
 
(2.9
)%
 
(2.6
)
 
(3.6
)%
Services
 
124,972

 
48.4
%
 
129,689

 
51.0
%
 
(4,717
)
 
(3.6
)%
 
(2.6
)
 
(5.1
)%
Total
 
$
324,394

 
47.2
%
 
$
304,839

 
47.2
%
 
$
19,555

 
6.4
 %
 

 
 %

The increase in total consolidated gross profit is due to the increase in product sales, primarily higher sales of printers. In addition, the inventory adjustment discussed below had a negative impact on margins in the comparable period for the prior year.

Products gross profit margin increased, primarily due to inventory adjustments totaling $12.9 million in 2017 that were a result of a comprehensive review of our portfolio and inventory and related primarily to legacy plastics printers, refurbished and used metals printers and parts having minimal or no use over extended periods, and a small increase in gross profit margin as a result of ongoing supply chain cost reduction efforts. Gross profit margin for materials decreased, reflecting the unfavorable impact of

30



mix driven by geographic sales mix and product mix. Gross profit margin for services decreased, driven by lower on demand manufacturing margin which was partially offset by improved margins for software and maintenance services. On demand manufacturing services gross profit margin decreased to 35.9% for the year ended December 31, 2018, compared to 43.1% for the year ended December 31, 2017 due to mix of sales and lower utilization as we invested in several facilities globally to upgrade and expand capacity while at the same time exiting certain other facilities.

2017 compared to 2016

The following table sets forth gross profit and gross profit margins for the years ended December 31, 2017 and 2016 .

Table 6

 
Year Ended December 31,
 
 
 
 
 
 
 
 

 
2017
 
2016
 
Change in Gross Profit
 
Change in Gross Profit Margin
(Dollars in thousands)
 
Gross Profit
 
Gross Profit Margin
 
Gross Profit
 
Gross Profit Margin
 
$
 
%
 
Percentage Points
 
%
Products
 
$
52,136

 
23.4
%
 
$
62,998

 
26.5
%
 
$
(10,862
)
 
(17.2
)%
 
(3.1
)
 
(11.7
)%
Materials
 
123,014

 
72.9
%
 
121,030

 
77.2
%
 
1,984

 
1.6
 %
 
(4.3
)
 
(5.6
)%
Services
 
129,689

 
51.0
%
 
125,723

 
52.8
%
 
3,966

 
3.2
 %
 
(1.8
)
 
(3.4
)%
Total
 
$
304,839

 
47.2
%
 
$
309,751

 
48.9
%
 
$
(4,912
)
 
(1.6
)%
 
(1.7
)
 
(3.5
)%

The decrease in total consolidated gross profit is predominantly driven by changes in product mix. Also contributing to the decrease were the inventory adjustments totaling $12.9 million in 2017 versus adjustments of $10.7 million in the same period of 2016. The 2017 inventory adjustment resulted from a comprehensive review of our portfolio and inventory during the year ended December 31, 2017. The 2017 inventory adjustment primarily related to legacy plastics printers, refurbished and used metals printers and parts that have shown little to no use over extended periods. The majority of this adjustment relates to the products category. Gross profit for materials decreased primarily due to the addition of Vertex’s conventional dental materials, which are lower gross profit margin than 3D printing materials.  Gross profit margin for services decreased due to lower gross profit margins in printer services as we invested in addressing legacy issues and building out our service model, which offset the benefit of higher demand for healthcare services. On demand manufacturing services gross profit margin remained flat at 43.1% for the year ended December 31, 2017, compared to 43.0% for the year ended December 31, 2016.

Operating expenses

2018 compared to 2017

The following table sets forth the components of operating expenses for the years ended December 31, 2018 and 2017 .

Table 7
 
 
Year Ended December 31
 
 
 
 
 
 
2018
 
2017
 
Change
(Dollars in thousands)
 
Amount
 
% Revenue
 
Amount
 
% Revenue
 
$
 
%
Selling, general and administrative expenses
 
$
272,287

 
39.6
%
 
$
264,185

 
40.9
%
 
$
8,102

 
3.1
%
Research and development expenses
 
95,298

 
13.9
%
 
94,627

 
14.6
%
 
671

 
0.7
%
Total operating expenses
 
$
367,585

 
53.5
%
 
$
358,812

 
55.5
%
 
$
8,773

 
2.4
%

Selling, general and administrative expenses increased due to additional employee related costs, in particular to support selling & marketing activities incurred in connection with the launch of new products during 2018, continued investment in IT infrastructure, and higher legal expenses; partially offset by a reduction in outside services costs.

Research and development expenses remained relatively flat as our increased investment in our workforce was offset by a reduction in outside services costs and a reduced materials spend related to products which have been brought to market during 2018.

31





2017 compared to 2016

The following table sets forth the components of operating expenses for the years ended December 31, 2017 and 2016 .

Table 8
 
 
Year Ended December 31,
 
 
 
 
 
 
2017
 
2016
 
Change
(Dollars in thousands)
 
Amount
 
% Revenue
 
Amount
 
% Revenue
 
$
 
%
Selling, general and administrative expenses
 
$
264,185

 
40.9
%
 
$
259,776

 
41.0
%
 
$
4,409

 
1.7
%
Research and development expenses
 
94,627

 
14.6
%
 
88,395

 
14.0
%
 
6,232

 
7.1
%
Total operating expenses
 
$
358,812

 
55.5
%
 
$
348,171

 
55.0
%
 
$
10,641

 
3.1
%

Selling, general and administrative expenses increased primarily due to our investments in go-to-market and IT infrastructure and additional talent and resources, as well as repairs and maintenance costs, offset by lower stock compensation expense due to the impact of adopting a new accounting standard which resulted in a change in our policy for accounting for award forfeitures.

Research and development expenses increased due to focused innovation to drive customers’ shift to 3D production, including investment in plastics, in particular our Figure 4 platform, metals, materials and software as well as the addition of talent and resources. Research and development for 2016 included $4.6 million of expense related to charges and write-offs in connection with our updated strategy and project reprioritization.

Income (loss) from operations

The following table sets forth income (loss) from operations by geographic region for the years ended December 31, 2018 ,   2017 and 2016 .

Table 9

 
Year Ended December 31,
(Dollars in thousands)
 
2018
 
2017
 
2016
Income (loss) from operations
 
 
 
 
 
 
Americas
 
$
(69,081
)
 
$
(79,429
)
 
$
(64,377
)
EMEA
 
5,283

 
7,483

 
6,016

Asia Pacific
 
20,607

 
17,973

 
19,941

Total
 
$
(43,191
)
 
$
(53,973
)
 
$
(38,420
)

 See  “ Gross profit and gross profit margins ” and “ Operating expenses ” above.




32



Interest and other expenses, net

The following table sets forth the components of interest and other expenses, net, for the years ended December 31, 2018 ,   2017 and 2016 .

Table 10

 
Year Ended December 31,
(Dollars in thousands)
 
2018
 
2017
 
2016
Interest and other expense, net:
 
 
 
 
 
 
Foreign exchange (gain) loss
 
$
(3,011
)
 
$
908

 
$
(94
)
Interest expense, net
 
399

 
135

 
475

Other expense, net
 
2,649

 
2,505

 
1,011

Interest and other expense, net
 
$
37

 
$
3,548

 
$
1,392


The decrease for the year ended December 31, 2018 , as compared to the year ended December 31, 2017 , is primarily due to the favorable impact of foreign currency.  

The increase for the year ended December 31, 2017 , as compared to the year ended December 31, 2016 , is attributable to impairment charges related to certain cost method investments and an unfavorable impact of foreign currency.

See Note 2 to the Consolidated Financial Statements.

Benefit and provision for income taxes 

We recorded a $2.0 million and $7.8 million provision for income taxes for the years ended December 31, 2018 and 2017 , respectively. In 2016 , we recorded a benefit for income taxes of $0.5 million .

In 2018 , our provision reflected $5.9 million in U.S. tax benefit and $7.9 million in foreign jurisdictions tax expense. In 2017 , our provision reflected $1.8 million in U.S. tax expense and $6.0 million in foreign jurisdictions tax expense. In 2016 , the benefit primarily reflected a $3.3 million U.S. tax benefit and $2.8 million of tax expense in foreign jurisdictions.

During 2018 and 2017 , we concluded that it is more likely than not that our deferred tax assets will not be realized in certain jurisdictions, including the U.S. and certain foreign jurisdictions; therefore, we have a valuation allowance recorded against our deferred tax assets on our consolidated balance sheets totaling $95.4 million and $80.8 million as of December 31, 2018 and 2017 , respectively.

For further discussion, see Notes 2 and  20 to the Consolidated Financial Statements.


33



Net loss attributable to 3D Systems

2018 compared to 2017

The following table sets forth the primary components of net loss attributable to 3D Systems for the years ended December 31, 2018 and 2017 .

Table 11

 
Year Ended December 31,
 
 
(Dollars in thousands)
 
2018
 
2017
 
Change
Operating loss
 
$
(43,191
)
 
$
(53,973
)
 
$
10,782

Less:
 
 

 
 

 


Interest and other expense, net
 
37

 
3,548

 
3,511

Provision (benefit) for income taxes
 
2,035

 
7,802

 
5,767

Net loss attributable to noncontrolling interests
 
242

 
868

 
626

Net loss attributable to 3D Systems
 
$
(45,505
)
 
$
(66,191
)
 
$
20,686


 
 

 
 

 
 
Weighted average shares, basic and diluted
 
112,327

 
111,554

 
 
Loss per share, basic and diluted
 
$
(0.41
)
 
$
(0.59
)
 
 

The decrease for the year ended December 31, 2018 as compared to the year ended December 31, 2017 is primarily due to a decrease in loss from operations and interest and other expense. See “ Gross profit and gross profit margins ” and “ Operating expenses ” above.

2017 compared to 2016

The following table sets forth the primary components of net loss attributable to 3D Systems for the years ended December 31, 2017 and 2016 .

Table 12

 
Year Ended December 31,
 
 
(Dollars in thousands)
 
2017
 
2016
 
Change
Operating loss
 
$
(53,973
)
 
$
(38,420
)
 
$
(15,553
)
Less:
 
 

 
 

 
 

Interest and other expense, net
 
3,548

 
1,392

 
2,156

Provision (benefit) for income taxes
 
7,802

 
(547
)
 
8,349

Net loss attributable to noncontrolling interests
 
868

 
(846
)
 
1,714

Net loss attributable to 3D Systems
 
$
(66,191
)
 
$
(38,419
)
 
$
(27,772
)

 
 

 
 

 
 
Weighted average shares, basic and diluted
 
111,554

 
111,189

 
 
Loss per share, basic and diluted
 
$
(0.59
)
 
$
(0.35
)
 
 

The increase for the year ended December 31, 2017 as compared to the year ended December 31, 2016, is primarily due to a decrease in gross profit, an increase in selling, general and administrative expenses due to investment in go to market and IT infrastructure, an increase in research and development expenses due to our continued investment in plastics, including our Figure 4 platform, metals, materials and software,  and the effect of income taxes; which combined to offset the increase in revenue. See “ Comparison of revenue by geographic region ,”  “ Gross profit and gross profit margins, ” and “ Operating expenses ” above.


34



Liquidity and Capital Resources

Table 13
 
 
For the Year Ended December 31,
 
Change
(Dollars in thousands)
 
2018
 
2017
 
$
 
%
Cash and cash equivalents
 
$
109,998

 
$
136,344

 
$
(26,346
)
 
(19.3
)%
Accounts receivable, net
 
126,618

 
129,879

 
(3,261
)
 
(2.5
)%
Inventories
 
133,161

 
103,903

 
29,258

 
28.2
 %

 
369,777

 
370,126

 
(349
)
 
 

Less:
 
 

 
 

 
 

 
 

Current portion of capitalized lease obligations
 
654

 
644

 
10

 
1.6
 %
Accounts payable
 
66,722

 
55,607

 
11,115

 
20.0
 %
Accrued and other liabilities
 
59,265

 
65,899

 
(6,634
)
 
(10.1
)%

 
126,641

 
122,150

 
4,491

 
 

Operating working capital
 
$
243,136

 
$
247,976

 
$
(4,840
)
 
(2.0
)%

We assess our liquidity in terms of our ability to generate cash to fund our operating, investing and financing activities. In doing so, we review and analyze our current cash on hand, the number of days our sales are outstanding, inventory turns, capital expenditure commitments and accounts payable turns. Our cash requirements primarily consist of funding of working capital and funding of capital expenditures.

Cash flow from operations, cash and cash equivalents, and other sources of liquidity such as bank credit facilities and issuing equity or debt securities, are expected to be available and sufficient to meet foreseeable cash requirements. During the fourth quarter of 2018, we drew $25 million on our revolving credit line to support working capital and general corporate purposes.

Cash held outside the U.S. at December 31, 2018 was $73.3 million , or 66.7% of total cash and equivalents, compared to $88.9 million, or 65.2% of total cash and equivalents at December 31, 2017 . Cash held outside the U.S. is used in our foreign operations for working capital purposes and is considered to be permanently invested. Cash equivalents are comprised of funds held in money market instruments and are reported at their current carrying value, which approximates fair value due to the short term nature of these instruments. We strive to minimize our credit risk by investing primarily in investment grade, liquid instruments and limit exposure to any one issuer depending upon credit quality. See “ Cash flow ”,  “ Credit facilities ” and “ Capitalized lease obligations ” below.

We acquired one business, Vertex, in 2017 for consideration of approximately $37.6 million, net of cash assumed, related to expanding our healthcare solutions portfolio, particularly within the dental vertical. Consideration consisted of approximately $34.3 in cash, net of cash assumed, and approximately $3.2 million in shares of the Company’s common stock. 

Days sales outstanding was 69 days at December 31, 2018 compared to 73 days at December 31, 2017 , while accounts receivable more than 90 days past due decreased to 8.9% of gross receivables at December 31, 2018 , from 9.1% at December 31, 2017 . We review specific receivables periodically to determine the appropriate reserve for accounts receivable.

The majority of our inventory consists of finished goods, including products, materials and service parts. Inventory also consists of raw materials for certain printers and service products.

The changes that make up the other components of working capital not discussed above resulted from the ordinary course of business. Differences between the amounts of working capital item changes in the cash flow statement and the balance sheet changes for the corresponding items are primarily the result of foreign currency translation adjustments.


35



Cash Flow

The following tables set forth components of cash flow for the years ended December 31, 2018 ,   2017 and 2016 .

Table 14

 
Year Ended December 31,
(Dollars in thousands)
 
2018
 
2017
 
2016
Net cash provided by operating activities
 
$
4,796

 
$
26,127

 
$
57,483

Net cash used in investing activities
 
(41,827
)
 
(70,659
)
 
(21,882
)
Net cash provided by (used in) financing activities
 
14,264

 
(9,188
)
 
(3,926
)
Effect of exchange rate changes on cash and cash equivalents
 
(3,145
)
 
5,303

 
(2,369
)
Net (decrease) increase in cash and cash equivalents
 
$
(25,912
)
 
$
(48,417
)
 
$
29,306


Cash flow from operations

Table 15

 
Year Ended December 31,
(Dollars in thousands)
 
2018
 
2017
 
2016
Net loss
 
$
(45,263
)
 
$
(65,323
)
 
$
(39,265
)
Non-cash charges
 
89,378

 
100,095

 
107,952

Changes in working capital and all other operating assets
 
(39,319
)
 
(8,645
)
 
(11,204
)
Net cash provided by operating activities
 
$
4,796

 
$
26,127

 
$
57,483


Cash provided by operating activities for 2018 , 2017 and 2016 was $4.8 million , $26.1 million and $57.5 million , respectively. Excluding non-cash charges, net income provided cash of $44.1 million in 2018 , $34.8 million in 2017 and $68.7 million in 2016 . Non-cash charges generally consist of depreciation, amortization, stock-based compensation and inventory adjustments.

Working capital requirements used cash of $39.3 million in 2018 , $8.6 million in 2017 and $11.2 million in 2016 . Spend on inventory was the primary driver of the working capital outflows in all years and it was partially offset by other working capital items.  

Cash flow from investing activities

Table 16

 
Year Ended December 31,
(Dollars in thousands)
 
2018
 
2017
 
2016
Cash paid for acquisitions, net of cash assumed
 
$

 
$
(34,291
)
 
$

Purchases of property and equipment
 
(40,694
)
 
(30,881
)
 
(16,567
)
Additions to license and patent costs
 
(970
)
 
(1,159
)
 
(1,132
)
Purchase of noncontrolling interest
 

 
(2,250
)
 
(3,533
)
Proceeds from disposition of property and equipment
 
333

 
273

 
350

Other investing activities
 
(496
)
 
(2,351
)
 
(1,000
)
Net cash used in investing activities
 
$
(41,827
)
 
$
(70,659
)
 
$
(21,882
)

Cash used by investing activities was $41.8 million in 2018 , $70.7 million in 2017 and $21.9 million in 2016 . The primary outflows of cash were acquisitions and capital expenditures.

Growth in capital expenditures is driven by our continued investment in our facilities for new product development efforts, including our Customer Innovation Centers, on demand facilities and IT infrastructure.

36




Acquisitions

As noted above, we acquired Vertex in 2017.

We made no acquisitions during the years ended December 31, 2018 and 2016.

Cash flow from financing activities

Table 17

 
Year Ended December 31,
(Dollars in thousands)
 
2018
 
2017
 
2016
Proceeds from borrowings
 
$
25,000

 
$

 
$

Payments related to net-share settlement of stock-based compensation
 
(7,367
)
 
(5,545
)
 
(2,871
)
Payments on earnout consideration
 
(2,675
)
 
(3,206
)
 

Repayment of capital lease obligations
 
(694
)
 
(437
)
 
(1,055
)
Net cash provided by (used in) financing activities
 
$
14,264

 
$
(9,188
)
 
$
(3,926
)

Cash provided by (used in) financing activities was $14.3 million in 2018 , $(9.2) million in 2017 and $(3.9) million in 2016 . The primary source of cash was a $25.0 million draw on our revolving credit line in the fourth quarter of 2018, offset by outflows of cash related to the settlement of stock-based compensation and payments on earnout provisions during the years ended 2018 and 2017 . The primary outflows of cash in 2016 relate to the settlement of stock-based compensation and repayment of capital lease obligations.

Off-Balance Sheet Arrangements

We have no off-balance sheet arrangements and do not utilize any “structured debt,” “special purpose,” or similar unconsolidated entities for liquidity or financing purposes.

Contractual Obligations and Commercial Commitments

The table below summarizes our contractual obligations as of December 31, 2018 .

Table 18

 
Years Ending December 31,
(Dollars in thousands)
 
2019
 
2020-2021
 
2022-2023
 
Later Years
 
Total
Capitalized lease obligations
 
$
1,099

 
$
1,747

 
$
1,504

 
$
5,990

 
$
10,340

Debt obligations
 
25,000

 

 

 

 
25,000

Non-cancelable operating leases (a)
 
15,123

 
16,150

 
10,942

 
7,707

 
49,922

Purchase commitments (b)
 
54,972

 

 

 

 
54,972

Total
 
$
96,194

 
$
17,897

 
$
12,446

 
$
13,697

 
$
140,234


(a)
We lease certain facilities under non-cancelable operating leases expiring through 2027. The leases are generally on a net-rent basis, under which we pay taxes, maintenance and insurance.
(b)
Includes amounts committed under legally enforceable agreements for goods and services with defined terms as to quantity, price and timing of delivery. For further discussion, see Note 22 to the Consolidated Financial Statements.

Other Contractual Commitments

Credit facilities

In October 2014, we entered into a $150.0 million 5-year revolving, unsecured credit facility (the "Prior Credit Agreement"). As of December 31, 2018 there was $25.0 million outstanding balance under the Prior Credit Agreement and no outstanding balance as of December 31, 2017 . The Prior Credit Agreement contained customary covenants, some of which required the Company to

37



maintain certain financial ratios that determined the amounts available and terms of borrowings and events of default. The Company was in compliance with all covenants at both December 31, 2018 and December 31, 2017 . The Prior Credit Agreement was terminated on February 27, 2019. See Note 12 to the Consolidated Financial Statements.

On February 27, 2019, we entered into a 5-year $100.0 million senior secured term loan facility (the “Term Facility”) and a 5-year $100.0 million senior secured revolving credit facility (the “Revolving Facility” and, together with the Term Facility, the “Senior Credit Facility”), which replaced the Prior Credit Agreement. Borrowings under the Senior Credit Facility were used to refinance the existing indebtedness under the Prior Credit Agreement and will be used to support working capital and for general corporate purposes. For further discussion of the Senior Credit Facility, see Item 9B and Note 12 to the Consolidated Financial Statements.

Redeemable noncontrolling interests

The minority interest shareholders of a certain subsidiary have the right to require us to acquire either a portion of or all ownership interest under certain circumstances pursuant to a contractual arrangement, and we have a similar call option under the same contractual terms. The amount of consideration under the put and call rights is not a fixed amount, but rather is dependent upon various valuation formulas and on future events, such as revenue and gross margin performance of the subsidiary through the date of exercise, as described in Note 22 to the Consolidated Financial Statements. Management estimates, assuming that the subsidiary owned by us at December 31, 2018 performs at its forecasted earnings levels, that these rights, if exercised, could require us to pay an amount of approximately $8.9 million to the owners of such put rights. This amount has been recorded as redeemable noncontrolling interests on the balance sheet at December 31, 2018 and 2017 and would be payable in 2019, if exercised.

Indemnification

In the normal course of business we periodically enter into agreements to indemnify customers or suppliers against claims of intellectual property infringement made by third parties arising from the use of our products. Historically, costs related to these indemnification provisions have not been significant. We are unable to estimate the maximum potential impact of these indemnification provisions on our future results of operations.

To the extent permitted under Delaware law, we indemnify our directors and officers for certain events or occurrences while the director or officer is, or was, serving at our request in such capacity, subject to limited exceptions. The maximum potential amount of future payments we could be required to make under these indemnification obligations is unlimited; however, we have directors’ and officers’ insurance coverage that may enable us to recover future amounts paid, subject to a deductible and to the policy limits.

Financial Instruments

We conduct business in various countries using both the functional currencies of those countries and other currencies to effect cross border transactions. As a result, we are subject to the risk that fluctuations in foreign exchange rates between the dates that those transactions are entered into and their respective settlement dates will result in a foreign exchange gain or loss. When practicable, we endeavor to match assets and liabilities in the same currency on our balance sheet and those of our subsidiaries in order to reduce these risks. We also, when we consider it to be appropriate, enter into foreign currency contracts to hedge exposures arising from those transactions. The Company had $75.3 million and $39.6 million in notional foreign exchange contracts outstanding as of December 31, 2018 and 2017 , respectively. The fair value of these contracts was not material.

We do not hedge for trading or speculative purposes, and our foreign currency contracts are generally short-term in nature, typically maturing in 90 days or less. We have elected not to prepare and maintain the documentation to qualify for hedge accounting treatment under ASC 815, “ Derivatives and Hedging ,” and therefore, we recognize all gains and losses (realized or unrealized) in interest and other expense, net in our Consolidated Statements of Operations and Other Comprehensive Loss.
 
Changes in the fair value of derivatives are recorded in interest and other expense, net, in our Consolidated Statements of Operations and Other Comprehensive Loss. Depending on their fair value at the end of the reporting period, derivatives are recorded either in prepaid and other current assets or in accrued liabilities in our Consolidated Balance Sheets.

See Note 11 to the Consolidated Financial Statements.


38



Critical Accounting Policies and Significant Estimates 

We prepare our consolidated financial statements in accordance with U.S. Generally Accepted Accounting Principles (GAAP). In doing so, we have to make estimates and assumptions that affect our reported amounts of assets, liabilities, revenues, expenses, gains and losses, as well as related disclosure of contingent assets and liabilities. In some cases, we could reasonably have used different accounting policies and estimates. In some cases, changes in the accounting estimates are reasonably likely to occur from period to period. Accordingly, actual results could differ materially from our estimates. To the extent that there are material differences between these estimates and actual results, our financial condition or results of operations will be affected. We base our estimates on past experience and other assumptions that we believe are reasonable under the circumstances, and we evaluate these estimates on an ongoing basis. We refer to accounting estimates of this type as critical accounting policies and estimates, which we discuss further below. We have reviewed our critical accounting policies and estimates with the audit committee of our board of directors.
Please see Notes to Consolidated Financial Statements included in Part II, Item 8 of this Annual Report on Form 10-K for a summary of significant accounting policies and the effect on our financial statements.

Revenue recognition

Revenue is recognized when control of the promised products or services is transferred to customers in an amount that reflects the consideration the Company expects to receive in exchange for those products or services. A majority of the Company’s revenue is recognized at the point in time when products are shipped or services are delivered to customers.

The Company enters into contracts that can include various combinations of products and services, which are generally capable of being distinct and accounted for as separate performance obligations. Many of its contracts with customers include multiple performance obligations. For such arrangements, the Company allocates revenue to each performance obligation based on its relative standalone selling price (“SSP”). Judgment is required to determine the SSP for each distinct performance obligation in a contract. For the majority of items, the Company estimates SSP using historical transaction data. The Company uses a range of amounts to estimate SSP when we sell each of the products and services separately and need to determine whether there is a discount to be allocated based on the relative SSP of the various products and services. In instances where SSP is not directly observable, such as when the product or service is not sold separately, the Company determines the SSP using information that may include market conditions and other observable inputs.

In some circumstances, the Company has more than one SSP for individual products and services due to the stratification of those products and services by customers, geographic region or other factors. In these instances, the Company may use information such as the size of the customer and geographic region in determining the SSP.

The determination of SSP is an ongoing process and information is reviewed regularly in order to ensure SSP reflects the most current information or trends.

The nature of the Company’s marketing incentives may lead to consideration that is variable. Judgment is exercised at contract inception to determine the most likely outcome of the contract and resulting transaction price. Ongoing assessments are performed to determine if updates are needed to the original estimates.

See Notes 2 and 4, "Revenue" to the Consolidated Financial Statements.

Allowance for doubtful accounts 

In evaluating the collectability of our accounts receivable, we assess a number of factors, including specific customers’ abilities to meet their financial obligations to us, the length of time receivables are past due and historical collection experience. Based on these assessments, we may record a reserve for specific customers, as well as a general reserve and allowance for returns and discounts. If circumstances related to specific customers change, or economic conditions deteriorate such that our past collection experience is no longer relevant, our estimate of the recoverability of our accounts receivable could be further reduced from the levels provided for in the Consolidated Financial Statements.

We evaluate specific accounts for which we believe a customer may have an inability to meet their financial obligations (for example, aging over 90 days past due or bankruptcy). In these cases, we use our judgment, based on available facts and circumstances, and record a specific reserve for that customer to reduce the receivable to an amount we expect to collect. These specific reserves are re-evaluated and adjusted as additional information is received that impacts the amount reserved. 

39




Income taxes 

We are subject to income taxes in the U.S. and foreign jurisdictions. Significant judgment is required in evaluating our uncertain tax positions and determining our provision for income taxes.

Although we believe we have adequately reserved for our uncertain tax positions, no assurance can be given that the final tax outcome of these matters will not be different. We adjust these reserves in light of changing facts and circumstances, such as the closing of a tax audit or the refinement of an estimate. To the extent that the final tax outcome of these matters is different than the amounts recorded, such differences will affect the provision for income taxes and the effective tax rate in the period in which such determination is made.

The provision for income taxes includes the effect of reserve provisions and changes to reserves that are considered appropriate as well as the related net interest and penalties. In addition, we are subject to the continuous examination of our income tax returns by the Internal Revenue Services ("IRS") and other tax authorities which may assert assessments against us. We regularly assess the likelihood of adverse outcomes resulting from these examinations and assessments to determine the adequacy of our provision for income taxes.

Inventories    

Inventories are stated at the lower of cost or net realizable value, with cost being determined using the first-in, first-out method.

The inventory reserve is a critical estimate as there is rapid technological change in our industry impacting the market for our products and there is significant judgment in estimating the amount of spare parts to keep on hand to service previously sold printers for periods of up 10 or more years.

See Note 5 to the Consolidated Financial Statements.

Goodwill

We review long-lived assets, including intangible assets subject to amortization, for impairment whenever events or changes in circumstances indicate that the carrying value of the asset may not be recoverable. We assess the recoverability of the carrying value of assets held for use based on a review of undiscounted projected cash flows. Impairment losses, where identified, are measured as the excess of the carrying value of the long-lived asset over its estimated fair value as determined by discounted projected cash flows.

Goodwill represents the purchase price paid in excess of the fair value of net tangible and intangible assets acquired in a business combination. We review goodwill for impairment annually or when circumstances indicate that the likelihood of an impairment is greater than 50%. Such circumstances include a significant adverse change in the business climate for one of our reporting units or a decision to dispose of a reporting unit or a significant portion of a reporting unit. The test for goodwill impairment is a two-step process to first identify potential goodwill impairment for each reporting unit by comparing the fair value of each of our reporting units to its respective carrying value and then, if necessary, measure the amount of the impairment loss. The process requires a significant level of estimation and use of judgment by management, particularly the estimate of the fair value of our reporting units. Our reporting units are consistent with our operating segments in Note 21 to the Consolidated Financial Statements in Item 8.

We estimate the fair value of our reporting units based primarily on the discounted projected cash flows of the underlying operations, which requires us to make assumptions about estimated cash flows, including profit margins, long-term forecasts, discount rates and terminal growth rates. We developed these assumptions based on the market and geographic risks unique to each reporting unit.

We conducted our annual impairment testing for the years ended December 31, 2018 , 2017 and 2016 in the fourth quarters.  There was no goodwill impairment for the years ended December 31, 2018 , 2017 and 2016 .


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Contingencies 

We record an estimated loss from a contingency when information indicates that it is probable that an asset has been impaired or a liability has been incurred at the date of the financial statements and the amount of the loss can be reasonably estimated. Accounting for contingencies requires us to use our judgment and the ultimate resolution of our exposure related to these matters may change as further facts and circumstances become known.

See Note 22 to the Consolidated Financial Statements.

Recent Accounting Pronouncements

See Note 2 to the Consolidated Financial Statements included in this report for recently issued accounting standards, including the expected dates of adoption and expected impact to the Consolidated Financial Statements upon adoption.

Item 7A. Quantitative and Qualitative Disclosures about Market Risk

We are exposed to market risks from fluctuations in interest rates, foreign currency exchange rates and commodity prices, which may adversely affect our results of operations and financial condition. We seek to minimize these risks through regular operating and financing activities and, when we consider it to be appropriate, through the use of derivative financial instruments. We do not purchase, hold or sell derivative financial instruments for trading or speculative purposes.

Interest rates

Our earnings exposure related to movements in interest rates is primarily derived from variable interest rate borrowings. At December 31, 2018, we had $25.0 million outstanding debt subject to an interest rate of 3.56%. A hypothetical interest rate change of 10% would not have a material impact on annualized interest expense.

Foreign exchange rates

Because we conduct our operations in many areas of the world involving transactions denominated in a variety of currencies, our results of operations as expressed in U.S. dollars may be significantly affected by fluctuations in rates of exchange between currencies. These fluctuations could be significant. In 2018 , approximately 51.6% of our net sales and a significant portion of our costs and were denominated in currencies other than the dollar. We generally are unable to adjust our non-dollar local currency sales prices to reflect changes in exchange rates between the dollar and the relevant local currency. As a result, changes in exchange rates between the euro, Japanese yen, British pound, Korean won or other currencies in which we receive sale proceeds and the dollar have a direct impact on our operating results. There is normally a time lag between our sales and collection of the related sales proceeds, exposing us to additional currency exchange rate risk.

When practicable, we endeavor to match assets and liabilities in the same currency on our U.S. balance sheet and those of our subsidiaries in order to reduce these risks. We also, when we consider it appropriate, enter into foreign currency contracts to hedge exposures arising from those transactions

At December 31, 2018 , a hypothetical change of 10% in foreign currency exchange rates would cause a change in revenue of approximately $29.9 million, assuming all other variables remained constant.

We enter into foreign currency forward contracts to minimize the effect of fluctuating foreign currencies. At December 31, 2018 , we had notional forward exchange contracts outstanding of $75.3 million . We believe these foreign currency forward contracts and the offsetting underlying commitments, when taken together, do not create material market risk.

Commodity prices

We are exposed to price volatility related to raw materials and energy products in conjunction with our printer assembly and print materials blending processes. Generally, we acquire such components at market prices and do not use financial instruments to hedge commodity prices. At December 31, 2018 , a hypothetical 10% change in commodity prices for raw materials would cause a change to cost of sales of approximately $3.4 million.


41



Item 8. Financial Statements and Supplementary Data

Our Consolidated Financial Statements and the related notes, together with the Report of Independent Registered Public Accounting Firm thereon, are set forth below beginning on page F-1 and are incorporated herein by reference.

Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
    
Not applicable.

Item 9A. Controls and Procedures

Evaluation of Disclosure Controls and Procedures

Our management, including the Chief Executive Officer and Chief Financial Officer, conducted an evaluation of the effectiveness of our disclosure controls and procedures, pursuant to Exchange Act Rule 13a-15(e), as of December 31, 2018 .  Based on that evaluation, the Chief Executive Officer and Chief Financial Officer concluded as of December 31, 2018 that our disclosure controls and procedures were effective.

Management’s Report on Internal Control over Financial Reporting

Management is responsible for establishing and maintaining adequate internal control over financial reporting.  Our internal control framework and processes were designed to provide reasonable assurance to management and the Board of Directors regarding the reliability of financial reporting and the preparation of our consolidated financial statements for external purposes in accordance with GAAP. Our internal control over financial reporting includes those policies and procedures that:

Pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of our assets;
Provide reasonable assurance that transactions are recorded properly to allow for the preparation of financial statements in accordance with GAAP and that our receipts and expenditures are being made only in accordance with authorizations of our management and Directors; and
Provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of our assets that could have a material effect on the consolidated financial statements.

Because of its inherent limitations, a system of internal control over financial reporting can provide only reasonable assurance and may not prevent or detect misstatements. Further, because of changing conditions, effectiveness of internal control over financial reporting may vary over time.  Management assessed the effectiveness of our internal control over financial reporting and concluded that, as of December 31, 2018 , such internal control was effective at the reasonable assurance level described above.  

The effectiveness of our internal control over financial reporting as of December 31, 2018 has been audited by BDO USA, LLP, an independent registered public accounting firm, as stated in their report included in Item 8 of this Form 10-K.

Changes in Internal Controls over Financial Reporting

There were no changes in our internal control over financial reporting that occurred during the quarter ended December 31, 2018 that have materially affected, or are reasonably likely to materially effect, our internal control over financial reporting.

Item 9B. Other Information
     
Senior Credit Facility

On February 27, 2019, the Company, as borrower, and certain of its subsidiaries, as guarantors (“Guarantors”), entered into the Senior Credit Facility with HSBC Bank USA, National Association, as Administrative Agent, Sole Lead Arranger and Sole Bookrunner, and the other lenders party thereto (the “Lenders”). The Senior Credit Facility is comprised of (i) the 5-year $100.0 million senior secured Term Facility and (ii) the 5-year $100.0 million senior secured Revolving Facility. Borrowings under the Senior Credit Facility were used to refinance the existing indebtedness under the Prior Credit Agreement and will be used to support working capital and for general corporate purposes. Subject to certain terms and conditions contained in the Revolving

42



Facility, the Company has the right to request up to four increases to the amount of the Revolving Facility in an aggregate amount not to exceed $100.0 million.

Pursuant to the Senior Credit Facility, the Guarantors guarantee, among other things, all of the obligations of the Company and each other Guarantor under the Senior Credit Facility. From time to time, the Company may be required to cause additional domestic subsidiaries to become guarantors under the Senior Credit Facility.

Generally, amounts outstanding under the Senior Credit Facility bear interest, at the Company’s option, at either the Base Rate or the LIBOR Rate (as each is defined in the Senior Credit Facility), in each case, plus an applicable margin. Base Rate advances bear interest at a rate per annum equal to the sum of (i) the highest of (A) the Administrative Agent’s prime rate, (B) the Federal Funds Effective Rate (as defined in the Senior Credit Facility) plus 0.5% or (C) the LIBOR Rate for a Loan under the LIBOR Rate Option (as defined in the Senior Credit Facility) with a one-month interest period commencing on such day plus 1.0% and (d) 0%, and (ii) an applicable margin that ranges from 0.75% to 1.50% based upon the Company’s consolidated total leverage ratio. LIBOR Rate advances bear interest at a rate based upon the London interbank offered rate for the applicable interest period, plus an applicable margin that ranges from 1.75% to 2.50% based upon the Company’s consolidated total leverage ratio. Under the terms of the Senior Credit Facility, (i) accrued interest on each loan bearing interest at the Base Rate is payable quarterly in arrears and (ii) accrued interest on each loan bearing interest at the LIBOR Rate is payable in arrears on the last day of each applicable interest payment date for each loan. The Company is required to make quarterly amortization payments on the Term Facility in accordance with the Senior Credit Facility. The Senior Credit Facility is scheduled to mature on February 26, 2024, at which time all amounts outstanding thereunder will be due and payable. However, the maturity date of the Revolving Facility may be extended at the election of the Company with the consent of the Lenders subject to the terms set forth in the Senior Credit Facility.

The Company is required to pay certain fees in connection with the Senior Credit Facility, including a quarterly commitment fee equal to the product of the amount of the average daily available commitments under the Senior Credit Facility multiplied by a percentage that ranges from 0.30% to 0.45% depending upon the Company’s consolidated total leverage ratio, quarterly standby letter of credit and trade letter of credit fees equal to the product of the average daily amount available to be drawn under each letter of credit multiplied by a percentage that ranges from 1.75% to 2.50% depending on the Company’s consolidated total leverage ratio, as well as customary and letter of credit administrative fees.

The Senior Credit Facility contains customary representations, warranties, covenants, and default provisions for a credit facility of this type, including financial covenants, limitations on liens, the incurrence of debt and distributions, covenants to preserve corporate existence and comply with laws, and covenants regarding the use of proceeds of the Senior Credit Facility. The financial covenants include (i) a maximum consolidated total leverage ratio, which is the ratio of consolidated total funded indebtedness to Consolidated EBITDA (as defined in the Senior Credit Facility) of (A) 3.50 to 1.00 for the fiscal quarter ending March 31, 2019 through and including the fiscal quarter ending December 31, 2020, (B) 3.25 to 1.00 for the fiscal quarter ending March 31, 2021 through and including the fiscal quarter ending December 31, 2021, and (C) 3.00 to 1.00 for each fiscal quarter thereafter, and (ii) if at any time there are loans outstanding during any fiscal quarter, a minimum interest coverage ratio, which is the ratio of Consolidated EBITDA to cash interest expense, of 3.50 to 1.0 for such quarter. The occurrence of an event of default under the Senior Credit Facility could result in all loans and other obligations becoming immediately due and payable and the Senior Credit Facility being terminated.

The Company and its affiliates regularly engage the Lenders to provide other banking services. All of these engagements are negotiated at arm’s length.

The foregoing description of the Senior Credit Facility does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Senior Credit Facility attached hereto as Exhibit 10.10, which is incorporated herein by reference.

Security Agreement

On February 27, 2019, in connection with entering into the Senior Credit Facility, the Company and the Guarantors entered into a Security Agreement (the “Security Agreement”), pursuant to which the Company and the Guarantors granted a first priority security interest on substantially all of the assets of the Company and Guarantors, including the equity of their respective domestic subsidiaries and 65% of the equity of their first-tier foreign subsidiaries as security for indebtedness and obligations of the Company and the Guarantors under the Senior Credit Facility.

The foregoing description of the Security Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Security Agreement attached hereto as Exhibit 10.11, which is incorporated herein by reference.


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Termination of Prior Credit Agreement

Concurrently with the Company’s entry into the Senior Credit Facility, the Prior Credit Agreement was terminated.


PART III

Item 10. Directors, Executive Officers and Corporate Governance

The information required in response to this Item will be set forth in our Proxy Statement for our 2019 Annual Meeting of Stockholders (“Proxy Statement”) under the captions “Proposal One - Election of Directors,” “Corporate Governance Matters,” “Section 16(a) Beneficial Ownership Reporting Compliance,” “Corporate Governance Matters—Code of Conduct and Code of Ethics,” “Corporate Governance Matters—Corporate Governance and Nominating Committee,” and “Corporate Governance Matters—Audit Committee.”

Item 11. Executive Compensation

The information in response to this Item will be set forth in our Proxy Statement under the captions “Director Compensation,” “Executive Compensation,” “Corporate Governance Matters—Compensation Committee,” and “Executive Compensation—Compensation Committee Report.”

Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters

Except as set forth below, the information required in response to this Item will be set forth in our Proxy Statement under the caption “Security Ownership of Certain Beneficial Owners and Management.”

Equity Compensation Plans 

The following table summarizes information about the equity securities authorized for issuance under our compensation plans as of December 31, 2018 . For a description of these plans, please see Note 15  to the Consolidated Financial Statements.


 
Number of securities to be issued upon exercise of outstanding stock options, warrants and rights
 
Weighted average exercise price of outstanding options, warrants and rights   (a)
 
Number of securities remaining available for future issuance under equity compensation plans (b)
Equity compensation plans approved by stockholders:
 
 
 
 
 
 
Stock options
 
1,780

 
$
14.10

 
 

Restricted stock units
 
1,340

 
 

 
 

Total
 
3,120

 
 

 
4,878

(a)
The weighted-average exercise price is only applicable to stock options.

(b)
The number of securities remaining available for future issuance for stock options, restricted stock units, and stock awards for non-employee directors is approved in total and not individually with respect to these items.

໿
Item 13. Certain Relationships and Related Transactions and Director Independence

The information required in response to this Item will be set forth in our Proxy Statement under the captions “Corporate Governance Matters—Director Independence” and “Corporate Governance Matters – Related Party Transaction Policies and Procedures.”

Item 14. Principal Accounting Fees and Services

The information in response to this Item will be set forth in our Proxy Statement under the caption “Proposal Three - Fees of Independent Registered Public Accounting Firm.”


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PART IV
Item 15. Exhibits, Financial Statement Schedules   
(a)(3)
 
Exhibits

 
The following exhibits are included as part of this filing and incorporated herein by this reference:

 
 
3.1
 
Certificate of Incorporation of Registrant. (Incorporated by reference to Exhibit 3.1 to Registrant’s Form 8‑B filed on August 16, 1993, and the amendment thereto, filed on Form 8‑B/A on February 4, 1994.)

 
 
3.2
 
Amendment to Certificate of Incorporation filed on May 23, 1995. (Incorporated by reference to Exhibit 3.2 to Registrant’s Registration Statement on Form S‑2/A, filed on May 25, 1995.)

 
 
 
Certificate of Amendment of Certificate of Incorporation filed with Secretary of State of Delaware on May 19, 2004. (Incorporated by reference to Exhibit 3.1 to Registrant’s Quarterly Report on Form 10‑Q for the quarterly period ended June 30, 2004, filed on August 5, 2004.)

 
 
 
Certificate of Amendment of Certificate of Incorporation filed with Secretary of State of Delaware on May 17, 2005. (Incorporated by reference to Exhibit 3.1 to Registrant’s Quarterly Report on Form 10‑Q for the quarterly period ended June 30, 2005, filed on August 1, 2005.)

 
 
 
Certificate of Amendment of Certificate of Incorporation filed with the Secretary of State of Delaware on October 7, 2011. (Incorporated by reference to Exhibit 3.1 to Registrant’s Current Report on Form 8-K filed on October 7, 2011.)

 
 
 
Certificate of Amendment of Certificate of Incorporation filed with the Secretary of State of Delaware on May 21, 2013. (Incorporated by reference to Exhibit 3.1 to Registrant’s Current Report on Form 8-K filed on May 22, 2013.)

 
 
 
Amended and Restated By‑Laws. (Incorporated by reference to Exhibit 3.1 to Registrant’s Current Report on Form 8‑K, filed on March 15, 2018.)

 
 
 
Amended and Restated 2004 Incentive Stock Plan of 3D Systems Corporation (Incorporated by reference to Exhibit 10.1 to Registrant’s Current Report on Form 8-K, filed February 5, 2015.)
 
 
 
 
Form of Restricted Stock Purchase Agreement for Employees under the 2004 Incentive Stock Plan. (Incorporated by reference to Exhibit 4.2 to Registrant’s Registration Statement on Form S‑8, filed on May 19, 2004.)

 
 
 
Form of Restricted Stock Purchase Agreement for Officers under the 2004 Incentive Stock Plan. (Incorporated by reference to Exhibit 4.3 to Registrant’s Registration Statement on Form S‑8 (Registration No. 333-115642), filed on May 19, 2004.)

 
 
 
Form of Restricted Stock Purchase Agreement under the Amended and Restated 2004 Incentive Stock Plan. (Incorporated by reference to Exhibit 10.3 to Registrant’s Current Report on Form 8-K (Registration No. 333-115642), filed on February 5, 2015.)

 
 
 
Form of Restricted Stock Unit Purchase Agreement under the Amended and Restated 2004 Incentive Stock Plan. (Incorporated by reference to Exhibit 10.2 to Registrant’s Current Report on Form 8-K, filed on February 5, 2015.)

 
 
 
Restricted Stock Plan for Non‑Employee Directors of 3D Systems Corporation. (Incorporated by reference to Exhibit 4.4 to Registrant’s Registration Statement on Form S‑8 (Registration No. 333-115642), filed on May 19, 2004.)

 
 
 
Amendment No. 1 to Restricted Stock Plan for Non-Employee Directors. (Incorporated by reference to Exhibit 10.1 to Registrant’s Quarterly Report on Form 10‑Q for the quarterly period ended June 30, 2005, filed on August 1, 2005.)

45




 
 
 
Form of Restricted Stock Purchase Agreement for Non‑Employee Directors. (Incorporated by reference to Exhibit 4.5 to Registrant’s Registration Statement on Form S‑8 (Registration No. 333-115642), filed on May 19, 2004.)

 
 
 
Specimen Common Stock Certificate. (Incorporated by reference to Exhibit 4.1 to Registrant’s Registration Statement on Form S-3 (Registration No. 333-182065), filed on June 12, 2012.)

 
 
 
Appendix A to the Amended and Restated 2004 Incentive Stock Plan of 3D Systems Corporation effective March 11, 2015. (Incorporated by reference to Exhibit 10.1 to Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2015, filed on May 6, 2015.)

 
 
 
Amended and Restated 2015 Incentive Plan of 3D Systems Corporation effective May 16, 2017 (Incorporated by reference to Exhibit 4.14 to Registrant’s Registration Statement on Form S-8 (Registration No. 333-219222), filed on July 11, 2017.)

 
 
 
Appendix A to the 2015 Incentive Plan of 3D Systems Corporation effective May 19, 2015. (Incorporated by reference to Exhibit 10.3 to Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2015, filed on August 6, 2015.)

 
 
 
Form of Restricted Stock Award Agreement. (Incorporated by reference to Exhibit 4.2 to Registrant’s Registration Statement on Form S-8 (Registration No. 333-204305), filed on May 19, 2015.)

 
 
 
Form of Restricted Stock Unit Award Agreement. (Incorporated by reference to Exhibit 4.3 to Registrant’s Registration Statement on Form S-8 (Registration No. 333-204305), filed on May 19, 2015.)

 
 
 
Form of Stock Option Award Agreement (Incorporated by reference to Exhibit 10 to Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2016, filed on May 5, 2016.)

 
 
 
Form of Restricted Stock Award Agreement with Share Price Vesting Conditions (Incorporated by reference to Exhibit 4.17 to Registrant’s Annual Report on Form 10 K for the year ended December 31, 2016, filed on February 28, 2017.)

 
 
 
Form of Stock Option Award Agreement with Share Price Vesting Conditions (Incorporated by reference to Exhibit 4.18 to Registrant’s Annual Report on Form 10 K for the year ended December 31, 2016, filed on February 28, 2017.)

 
 
 
Lease Agreement dated February 8, 2006 between the Registrant and KDC-Carolina Investments 3, LP. (Incorporated by reference to Exhibit 99.1 to Registrant’s Current Report on Form 8‑K, filed on February 10, 2006.)

 
 
 
First Amendment to Lease Agreement dated August 7, 2006 between the Registrant and KDC-Carolina Investments 3, LP. (Incorporated by reference to Exhibit 10.1 to Registrant’s Current Report on Form 8‑K, filed on August 14, 2006.)

 
 
 
Second Amendment to Lease Agreement effective as of October 6, 2006 to Lease Agreement dated February 8, 2006 between 3D Systems Corporation and KDC-Carolina Investments 3, LP. (Incorporated by reference to Exhibit 10.1 to Registrant’s Current Report on Form 8‑K, filed on October 10, 2006.)

 
 
 
Third Amendment to Lease Agreement effective as of December 18, 2006 to Lease Agreement dated February 8, 2006 between 3D Systems Corporation and KDC-Carolina Investments 3, LP. (Incorporated by reference to Exhibit 10.1 to Registrant’s Current Report on Form 8‑K, filed on December 20, 2006.)

 
 

46



 
Fourth Amendment to Lease Agreement effective as of February 26, 2007 to Lease Agreement dated February 8, 2006 between 3D Systems Corporation and KDC-Carolina Investments 3, LP. (Incorporated by reference to Exhibit 10.1 to Registrant’s Current Report on Form 8‑K, filed on March 1, 2007.)

 
 
 
Fifth Amendment to Lease Agreement effective as of March 17, 2011 to Lease Agreement dated February 8, 2006 between 3D Systems Corporation and KDC-Carolina Investments 3, LP. (Incorporated by reference to Exhibit 10.1 to Registrant’s Form 8-K, filed on March 21, 2011.)

 
 
 
Charles W. Hull consulting arrangement (Incorporated by reference to Exhibit 10.1 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2010, filed on July 29, 2010.)

 
 
 
Kevin P. McAlea severance arrangement (Incorporated by reference to Exhibit 10.2 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2010, filed on July 29, 2010.)

 
 
 
Credit Agreement, dated as of October 10, 2014, among 3D Systems Corporation, the Guarantors party thereto, PNC Bank, National Association, as Administrative Agent, PNC Capital Markets LLC, as Sole Lead Arranger and Sole Bookrunner, HSBC Bank USA, N.A., as Syndication Agent, and the other lenders party thereto. (Incorporated by reference to Exhibit 10.1 to Registrant’s Current Report on Form 8-K, filed on October 14, 2014.)
 
 
 
 
Credit Agreement, dated February 27, 2019, among 3D Systems Corporation, HSBC Bank USA, National Association, as Administrative Agent, Sole Lead Arranger and Sole Bookrunner, the guarantors party thereto, and the other lenders party thereto.
 
 
 
 
Security Agreement, dated  February 27, 2019, among 3D Systems Corporation, 3D Holdings, LLC, 3D Systems, Inc., and HSBC Bank USA, National Association, as Administrative Agent.

 
 
 
Employment Agreement, dated April 1, 2016, between 3D Systems Corporation and Vyomesh I. Joshi. (Incorporated by reference to Exhibit 10.1 to Registrant’s Current Report on Form 8-K, filed on April 4, 2016.)

 
 
 
Employment Agreement, dated June 15, 2016, between 3D Systems Corporation and John N. McMullen. (Incorporated by reference to Exhibit 10.1 to Registrant’s Current Report on Form 8-K, filed on June 16, 2016.)

 
 
 
Employment Agreement, dated June 15, 2016, between 3D Systems Corporation and Andrew M. Johnson. (Incorporated by reference to Exhibit 10.2 to Registrant’s Current Report on Form 8-K, filed on June 16, 2016.)

 
 
 
First Amendment, dated June 15, 2016, to the Restricted Stock Purchase Agreement, dated February 4, 2014, by and between 3D Systems Corporation and Andy M. Johnson. (Incorporated by reference to Exhibit 10.3 to Registrant’s Current Report on Form 8-K, filed on June 16, 2016.)

 
 
 
First Amendment, dated June 15, 2016, to the Restricted Stock Purchase Agreement, dated February 3, 2015, by and between 3D Systems Corporation and Andrew M. Johnson. (Incorporated by reference to Exhibit 10.4 to Registrant’s Current Report on Form 8-K, filed on June 16, 2016.)

 
 
 
First Amendment, dated June 15, 2016, to the Restricted Stock Purchase Agreement, dated November 13, 2015, by and between 3D Systems Corporation and Andrew M. Johnson. (Incorporated by reference to Exhibit 10.5 to Registrant’s Current Report on Form 8-K, filed on June 16, 2016.)

 
 
 
Employment Agreement, dated July 1, 2016, between 3D Systems Corporation and David R. Styka. (Incorporated by reference to Exhibit 10.1 to Registrant’s Current Report on Form 8-K, filed on July 5, 2016.)

 
 

47



 
First Amendment, dated July 1, 2016, to the Restricted Stock Purchase Agreement, dated January 14, 2015, by and between 3D Systems Corporation and David R. Styka. (Incorporated by reference to Exhibit 10.2 to Registrant’s Current Report on Form 8-K, filed on July 5, 2016.)

 
 
 
First Amendment, dated July 1, 2016, to the Restricted Stock Purchase Agreement, dated May 19, 2015, by and between 3D Systems Corporation and David R. Styka. (Incorporated by reference to Exhibit 10.3 to Registrant’s Current Report on Form 8-K, filed on July 5, 2016.)

 
 
 
First Amendment, dated July 1, 2016, to the Restricted Stock Purchase Agreement, dated November 13, 2015, by and between 3D Systems Corporation and David R. Styka. (Incorporated by reference to Exhibit 10.4 to Registrant’s Current Report on Form 8-K, filed on July 5, 2016.)

 
 
 
Employment Agreement, dated August 4, 2016, between 3D Systems Corporation and Charles W. Hull. (Incorporated by reference to Exhibit 10.1 to Registrant’s Current Report on Form 8-K, filed on August 8, 2016.)

 
 
 
3D Systems Corporation Change of Control Severance Policy (Incorporated by reference to Exhibit 10.1 to the Registrant's Current Report on Form 8-K, filed February 23, 2018.)
 
 
 
 
Employment Agreement, dated September 5, 2016, between 3D Systems SA and Herbert Koeck.
 
 
 
 
Letter of Secondment, dated March 5, 2018, between 3D Systems Corporation and Herbert Koeck.
 
 
 
 
Employment Agreement, dated August 24, 2016, between 3D Systems Corporation and Philip Schultz.

 
 
 
Subsidiaries of Registrant.

 
 
 
Consent of Independent Registered Public Accounting Firm.

 
 
 
Certification of Principal Executive Officer Pursuant to Section 302 of the Sarbanes‑Oxley Act of 2002, dated February 28, 2019.

 
 
 
Certification of Principal Financial Officer Pursuant to Section 302 of the Sarbanes‑Oxley Act of 2002, dated February 28, 2019.

 
 
 
Certification of Principal Executive Officer pursuant to Section 906 of the Sarbanes‑Oxley Act of 2002, dated February 28, 2019.

 
 
 
Certification of Principal Financial Officer pursuant to Section 906 of the Sarbanes‑Oxley Act of 2002, dated February 28, 2019.

 
 
101.INS
 
XBRL Instance Document

 
 
101.SCH
 
XBRL Taxonomy Extension Scheme Document

48




 
 
101.CAL
 
XBRL Taxonomy Extension Calculation Linkbase Document

 
 
101.DEF
 
XBRL Taxonomy Extension Definition Linkbase Document

 
 
101.LAB
 
XBRL Taxonomy Extension Label Linkbase Document

 
 
101.PRE
 
XBRL Taxonomy Extension Presentation Linkbase Document
*              Management contract or compensatory plan or arrangement

Item 16. Form 10-K Summary

None.


49



SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on our behalf by the undersigned, thereunto duly authorized.


 
3D Systems Corporation
 
 
 

By:
/s/ V YOMESH   I.  J OSHI

 
Vyomesh I. Joshi

 
Chief Executive Officer, President and Director

Date:
February 28, 2019

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of registrant and in the capacities and on the dates indicated. 
Signature
Title
Date
 
 
 
/s/ VYOMESH I. JOSHI
Chief Executive Officer, President and Director
(principal executive officer)
February 28, 2019
Vyomesh I. Joshi
 
 
 
 
 
/s/ JOHN N. MCMULLEN
Executive Vice President and Chief Financial Officer
(principal financial and accounting officer)
February 28, 2019
John N. McMullen
 
 
 
 
 
/s/ CHARLES W. HULL
Executive Vice President, Chief Technology
February 28, 2019
Charles W. Hull
Officer and Director
 
 
 
 
/s/ CHARLES G. MCCLURE, JR
Chairman of the Board of Directors
February 28, 2019
Charles G. McClure, Jr.
 
 
 
 
 
/s/ JIM D. KEVER
Director
February 28, 2019
Jim D. Kever
 
 
 
 
 
/s/ KEVIN S. MOORE
Director
February 28, 2019
Kevin  S. Moore
 
 
 
 
 
/s/ WILLIAM E. CURRAN
Director
February 28, 2019
William E. Curran
 
 
 
 
 
/s/ JOHN J. TRACY
Director
February 28, 2019
Dr. John J. Tracy
 
 
 
 
 
/s/ WILLIAM D. HUMES
Director
February 28, 2019
William D. Humes
 
 
 
 
 
/s/ JEFFREY WADSWORTH
Director
February 28, 2019
Dr. Jeffrey Wadsworth
 
 
 
 
 
/s/ THOMAS W. ERICKSON
Director
February 28, 2019
Thomas W. Erickson
 
 
໿


50



3D Systems Corporation
Index to Consolidated Financial Statements



 

 
Consolidated Financial Statements
 
Report of Independent Registered Public Accounting Firm
F-2
Report of Independent Registered Public Accounting Firm
F-3
Consolidated Balance Sheets as of December 31, 2018 and 2017
F-4
Consolidated Statements of Operations for the Years Ended December 31, 2018, 2017 and 2016
F-5
Consolidated Statements of Comprehensive Loss for the Years Ended December 31, 2018, 2017 and 2016
F-6
Consolidated Statements of Cash Flows for the Years Ended December 31, 2018, 2017 and 2016
F-7
Consolidated Statements of Stockholders’ Equity for the Years Ended December 31, 2018, 2017 and 2016
F-8
Notes to Consolidated Financial Statements for the Years Ended December 31, 2018, 2017 and 2016
F-9


F- 1



Report of Independent Registered Public Accounting Firm

Shareholders and Board of Directors
3D Systems Corporation
Rock Hill, South Carolina
Opinion on Internal Control over Financial Reporting
We have audited 3D Systems Corporation and its subsidiaries’ (the “Company’s”) internal control over financial reporting as of December 31, 2018, based on criteria established in Internal Control - Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (the “COSO criteria”). In our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2018, based on the COSO criteria .
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (“PCAOB”), the consolidated balance sheets of the Company as of December 31, 2018 and 2017, the related consolidated statements of operations, comprehensive loss, stockholders’ equity, and cash flows for each of the three years in the period ended December 31, 2018, and the related notes and our report dated February 28, 2019 expressed an unqualified opinion thereon.
Basis for Opinion
The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying “Item 9A, Management’s Report on Internal Control over Financial Reporting”. Our responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audit of internal control over financial reporting in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audit also included performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
Definition and Limitations of Internal Control over Financial Reporting
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

/s/ BDO USA, LLP

Charlotte, North Carolina
February 28, 2019


F- 2



Report of Independent Registered Public Accounting Firm

Shareholders and Board of Directors
3D Systems Corporation
Rock Hill, South Carolina
Opinion on the Consolidated Financial Statements
We have audited the accompanying consolidated balance sheets of 3D Systems Corporation and its subsidiaries (the “Company”) as of December 31, 2018 and 2017, the related consolidated statements of operations, comprehensive loss, stockholders’ equity, and cash flows for each of the three years in the period ended December 31, 2018, and the related notes (collectively referred to as the “consolidated financial statements”). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company and subsidiaries at December 31, 2018 and 2017, and the results of their operations and their cash flows for each of the three years in the period ended December 31, 2018 , in conformity with accounting principles generally accepted in the United States of America.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (“PCAOB”), the Company's internal control over financial reporting as of December 31, 2018, based on criteria established in Internal Control - Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”) and our report dated February 28, 2019 expressed an unqualified opinion thereon.
Basis for Opinion
These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s consolidated financial statements based on our audits. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud.
Our audits included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. We believe that our audits provide a reasonable basis for our opinion.




/s/ BDO USA, LLP
We have served as the Company's auditor since 2003.

Charlotte, North Carolina
February 28, 2019



F- 3



3D Systems Corporation
Consolidated Balance Sheets
໿
໿
(in thousands, except par value)
 
December 31, 2018
 
December 31, 2017
ASSETS
 
 
 
 
Current assets:
 
 
 
 
Cash and cash equivalents
 
$
109,998

 
$
136,344

Accounts receivable, net of reserves — $8,423 (2018) and $10,258 (2017)
 
126,618

 
129,879

Inventories
 
133,161

 
103,903

Insurance proceeds receivable
 

 
50,000

Prepaid expenses and other current assets
 
27,697

 
18,296

Total current assets
 
397,474

 
438,422

Property and equipment, net
 
107,718

 
97,521

Intangible assets, net
 
68,275

 
98,783

Goodwill
 
221,334

 
230,882

Deferred income tax asset
 
4,217

 
4,020

Other assets, net
 
26,814

 
27,136

Total assets
 
$
825,832

 
$
896,764

LIABILITIES AND EQUITY
 
 
 
 
Current liabilities:
 
 
 
 
Current portion of capitalized lease obligations
 
$
654

 
$
644

Accounts payable
 
66,722

 
55,607

Accrued and other liabilities
 
59,265

 
65,899

Accrued litigation settlement
 

 
50,000

Customer deposits
 
4,987

 
5,765

Deferred revenue
 
32,432

 
29,214

Total current liabilities
 
164,060

 
207,129

Long-term debt
 
25,000

 

Long-term portion of capitalized lease obligations
 
6,392

 
7,078

Deferred income tax liability 
 
6,190

 
8,983

Other liabilities
 
39,331

 
48,754

Total liabilities
 
240,973

 
271,944

Redeemable noncontrolling interests
 
8,872

 
8,872

Commitments and contingencies (Note 22)
 


 


Stockholders’ equity:
 
 
 
 
Common stock, $0.001 par value, authorized 220,000 shares; issued 118,650 (2018) and 117,025 (2017)
 
117

 
115

Additional paid-in capital
 
1,355,503

 
1,326,250

Treasury stock, at cost — 2,946 shares (2018) and 2,219 shares (2017)
 
(15,572
)
 
(8,203
)
Accumulated deficit
 
(722,701
)
 
(677,772
)
Accumulated other comprehensive loss
 
(38,978
)
 
(21,536
)
Total 3D Systems Corporation stockholders' equity
 
578,369

 
618,854

Noncontrolling interests
 
(2,382
)
 
(2,906
)
Total stockholders’ equity
 
575,987

 
615,948

Total liabilities, redeemable noncontrolling interests and stockholders’ equity
 
$
825,832

 
$
896,764


See accompanying notes to Consolidated Financial Statements. ໿

F- 4



3D Systems Corporation
Consolidated Statements of Operations
໿
 
 
Year Ended   December 31,
(in thousands, except per share amounts)
 
2018
 
2017
 
2016
Revenue:
 
 
 
 
 
 
Products
 
$
429,215

 
$
391,596

 
$
394,850

Services
 
258,445

 
254,473

 
238,115

Total revenue
 
687,660

 
646,069

 
632,965

Cost of sales:
 
 
 
 
 
 
Products
 
229,793

 
216,446

 
210,822

Services
 
133,473

 
124,784

 
112,392

Total cost of sales
 
363,266

 
341,230

 
323,214

Gross profit
 
324,394

 
304,839

 
309,751

Operating expenses:
 
 
 
 
 
 
Selling, general and administrative
 
272,287

 
264,185

 
259,776

Research and development
 
95,298

 
94,627

 
88,395

Total operating expenses
 
367,585

 
358,812

 
348,171

Loss from operations
 
(43,191
)
 
(53,973
)
 
(38,420
)
Interest and other expense, net
 
(37
)
 
(3,548
)
 
(1,392
)
Loss before income taxes
 
(43,228
)
 
(57,521
)
 
(39,812
)
Provision (benefit) for income taxes
 
2,035

 
7,802

 
(547
)
Net loss
 
(45,263
)
 
(65,323
)
 
(39,265
)
Less: net income (loss) attributable to noncontrolling interests
 
242

 
868

 
(846
)
Net loss attributable to 3D Systems Corporation
 
$
(45,505
)
 
$
(66,191
)
 
$
(38,419
)

 
 
 
 
 
 
Net loss per share available to 3D Systems Corporation common stockholders - basic and diluted
 
$
(0.41
)
 
$
(0.59
)
 
$
(0.35
)

See accompanying notes to Consolidated Financial Statements.

F- 5



3D SYSTEMS CORPORATION
CONSOLIDATED STATEMENTS OF COMPREHENSIVE LOSS

 
 
Year Ended December 31,
(in thousands)
 
2018
 
2017
 
2016
 
 
 
 
 
 
 
Net loss
 
$
(45,263
)
 
$
(65,323
)
 
$
(39,265
)
Other comprehensive income (loss), net of taxes:
 
 
 
 
 
 
Pension adjustments
 
(92
)
 
220

 
(902
)
Gain on liquidation of non-US entity
 

 
50

 
288

Foreign currency translation
 
(17,068
)
 
31,678

 
(12,958
)
Total other comprehensive income (loss), net of taxes:
 
(17,160
)

31,948


(13,572
)
Total comprehensive loss, net of taxes
 
(62,423
)

(33,375
)

(52,837
)
Comprehensive income attributable to noncontrolling interests
 
524

 
1,127

 
(741
)
Comprehensive loss attributable to 3D Systems Corporation
 
$
(62,947
)

$
(34,502
)

$
(52,096
)


F- 6



3D Systems Corporation
Consolidated Statements of Stockholders’ Equity
Years Ended December 31, 2018 ,   2017 and 2016
໿
໿
໿

 
Common Stock
 
 
 
 
 
 
 
 
 
 
 
 
(in thousands, except par value)
 
Par Value $0.001
 
Additional Paid In Capital
 
Treasury Stock
 
Accumulated
(Deficit)
 Earnings
 
Accumulated Other Comprehensive (Loss) Income
 
Total 3D Systems Corporation Stockholders' Equity
 
Equity Attributable to Noncontrolling Interests
 
Total Stockholders' Equity
Balance at December 31, 2015
 
$
113

 
$
1,279,738

 
$
(1,026
)
 
$
(583,368
)
 
$
(39,548
)
 
$
655,909

 
$
(1,263
)
 
$
654,646

Issuance (repurchase) of stock
 
2

 
(1,241
)
 
(1,632
)
 

 

 
(2,871
)
 

 
(2,871
)
Acquisition of noncontrolling interest
 

 
(2,364
)
 

 

 

 
(2,364
)
 
(1,169
)
 
(3,533
)
Stock-based compensation expense
 

 
31,295

 

 

 

 
31,295

 

 
31,295

Net loss
 

 

 

 
(38,419
)
 

 
(38,419
)
 
(846
)
 
(39,265
)
Pension adjustment
 

 

 

 

 
(902
)
 
(902
)
 

 
(902
)
Liquidation of non-US entity
 

 

 

 

 
288

 
288

 

 
288

Foreign currency translation adjustment
 

 

 

 

 
(13,063
)
 
(13,063
)
 
105

 
(12,958
)
Balance at December 31, 2016
 
115

 
1,307,428

 
(2,658
)
 
(621,787
)
 
(53,225
)
 
629,873

 
(3,173
)
 
626,700

Issuance (repurchase) of stock
 

 

 
(5,545
)
 

 

 
(5,545
)
 

 
(5,545
)
Issuance of stock for acquisitions
 

 
3,208

 

 

 

 
3,208

 

 
3,208

Acquisition of noncontrolling interest
 

 
(1,440
)
 

 

 

 
(1,440
)
 
(860
)
 
(2,300
)
Cumulative impact of change in accounting policy
 

 
(10,206
)
 

 
10,206

 

 

 

 

Stock-based compensation expense
 

 
27,260

 

 

 

 
27,260

 

 
27,260

Net loss
 

 

 

 
(66,191
)
 

 
(66,191
)
 
868

 
(65,323
)
Liquidation of non-US entity
 

 

 

 

 
50

 
50

 

 
50

Pension adjustment
 

 

 

 

 
220

 
220

 

 
220

Foreign currency translation adjustment
 

 

 

 

 
31,419

 
31,419

 
259

 
31,678

Balance at December 31, 2017
 
115


1,326,250


(8,203
)

(677,772
)

(21,536
)

618,854


(2,906
)

615,948

Issuance (repurchase) of stock
 
2

 

 
(7,369
)
 

 

 
(7,367
)
 

 
(7,367
)
Cumulative impact of change in accounting policy
 

 

 

 
576

 

 
576

 

 
576

Stock-based compensation expense
 

 
29,253

 

 

 

 
29,253

 

 
29,253

Net loss
 

 

 

 
(45,505
)
 

 
(45,505
)
 
242

 
(45,263
)
Pension adjustment
 

 

 

 

 
(92
)
 
(92
)
 

 
(92
)
Foreign currency translation adjustment
 

 

 

 

 
(17,350
)
 
(17,350
)
 
282

 
(17,068
)
Balance at December 31, 2018
 
$
117


$
1,355,503


$
(15,572
)

$
(722,701
)

$
(38,978
)

$
578,369


$
(2,382
)

$
575,987


See accompanying notes to Consolidated Financial Statements


F- 7



3D Systems Corporation
Consolidated Statements of Cash Flows
 
 
Years ended December 31,
(in thousands)
 
2018
 
2017
 
2016
Cash flows from operating activities:
 
 
 
 
 
 
Net loss
 
$
(45,263
)
 
$
(65,323
)
 
$
(39,265
)
Adjustments to reconcile net loss to net cash provided by
operating activities:
 
 
 
 
 
 
Depreciation and amortization
 
59,293

 
62,041

 
60,535

Stock-based compensation
 
29,253

 
27,260

 
31,295

Lower of cost or market adjustment
 

 
12,883

 
11,053

Impairment of assets
 
1,998

 
2,427

 
8,618

Provision for bad debts
 
1,824

 
1,051

 
1,552

Provision for deferred income taxes
 
(2,990
)
 
(5,567
)
 
(6,566
)
Loss on the disposition of property and equipment
 

 

 
1,465

Changes in operating accounts, net of acquisitions:
 
 
 
 
 
 
Accounts receivable
 
599

 
3,987

 
26,255

Inventories
 
(34,035
)
 
(17,716
)
 
(20,656
)
Prepaid expenses and other current assets
 
40,922

 
(49,834
)
 
(3,895
)
Accounts payable
 
11,559

 
12,448

 
(4,975
)
Accrued and other current liabilities
 
(50,234
)
 
50,209

 
(7,670
)
All other operating activities
 
(8,130
)
 
(7,739
)
 
(263
)
Net cash provided by operating activities
 
4,796

 
26,127

 
57,483

Cash flows from investing activities:
 
 
 
 
 
 
Cash paid for acquisitions, net of cash assumed
 

 
(34,291
)
 

Purchases of property and equipment
 
(40,694
)
 
(30,881
)
 
(16,567
)
Additions to license and patent costs
 
(970
)
 
(1,159
)
 
(1,132
)
Proceeds from disposition of property and equipment
 
333

 
273

 
350

Purchase of noncontrolling interest
 

 
(2,250
)
 
(3,533
)
Other investing activities
 
(496
)
 
(2,351
)
 
(1,000
)
Net cash used in investing activities
 
(41,827
)
 
(70,659
)
 
(21,882
)
Cash flows from financing activities:
 
 
 
 
 
 
Proceeds from borrowings
 
25,000

 

 

Payments related to net-share settlement of stock-based compensation
 
(7,367
)
 
(5,545
)
 
(2,871
)
Payments on earnout consideration
 
(2,675
)
 
(3,206
)
 

Repayment of capital lease obligations
 
(694
)
 
(437
)
 
(1,055
)
Net cash provided by (used in) financing activities
 
14,264

 
(9,188
)
 
(3,926
)
Effect of exchange rate changes on cash and cash equivalents
 
(3,145
)
 
5,303

 
(2,369
)
Net (decrease) increase in cash and cash equivalents
 
(25,912
)
 
(48,417
)
 
29,306

Cash, cash equivalents and restricted cash at the beginning of the period (a)
 
136,831

 
185,248

 
155,942

Cash, cash equivalents and restricted cash at the end of the period (a)
 
$
110,919

 
$
136,831

 
$
185,248

 
 
 
 
 
 
 
Cash interest payments
 
$
542

 
$
503

 
$
839

Cash income tax payments, net
 
8,964

 
6,339

 
11,045

Transfer of equipment from inventory to property and equipment, net  (b)
 
5,612

 
9,881

 
12,493

Transfer of equipment to inventory from property and equipment, net (c)
 
2,563

 
378

 
1,102

Stock issued for acquisitions of businesses
 

 
3,208

 


(a)
The amounts for cash and cash equivalents shown above include restricted cash of $921 , $487 , $301 and $299 as of December 31, 2018 ,   2017 , 2016 and 2015, respectively, which were included in other assets, net, in the Consolidated Balance Sheets.
(b)
Inventory is transferred from inventory to property and equipment at cost when the Company requires additional machines for training or demonstration or for placement into on demand manufacturing services locations.
(c)
In general, an asset is transferred from property and equipment, net into inventory at its net book value when the Company has identified a potential sale for a used machine.

See accompanying notes to Consolidated Financial Statements.

F- 8




Note 1 Basis of Presentation

The Consolidated Financial Statements include the accounts of 3D Systems Corporation and all majority-owned subsidiaries and entities in which a controlling interest is maintained (the “Company”). A non-controlling interest in a subsidiary is considered an ownership interest in a majority-owned subsidiary that is not attributable to the parent. The Company includes noncontrolling interests as a component of total equity in the Consolidated Balance Sheets and the net income (loss) attributable to noncontrolling interests are presented as an adjustment from net loss used to arrive at net loss attributable to 3D Systems Corporation in the consolidated statements of operations and comprehensive loss.  The Company’s annual reporting period is the calendar year.

The Consolidated Financial Statements have been prepared in accordance with accounting principles generally accepted in the United States (“GAAP”). All significant intercompany accounts and transactions have been eliminated in consolidation. Certain prior period amounts have been reclassified to conform to the current year presentation. Beginning in 2018, the Company classifies product warranty revenue and related expenses within the "Products" line items of the Consolidated Statements of Operations.

All amounts presented in the accompanying footnotes are presented in thousands, except for per share information.

Note 2 Significant Accounting Policies

Use of Estimates

The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the financial statements, and the reported amounts of revenues and expenses during the reporting period. The Company bases its estimates on historical experience, currently available information and various other assumptions that we believe are reasonable under the circumstances. Actual results could differ from these estimates.

Revenue Recognition

The Company accounts for revenue in accordance with ASC Topic 606, “Revenue from Contracts with Customers,” which it adopted on January 1, 2018, using the modified-retrospective method. See Recent Accounting Pronouncements in this Note 2 and Note 4 for further discussion of the adoption.

Cash and Cash Equivalents

Cash and cash equivalents consist of cash and temporary investments with maturities of three months or less when acquired.

Investments

Investments in non-consolidated affiliates ( 20 - 50 percent owned companies and joint ventures) are accounted for using the equity method. Investments through which we are not able to exercise significant influence over the investee and which we do not have readily determinable fair values are generally accounted for under the cost method.

The Company assesses declines in the fair value of investments to determine whether such declines are other-than-temporary. Other-than-temporary impairments of investments are recorded to interest and other expense, net, in the period in which they become impaired.

For the years ended December 31, 2018 and 2017 , the Company recorded impairment charges of $1,373 and $1,743 , respectively, related to certain cost-method investments. The aggregate carrying amount of all investments accounted for under the cost method totaled $8,483 and $8,263 at December 31, 2018 and 2017 , respectively, and is included in other assets, net, on the Company’s Consolidated Balance Sheets.

Accounts Receivable and Allowances for Doubtful Accounts

Trade accounts receivable are recorded at the invoiced amount and do not bear interest. In evaluating the collectability of accounts receivable, the Company assesses a number of factors, including specific customers’ ability to meet their financial obligations to us, the length of time receivables are past due and historical collection experience. Based on these assessments, the Company may record a reserve for specific customers, as well as a general reserve and allowance for returns and discounts. If circumstances

F- 9



related to specific customers change, or economic conditions deteriorate such that the Company’s past collection experience is no longer relevant, its estimate of the recoverability of accounts receivable could be further reduced from the levels provided for in the Consolidated Financial Statements.

The following presents the changes in the balance of our allowance for doubtful accounts:

໿
Year Ended
 
Item
 
Balance at beginning of year
 
Additions charged to expense
 
Other
 
Balance at end of year
2018
 
Allowance for doubtful accounts
 
$
10,258

 
$
1,824

 
$
(3,659
)
 
$
8,423

2017
 
Allowance for doubtful accounts
 
12,920

 
1,051

 
(3,713
)
 
10,258

2016
 
Allowance for doubtful accounts
 
14,139

 
1,552

 
(2,771
)
 
12,920


Inventories

Inventories are stated at the lower of cost or net realizable value, with cost being determined using the first-in, first-out method.

Long-Lived Assets and Goodwill

The Company reviews long-lived assets, including intangible assets subject to amortization, for impairment whenever events or changes in circumstances indicate that the carrying value of the asset may not be recoverable. Recoverability is assessed as the carrying value of assets held for use based on a review of undiscounted projected cash flows. Impairment losses, where identified, are measured as the excess of the carrying value of the long-lived asset over its estimated fair value as determined by discounted projected cash flows. No impairment charges for intangible assets with finite lives were recorded for the years ended December 31, 2018 , 2017 and 2016 .
Goodwill is the excess of cost of an acquired entity over the amounts assigned to assets acquired and liabilities assumed in a business combination. Goodwill is not amortized. Goodwill is tested for impairment annually in the fourth quarter of each year, and is tested for impairment between annual tests if an event occurs or circumstances change that would indicate the carrying amount may be impaired. Impairment testing for goodwill is done at a reporting unit level, with all goodwill assigned to a reporting unit.
The test for goodwill impairment is a two-step process to first identify potential goodwill impairment for each reporting unit and then, if necessary, measure the amount of the impairment loss. The Company's reporting units are consistent with our geographies in Note 21 . The Company completed the required annual goodwill impairment test during the fourth quarter of 2018 . The first step of the goodwill impairment test compares the fair value of each of our reporting units to its carrying value. The Company estimates the fair value of its reporting units based primarily on the discounted projected cash flows of the underlying operations. The estimated fair value for each of its reporting units was in excess of its respective carrying values as of December 31, 2018 .
For a summary of our goodwill by reporting unit, see Note 8 .

Redeemable Noncontrolling Interests

The minority interest shareholders of a certain subsidiary have the right in certain circumstances to require the Company to acquire either a portion of or all of the remaining ownership interests held by them. The owners’ ability to exercise any such “put option” right is subject to the satisfaction of certain conditions, including conditions requiring notice in advance of exercise. In addition, these rights cannot be exercised prior to a specified exercise date. The exercise of these rights at their earliest contractual date would result in obligations of the Company to fund the related amounts in 2019. See Note 22 .

The Company has recorded the put option as mezzanine equity at their current estimated redemption amount. For the years ended December 31, 2018 and 2017 , the balance of redeemable noncontrolling interests was $8,872 .

Contingencies

The Company follows the provisions of ASC 450, “ Contingencies ,” which requires that an estimated loss from a loss contingency be accrued by a charge to income if it is both probable that an asset has been impaired or that a liability has been incurred and that the amount of the loss can be reasonably estimated.


F- 10



Foreign Currency Translation

Local currencies generally are considered the functional currencies outside the United States. Assets and liabilities for operations in local-currency environments are translated at month-end exchange rates of the period reported. Income and expense items are translated at average exchange rates of each applicable month. Cumulative translation adjustments are recorded as a component of accumulated other comprehensive income (loss) in shareholders’ equity.

Derivative Financial Instruments

The Company is exposed to market risk from changes in interest rates and foreign currency exchange rates and commodity prices, which may adversely affect its results of operations and financial condition. The Company seeks to minimize these risks through regular operating and financing activities and, when the Company considers it to be appropriate, through the use of derivative financial instruments.

The Company does not purchase, hold or sell derivative financial instruments for trading or speculative purposes. The Company has elected not to prepare and maintain the documentation to qualify for hedge accounting treatment under ASC 815, “ Derivatives and Hedging ,” and therefore, all gains and losses (realized or unrealized) related to derivative instruments are recognized in interest and other expense, net in the consolidated statements of operations and comprehensive loss and depending on the fair value at the end of the reporting period, derivatives are recorded either in prepaid and other current assets or in accrued liabilities in the Consolidated Balance Sheets.

The Company and its subsidiaries conduct business in various countries using both their functional currencies and other currencies to effect cross border transactions. As a result, they are subject to the risk that fluctuations in foreign exchange rates between the dates that those transactions are entered into and their respective settlement dates will result in a foreign exchange gain or loss. When practicable, the Company endeavors to match assets and liabilities in the same currency on its U.S. balance sheet and those of its subsidiaries in order to reduce these risks. The Company, when it considers it to be appropriate, enters into foreign currency contracts to hedge the exposures arising from those transactions. See Note 11 .

The Company is exposed to credit risk if the counterparties to such transactions are unable to perform their obligations. However, the Company seeks to minimize such risk by entering into transactions with counterparties that are believed to be creditworthy financial institutions.

Research and Development Costs

Research and development costs are expensed as incurred.

Earnings (Loss) per Share

Basic earnings (loss) per share are calculated on the weighted-average number of common shares outstanding during each period. Diluted earnings per share include shares issuable upon exercise of outstanding stock options and stock-based awards where the conversion of such instruments would be dilutive. See Note 17 .

Advertising Costs

Advertising costs are expensed as incurred. Advertising costs, including trade shows, were $13,562 , $13,683 and $12,469 for the years ended December 31, 2018 , 2017 and 2016 , respectively.

Pension costs

The Company sponsors a retirement benefit for one of its non-U.S. subsidiaries in the form of a defined benefit pension plan.  Accounting standards require the cost of providing this pension benefit be measured on an actuarial basis. Actuarial gains and losses resulting from both normal year-to-year changes in valuation assumptions and differences from actual experience are deferred and amortized. The application of these accounting standards requires management to make assumptions and judgements that can significantly affect these measurements. Critical assumptions made by management in performing these actuarial valuations include the selection of the discount rate to determine the present value of the pension obligations that affects the amount of pension expense recorded in any given period. Changes in the discount rate could have a material effect on the Company’s reported pension obligations and related pension expense. See Note 16 .


F- 11



Equity Compensation Plans

The Company recognizes compensation expense for its stock-based compensation programs, which include stock options, restricted stock, restricted stock units ("RSU") and performance shares. For service-based awards, stock-based compensation is estimated at the grant date based on the fair value of the awards expected to vest and recognized as expense ratably over the requisite service period of the award. For stock options and awards with market conditions, compensation cost is determined at the individual tranche level. The Company recognizes forfeitures when they occur. 

Income Taxes

The Company and the majority of its domestic subsidiaries file a consolidated U.S. federal income tax return while it has four entities that file separate U.S. federal tax returns. The Company’s non-U.S. subsidiaries file income tax returns in their respective jurisdictions.

Income taxes are accounted for under the asset and liability method. Deferred income tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases and tax benefit carryforwards. Deferred income tax liabilities and assets at the end of each period are determined using enacted tax rates.

The Company establishes a valuation allowance for those jurisdictions in which the expiration date of tax benefit carryforwards or projected taxable earnings leads the Company to conclude that it is “more likely than not” that a deferred tax asset will not be realized. The evaluation process includes the consideration of all available evidence regarding historical results and future projections including the estimated timing of reversals of existing taxable temporary differences and potential tax planning strategies. Once a valuation allowance is established, it is maintained until a change in factual circumstances gives rise to sufficient income of the appropriate character and timing that will allow a partial or full utilization of the deferred tax asset.

In accordance with ASC 740, “ Income Taxes ,” the impact of an uncertain tax position on the Company’s income tax returns is recognized at the largest amount that is more likely than not to be required to be recognized upon audit by the relevant taxing authority.

The Company includes interest and penalties accrued in the Consolidated Financial Statements as a component of income tax expense.

See Note 20 to the Consolidated Financial Statements.

Recent Accounting Pronouncements

Recently Adopted Accounting Standards

In May 2017, the FASB issued ASU No. 2017-09, “ Compensation - Stock Compensation (Topic 718): Scope of Modification Accounting ” (“ASU 2017-09”), in an effort to reduce diversity and clarify what constitutes a modification, as it relates to the change in terms or conditions of a share-based payment award. According to ASU 2017-09, the Company should account for the effects of a modification unless all of the following are met: (1) the fair value of the modified award is the same as the fair value of the original award immediately before the original award is modified, (2) the vesting conditions of the modified award are the same as the vesting conditions of the original award immediately before the original award is modified, and (3) the classification of the modified award as an equity instrument or a liability instrument is the same as the classification of the original award immediately before the original award is modified. The amendments in ASU 2017-09 are effective for annual periods, and interim periods within those annual periods, beginning after December 15, 2017, with early adoption permitted. The Company adopted ASU 2017-09 beginning January 1, 2018 and the implementation of this guidance did not have a material effect on its Consolidated Financial Statements.

In March 2017, the FASB issued ASU No. 2017-07, “ Compensation - Retirement Benefits (Topic 715): Improving the Presentation of Net Periodic Pension Cost and Net Periodic Postretirement Benefit Cost ” (“ASU 2017-07”), which standardizes the presentation of net benefit cost in the income statement and on the components eligible for capitalization in assets. ASU 2017-07 is effective for fiscal years beginning after December 15, 2017, including interim periods within those annual periods. The amendments in ASU 2017-07 should be applied retrospectively for the presentation of the service cost component and the other components of net periodic pension cost and net periodic postretirement benefit cost in the income statement and prospectively, on and after the effective date, for the capitalization of the service cost component of net periodic pension cost and net periodic postretirement

F- 12



benefit in assets. The Company adopted ASU 2017-07 in the first quarter of 2018 and the implementation of this guidance did not have a material effect on its Consolidated Financial Statements.

On January 1, 2018, the Company adopted Accounting Standards Codification ("ASC") Topic 606, “ Revenue from Contracts with Customers. ” The standard outlines a five-step model whereby revenue is recognized as performance obligations within a contract are satisfied. The standard also requires new, expanded disclosures regarding revenue recognition. The Company adopted the standard using the modified retrospective transition method and applied its guidance to contracts not completed at the adoption date. The cumulative effect of initial adoption was recorded as a $576 decrease to the January 1, 2018 opening Accumulated Deficit balance and driven primarily by the timing of recognition related to marketing incentives. The effect of this adoption was immaterial to the Consolidated Financial Statements, and the Company does not expect a material effect to its Consolidated Financial Statements on an ongoing basis. Information for comparative periods has not been restated and continues to be reported under the previously applicable revenue accounting guidance ("ASC 605"). Had ASC 605 been applied to the twelve months ended December 31, 2018 , the Consolidated Statements of Operations and Comprehensive Loss would have shown increased Revenue and a decrease in Net Loss Attributable to 3D Systems Corporation of $332 . On the Consolidated Balance Sheets, Other Assets would have been $567 lower, Deferred Revenues would have been $323 lower and the Accumulated Deficit would have increased by $244 .

Recently Issued Accounting Standards

In August 2018, the FASB issued ASU 2018-15, " Intangibles - Goodwill and Other - Internal-Use Software (Subtopic 350-40) ," which aligns the requirements for capitalizing implementation costs incurred in a service contract hosting arrangement with those of developing or obtaining internal-use software. This standard is effective for interim and annual reporting periods beginning after December 15, 2019, and early adoption is permitted. The Company is currently evaluating the impact the new standard will have on its Consolidated Financial Statements.

In February 2018, the FASB issued ASU No. 2018-02, "Income Statement - Reporting Comprehensive Income (Topic 220): Reclassification of Certain Tax Effects from Accumulated Other Comprehensive Income" (ASU 2018-02), which provides companies with an option to reclassify stranded tax effects resulting from the U.S. Tax Cuts and Jobs Act from accumulated other comprehensive income to retained earnings. ASU 2018-02 is effective for fiscal years beginning after December 15, 2018, with early adoption permitted. The Company elected not to early adopt the provisions of this ASU and expects there will not be a material impact on its Consolidated Financial Statements.

In August 2017, the FASB issued ASU No. 2017-12, “Derivatives and Hedging (Topic 815): Targeted Improvements to Accounting for Hedging Activities” (“ASU 2017-12”), in order to create more transparency around how economic results are presented within both the financial statements and in the footnotes and to better align the results of cash flow and fair value hedge accounting with risk management activities. ASU 2017-12 is effective for fiscal years beginning after December 15, 2018, with early adoption permitted. The Company is currently in the process of evaluating when it will adopt ASU 2017-12 and its impact on its Consolidated Financial Statements.

In January 2017, the FASB issued ASU No. 2017-4, “ Intangibles - Goodwill and Other (Topic 350): Simplifying the Test for Goodwill Impairment ” (“ASU 2017-4”), which eliminates the performance of Step 2 from the goodwill impairment test. In performing its annual or interim impairment testing, an entity will instead compare the fair value of the reporting unit with its carrying amount and recognize any impairment charge for the amount by which the carrying amount exceeds the reporting unit’s fair value. Additionally, an entity should consider income tax effects from any tax deductible goodwill on the carrying amount of the reporting unit when measuring the goodwill impairment loss. The standard is effective for fiscal years beginning after December 15, 2019.  Early adoption is permitted for interim or annual impairment tests performed on testing dates after January 1, 2017. The Company has elected not to early adopt the provisions of this ASU but will re-evaluate as part of performing our 2019 impairment analysis.

In June 2016, the FASB issued ASU 2016-13, " Measurement of Credit Losses on Financial Instruments" ("ASU 2016-13"), which provides guidance regarding the measurement of credit losses for financial assets and certain other instruments that are not accounted for at fair value through net income, including trade and other receivables, debt securities, net investment in leases, and off-balance sheet credit exposures. The new guidance requires companies to replace the current incurred loss impairment methodology with a methodology that measures all expected credit losses for financial assets based on historical experience, current conditions, and reasonable and supportable forecasts. The guidance expands the disclosure requirements regarding credit losses, including the credit loss methodology and credit quality indicators. ASU 2016-13 will be effective for annual reporting periods, including interim reporting within those periods, beginning after December 15, 2019. Early adoption is permitted for annual reporting periods,

F- 13



including interim periods after December 15, 2018 and will be applied using a modified retrospective approach. The Company is currently evaluating the impact of adoption of this standard on its Consolidated Financial Statements.

In February 2016, the FASB issued ASU No. 2016-02, “ Leases (Topic 842) ” (“ASU 2016-02”). ASU 2016-02 requires lessees to recognize assets and liabilities on the balance sheet for all leases with terms longer than twelve months. The ASU also requires disclosure of key information about leasing arrangements. ASU 2016-02 is effective on January 1, 2019, using a modified retrospective method of adoption. In August 2018, the FASB issued ASU 2018-11, “ Targeted Improvements to ASC 842”, which includes an option to not restate comparative periods in transition and elect to use the effective date of ASC Topic 842, “ Leases," as the date of initial application of transition. The Company adopted this ASU on January 1, 2019 and elected the transition option provided under ASU 2018-11 to recognize a cumulative-effect adjustment to the opening balance of retained earnings in the period of adoption. The Company also applied the package of practical expedients that allows it to avoid the reassessment of: (1) whether any expired or existing contracts are or contain leases, (2) lease classification for any expired or existing leases and (3) initial direct costs for any expired or existing leases. The Company also elected the practical expedient that allows it to treat the lease and non-lease components of its leases as a single component for its real estate leases. While the Company continues to review its population of leased assets, it expects to recognize operating lease liabilities ranging from $40 to $50 million , with corresponding right of use assets of the same amount based on the present value of the remaining lease payments over the lease term. Our accounting for capital leases will remain substantially unchanged. This standard is not expected to have a material impact on our results of operations or cash flows.

No other new accounting pronouncements, issued or effective during 2018 , have had or are expected to have a significant impact on the Company’s consolidated financial statements.

Note 3 Acquisitions

2018 Acquisitions

No acquisitions were made by the Company for the year ended December 31, 2018.

2017 Acquisitions

On January 31, 2017 , the Company acquired 100 percent of the shares of Vertex-Global Holding B.V. (“Vertex”), a provider of dental materials worldwide under the Vertex and NextDent brands. The fair value of the consideration paid for this acquisition, net of cash acquired, was $37,562 , and consisted of cash and shares. The cash portion of the purchase price is included in cash paid for acquisitions, net of cash assumed, in the Consolidated Statement of Cash Flows. The share portion of the purchase price is included in issuance of stock for acquisitions in the Consolidated Statement of Equity. The operating results of Vertex have been included in the Company’s reported results since the closing date. The purchase price of the acquisition has been allocated to the estimated fair value of net tangible and intangible assets acquired, with any excess purchase price recorded as goodwill.

2016 Acquisitions

No acquisitions were made by the Company for the year ended December 31, 2016. 

Note 4 Revenue

The Company accounts for revenue in accordance with ASC Topic 606, “ Revenue from Contracts with Customers ,” which it adopted on January 1, 2018, using the modified-retrospective method.

Performance Obligations

A performance obligation is a promise in a contract to transfer a distinct good or service to the customer, and is the unit of account in ASC Topic 606. A contract’s transaction price is allocated to each distinct performance obligation and recognized as revenue when, or as, the performance obligation is satisfied.

At December 31, 2018 , the Company had $ 132,337 of outstanding performance obligations. The Company expects to recognize approximately 93 percent of its remaining performance obligations as revenue within the next twelve months, an additional 4 percent by the end of 2020 and the balance thereafter.


F- 14



Revenue Recognition

Revenue is recognized when control of the promised products or services is transferred to customers in an amount that reflects the consideration the Company expects to receive in exchange for those products or services. The Company enters into contracts that can include various combinations of products and services, which are generally capable of being distinct and accounted for as separate performance obligations. Many of its contracts with customers include multiple performance obligations. For such arrangements, the Company allocates revenue to each performance obligation based on its relative standalone selling price (“SSP”). Revenue is recognized net of allowances for returns and any taxes collected from customers, which are subsequently remitted to governmental authorities. The amount of consideration received and revenue recognized may vary based on changes in marketing incentive programs offered to our customers. The Company's marketing incentive programs take many forms, including volume discounts, trade-in allowances, rebates and other discounts.

A majority of the Company’s revenue is recognized at the point in time when products are shipped or services are delivered to customers. Please see below for further discussion.

Hardware and Materials

Revenue from hardware and material sales is recognized when control has transferred to the customer which typically occurs when the goods have been shipped to the customer, risk of loss has transferred to the customer and the Company has a present right to payment for the hardware. In limited circumstances when a printer or other hardware sales include substantive customer acceptance provisions, revenue is recognized either when customer acceptance has been obtained, customer acceptance provisions have lapsed, or the Company has objective evidence that the criteria specified in the customer acceptance provisions have been satisfied.

Printers and certain other products include a warranty under which the Company provides maintenance for periods up to one year. For these initial product warranties, estimated costs are accrued at the time of the sale of the product. These cost estimates are established using historical information on the nature, frequency and average cost of claims for each type of printer or other product as well as assumptions about future activity and events. Revisions to expense accruals are made as necessary based on changes in these historical and future factors.

Software

The Company also markets and sells software tools that enable our customers to capture and customize content using our printers, as well as reverse engineering and inspection software. Software does not require significant modification or customization and the license provides the customer with a right to use the software as it exists when made available. Revenue from these software licenses is recognized either upon delivery of the product or of a key code which allows the customer to download the software. Customers may purchase post-sale support. Generally, the first year is included but subsequent years are optional. This optional support is considered a separate obligation from the software and is deferred at the time of sale and subsequently recognized ratably over future periods.

Services

The Company offers training, installation and non-contract maintenance services for its products. Additionally, the Company offers maintenance contracts customers can purchase at their option. For maintenance contracts, revenue is deferred at the time of sale based on the stand-alone selling prices of these services and costs are expensed as incurred. Deferred revenue is recognized ratably over the term of the maintenance period on a straight-line basis. Revenue from training, installation and non-contract maintenance services is recognized at the time of performance of the service.

On demand manufacturing and healthcare service sales are included within services revenue and revenue is recognized upon shipment or delivery of the parts or performance of the service, based on the terms of the arrangement.

Terms of sale

Shipping and handling activities are treated as fulfillment costs rather than as an additional promised service. The Company accrues the costs of shipping and handling when the related revenue is recognized. Costs incurred by the Company associated with shipping and handling are included in product cost of sales.

Credit is extended, and creditworthiness is determined, based on an evaluation of each customer’s financial condition. New customers are generally required to complete a credit application and provide references and bank information to facilitate an analysis of creditworthiness. Customers with a favorable profile may receive credit terms that differ from the Company’s general

F- 15



credit terms. Creditworthiness is considered, among other things, in evaluating the Company’s relationship with customers with past due balances.

The Company’s terms of sale generally provide payment terms that are customary in the countries where it transacts business. To reduce credit risk in connection with certain sales, the Company may, depending upon the circumstances, require significant deposits or payment in full prior to shipment. For maintenance services, the Company either bills customers on a time-and-materials basis or sells maintenance contracts that provide for payment in advance on either an annual or other periodic basis.

See Note 21 for additional information related to revenue by reportable segment and major lines of business.

Significant Judgments

The Company’s contracts with customers often include promises to transfer multiple products and services to a customer. For such arrangements, the Company allocates revenues to each performance obligation based on its relative SSP.

Judgment is required to determine the SSP for each distinct performance obligation in a contract. For the majority of items, the Company estimates SSP using historical transaction data. The Company uses a range of amounts to estimate SSP when we sell each of the products and services separately and need to determine whether there is a discount to be allocated based on the relative SSP of the various products and services. In instances where SSP is not directly observable, such as when the product or service is not sold separately, the Company determines the SSP using information that may include market conditions and other observable inputs.

In some circumstances, the Company has more than one SSP for individual products and services due to the stratification of those products and services by customers, geographic region or other factors. In these instances, it may use information such as the size of the customer and geographic region in determining the SSP.

The determination of SSP is an ongoing process and information is reviewed regularly in order to ensure SSP reflects the most current information or trends.

The nature of the Company’s marketing incentives may lead to consideration that is variable. Judgment is exercised at contract inception to determine the most likely outcome of the contract and resulting transaction price. Ongoing assessments are performed to determine if updates are needed to the original estimates.

Contract Balances

The timing of revenue recognition, billings and cash collections results in billed accounts receivable, unbilled receivables (contract assets), and customer deposits and deferred revenues (contract liabilities) on the Consolidated Balance Sheets. Timing of revenue recognition may differ from the timing of invoicing to customers. The Company records a receivable when revenue is recognized at the time of invoicing, or unbilled receivables when revenue is recognized prior to invoicing. For most of the Company’s contracts, customers are invoiced when products are shipped or when services are performed resulting in billed accounts receivables for the remainder of the owed contract price. Unbilled receivables generally result from items being shipped where the customer has not been charged, but for which revenue had been recognized. In the Company’s on demand manufacturing business, customers may be required to pay in full before work begins on their orders, resulting in customer deposits. The Company typically bills in advance for installation, training and maintenance contracts as well as extended warranties, resulting in deferred revenue. Changes in contract asset and liability balances were not materially impacted by any other factors for the period ended December 31, 2018 .

For the year ended December 31, 2018 , the Company recognized revenue of $ 37,206 related to our contract liabilities at January 1, 2018.

Practical Expedients and Exemptions

The Company generally expenses sales commissions when incurred because the amortization period would be one year or less. These costs are recorded within selling, general and administrative expenses.


F- 16



Note 5 Inventories

Components of inventories, net, at December 31, 2018 and 2017 are as follows:
(in thousands)
 
2018
 
2017
Raw materials
 
$
49,624

 
$
37,660

Work in process
 
2,969

 
3,906

Finished goods and parts
 
80,568

 
62,337

Inventories, net
 
$
133,161

 
$
103,903


During the year ended December 31, 2018 , inventory levels increased in support of new product launches and manufacturing ramp for those products, including certain parts which have long lead times. Additionally, during the year ended December 31, 2017 , the Company recorded inventory adjustments totaling $12.9 million resulting from its lower of cost or net realizable value analysis. The charge was effected because of ongoing efforts to focus and prioritize the Company’s portfolio based on year-to-date demand, market trends and a better understanding of where the Company’s offerings meet and will continue to meet customers’ needs and demand. The inventory adjustments related primarily to legacy plastics printers, refurbished and used metals printers and parts which have shown little to no use over extended periods.

໿
໿
Note 6 Property and Equipment

Property and equipment at December 31, 2018 and 2017 are summarized as follows:
໿
(in thousands)
 
2018
 
2017
 
Useful Life (in years)
Land
 
$
903

 
$
903

 
N/A
Building
 
12,408

 
11,276

 
25-30
Machinery and equipment
 
151,429

 
134,666

 
2-7
Capitalized software
 
18,357

 
8,834

 
3-5
Office furniture and equipment
 
4,955

 
4,677

 
1-5
Leasehold improvements
 
31,514

 
29,503

 
Life of lease (a)
Construction in progress
 
15,083

 
13,527

 
N/A
Total property and equipment
 
234,649

 
203,386

 
 
Less: Accumulated depreciation and amortization
 
(126,931
)
 
(105,865
)
 
 
Total property and equipment, net
 
$
107,718

 
$
97,521

 
 

(a)
Leasehold improvements are amortized on a straight-line basis over the shorter of (i) their estimated useful lives and (ii) the estimated or contractual life of the related lease.

The Company includes all depreciation from assets attributable to the generation of revenue in the Cost of Sales line item in the Statement of Operations. Depreciation related to assets that are not attributable to the generation of revenue are included in the Research and Development and Selling and General Administrative line items in the Statement of Operations. Depreciation expense on property and equipment for the years ended 2018 ,   2017 and 2016 was $29,302 ,   $25,561 and $24,331 , respectively.

For the years ended December 31, 2018 , 2017 and 2016 , the Company recognized impairment charges of $625 ,   $636 , and  $7,408 , respectively, on property and equipment, net.


F- 17



Note 7 Intangible Assets

Intangible assets other than goodwill at December 31, 2018 and December 31, 2017 are summarized as follows:


 
2018
 
2017
 
 
 
 
(in thousands)
 
Gross
 
Accumulated Amortization
 
Net
 
Gross
 
Accumulated Amortization
 
Net
 
Useful Life (in years)
 
Weighted Average Useful Life Remaining (in years)
Intangible assets with finite lives:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Customer relationships
 
$
103,332

 
$
(67,129
)
 
$
36,203

 
$
105,505

 
$
(57,796
)
 
$
47,709

 
1-12
 
5
Acquired technology
 
52,691

 
(47,546
)
 
5,145

 
54,716

 
(39,644
)
 
15,072

 
1-2
 
2
Trade names
 
25,096

 
(17,669
)
 
7,427

 
25,813

 
(15,552
)
 
10,261

 
3-6
 
5
Patent costs
 
11,032

 
(8,382
)
 
2,650

 
17,909

 
(7,338
)
 
10,571

 
1-19
 
14
Trade secrets
 
19,374

 
(13,574
)
 
5,800

 
19,431

 
(11,530
)
 
7,901

 
2-4
 
3
Acquired patents
 
16,212

 
(13,160
)
 
3,052

 
16,661

 
(11,969
)
 
4,692

 
6-8
 
7
Other
 
26,551

 
(18,553
)
 
7,998

 
20,012

 
(17,435
)
 
2,577

 
1-2
 
1
Total intangible assets
 
$
254,288

 
$
(186,013
)
 
$
68,275

 
$
260,047

 
$
(161,264
)
 
$
98,783

 
1-19
 
5

The Company includes all amortization from assets attributable to the generation of revenue in the Cost of Sales line item in the Statement of Operations. Amortization related to assets that are not attributable to the generation of revenue are included in the Research and Development and Selling and General Administrative line items in the Statement of Operations. Amortization expense related to intangible assets was $29,722 ,   $35,559  and $35,124  for the years ended December 31, 2018 ,   2017 and 2016 , respectively. Amortization of these intangible assets is calculated on a straight-line basis.

Annual amortization expense for intangible assets is expected to be $20,411 in 2019 , $17,308 in 2020 , $12,859 in 2021 , $7,493 in 2022 and $2,526 in 2023 .

For discussion on intangible asset impairment testing, see Note 2 .

Note 8 Goodwill

The following are the changes in the carrying amount of goodwill by geographic reporting unit:
(in thousands)
 
Americas
 
EMEA
 
Asia Pacific
 
Total
Balance at December 31, 2016
 
$

 
$
144,971

 
$
36,259

 
$
181,230

Acquisitions and adjustments
 

 
31,438

 
41

 
31,479

Effect of foreign currency exchange rates
 

 
15,539

 
2,634

 
18,173

Balance at December 31, 2017
 

 
191,948

 
38,934

 
230,882

Acquisitions and adjustments
 

 
(331
)
 

 
(331
)
Effect of foreign currency exchange rates
 

 
(7,597
)
 
(1,620
)
 
(9,217
)
Balance at December 31, 2018
 
$

 
$
184,020

 
$
37,314

 
$
221,334


The effect of foreign currency exchange in this table reflects the impact on goodwill of amounts recorded in currencies other than the U.S. dollar on the financial statements of subsidiaries in these geographic areas resulting from the yearly effect of foreign currency translation between the applicable functional currency and the U.S. dollar.

For discussion on acquisitions, see Note 3 . For discussion on goodwill impairment testing, see Note 2 .

Note 9 Employee Benefits

The Company sponsors a Section 401(k) plan (the “Plan”) covering substantially all its eligible U.S. employees. The Plan entitles eligible employees to make contributions to the Plan after meeting certain eligibility requirements. Contributions are limited to

F- 18



the maximum contribution allowances permitted under the Internal Revenue Code. The Company matches 50.0% of contributions on the first  6.0% of the participant’s eligible compensation. The Company will give a minimum match of $1,500 to participants who average a minimum 6.0% deferral contribution rate per plan year. In addition, the Company has several other U.S. and non-U.S. defined contribution plans covering eligible U.S. and non-U.S. employees, respectively.

For the years ended December 31, 2018 ,   2017 and 2016 , the Company expensed $2,606 ,   $2,360 and $1,175 , respectively, for matching contributions to defined contribution plans.

Note 10 Accrued and Other Liabilities

Accrued liabilities at December 31, 2018 and 2017 are summarized below:  
(in thousands)
 
2018
 
2017
Compensation and benefits
 
$
23,787

 
$
20,432

Accrued taxes
 
17,246

 
13,861

Arbitration awards
 
2,256

 
11,282

Vendor accruals
 
6,895

 
7,044

Product warranty liability
 
3,788

 
5,564

Accrued earnouts related to acquisitions
 

 
2,772

Accrued other
 
2,108

 
2,485

Royalties payable
 
1,417

 
1,679

Accrued professional fees
 
1,657

 
742

Accrued interest
 
111

 
38

Total
 
$
59,265

 
$
65,899


Other liabilities at December 31, 2018 and 2017 are summarized below:
(in thousands)
 
2018
 
2017
Long term employee indemnity
 
$
13,609

 
$
13,887

Defined benefit pension obligation
 
8,518

 
8,290

Other long term liabilities
 
4,915

 
7,596

Long term deferred revenue
 
8,121

 
7,298

Long term tax liability
 
4,168

 
9,340

Long term earnouts related to acquisitions
 

 
2,343

Total
 
$
39,331

 
$
48,754


Changes in product warranty obligations, including deferred revenue on extended warranty contracts, for the years ended December 31, 2018 , 2017 and 2016 are summarized below:
(in thousands)
 
Beginning Balance
 
Additional Accrual/ Revenue Deferred
 
Costs Incurred/ Deferred Revenue Amortization
 
Ending Balance
Year Ended December 31,
 
 
 
 
 
 
 
 
2018
 
$
10,202

 
$
9,347

 
$
(11,889
)
 
$
7,660

2017
 
9,051

 
13,623

 
(12,472
)
 
10,202

2016
 
10,663

 
12,859

 
(14,471
)
 
9,051



F- 19



Note 11 Hedging Activities and Financial Instruments

The Company had $75,304 , $39,600 and $0 in notional foreign exchange contracts outstanding as of December 31, 2018 , 2017 , and 2016 , respectively. The fair values of these contracts were not material. Gains and losses (realized or unrealized) are recognized in “Interest and other expense, net” in the Consolidated Statements of Operations.

The Company translates foreign currency balance sheets from each international businesses' functional currency (generally the respective local currency) to U.S. dollars at end-of-period exchange rates, and statements of earnings at average exchange rates for each period. The resulting foreign currency translation adjustments are a component of Other Comprehensive Income (Loss).

The Company does not hedge the fluctuation in reported revenue and earnings resulting from the translation of these international operations' results into U.S. dollars. The impact of translating the Company’s non-U.S. operations’ revenue and earnings into U.S. dollars was not material to the Company’s results of operations for the years ended December 31, 2018 , 2017 and 2016 .

Note 12 Borrowings

Credit Facility

On October 10, 2014 , the Company, as borrower, and certain of its subsidiaries, as guarantors, entered into a $150,000   5 -year revolving, unsecured credit facility (the “Prior Credit Agreement”). The Prior Credit Agreement comprised a revolving loan facility that provided for advances in the initial aggregate principal amount of up to $150,000 (the “Prior Credit Facility”).

The Prior Credit Agreement was guaranteed by certain of the Company’s material domestic subsidiaries.

The Prior Credit Facility contained customary covenants, some of which required the Company to maintain certain financial ratios that determined the amounts available and terms of borrowings and events of default. The Company was in compliance with all covenants at both December 31, 2018 and December 31, 2017 .

There was $25,000 outstanding balance under the Prior Credit Facility as of December 31, 2018 , which was due on March 1, 2019. There was no outstanding balance as of December 31, 2017 . The Prior Credit Agreement was terminated on February 27, 2019.

On February 27, 2019, the Company, as borrower, and certain of its subsidiaries, as guarantors, entered into a 5 -year $100,000 senior secured term loan facility (the “Term Facility”) and a 5 -year $100,000 senior secured revolving credit facility (the “Revolving Facility” and, together with the Term Facility, the “Senior Credit Facility”) which replaced the Prior Credit Agreement. The proceeds of the Senior Credit Facility were used to refinance the existing indebtedness under the Prior Credit Agreement and will be used to support working capital and for general corporate purposes. Subject to certain terms and conditions contained in the Revolving Facility, the Company has the right to request up to four increases to the amount of the Revolving Facility in an aggregate amount not to exceed $100,000 . The Senior Credit Facility is scheduled to mature on February 26, 2024 , at which time all amounts outstanding thereunder will be due and payable. However, the maturity date of the Revolving Facility may be extended at the election of the Company with the consent of the lenders subject to the terms set forth in the Senior Credit Facility.

Pursuant to the Senior Credit Facility, the guarantors guarantee, among other things, all of the obligations of the Company and each other guarantor under the Senior Credit Facility. From time to time, the Company may be required to cause additional domestic subsidiaries to become guarantors under the Senior Credit Facility.

The payment of dividends on the Company’s common stock is restricted under provisions of the Senior Credit Facility, which limits the amount of cash dividends that the Company may pay in any one fiscal year to $30,000 . The Company currently does not pay, and has not paid, any dividends on its common stock, and currently intends to retain any future earnings for use in its business.

Interest Income and Expense

Interest income totaled $789 ,   $784 and $807 for the years ended December 31, 2018 ,   2017 and 2016 , respectively.

Interest expense totaled $1,188 ,   $919 and $1,282 for the years ended December 31, 2018 ,   2017 and 2016 , respectively. 


F- 20



Note 13 Lease Obligations

The Company leases certain of its facilities and equipment under capitalized leases and other facilities and equipment under non-cancelable operating leases. The leases are generally on a net-rent basis, under which the Company pays taxes, maintenance and insurance. Leases that expire at various dates through 2028 are expected to be renewed or replaced by leases on other properties.

Rent expense for the years ended December 31, 2018 ,   2017 and 2016 was  $15,809 ,   $14,899 and $13,232 , respectively.

The Company’s future minimum lease payments as of December 31, 2018 under capitalized leases and non-cancelable operating leases, with initial or remaining lease terms in excess of one year, were as follows:
໿
(in thousands)
 
Capitalized Leases
 
Operating Leases
Years ending December 31:
 
 

 
 

2019
 
$
1,099

 
$
15,123

2020
 
1,011

 
9,153

2021
 
736

 
6,997

2022
 
752

 
5,847

2023
 
752

 
5,095

Later years
 
5,990

 
7,707

Total minimum lease payments
 
10,340

 
$
49,922

Less: amounts representing imputed interest
 
(3,294
)
 
 
Present value of minimum lease payments
 
7,046

 
 
Less: current portion of capitalized lease obligations
 
(654
)
 
 
Capitalized lease obligations, excluding current portion
 
$
6,392

 
 

Capital Lease Obligations

The Company leases its headquarters and research and development facility located in Rock Hill, SC, pursuant to a lease agreement with 3D Fields, LLC. After its initial term ending January 31, 2021 , the lease provides the Company with the option to renew the lease for two additional 5 -year terms. The lease also grants the Company the right to cause 3D Fields, LLC, subject to certain terms and conditions, to expand the leased premises during the term of the lease, in which case the term of the lease would be extended. The lease is a triple net lease and provides for the payment of base rent of $710 in 2019 through 2020 and $723 in 2021. Under the terms of the lease, the Company is obligated to pay all taxes, insurance, utilities and other operating costs with respect to the leased premises. This lease is recorded as a capitalized lease obligation under ASC 840, “ Leases .” The implicit interest rate was 6.93% as of December 31, 2018 and 2017 .

The Company leases certain equipment with lease terms through February, 2021 .  In accordance with ASC 840, the Company has recorded these leases as capitalized leases. The implicit interest rate ranged from 1.75% to 8.06%  at December 31, 2018 and 2017 .

Note 14 Preferred Stock

The Company had $5,000 shares of preferred stock that were authorized but unissued at December 31, 2018 and 2017 .  

Note 15 Stock-Based Compensation

Effective May 19, 2004, the Company adopted its 2004 Incentive Stock Plan, as further amended and restated on February 3, 2015 (the “2004 Stock Plan”), and its 2004 Restricted Stock Plan for Non-Employee Directors, as further amended and restated on April 1, 2013 (the “Director Plan”). On May 19, 2015, the Company’s stockholders approved the 2015 Incentive Plan of 3D Systems Corporation, as further amended and restated on May 16, 2017 (the “2015 Plan” and, together with the 2004 Stock Plan, the “Incentive Plans”).


F- 21



The 2015 Plan authorizes shares of restricted stock, RSUs, stock appreciation rights, cash incentive awards and the grant of options to purchase shares of the Company’s common stock. The 2015 Plan also designates measures that may be used for performance awards. The Director Plan authorizes shares of restricted stock for non-employee directors of the Company. The 2004 Stock Plan authorized shares of restricted stock, RSUs, stock appreciation rights and the grant of options to purchase shares of the Company’s common stock. The 2004 Stock Plan also designated measures that may be used for performance awards. The 2004 Stock Plan was superseded by the 2015 Plan and, as of December 31, 2018, there were no outstanding awards under the 2004 Stock Plan as the final vesting of awards granted under the 2004 Stock Plan occurred during 2018.

Generally, awards granted prior to November 13, 2015 become fully-vested on the 3 -year anniversary of the grant date and awards granted on or after November 13, 2015 vest one third each year over 3 years.

Stock-based compensation expense is included in selling, general and administrative expenses in the Consolidated Statements of Operations and Comprehensive Income (Loss). The following table details the components of stock-based compensation expense recognized in net earnings in each of the past three years:
໿

 
Year Ended December 31,
(in thousands)
 
2018
 
2017
 
2016
Restricted Stock
 
$
24,933

 
$
22,920

 
$
28,612

Stock Options
 
4,320

 
4,340

 
2,683

Total stock-based compensation expense
 
$
29,253

 
$
27,260

 
$
31,295


Restricted Stock  
 
The Company determines the fair value of restricted stock and RSUs based on the closing price of its stock on the date of grant. The Company generally recognizes compensation expense related to restricted stock and RSUs on a straight-line basis over the period during which the restriction lapses. Forfeitures are recognized in the period in which they occur. A summary of restricted stock and RSU activity during 2018 follows:
໿
(in thousands, except per share amounts)
 
Number of Shares/Units
 
Weighted Average Grant Date Fair Value
Outstanding at beginning of period — unvested
 
4,267

 
$
13.12

Granted
 
1,957

 
16.08

Cancelled
 
(252
)
 
11.98

Vested
 
(2,141
)
 
14.22

Outstanding at end of period — unvested
 
3,831

 
$
14.03


Included in the outstanding balance above are 369 shares of restricted stock that vest under specified market conditions and 396 shares of restricted stock that vest under specified Company performance measures. The specified market condition shares were awarded to certain employees in 2017 and 2016 and were generally awarded in two equal tranches of market condition restricted stock that immediately vests when the Company’s common stock trades at either $30 or $40 per share for ninety consecutive calendar days.

Some RSUs are granted with a performance measure derived from non-GAAP-based management targets. Depending on the Company’s performance with respect to this metric, the number of RSUs earned may be less than, equal to or greater than the original number of RSUs awarded, subject to a payout range.

At December 31, 2018 , there was $1,049 of unrecognized pre-tax stock-based compensation expense related to non-vested restricted stock awards with market conditions, which the Company expects to recognize over a weighted-average period of 1.0 year.
 
At December 31, 2018 , there was $37,828 of unrecognized pre-tax stock-based compensation expense related to all other non-vested restricted stock award shares and units, which the Company expects to recognize over a weighted-average period of 2.0 years.


F- 22



Stock Options  

During the year ended December 31, 2016, the Company awarded certain employees market condition stock options under the 2015 Plan, included in the activity above, that vest under specified market conditions. Each employee was generally awarded two equal tranches of market condition stock options that immediately vest when the Company’s common stock trades at either $30 or $40 per share for ninety consecutive calendar days.

The Company recognizes compensation expense related to stock options on a straight-line basis over the derived term of the awards. Forfeitures are recognized in the period in which they occur. The fair value of stock options with market conditions is estimated using a binomial lattice Monte Carlo simulation model. The weighted-average fair value and the assumptions used to measure fair value were as follows:
໿

 
Year Ended December 31,

 
2018
 
2017
 
2016
Stock option assumptions:
 
 
 
 
 
 
Weighted-average fair value
 
$

 
$

 
$
7.80

Expected volatility
 
%
 
%
 
60.0
%
Risk-free interest rate
 

 

 
0.76-1.46%

Expected dividend yield
 
%
 
%
 
%
Derived term in years
 

 

 
3-4


Stock option activity for the year ended December 31, 2018 was as follows:

 
Year Ended Year Ended December 31, 2018
(in thousands, except per share amounts)
 
Number of Shares
 
Weighted Average Exercise
 
Weighted Average Remaining Contractual Term (in years)
 
Aggregate Intrinsic Value (in thousands)
Stock option activity:
 
 
 
 
 
 
 
 
Outstanding at beginning of period
 
1,820

 
$
14.08

 

 

Granted
 

 

 

 

Exercised
 

 

 

 

Forfeited and expired
 
(40
)
 
13.25

 

 

Outstanding at end of period
 
1,780

 
$
14.10

 
7.5

 


In the table above, intrinsic value is calculated as the excess, if any, between the market price of the Company’s stock on the last trading day of the year and the exercise price of the options. Because the market price was lower than the exercise price, the intrinsic value is zero .

At December 31, 2018 , there was $2,796 of unrecognized pre-tax stock-based compensation expense related to stock options, which the Company expects to recognize over a weighted-average period of 1.0 years.


F- 23



Note 16 International Retirement Plan

The Company sponsors a non-contributory defined benefit pension plan for certain employees of a non-U.S. subsidiary initiated by a predecessor of the subsidiary. The Company maintains insurance contracts that provide an annuity that is used to fund the current obligations under this plan. The following table provides a reconciliation of the changes in the projected benefit obligation for the years ended December 31, 2018 and 2017 :
(in thousands)
 
2018
 
2017
Reconciliation of benefit obligations:
 
 
 
 
Obligations as of January 1
 
$
8,434

 
$
7,727

Service cost
 
155

 
184

Interest cost
 
148

 
131

Actuarial loss (gain)
 
453

 
(555
)
Benefit payments
 
(145
)
 
(136
)
Effect of foreign currency exchange rate changes
 
(387
)
 
1,083

Benefit obligations as of December 31
 
8,658

 
8,434

Fair value of assets as of December 31 (a)
 
3,224

 
3,207

Funded status as of December 31, net of tax benefit
 
$
(5,434
)
 
$
(5,227
)
 
 
 
 
 
(a)  No change in underlying asset value for the periods.
 
 
 
 

The following table provides a reconciliation of the amounts recognized in “Accumulated other comprehensive income (loss)” in accordance with ASC 715, “ Compensation – Retirement Benefits ” for the years ended December 31, 2018 and 2017 :
(in thousands)
 
2018
 
2017
Amounts recognized as accumulated other comprehensive income (loss):
 
 
 
 
Current year actuarial gain (loss)
 
$
276

 
$
555

Amortization of prior years' unrecognized loss
 
177

 
244

Tax benefit (provision)
 
88

 
(247
)
Total recognized as accumulated other comprehensive income (loss)
 
$
188

 
$
552


The Company has recognized the following amounts in the Consolidated Balance Sheets at December 31, 2018 and 2017 :
(in thousands)
 
2018
 
2017
Other assets
 
$
3,224

 
$
3,207

Accrued liabilities
 
(140
)
 
(144
)
Other liabilities
 
(8,518
)
 
(8,290
)
Net liability
 
$
(5,434
)

$
(5,227
)

The following projected benefit obligation and accumulated benefit obligation were estimated as of December 31, 2018 and 2017 :
(in thousands)
 
2018
 
2017
Projected benefit obligation
 
$
8,658

 
$
8,434

Accumulated benefit obligation
 
$
7,587

 
$
7,570



F- 24



The following table shows the components of net periodic benefit costs and other amounts recognized in Other Comprehensive Income (Loss):
໿
(in thousands)
 
2018
 
2017
Net periodic benefit cost:
 
 
 
 
Service cost
 
$
155

 
$
184

Interest cost
 
148

 
131

Amortization of actuarial loss
 
177

 
244

Total
 
$
480

 
$
559

Other changes in plan assets and benefit obligations recognized in other comprehensive income:
 
 
 
 
Net loss (gain)
 
276

 
(555
)
Total expense recognized in net periodic benefit cost and other comprehensive income
 
$
756

 
$
4


The following assumptions are used to determine benefit obligations as of December 31:
 
 
2018
 
2017
Discount rate
 
1.80%
 
1.80%
Rate of compensation
 
3.50%
 
3.00%

The following benefit payments, including expected future service cost, are expected to be paid:
(in thousands)
 
Estimated future benefit payments:
 

2019
$
142

2020
170

2021
177

2022
183

2023
187

2024-2028
1,162



Note 17 Computation of Net Loss per Share

The Company computes basic loss per share using net loss attributable to 3D Systems Corporation and the weighted average number of common shares outstanding during the applicable period. Diluted loss per share incorporates the additional shares issuable upon assumed exercise of stock options and the release of restricted stock and RSUs, except in such case when their inclusion would be anti-dilutive.
໿
(in thousands, except per share amounts)
 
2018
 
2017
 
2016
Numerator for basic and diluted net loss per share:
 
 
 
 
 
 
Net loss attributable to 3D Systems Corporation
 
$
(45,505
)
 
$
(66,191
)
 
$
(38,419
)

 
 
 
 
 
 
Denominator for basic and diluted net loss per share:
 
 
 
 
 
 
Weighted average shares
 
112,327

 
111,554

 
111,189


 
 
 
 
 
 
Net loss per share, basic and diluted
 
$
(0.41
)
 
$
(0.59
)
 
$
(0.35
)

For the years ended December 31, 2018 , 2017 and 2016 , the effect of dilutive securities, including non-vested stock options, restricted stock awards and RSUs, was excluded from the denominator for the calculation of diluted net loss per share because the Company recognized a net loss for each period and their inclusion would be anti-dilutive. Dilutive securities excluded were 5,015 ,   5,341 and 5,284 shares for the years ended December 31, 2018 , 2017 and 2016 , respectively.

F- 25




Note 18 Noncontrolling Interests
໿
໿

As of December 31, 2018 , the Company owned approximately 70% of the capital and voting rights of Robtec, a service bureau and distributor of 3D printing and scanning products in Brazil which were originally acquired on November 25, 2014.

As of December 31, 2018 , the Company owned approximately 70% of the capital and voting rights of Easyway, a service bureau and distributor of 3D printing and scanning products in China. Approximately 65% of the capital and voting rights of Easyway were acquired on April 2, 2015, and an additional 5% of the capital and voting rights of Easyway were acquired on July 19, 2017 for $2.3 million. The remaining 30% of the capital and voting rights of Easyway were acquired on January 21, 2019 for $13.5 million to be paid in installments over four years.

Note 19 Fair Value Measurements

ASC 820, “ Fair Value Measurements and Disclosures ,” defines fair value as the exchange price that would be received for an asset or paid to transfer a liability (an exit price) in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants on the measurement date. ASC 820 also establishes a fair value hierarchy that requires an entity to maximize the use of observable inputs that may be used to measure fair value:

Level 1 - Quoted prices in active markets for identical assets or liabilities;

Level 2 - Observable inputs other than Level 1 prices, such as quoted prices for similar assets or liabilities, quoted prices in markets that are not active, or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the assets or liabilities; or

Level 3 - Unobservable inputs that are supported by little or no market activity and that are significant to the fair value of the assets or liabilities.

For the Company, the above standard applies to cash equivalents and earnout consideration. The Company utilizes the market approach to measure fair value for its financial assets and liabilities. The market approach uses prices and other relevant information generated by market transactions involving identical or comparable assets or liabilities.

Assets and liabilities measured at fair value on a recurring basis are summarized below:
໿
 
 
Fair Value Measurements as of December 31, 2018
(in thousands)
 
Level 1
 
Level 2
 
Level 3
 
Total
Description
 
 
 
 
 
 
 
 
Cash equivalents (a)  
 
$
6,141

 
$

 
$

 
$
6,141

Earnout consideration (b)
 
$

 
$

 
$

 
$


 
 
 
 
 
 
 
 
 
 
Fair Value Measurements as of December 31, 2017
(in thousands)
 
Level 1
 
Level 2
 
Level 3
 
Total
Description
 
 
 
 
 
 
 
 
Cash equivalents (a) 
 
$
20,244

 
$

 
$

 
$
20,244

Earnout consideration  (b)
 
$

 
$

 
$
5,115

 
$
5,115


໿
(a)
Cash equivalents include funds held in money market instruments and are reported at their current carrying value, which approximates fair value due to the short-term nature of these instruments and are included in cash and cash equivalents in the Consolidated Balance Sheet.


F- 26



(b)
The fair value of the earnout consideration, which is based on the present value of the expected future payments to be made to the sellers of the acquired businesses, was derived by analyzing the future performance of the acquired businesses using the earnout formula and performance targets specified in each purchase agreement and adjusting those amounts to reflect the ability of the acquired entities to achieve the stated targets. Given the significance of the unobservable inputs, the valuations are classified in Level 3 of the fair value hierarchy. The change in earnout consideration from December 31, 2017 to December 31, 2018  reflects a payment of $2,675 , accretion of $268 and adjustments of $2,708 .

The Company did not have any transfers of assets and liabilities between levels  of the fair value measurement hierarchy during the year ended December 31, 2018 .

In addition to the assets and liabilities included in the above table, certain of our assets and liabilities are to be initially measured at fair value on a non-recurring basis. This includes goodwill and other intangible assets measured at fair value for impairment assessment. For further discussion on the valuation techniques and inputs used in the fair value measurement of goodwill and other intangible assets, see Notes 2 , 7 and 8 .

Note 20 Income Taxes

The U.S. Tax Cuts and Jobs Act (“Tax Act”) was enacted in December 2017. The Tax Act significantly changed U.S. tax law by, among other things, lowering the U.S. corporate income tax rate from 35% to 21%  effective January 1, 2018, extending the carryforward period for newly generated net operating losses, implementing a territorial tax system, and imposing a one-time transition tax on deemed repatriated earnings of foreign subsidiaries.

The SEC staff issued Staff Accounting Bulletin No. 118 (“SAB 118”) to address the application of U.S. GAAP in situations when a registrant did not have the necessary information available, prepared, or analyzed (including computations) in reasonable detail to complete the accounting for certain income tax effects of the Tax Act and allowed the registrant to record provisional amounts during a measurement period not to extend beyond one year of the enactment date. The Company applied this guidance when accounting for the enactment date effects of the Tax Act in 2017, and at December 31, 2017, the Company provided for provisional amounts related to the Tax Act, including, re-measurement of deferred tax assets and liabilities, one-time transition tax, and tax on global intangible low-taxed Income Inclusion (“GILTI”). At December 31, 2018, we have completed our accounting for all of the enactment date income tax effects of the Tax Act, and we recorded an adjustment of a $1,524 tax benefit, which was offset by an adjustment to the Company’s valuation allowance of $1,524 tax expense.

The Tax Act provides for a modified territorial tax system with GILTI provisions effective in 2018, which applies an incremental tax on low taxed foreign income. The GILTI provisions require the Company to include in its U.S. income tax return any foreign subsidiary earnings in excess of an allowable return on the foreign subsidiary’s tangible assets.

The components of the Company’s income before income taxes are as follows:
໿

 
2018
 
2017
 
2016
Loss before income taxes:
 
 
 
 
 
 
Domestic
 
$
(59,233
)
 
$
(75,965
)
 
$
(53,868
)
Foreign
 
16,005

 
18,444

 
14,056

Total
 
$
(43,228
)
 
$
(57,521
)
 
$
(39,812
)


F- 27



The components of income tax provision for the years ended December 31, 2018 , 2017 and 2016 are as follows:
໿

 
2018
 
2017
 
2016
Current:
 
 
 
 
 
 
U.S. federal
 
$
(5,882
)
 
$
(83
)
 
$
(2,110
)
State
 
286

 
741

 
30

Foreign
 
10,621

 
12,711

 
8,099

Total
 
5,025

 
13,369

 
6,019


 
 
 
 
 
 
Deferred:
 
 
 
 
 
 
U.S. federal
 
(322
)
 

 
(1,245
)
State
 
3

 
1,097

 

Foreign
 
(2,671
)
 
(6,664
)
 
(5,321
)
Total
 
(2,990
)
 
(5,567
)
 
(6,566
)
Total income tax provision (benefit)
 
$
2,035

 
$
7,802

 
$
(547
)

The overall effective tax rate differs from the statutory federal tax rate for the years ended December 31, 2018 , 2017 and 2016 as follows:

 
% of Pretax Income

 
2018
 
2017
 
2016
Tax provision based on the federal statutory rate
 
21.0
 %
 
35.0
 %
 
35.0
 %
Increase in valuation allowances
 
(34.8
)
 
48.8

 
(58.5
)
Global intangible low-taxed income inclusion
 
(6.6
)
 

 

One-Time transition tax
 
(2.8
)
 
(16.5
)
 

Nondeductible expenses
 
(2.3
)
 
(3.3
)
 
(1.1
)
Taxes related to distributions
 
(2.3
)
 

 

Foreign income tax rate differential
 
(1.5
)
 

 
3.1

Deemed income related to foreign operations
 
(1.5
)
 
(4.1
)
 
(8.4
)
Foreign tax rate change
 
(1.4
)
 
2.2

 

Employee share-based payments
 
0.1

 
(13.2
)
 

Other
 
0.6

 
2.9

 
1.7

Deferred tax adjustments
 
0.9

 
(1.1
)
 
13.0

State taxes, net of federal benefit, before valuation allowance
 
2.4

 
1.0

 
3.9

Return to provision adjustments
 
2.7

 
2.0

 
18.8

Foreign tax credits related to above
 

 

 
6.5

Other tax credits
 
5.1

 

 

U.S. Tax Cuts and Jobs Act - rate change adjustment
 
6.4

 
(65.9
)
 

Uncertain tax positions and audit settlements
 
9.4

 
(1.4
)
 
(25.1
)
Foreign exchange loss
 

 

 
9.4

Impairment of definite lived intangibles
 

 

 
3.1

Effective tax rate
 
(4.6
)%
 
(13.6
)%
 
1.4
 %

The difference between the Company's effective tax rate for 2018 and the federal statutory rate was 25.6 percentage points. The difference in the effective rate is primarily due to the impact of the Tax Act, including adjustments related to the Tax Act, the new provisions for GILTI, tax credits, adjustments to uncertain tax positions related to statute of limitations expiration, as well as change in valuation allowances.

The difference between the Company’s effective tax rate for 2017 and the federal statutory rate was 48.6 percentage points. The difference in the effective rate is due primarily to the impact of the Tax Act, change in valuation allowances that were recorded

F- 28



during the year, as well as the Company’s foreign income inclusions and employee share-based payments that were previously recognized through other comprehensive income. 

The difference between the Company’s effective tax rate for 2016 and the federal statutory rate was 33.6 percentage points. The Company recorded nondeductible expenses, including non-deductible goodwill impairment charges and a valuation allowance in the U.S. and certain foreign jurisdictions, which contributed to a difference in the effective tax rate.

In 2018, there were no changes to the Company’s valuation allowance assertions. We continue to review results of operations and forecast estimates to determine if it is more likely than not that the deferred tax assets will be realized.

During the third quarter of 2017, the Company determined that it is more likely than not that the deferred tax assets related to Phenix Systems would not be realized based on the Company’s review of results from operations and other evidence.  During the fourth quarter of 2017, it was determined that it was more likely than not that Layerwise, located in Belgium, would realize benefits based on results from operations and utilization of existing net operating losses. There were no other changes to the Company’s valuation allowance assertions.

In 2016, there were no changes to the Company’s valuation allowance assertions. During the fourth quarter of 2015, based upon the Company’s review of results of operations and forecast estimates in connection with the assessment of deferred tax benefits, the Company determined that it is more likely than not that the deferred tax assets in the US and certain foreign jurisdictions will not be realized.  

The components of the Company’s net deferred income tax assets and net deferred income tax liabilities at December 31, 2018 and 2017 are as follows:
໿
(in thousands)
 
2018
 
2017
Deferred income tax assets:
 
 
 
 
Intangibles
 
$
22,530

 
$
24,232

Stock options and restricted stock awards
 
5,916

 
5,988

Reserves and allowances
 
15,656

 
11,308

Net operating loss carryforwards
 
41,356

 
35,004

Tax credit carryforwards
 
13,669

 
10,908

Accrued liabilities
 
3,040

 
3,011

Deferred revenue
 
5,036

 
4,629

Valuation allowance
 
(95,398
)
 
(80,796
)
Total deferred income tax assets
 
11,805

 
14,284


 
 
 
 
Deferred income tax liabilities:
 
 
 
 
Intangibles
 
6,994

 
11,301

Property, plant and equipment
 
5,265

 
7,304

Liabilities related to distributions
 
997

 

Other
 
522

 
642

Total deferred income tax liabilities
 
13,778

 
19,247


 
 
 
 
Net deferred income tax liabilities
 
$
(1,973
)
 
$
(4,963
)

At December 31, 2018 , $41,356 of the Company’s deferred income tax assets was attributable to $288,959 of gross net operating loss carryforwards, which consisted of $156,685 of loss carryforwards for U.S. federal income tax purposes, $122,497 of loss carryforwards for U.S. state income tax purposes and $9,777 of loss carryforwards for foreign income tax purposes.

At December 31, 2017 , $35,004 of the Company’s deferred income tax assets was attributable to $237,186 of gross operating loss carryforwards, which consisted of $115,846 of loss carryforwards for U.S. federal income tax purposes, $101,563 of loss carryforwards for U.S. state income tax purposes and $19,777 of loss carryforwards for foreign income tax purposes.


F- 29



The net operating loss carryforwards for U.S. federal income tax purposes begin to expire in 2035. The net operating loss carryforwards for U.S. state income tax purposes begin to expire in 2019. In addition, certain loss carryforwards for foreign income tax purposes begin to expire in 2019 and certain other loss carryforwards for foreign purposes do not expire.

At December 31, 2018 , tax credit carryforwards included in the Company’s deferred income tax assets consisted of $2,934 of research and experimentation credit carryforwards for U.S. federal income tax purposes, $4,049 of research and experimentation tax credit carryforwards for U.S. state income tax purposes, $4,026 of foreign tax credits for U.S. federal income tax purposes, $474 of other U.S. federal tax credits, $915 of research and experimentation tax credit carryforwards for foreign income tax purposes and $729 of other state tax credits. Certain state research and experimentation and other state credits begin to expire in 2021. The Company has recorded a valuation allowance related to the U.S. federal and state tax credits.

At December 31, 2017 , tax credit carryforwards included in the Company’s deferred income tax assets consisted of $2,845 of research and experimentation credit carryforwards for U.S. federal income tax purposes, $3,745 of research and experimentation tax credit carryforwards for U.S. state income tax purposes, $3,549 of foreign tax credits for U.S. federal income tax purposes, $474 of other U.S. federal tax credits, $170 of research and experimentation tax credit carryforwards for foreign income tax purposes and $600 of other state tax credits. Certain state research and experimentation and other state credits begin to expire in 2024. The Company has recorded a valuation allowance related to the U.S. federal and state tax credits.

Due to the one time transition tax, the Company’s previously unremitted earnings have now been subjected to U.S. federal income tax, although, other additional taxes such as, withholding tax, could be applicable. The Company intends to permanently reinvest its earnings outside the U.S. and as such, it has not provided for any additional taxes on approximately $92,876 of unremitted earnings. The Company believes the unrecognized deferred tax liability related to these earnings is approximately $14,000 .

Including interest and penalties, the Company decreased its unrecognized benefits by $8,272  for the year ended December 31, 2018 and increased its unrecognized tax benefits by $2,993 for the year ended December 31, 2017 . The decrease was primarily related to the release of unrecognized tax benefits due to the expiration of statute of limitations. The Company does not anticipate any additional unrecognized tax benefits during the next 12 months that would result in a material change to its consolidated financial position. The Company includes interest and penalties in the Consolidated Financial Statements as a component of income tax expense.

 
Unrecognized Tax Benefits
(in thousands)
 
2018
 
2017
 
2016
Balance at January 1
 
$
(18,310
)
 
$
(18,251
)
 
$
(8,296
)
Increases related to prior year tax positions
 
(1,400
)
 
(4,104
)
 
(2,658
)
Decreases related to prior year tax positions
 
8,272

 
4,045

 

Increases related to current year tax positions
 
(1,593
)
 

 
(7,297
)
Balance at December 31
 
$
(13,031
)
 
$
(18,310
)
 
$
(18,251
)

Tax years 2013 and 2014 remain subject to examination by the U.S. Internal Revenue Service for certain credit carryforwards, while 2015  through 2017 remain subject to examination by the U.S. Internal Revenue Service. State income tax returns are generally subject to examination for a period of three to four years after filing the respective tax returns. The impact on such tax returns of any federal changes remains subject to examination by various states for a period of up to one year after formal notification to the states. The Company files income tax returns (which are open to examination beginning in the year shown in parentheses) in Australia ( 2014 ), Belgium ( 2015 ), Brazil ( 2013 ), China ( 2016 ), France ( 2015 ), Germany ( 2015 ), India ( 2014 ), Israel ( 2014 ), Italy ( 2013 ), Japan ( 2013 ), Korea ( 2013 ), Mexico ( 2013 ), Netherlands ( 2013 ), Switzerland ( 2013 ), the United Kingdom ( 2017 ) and Uruguay ( 2013 ).


F- 30



The following presents the changes in the balance of the Company’s deferred income tax asset valuation allowance:
Year Ended
 
Item
 
Balance at beginning of year
 
Additions (reductions) charged to expense
 
Other
 
Balance at end of year
2018
 
Deferred income tax asset valuation allowance
 
$
80,796

 
$
14,602

 
$

 
$
95,398

2017
 
Deferred income tax asset valuation allowance
 
109,913

 
(28,071
)
 
(1,046
)
 
80,796

2016
 
Deferred income tax asset valuation allowance
 
107,312

 
20,450

 
(17,849
)
 
109,913


Note 21 Segment Information

The Company operates as  one segment and conducts its business through various offices and facilities located throughout the Americas region (United States, Canada, Brazil, Mexico and Uruguay), EMEA region (Belgium, France, Germany, Israel, Italy, the Netherlands, Switzerland and the United Kingdom), and Asia Pacific region (Australia, China, India, Japan and South Korea). The Company has historically disclosed summarized financial information for the geographic areas of operations as if they were segments in accordance with ASC 280, “ Segment Reporting .” Financial information concerning the Company’s geographical locations is based on the location of the selling entity.

For the year ended December 31, 2018 , one customer accounted for approximately 13% of our consolidated revenue. No single customer accounted for more than 10% of our consolidated revenue for the years ended December 31, 2017 or 2016 .

Summarized financial information concerning the Company’s geographical operations is shown in the following tables: 
(in thousands)
 
2018
 
2017
 
2016
Revenue from unaffiliated customers:
 
 
 
 
 
 
United States
 
$
332,611

 
$
322,399

 
$
329,553

Other Americas
 
8,154

 
11,377

 
11,332

EMEA
 
237,462

 
220,357

 
193,141

Asia Pacific
 
109,433

 
91,936

 
98,939

Total revenue
 
$
687,660

 
$
646,069

 
$
632,965

(in thousands)
 
2018
 
2017
 
2016
Revenue by class of product and service:
 
 
 
 
 
 
Products
 
$
259,124

 
$
222,750

 
$
238,011

Materials
 
170,091

 
168,846

 
156,839

Services
 
258,445

 
254,473

 
238,115

Total revenue
 
$
687,660

 
$
646,069

 
$
632,965


໿

F- 31



 
 
Year Ended December 31, 2018
 
 
Intercompany Sales to
(in thousands)
 
Americas
 
EMEA
 
Asia Pacific
 
Total
Americas
 
$
2,342

 
$
59,206

 
$
22,962

 
$
84,510

EMEA
 
75,875

 
28,075

 
7,209

 
111,159

Asia Pacific
 
4,633

 
32

 
3,570

 
8,235

Total
 
$
82,850


$
87,313


$
33,741


$
203,904


 
 
 
 
 
 
 
 
 
 
Year Ended December 31, 2017
 
 
Intercompany Sales to
(in thousands)  
 
Americas
 
EMEA
 
Asia Pacific
 
Total
Americas
 
$
2,169

 
$
51,689

 
$
20,388

 
$
74,246

EMEA
 
70,709

 
19,098

 
4,945

 
94,752

Asia Pacific
 
2,790

 
174

 
3,936

 
6,900

Total
 
$
75,668

 
$
70,961

 
$
29,269

 
$
175,898


 
 
 
 
 
 
 
 
 
 
Year Ended December 31, 2016
 
 
Intercompany Sales to
(in thousands)
 
Americas
 
EMEA
 
Asia Pacific
 
Total
Americas
 
$
3,013

 
$
39,839

 
$
21,639

 
$
64,491

EMEA
 
65,209

 
12,286

 
6,091

 
83,586

Asia Pacific
 
3,046

 
369

 
3,959

 
7,374

Total
 
$
71,268

 
$
52,494

 
$
31,689

 
$
155,451

(in thousands)
 
2018
 
2017
 
2016
Income (loss) from operations:
 
 
 
 
 
 
Americas
 
$
(69,081
)
 
$
(79,429
)
 
$
(64,377
)
EMEA
 
5,283

 
7,483

 
6,016

Asia Pacific
 
20,607

 
17,973

 
19,941

Total
 
$
(43,191
)
 
$
(53,973
)
 
$
(38,420
)
(in thousands)
 
2018
 
2017
 
2016
Depreciation and amortization:
 
 
 
 
 
 
Americas
 
$
25,005

 
$
25,484

 
$
25,892

EMEA
 
30,191

 
31,135

 
29,946

Asia Pacific
 
4,097

 
5,422

 
4,697

Total
 
$
59,293

 
$
62,041

 
$
60,535

(in thousands)
 
2018
 
2017
 
2016
Capital expenditures:
 
 
 
 
 
 
Americas
 
$
19,668

 
$
23,925

 
$
8,172

EMEA
 
20,057

 
5,227

 
5,947

Asia Pacific
 
969

 
1,729

 
2,448

Total
 
$
40,694

 
$
30,881

 
$
16,567


F- 32




 
At December 31,
(in thousands)
 
2018
 
2017
 
2016
Assets:
 
 
 
 
 
 
Americas
 
$
284,676

 
$
329,550

 
$
345,412

EMEA
 
433,326

 
454,319

 
382,163

Asia Pacific 
 
107,830

 
112,895

 
121,578

Total
 
$
825,832

 
$
896,764

 
$
849,153


 
 
 
 
 
 

 
At December 31,
(in thousands)
 
2018
 
2017
 
2016
Cash and cash equivalents:
 
 
 
 
 
 
Americas
 
$
39,316

 
$
51,475

 
$
105,750

EMEA
 
41,581

 
52,642

 
44,877

Asia Pacific 
 
29,101

 
32,227

 
34,320

Total
 
$
109,998

 
$
136,344

 
$
184,947



Note 22 Commitments and Contingencies

The Company leases certain of its facilities and equipment under non-cancelable operating leases.  See Note 13 .

Supply commitments totaled $54,972 and $83,305  as of December 31, 2018 and 2017 , respectively. Commitments for printer assemblies and inventory items at December 31, 2018 and 2017 were $27,851 and $57,592 , respectively. Commitments for operating costs and capital expenditures at December 31, 2018 and 2017 were $27,121 and $25,713 , respectively.

Certain of the Company’s acquisitions contain earnout provisions under which the sellers of the acquired businesses can earn additional amounts. The total liability recorded for these earnouts as of December 31, 2018 and 2017 was $0 and $5,115 , respectively.

Put Options

Owners of interests in the Robtec subsidiary have the right in certain circumstances to require the Company to acquire either a portion of or all of the remaining ownership interests held by them. The owners’ ability to exercise any such “put option” right is subject to the satisfaction of certain conditions, including conditions requiring notice in advance of exercise. In addition, these rights cannot be exercised prior to a specified exercise date. The exercise of these rights at their earliest contractual date would result in obligations of the Company to fund the related amounts in 2019.

Management estimates, assuming that the subsidiary owned by the Company at December 31, 2018 , performs over the relevant future periods at its forecasted earnings levels, that these rights, if exercised, could require the Company, in future periods, to pay approximately $8,872 to the owners of such rights to acquire such ownership interests in the relevant subsidiary. This amount has been recorded as redeemable noncontrolling interests on the Consolidated Balance Sheet at December 31, 2018 and 2017 . The ultimate amount payable relating to this transaction will vary because it is dependent on the future results of operations of the subject business. 

F- 33




Indemnification

In the normal course of business, the Company periodically enters into agreements to indemnify customers or suppliers against claims of intellectual property infringement made by third parties arising from the use of the Company’s products. Historically, costs related to these indemnification provisions have not been significant, and the Company is unable to estimate the maximum potential impact of these indemnification provisions on its future results of operations. 
 
To the extent permitted under Delaware law, the Company indemnifies its directors and officers for certain events or occurrences while the director or officer is, or was, serving at the Company’s request in such capacity, subject to limited exceptions. The maximum potential amount of future payments the Company could be required to make under these indemnification obligations is unlimited; however, the Company has directors and officers insurance coverage that may enable the Company to recover future amounts paid, subject to a deductible and the policy limits. There is no assurance that the policy limits will be sufficient to cover all damages, if any.  

Litigation

Derivative Litigation  

Nine related derivative complaints have been filed by purported Company stockholders against certain of the Company’s former executive officers and members of its Board of Directors.  The Company is named as a nominal defendant in all nine actions. The derivative complaints are styled as follows: (1) Steyn v. Reichental, et al., Case No. 2015-CP-46-2225, filed on July 27, 2015 in the Court of Common Pleas for the 16th Judicial Circuit, County of York, South Carolina (“Steyn”); (2) Piguing v. Reichental, et al., Case No. 2015-CP-46-2396, filed on August 7, 2015 in the Court of Common Pleas for the 16th Judicial Circuit, County of York, South Carolina (“Piguing”); (3)Booth v. Reichental, et al., Case No. 15-692-RGA, filed on August 6, 2015 in the United States District Court for the District of Delaware; (4) Nally v. Reichental, et al., Case No. 15-cv-03756-MGL, filed on September 18, 2015 in the United States District Court for the District of South Carolina (“Nally”); (5) Gee v. Hull, et al., Case No. BC-610319, filed on February 17, 2016 in the Superior Court for the State of California, County of Los Angeles (“Gee”); (6) Foster v. Reichental, et al., Case No. 0:16-cv-01016-MGL, filed on April 1, 2016 in the United States District Court for the District of South Carolina (“Foster”); (7) Lu v. Hull, et al., Case No. BC629730, filed on August 5, 2016 in the Superior Court for the State of California, County of Los Angeles (“Lu”); (8) Howes v. Reichental, et al., Case No. 0:16-cv-2810-MGL, filed on August 11, 2016 in the United States District Court for the District of South Carolina (“Howes”); and (9) Ameduri v. Reichental, et al., Case No. 0:16-cv-02995-MGL, filed on September 1, 2016 in the United States District Court for the District of South Carolina (“Ameduri”). Steyn and Piguing were consolidated into one action styled as In re 3D Systems Corp. Shareholder Derivative Litig., Lead Case No. 2015-CP-46-2225 in the Court of Common Pleas for the 16th Judicial Circuit, County of York, South Carolina. Gee and Lu were consolidated into one action styled as Gee v. Hull, et al., Case No. BC610319 in the Superior Court for the State of California, County of Los Angeles. Nally, Foster, Howes, and Ameduri were consolidated into one action in the United States District Court for the District of South Carolina with Nally as the lead consolidated case.

The derivative complaints allege claims for breach of fiduciary duty, abuse of control, gross mismanagement, waste of corporate assets and unjust enrichment and seek, among other things, monetary damages and certain corporate governance actions.
 
All of the derivative complaints listed above have been stayed.

The Company disputes these allegations and intends to defend the Company and its officers and directors vigorously. 

Ronald Barranco and Print3D Corporation v. 3D Systems Corporation, et. al.    

On August 23, 2013, Ronald Barranco, a former Company employee, filed two lawsuits against the Company and certain officers in the United States District Court for the District of Hawaii. The first lawsuit (“Barranco I”) is captioned Ronald Barranco and Print3D Corporation v. 3D Systems Corporation, 3D Systems, Inc., and Damon Gregoire, Case No. CV 13-411 LEK RLP, and alleges seven causes of action relating to the Company’s acquisition of Print3D Corporation (of which Mr. Barranco was a 50% shareholder) and the subsequent employment of Mr. Barranco by the Company. The second lawsuit (“Barranco II”) is captioned Ronald Barranco v. 3D Systems Corporation, 3D Systems, Inc., Abraham Reichental, and Damon Gregoire, Case No. CV 13-412 LEK RLP, and alleges the same seven causes of action relating to the Company’s acquisition of certain website domains from Mr. Barranco and the subsequent employment of Mr. Barranco by the Company.  Both Barranco I and Barranco II allege the Company breached certain purchase agreements in order to avoid paying Mr. Barranco additional monies pursuant to royalty and earn out provisions in the agreements.

F- 34



With regard to Barranco I, the Hawaii district court, on February 28, 2014, denied the Company’s motion to dismiss and its motion to transfer venue to South Carolina for the convenience of the parties. However, the Hawaii court recognized that Barranco’s claims were all subject to mandatory and binding arbitration in Charlotte, North Carolina. The parties selected an arbitrator and arbitration took place in September 2015 in Charlotte, North Carolina.

On September 28, 2015, the arbitrator issued a final award in favor of Barranco with respect to two alleged breaches of contract and implied covenants arising out of the contract.  The arbitrator found that the Company did not commit fraud or make any negligent misrepresentations to Barranco. Pursuant to the award, the Company was directed to pay approximately $11,282 , which includes alleged actual damages of $7,254 , fees and expenses of $2,318 and prejudgment interest of $1,710 .
 
On August 3, 2018, following an unsuccessful appeal to the federal court in the Western District of North Carolina and the United States Court of Appeals for the Fourth Circuit, the Company paid $9,127 of the Barranco I judgment, net setoff. On September 28, 2018, the parties filed a Consent Stipulation Resolving Motion for Setoff of Judgment, stipulating that subject only to vacatur or amendment reducing the Barranco II judgment in Barranco’s appeal to the Ninth Circuit related to the Barranco II action discussed below, the Barranco II judgment in the amount of $2,182 was setoff against the Barranco I judgment (“Stipulated Setoff”). The Company paid Barranco the $101 balance remaining due after the Stipulated Setoff.

With regard to Barranco II, the case was tried to a jury in Hawaii district court in May 2016, and on May 27, 2016 the jury found that the Company was not liable for either breach of contract or breach of the implied covenant of good faith and fair dealing.  Additionally, the jury found in favor of the Company on its counterclaim against Barranco and determined that Barranco violated his non-competition covenant with the Company. On March 30, 2018, the court entered Findings of Fact and Conclusions of Law and Order requiring Barranco to disgorge, and the Company recover, $523 , representing all but four months of the full amount paid to Barranco as salary during his employment with the Company as well as a portion of the up front and buyout payments made to Barranco in connection with the purchase of certain web domains. In addition, the court ordered Barranco to pay pre-judgment interest to the Company to be calculated beginning as of his first breach of the non-competition covenant in August 2011. Judgment entered thereafter on April 2, 2018.

On September 13, 2018, the Hawaii district court entered its Amended Judgment in a Civil Case, awarding the Company a final amended judgment of $2,182 . On September 19, 2018, Barranco filed an Amended Notice of Appeal. On January 13, 2019, Barranco filed Appellant’s Opening Brief in the Ninth Circuit. The Company’s Answering Brief is due March 15, 2019. Appellant’s optional Reply Brief is due 21 days thereafter. The Company intends to defend the appeal vigorously.

Export Controls and Government Contracts Compliance Matter

In October 2017 the Company received an administrative subpoena from the Bureau of Industry and Security of the Department of Commerce (“BIS”) requesting the production of records in connection with possible violations of U.S. export control laws, including with regard to its Quickparts.com, Inc. subsidiary. In addition, while collecting information responsive to the above-referenced subpoena, the Company identified potential violations of the International Traffic in Arms Regulations (“ITAR”) administered by the Directorate of Defense Trade Controls of the Department of State (“DDTC”) and potential violations of the Export Administration Regulations administered by the BIS.
On June 8, 2018 and thereafter, the Company submitted voluntary disclosures to BIS and DDTC identifying numerous potentially unauthorized exports of technical data, which supplemented an initial notice of voluntary disclosure that the Company submitted to DDTC in February 2018. The Company is conducting an internal review of its export control, trade sanctions, and government contracting compliance risks and potential violations; implementing associated compliance enhancements; and cooperating with DDTC and BIS, as well as the U.S. Departments of Justice, Defense and Homeland Security. Although the Company cannot predict the ultimate resolution of these matters, the Company has incurred and expects to continue to incur significant legal costs and other expenses in connection with responding to the U.S. government agencies.
Other

The Company is involved in various other legal matters incidental to its business. Although the Company cannot predict the results of the litigation with certainty, the Company believes that the disposition of all these various other legal matters will not have a material adverse effect, individually or in the aggregate, on its consolidated results of operations, consolidated statement of cash flows or consolidated financial position.


F- 35



Note 23 Accumulated Other Comprehensive Income (Loss)

The changes in the balances of accumulated other comprehensive loss by component are as follows:
(in thousands)
 
Foreign currency translation adjustment
 
Defined benefit pension plan
 
Liquidation of non-US entity and purchase of non-controlling interests
 
Total
Balance at December 31, 2016
 
$
(50,738
)
 
$
(2,775
)
 
$
288

 
$
(53,225
)
Other comprehensive income (loss)
 
31,419

 
220

 
50

 
31,689

Balance at December 31, 2017
 
(19,319
)
 
(2,555
)
 
338

 
(21,536
)
Other comprehensive income
 
(18,751
)
 
(92
)
 

 
(18,843
)
Amounts reclassified from accumulated other comprehensive income
 
1,401

 

 

 
1,401

Balance at December 31, 2018
 
$
(36,669
)
 
$
(2,647
)
 
$
338

 
$
(38,978
)

Amounts reclassified out of accumulated other comprehensive loss are as follows:
(in thousands)
 
2018
 
2017
 
Statement of Operations Caption
Currency translation adjustments:
 
 
 
 
 
 
Gain on dissolution
 
$
1,401

 
$

 
Interest and other expense, net

The amounts presented above are in other comprehensive loss and are net of taxes. For additional information about foreign currency translation, see Note 11 . For additional information about the pension plan, see Note 16 .

Note 24 Selected Quarterly Financial Data (unaudited)

The following tables set forth unaudited selected quarterly financial data:
໿

 
2018
 
 
Quarter Ended
(in thousands, except per share amounts)
 
December 31
 
September 30
 
June 30
 
March 31
Consolidated revenue
 
$
180,712

 
$
164,511

 
$
176,568

 
$
165,869

Gross profit
 
82,553

 
77,810

 
86,162

 
77,869

Total operating expenses
 
89,572

 
88,794

 
93,884

 
95,335

Loss from operations
 
(7,019
)
 
(10,984
)
 
(7,722
)
 
(17,466
)
Provision for income taxes
 
(4,051
)
 
1,593

 
2,539

 
1,954

Net loss attributable to 3D Systems
 
(4,136
)
 
(11,550
)
 
(8,862
)
 
(20,957
)
Basic and diluted net loss per share
 
$
(0.04
)
 
$
(0.10
)
 
$
(0.08
)
 
$
(0.19
)

 
 
 
 
 
 
 
 

 
2017
 
 
Quarter Ended
(in thousands, except per share amounts)
 
December 31
 
September 30
 
June 30
 
March 31
Consolidated revenue
 
$
177,264

 
$
152,907

 
$
159,467

 
$
156,431

Gross profit
 
85,458

 
58,522

 
80,673

 
80,186

Total operating expenses
 
91,161

 
90,857

 
87,537

 
89,257

Loss from operations
 
(5,703
)
 
(32,335
)
 
(6,864
)
 
(9,071
)
Provision for income taxes
 
971

 
3,723

 
2,067

 
1,041

Net loss attributable to 3D Systems
 
(10,134
)
 
(37,670
)
 
(8,416
)
 
(9,971
)
Basic and diluted net income (loss) per share
 
$
(0.08
)
 
$
(0.34
)
 
$
(0.08
)
 
$
(0.09
)

F- 36




 
2016
 
 
Quarter Ended
(in thousands, except per share amounts)
 
December 31
 
September 30
 
June 30
 
March 31
Consolidated revenue
 
$
165,937

 
$
156,362

 
$
158,111

 
$
152,555

Gross profit
 
82,890

 
68,937

 
80,411

 
77,513

Total operating expenses
 
78,817

 
90,954

 
84,128

 
94,272

Income (loss) from operations
 
4,073

 
(22,017
)
 
(3,717
)
 
(16,759
)
Provision (benefit) for income taxes
 
(1,212
)
 
(2,214
)
 
1,700

 
1,179

Net income (loss) attributable to 3D Systems
 
5,230

 
(21,213
)
 
(4,648
)
 
(17,788
)
Basic and diluted net income (loss) per share
 
$
0.05

 
$
(0.19
)
 
$
(0.04
)
 
$
(0.16
)

The sum of per share amounts for each of the quarterly periods presented does not necessarily equal the total presented for the year because each quarterly amount is independently calculated at the end of each period based on the net income (loss) available to common stockholders for such period and the weighted average shares of outstanding common stock for such period.

Note 25 Subsequent Events

There are no subsequent events except as disclosed within Note 12 , Note 18 and Note 22 .

F- 37
EXECUTION COPY





CREDIT AGREEMENT    
Dated as of February 27, 2019     
by and among
3D SYSTEMS CORPORATION,
as Borrower,
THE GUARANTORS PARTY HERETO,
THE LENDERS PARTY HERETO
and
HSBC BANK USA, NATIONAL ASSOCIATION,
as Administrative Agent
and
HSBC SECURITIES (USA) INC.,
as Sole Lead Arranger and Sole Bookrunner
and
PNC BANK, NATIONAL ASSOCIATION
and
SUNTRUST BANK,
as Co-Syndication Agents


TABLE OF CONTENTS
Page
1.
CERTAIN DEFINITIONS    1
1.1.
Certain Definitions    1
1.2.
Construction    26
1.3.
Accounting Principles; Changes in GAAP    27
1.4.
Calculation of Financial Covenants    28
1.5.
Division    28
2.
THE REVOLVING CREDIT, TERM LOAN AND SWING LOAN FACILITIES    28
2.1.
Revolving Credit Commitments and Term Loan Commitments    28
2.1.1.
Revolving Credit Loans and Term Loans    28
2.1.2.
Swing Loan Commitment    29
2.2.
Nature of Lenders’ Obligations with Respect to Loans    29
2.3.
Commitment Fees    29
2.4.
Termination or Reduction of Commitments    29
2.5.
Revolving Credit Loan and Term Loan Requests; Swing Loan Requests    30
2.5.1.
Revolving Credit Loan and Term Loan Requests    30
2.5.2.
Swing Loan Requests    30
2.6.
Making Revolving Credit Loans and Term Loans; Making Swing Loans; Presumptions by the Administrative Agent; Repayment of Revolving Credit Loans and Term Loans; Borrowings to Repay Swing Loans    30
2.6.1.
Making Revolving Credit Loans and Term Loans    30
2.6.2.
Presumptions by the Administrative Agent    31
2.6.3.
Making Swing Loans    31
2.6.4.
Repayment of Revolving Credit Loans and Term Loans    31
2.6.5.
Borrowings to Repay Swing Loans    32
2.7.
Notes    33
2.8.
Use of Proceeds    34
2.9.
Letter of Credit Subfacility    34
2.9.1.
Issuance of Letters of Credit    34
2.9.2.
Letter of Credit Fees    34
2.9.3.
Disbursements, Reimbursement    35
2.9.4.
Repayment of Participation Advances    36
2.9.5.
Documentation    36
2.9.6.
Determinations to Honor Drawing Requests    36
2.9.7.
Nature of Participation and Reimbursement Obligations    37
2.9.8.
[Reserved]    38
2.9.9.
Liability for Acts and Omissions    38
2.9.10.
Issuing Lender Reporting Requirements    39
2.10.
Defaulting Lenders    39
2.11.
Cash Collateral.    42
2.12.
Increase in Commitments.    42
2.12.1.
Request for Increase    42
2.12.2.
Process for Increase    43
2.12.3.
Effective Date and Allocations    43
2.12.4.
Conditions to Effectiveness of Increase    43
2.12.5.
Conflicting Provisions    44
2.13.
Extension of Revolving Credit Maturity Date    44
2.13.1.
Request for Extension    44
2.13.2.
Lender Elections to Extend    44
2.13.3.
Notification by Administrative Agent    44
2.13.4.
Additional Commitment Lenders    44
2.13.5.
Conditions to Effectiveness of Extensions    44
2.13.6.
Amendment; Sharing of Payments    45
2.13.7.
Minimum Extension Requirement    45
3.
GUARANTY    45
3.1.
Guarantied Obligations    45
3.2.
Guaranty    46
3.3.
Obligations Absolute    46
3.4.
Waivers, etc    47
3.5.
Reinstatement    48
3.6.
Subrogation    48
3.7.
No Stay    49
3.8.
Joint and Several Obligations    49
3.9.
Keepwell    49
4.
INTEREST RATE    49
4.1.
Interest Rate Options    49
4.1.1.
Revolving Credit Interest Rate Options and Term Loan Interest Rate Options; Swing Line Interest Rate    50
4.1.2.
Rate Quotations    50
4.2.
Interest Periods    50
4.2.1.
Amount of Borrowing Tranche    50
4.2.2.
Renewals    51
4.3.
Interest After Default    51
4.3.1.
Letter of Credit Fees, Interest Rate    51
4.3.2.
Other Obligations    51
4.3.3.
Acknowledgment    51
4.4.
Alternate Rate of Interest; Change in Legality    51
4.4.1.
Alternate Rate of Interest    51
4.4.2.
Change in Legality    52
4.5.
Selection of Interest Rate Options    53
5.
PAYMENTS    53
5.1.
Payments    53
5.2.
Pro Rata Treatment of Lenders    53
5.3.
Sharing of Payments by Lenders    54
5.4.
Presumptions by Administrative Agent    54
5.5.
Interest Payment Dates    54
5.6.
Prepayments    54
5.6.1.
Voluntary Prepayments    54
5.6.2.
Mandatory Prepayments    55
5.6.3.
Application of Prepayments, etc.    56
5.7.
Replacement of a Lender    56
5.8.
Designation of a Different Lending Office    57
5.9.
Increased Costs    57
5.9.1.
Increased Costs Generally    57
5.9.2.
Capital Requirements    57
5.9.3.
Certificates for Reimbursement; Repayment of Outstanding Loans; Borrowing of New Loans    58
5.9.4.
Delay in Requests    58
5.9.5.
Eurocurrency Liabilities    58
5.10.
Taxes    58
5.10.1.
Issuing Lender    58
5.10.2.
Payments Free of Taxes    58
5.10.3.
Payment of Other Taxes by the Loan Parties    59
5.10.4.
Indemnification by the Loan Parties    59
5.10.5.
Indemnification by the Lenders    59
5.10.6.
Evidence of Payments    59
5.10.7.
Status of Lenders    59
5.10.8.
Treatment of Certain Refunds    61
5.10.9.
Survival    61
5.11.
Indemnity    62
6.
REPRESENTATIONS AND WARRANTIES    62
6.1.
Representations and Warranties    62
6.1.1.
Organization and Qualification; Power and Authority; Compliance With Laws; Title to Properties; Event of Default    62
6.1.2.
Subsidiaries and Owners    62
6.1.3.
Investment Companies    63
6.1.4.
Validity and Binding Effect    63
6.1.5.
No Conflict; Material Agreements; Consents    63
6.1.6.
Litigation    63
6.1.7.
Financial Statements    63
6.1.8.
Margin Stock    64
6.1.9.
Full Disclosure    64
6.1.10.
Taxes    64
6.1.11.
Patents, Trademarks, Copyrights, Licenses, Etc.    65
6.1.12.
Insurance    65
6.1.13.
ERISA Compliance    65
6.1.14.
Environmental Matters    65
6.1.15.
Labor Matters    65
6.1.16.
Security Documents    66
6.1.17.
Solvency    66
6.1.18.
Sanctions    66
6.1.19.
Anti-Corruption    66
6.1.20.
EEA Financial Institution    66
7.
CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT    66
7.1.
Closing Date    66
7.1.1.
Deliveries    66
7.1.2.
USA Patriot Act    69
7.1.3.
Due Diligence    69
7.1.4.
Payment of Fees    69
7.1.5.
Lender Agreement    69
7.2.
Each Loan or Letter of Credit    69
8.
COVENANTS    69
8.1.
Affirmative Covenants    70
8.1.1.
Preservation of Existence, Etc    70
8.1.2.
Payment of Liabilities, Including Taxes, Etc    70
8.1.3.
Maintenance of Insurance    70
8.1.4.
Maintenance of Properties and Leases    70
8.1.5.
Visitation Rights    70
8.1.6.
Keeping of Records and Books of Account    70
8.1.7.
Compliance with Laws; Use of Proceeds    71
8.1.8.
Sanctions and Anti-Corruption Laws    71
8.1.9.
Guarantors    71
8.1.10.
ERISA Compliance    72
8.1.11.
Anti-Corruption Laws    72
8.1.12.
Further Assurances    72
8.2.
Negative Covenants    73
8.2.1.
Indebtedness    73
8.2.2.
Liens    75
8.2.3.
[Reserved]    75
8.2.4.
Loans and Investments    75
8.2.5.
Dividends and Related Distributions and Restricted Payments    76
8.2.6.
Liquidations, Mergers, Consolidations, Acquisitions    77
8.2.7.
Dispositions of Assets or Subsidiaries    77
8.2.8.
Affiliate Transactions    78
8.2.9.
[Reserved]    78
8.2.10.
Continuation of or Change in Business    78
8.2.11.
[Reserved]    78
8.2.12.
Changes in Organizational Documents    79
8.2.13.
[Reserved]    79
8.2.14.
Maximum Consolidated Total Leverage Ratio    79
8.2.15.
Minimum Interest Coverage Ratio    79
8.2.16.
No Burdensome Agreements (including Negative Pledges)    79
8.3.
Reporting Requirements    79
8.3.1.
Quarterly Financial Statements    79
8.3.2.
Annual Financial Statements    80
8.3.3.
Certificate of the Borrower    80
8.3.4.
Notices    80
9.
EVENTS OF DEFAULT    81
9.1.
Events of Default    81
9.1.1.
Payments Under Loan Documents    82
9.1.2.
Breach of Warranty    82
9.1.3.
Breach of Certain Covenants    82
9.1.4.
Breach of Financial Statement and Compliance Certificate Covenants    82
9.1.5.
Breach of Other Covenants    82
9.1.6.
Defaults in Other Agreements or Indebtedness    82
9.1.7.
Final Judgments or Orders    82
9.1.8.
Loan Document Unenforceable; Impairment of Security    82
9.1.9.
Events Relating to Plans and Benefit Arrangements    83
9.1.10.
Change of Control    83
9.1.11.
Relief Proceedings    83
9.2.
Consequences of Event of Default    83
9.2.1.
Events of Default Other Than Bankruptcy, Insolvency or Reorganization Proceedings    83
9.2.2.
Bankruptcy, Insolvency or Reorganization Proceedings    83
9.2.3.
Set-off    84
9.2.4.
Application of Proceeds    84
10.
THE ADMINISTRATIVE AGENT    85
10.1.
Appointment and Authority    85
10.2.
Rights as a Lender    85
10.3.
Exculpatory Provisions    85
10.4.
Reliance by Administrative Agent    86
10.5.
Delegation of Duties    86
10.6.
Resignation of Administrative Agent    87
10.7.
Non-Reliance on Administrative Agent and Other Lenders    87
10.8.
Administrative Agent’s Fee    88
10.9.
[Reserved]    88
10.10.
No Reliance on Administrative Agent’s Customer Identification Program    88
10.11.
Enforcement    88
10.12.
Administrative Agent May File Proof of Claim    88
10.13.
Collateral and Guaranty Matters    89
10.14.
Merger    90
10.15.
Certain ERISA Matters    90
11.
MISCELLANEOUS    91
11.1.
Modifications, Amendments or Waivers    91
11.1.1.
Increase of Commitment    92
11.1.2.
Extension of Payment; Reduction of Principal, Interest or Fees; Modification of Terms of Payment    92
11.1.3.
Release of Guarantor or Collateral    92
11.1.4.
Miscellaneous    92
11.2.
No Implied Waivers; Cumulative Remedies    92
11.3.
Expenses; Indemnity; Damage Waiver    92
11.3.1.
Costs and Expenses    92
11.3.2.
Indemnification by the Borrower    93
11.3.3.
Reimbursement by Lenders    93
11.3.4.
Waiver of Consequential Damages, Etc    94
11.3.5.
Payments    94
11.4.
Holidays    94
11.5.
Notices; Effectiveness; Electronic Communication    94
11.5.1.
Notices Generally    94
11.5.2.
Electronic Communications    94
11.5.3.
Change of Address, Etc    95
11.6.
Severability    95
11.7.
Duration; Survival    95
11.8.
Successors and Assigns    95
11.8.1.
Successors and Assigns Generally    95
11.8.2.
Assignments by Lenders    95
11.8.3.
Register    97
11.8.4.
Participations    97
11.8.5.
Certain Pledges; Successors and Assigns Generally    98
11.9.
Confidentiality    98
11.9.1.
General    98
11.9.2.
Sharing Information With Affiliates of the Lenders    99
11.10.
Counterparts; Integration; Effectiveness    99
11.10.1.
Counterparts; Integration; Effectiveness    99
11.11.
CHOICE OF LAW; SUBMISSION TO JURISDICTION; WAIVER OF VENUE; SERVICE OF PROCESS; WAIVER OF JURY TRIAL    99
11.11.1.
Governing Law    99
11.11.2.
SUBMISSION TO JURISDICTION    100
11.11.3.
WAIVER OF VENUE    100
11.11.4.
SERVICE OF PROCESS    100
11.11.5.
WAIVER OF JURY TRIAL    100
11.12.
USA Patriot Act Notice    100
11.13.
No Advisory or Fiduciary Responsibility    101
11.14.
Acknowledgement and Consent to Bail-In of EEA Financial Institutions    101


LIST OF SCHEDULES AND EXHIBITS
SCHEDULES
SCHEDULE 1.1(A)
-
COMMITMENTS OF LENDERS AND ADDRESSES FOR NOTICES
SCHEDULE 1.1(B)
-
EXISTING LIENS
SCHEDULE 1.1(C)
-
MATERIAL SUBSIDIARIES
SCHEDULE 6.1.2
-
SUBSIDIARIES
SCHEDULE 6.1.14
-
ENVIRONMENTAL DISCLOSURES
SCHEDULE 8.2.1
-
EXISTING INDEBTEDNESS

EXHIBITS
EXHIBIT 1.1(A)
-
ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT 1.1(G)
-
GUARANTOR JOINDER
EXHIBIT 1.1(N)(1)
-
REVOLVING CREDIT NOTE
EXHIBIT 1.1(N)(2)
-
SWING LOAN NOTE
EXHIBIT 1.1(N)(3)
-
TERM LOAN NOTE
EXHIBIT 1.1(O)
-
FORM OF SECURITY AGREEMENT
EXHIBIT 2.5.1
-
LOAN REQUEST
EXHIBIT 5.8.7(A)
-
U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
EXHIBIT 5.8.7(B)
-
U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
EXHIBIT 5.8.7(C)
-
U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
EXHIBIT 5.8.7(D)
-
U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
EXHIBIT 8.2.1(G)
-
INTERCOMPANY NOTE
EXHIBIT 8.3.3
-
QUARTERLY COMPLIANCE CERTIFICATE


CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this “ Agreement ”) is dated as of February 27, 2019 and is made by and among 3D SYSTEMS CORPORATION, a Delaware corporation (the “ Borrower ”), each of the GUARANTORS (as hereinafter defined), the LENDERS (as hereinafter defined), and HSBC BANK USA, NATIONAL ASSOCIATION, in its capacity as administrative agent for the Lenders under this Agreement (hereinafter referred to in such capacity as the “ Administrative Agent ”), as Swing Loan Lender and as an Issuing Lender.
The Borrower has requested the Lenders to provide a revolving credit facility and a term loan facility to the Borrower. In consideration of their mutual covenants and agreements hereinafter set forth and intending to be legally bound hereby, the parties hereto covenant and agree as follows:
1. CERTAIN DEFINITIONS
1.1.      Certain Definitions . In addition to words and terms defined elsewhere in this Agreement, the following words and terms shall have the following meanings, respectively, unless the context hereof clearly requires otherwise:
Acquisition ” shall mean, with respect to any Person, the acquisition by such Person, in a single transaction or in a series of related transactions, of (a) all or a substantial portion of the property of another Person, or any division, line of business or other business unit of another Person or (b) at least a majority of the voting securities of another Person, in each case whether or not involving a merger or consolidation with such other Person and whether for cash, property, services, assumption of Indebtedness, securities or otherwise.
Additional Commitment Lender ” shall have the meaning specified in Section 2.13.4 .
Additional Lender ” shall have the meaning specified in Section 2.12.2 .
Administrative Agent ” shall mean HSBC Bank USA, National Association, and its successors and assigns, in its capacity as administrative agent hereunder.
Administrative Agent’s Fee ” shall have the meaning specified in Section 10.8 .
Affiliate ” as to any Person shall mean any other Person (a) which directly or indirectly controls, is controlled by, or is under common control with such Person, (b) which beneficially owns or holds 20% or more of any class of the voting or other equity interests of such Person, or (c) 20% or more of any class of voting interests or other equity interests of which is beneficially owned or held, directly or indirectly, by such Person, in each case regardless of whether such Person is existing as of the date hereof. For purposes of this definition, “control” of a Person means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.
Aggregate Credit Exposure ” means, at any time, the aggregate Total Credit Exposure of all Lenders.
Anti-Corruption Laws ” shall mean United States Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder, the UK Bribery Act of 2010 and the rules and regulations thereunder, or other similar legislation in other jurisdictions.
Applicable Commitment Fee Rate ” shall mean the percentage rate per annum based on the Consolidated Total Leverage Ratio then in effect under the heading “Commitment Fee” in the pricing grid set forth in the definition of Applicable Margin.”
Applicable Law ” shall mean, as to any Person, all applicable Laws binding upon such Person or to which such Person is subject.
Applicable Letter of Credit Fee Rate ” shall mean (a) with respect to any Standby Letter of Credit, the percentage rate per annum based on the Consolidated Total Leverage Ratio then in effect under the heading “Standby Letter of Credit Fee” in the pricing grid set forth in the definition of Applicable Margin.”; and (b) with respect to any Trade Letter of Credit, the percentage rate per annum based on the Consolidated Total Leverage Ratio then in effect under the heading “Trade Letter of Credit Fee” in the pricing grid set forth in the definition of Applicable Margin.”
Applicable Margin ” shall mean, as applicable:
(a)      the percentage spread to be added to the Base Rate applicable to Revolving Credit Loans, Term Loans and Swing Loans under the Base Rate Option based on the Consolidated Total Leverage Ratio then in effect under the heading “Base Rate Spread” in the pricing grid set forth below, or
(b)      the percentage spread to be added to the LIBOR Rate applicable to Revolving Credit Loans and Term Loans under the LIBOR Rate Option based on the Consolidated Total Leverage Ratio then in effect under the heading “LIBOR Rate Spread” in the pricing grid set forth below.
Level
Consolidated Total
Leverage
Ratio
Commitment
Fee
Standby Letter of Credit Fee
Trade Letter of Credit Fee
Base Rate Spread
LIBOR Rate Spread
I
Less than 2.0 to 1.0
0.30%
1.75%
1.75%
0.75%
1.75%
II
Greater than or equal to 2.0 to 1.0 but less than 2.5 to 1.0
0.375%
2.00%
2.00%
1.00%
2.00%
III
Greater than or equal to 2.5 to 1.0
0.45%
2.50%
2.50%
1.50%
2.50%
For purposes of determining the Applicable Margin, the Applicable Commitment Fee Rate and the Applicable Letter of Credit Fee Rate:
(i)      The Applicable Margin, the Applicable Commitment Fee Rate and the Applicable Letter of Credit Fee Rate shall be set at Level II from the Closing Date until the date on which the Borrower is required to deliver the Compliance Certificate for the first fiscal quarter ending after the Closing Date in accordance with Section 8.3.3 .
(ii)      The Applicable Margin, the Applicable Commitment Fee Rate and the Applicable Letter of Credit Fee Rate shall be recomputed as of the end of each fiscal quarter ending after the Closing Date based on the Consolidated Total Leverage Ratio as of such fiscal quarter end. Any increase or decrease in the Applicable Margin, the Applicable Commitment Fee Rate or the Applicable Letter of Credit Fee Rate computed as of a fiscal quarter end shall be effective on the date on which the Compliance Certificate evidencing such computation is due to be delivered under Section 8.3.3 . If a Compliance Certificate is not delivered when due in accordance with such Section 8.3.3 , then the rates in Level III shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall remain in effect until the date on which such Compliance Certificate is delivered.
(iii)      If, as a result of any restatement of or other adjustment to the financial statements of the Borrower or for any other reason, the Borrower or the Lenders determine that (x) the Consolidated Total Leverage Ratio as calculated by the Borrower as of any applicable date was inaccurate and (y) a proper calculation of the Consolidated Total Leverage Ratio would have resulted in higher pricing for such period, the Borrower shall immediately and retroactively be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (acting upon the instruction of the Required Lenders) (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under any Debtor Relief Law, automatically and without further action by the Administrative Agent, any Lender or the Issuing Lender), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period. This paragraph shall not limit the rights of the Administrative Agent, any Lender or the Issuing Lender, as the case may be, under Sections 2.9 or 4.3 or 9 . The Borrower’s obligations under this clause (iii) shall survive the termination of the Commitments and the repayment of all other Obligations hereunder.
Approved Fund ” shall mean any fund that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
Arranger ” shall mean HSBC Securities (USA) Inc., and its successors and assigns, in its capacity as sole lead arranger and sole bookrunner hereunder.
Assignment and Assumption Agreement ” shall mean an assignment and assumption agreement entered into by a Lender and an assignee permitted under Section 11.8 , in substantially the form of Exhibit 1.1(A) .
Authorized Officer ” shall mean, with respect to any Loan Party, the Chief Executive Officer, President, Chief Financial Officer, General Counsel or Treasurer of such Loan Party, any manager or the members (as applicable) in the case of any Loan Party which is a limited liability company, or such other individuals, designated by written notice to the Administrative Agent from the Borrower, authorized to execute notices, reports and other documents on behalf of such Loan Party required hereunder. The Borrower may amend such list of individuals from time to time by giving written notice of such amendment to the Administrative Agent.
Bail-In Action ” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
Bail-In Legislation ” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
Base Rate ” shall mean, for any day, a rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to the greatest of (a) the Prime Rate, (b) 1/2 of one percent above the Federal Funds Effective Rate, (c) the LIBOR Rate for a Loan under the LIBOR Rate Option with a one-month Interest Period commencing on such day plus 1% and (d) 0%.
Base Rate Option ” shall mean the option of the Borrower to have Loans bear interest at the rate and under the terms set forth in Section 4.1.1(a) .
Benefit Plan ” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
Borrower ” shall have the meaning specified in the preamble.
Borrowing Date ” shall mean, with respect to any Loan, the date for the making thereof or the renewal or conversion thereof at or to the same or a different Interest Rate Option, which shall be a Business Day.
Borrowing Tranche ” shall mean specified portions of Loans outstanding as follows: (a) any Loans of the same Class to which a LIBOR Rate Option applies which become subject to the same Interest Rate Option under the same Loan Request by the Borrower and which have the same Interest Period shall constitute one Borrowing Tranche, and (b) all Loans of the same Class to which a Base Rate Option applies shall constitute one Borrowing Tranche.
Business Day ” shall mean any day that is not a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to remain closed; provided that, when used in connection with a LIBOR Rate Option Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in Dollar deposits in the London interbank market.
Capital Stock ” shall mean any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing.
Cash Collateralize ” means, to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the Issuing Lender or Lenders, as collateral for Letter of Credit Obligations or obligations of Lenders to fund participations in respect of Letter of Credit Obligations, cash or deposit account balances or, if the Administrative Agent and each applicable Issuing Lender shall agree in their sole and absolute discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to the Administrative Agent and the Issuing Lender. “ Cash Collateral ” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
CERCLA ” shall have the meaning specified in Section 10.13(h) .
Change in Law ” shall mean the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any Law, (b) any change in any Law or in the administration, interpretation, implementation or application thereof by any Official Body or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of Law) by any Official Body; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines, interpretations or directives thereunder or issued in connection therewith (whether or not having the force of Law) and (ii) all requests, rules, regulations, guidelines, interpretations or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities (whether or not having the force of Law), in each case pursuant to Basel III, shall in each case be deemed to be a Change in Law regardless of the date enacted, adopted, issued, promulgated or implemented.
Change of Control ” shall mean an event or series of events by which:
(a)      any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “ option right ”)), directly or indirectly, of 25% or more of the equity securities of the Borrower entitled to vote generally in the election of members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or
(b)      during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Borrower ceases to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body.
Charge ” shall have the meaning specified in Section 4.1 .
CIP Regulations ” shall have the meaning specified in Section 10.10 .
Class ” when used in reference to any Loan or Borrowing Tranche, refers to whether such Loan, or the Loans comprising such Borrowing Tranche, are Revolving Credit Loans or Term Loans.
Closing Date ” shall mean February 27, 2019.
Code ” shall mean the Internal Revenue Code of 1986, and any successor statute of similar import, and the rules and regulations thereunder, as from time to time in effect.
Collateral ” means any property of any Loan Party upon which a security interest in favor of the Administrative Agent for the benefit of the Secured Parties is purported to be granted pursuant to any Security Document.
Commitment ” shall mean, with respect to each Lender, such Lender’s Revolving Credit Commitment and Term Loan Commitment, as applicable, and, in the case of HSBC, its Swing Loan Commitment, and “ Commitments ” shall mean the aggregate of the Revolving Credit Commitments, the Term Loan Commitments and Swing Loan Commitment of all of the Lenders.
Commitment Fee ” shall have the meaning specified in Section 2.3 .
Commitment Letter ” means the commitment letter, dated as of January 31, 2019, by and among the Arranger, HSBC and the Borrower.
Commodity Exchange Act ” shall mean the Commodity Exchange Act (7 U.S.C. § 1 et seq .).
Compliance Authority ” means each and all of the (a) the United States Government (including without limitation, the Office of Foreign Assets Control), (b) the United National Security Council, (c) the European Union or (d) Her Majesty’s Treasury.
Compliance Certificate ” shall have the meaning specified in Section 8.3.3 .
Connection Income Taxes ” shall mean Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
Consolidated EBITDA ” shall mean for any period of determination, with respect to the Borrower and its Subsidiaries on a consolidated basis, an amount equal to the sum of (a) net income for such period plus (b) to the extent deducted in determining net income for such period, (i) depreciation, (ii) amortization, (iii) other non-cash charges to net income and non-cash expenses (including, but not limited to, non- cash stock-based compensation expenses), which do not represent a cash item in any prior or future period, (iv) interest expense and income tax expense, (v) one time and non-recurring third-party transaction fees, costs and expenses directly incurred and paid in cash in connection with the consummation of any Permitted Acquisition or other Investment permitted under Section 8.2.4 hereof so long as the Borrower provides the Administrative Agent with a detailed summary of such fees, costs and expenses within forty-five (45) days of closing such Permitted Acquisition or other Investment, (vi) one time and non-recurring cash consolidation or restructuring charges, integration costs and Costs Savings and Synergies incurred in connection with any Permitted Acquisition or other Investment permitted under Section 8.2.4 hereof in an aggregate amount not to exceed the greater of (x) 10% of Consolidated EBITDA (prior to giving effect to such add-backs) and (y) $10,000,000, in each case in any test period and (vii) other one time or extraordinary cash charges for such period as mutually agreed between the Borrower and the Administrative Agent minus (c) non-cash credits to net income for such period, in each case as determined in accordance with GAAP.
Consolidated Interest Coverage Ratio ” shall mean, as of any date of determination, with respect to the Borrower and its Subsidiaries on a consolidated basis, the ratio of (a) Consolidated EBITDA for the four fiscal quarter period then ending calculated in accordance with GAAP, to (b) cash interest expense for the four fiscal quarter period then ending calculated in accordance with GAAP.
Consolidated Total Funded Indebtedness ” shall mean, as of any date of determination, with respect to the Borrower and its Subsidiaries on a consolidated basis, without duplication, the sum of (a) the outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (b) all purchase money Indebtedness, (c) all direct obligations arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments, (d) all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business but including any earn out or similar obligations to the extent such obligation would be reflected as a liability on the balance sheet in accordance with GAAP), (e) Indebtedness in respect of capital leases and Synthetic Lease Obligations, (f) net obligations of such Person under any Hedge Agreement, (g) any Guaranty with respect to outstanding Indebtedness of the types specified in clauses (a) through (f) above of Persons other than the Borrower or any Subsidiary, and (h) all Indebtedness of the types referred to in clauses (a) through (g) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which the Borrower or a Subsidiary is a general partner or joint venturer, unless such Indebtedness is expressly made non-recourse to the Borrower or such Subsidiary.
Consolidated Total Leverage Ratio ” shall mean, as of any date of determination, with respect to the Borrower and its Subsidiaries on a consolidated basis, the ratio of (a) Consolidated Total Funded Indebtedness as of such date of determination, to (b) Consolidated EBITDA for the four fiscal quarter period then ending.
Costs Savings and Synergies ” means, for any period, costs savings and synergies (including cost savings from head count reduction, closure of facilities and similar restructuring charges) for such period reflective of actual or reasonably anticipated costs savings and synergies expected to be realized or achieved in the twelve months following the action or event giving rise thereto, net of the amount of actual benefits realized during such period from such action or event, as determined in good faith; provided that , such costs savings and synergies shall be directly attributable to the Permitted Acquisition or other Investment permitted under Section 8.2.4 hereof, expected to have a continuing impact and factually supportable, in each case determined on a basis consistent with Article 11 of Regulation S-X and which shall be certified to meet the foregoing requirements in the applicable Compliance Certificate delivered for the applicable determination date by the chief financial officer of the Borrower.
Covered Entity ” means the Subsidiaries Affiliates and the directors, officers, employees and agents of the Borrower and its Subsidiaries acting in any capacity in connection with the Loans.
Debtor Relief Laws ” shall mean the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.
Default ” shall mean any event or condition which with notice or passage of time, or both, would constitute an Event of Default.
Defaulting Lender ” shall mean, subject to Section 2.10(b) , any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable Default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any Issuing Lender, any Swing Loan Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Loans) within two Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent or any Issuing Lender or Swing Loan Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable Default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder ( provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (e) has become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by an Official Body so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Official Body) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent upon the instruction of the Required Lenders that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.10(b) ) upon delivery of written notice of such determination to the Borrower, the Issuing Lender, each Swing Loan Lender and each Lender.
Dollar, Dollars, U.S. Dollars ” and the symbol “ $ ” shall mean lawful money of the United States of America.
Domestic Subsidiary ” shall mean any Subsidiary that is organized under the laws of any political subdivision of the United States.
Drawing Date ” shall have the meaning specified in Section 2.9.3 .
EEA Financial Institution ” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
EEA Member Country ” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
EEA Resolution Authority ” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
Environmental Laws ” shall mean all applicable federal, state, local, tribal, territorial and foreign Laws (including common law), constitutions, statutes, treaties, regulations, rules, ordinances and codes and any consent decrees, settlement agreements, judgments, orders, directives or programs issued by or entered into with an Official Body pertaining or relating to: (a) pollution or pollution control; (b) protection of human health from exposure to regulated substances; (c) protection of the environment and/or natural resources; (d) protection of employees from exposure to regulated substances in the workplace; (e) the presence, use, management, generation, manufacture, processing, extraction, treatment, recycling, refining, reclamation, labeling, packaging, sale, transport, storage, collection, distribution, disposal or release or threat of release of regulated substances; (f) the presence of contamination; (g) the protection of endangered or threatened species; and (h) the protection of environmentally sensitive areas.
Equity Interests ” shall mean, with respect to any Person, all shares of capital stock, partnership interests, membership interests in a limited liability company or other ownership in participation or equivalent interests (however designated, whether voting or non-voting) of such Person’s equity capital (including any warrants, options or other purchase rights with respect to the foregoing), whether now outstanding or issued after the Closing Date.
ERISA ” shall mean the Employee Retirement Income Security Act of 1974, and any successor statute of similar import, and the rules and regulations thereunder, as from time to time in effect.
ERISA Affiliate ” shall mean, at any time, any trade or business (whether or not incorporated) under common control with the Borrower and treated as a single employer under Section 414 of the Code.
ERISA Event ” shall mean (a) a reportable event (under Section 4043 of ERISA and regulations thereunder but excluding those events as to which the thirty (30) day notice period is waived) with respect to a Plan; (b) a withdrawal by Borrower or any ERISA Affiliate from a Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon Borrower, including liability in its capacity as an ERISA Affiliate of another entity.
ERISA Group ” shall mean, at any time, the Borrower and all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control and all other entities which, together with the Borrower, are treated as a single employer under Section 414 of the Internal Revenue Code.
EU Bail-In Legislation Schedule ” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
Event of Default ” shall mean any of the events described in Section 9.1 and referred to therein as an “Event of Default.”
Excluded Hedge Agreement ” shall mean, with respect to any Guarantor, any Hedge Agreement if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, such Hedge Agreement (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act at the time the Guaranty of such Guarantor becomes effective with respect to such Hedge Agreement; provided that, for the avoidance of doubt, in determining whether any Guarantor is an “eligible contract participant” under the Commodity Exchange Act, the keepwell agreement set forth in Section 3.9 shall be taken into account. If a Hedge Agreement arises under a master agreement governing more than one contract, such exclusion shall apply to only the portion of such Hedge Agreement that is attributable to contracts for which such Guaranty is or becomes illegal.
Excluded Taxes ” shall mean any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in such Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 5.7 ) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 5.10 , amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 5.10.7 , and (d) any U.S. federal withholding Taxes imposed under FATCA.
Executive Order No. 13224 ” shall mean the Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001.
Existing Credit Agreement ” shall mean that certain Credit Agreement, dated as of October 10, 2014, by and among the Borrower, the Guarantors party thereto, the lenders party thereto, and PNC Bank, National Association, as administrative agent, swing loan lender and issuing bank.
Existing Letter of Credit ” shall mean the standby letter of credit, dated as of June 30, 2014, issued by PNC Bank, National Association in favor of the Borrower for the benefit of 365 Partners LLC in an amount equal to $75,200.
Facility ” means each of (and “ Facilities ” means collectively both of) (a) the Term Loan Commitments and the extensions of credit made thereunder (the “ Term Facility ”), (b) the Revolving Commitments and the extensions of credit made thereunder (the “ Revolving Facility ”),and (c) each other credit facility that may be added to this Agreement after the date hereof.
Facility Outstandings ” shall mean, as of any date of determination, the sum of the following (a) outstanding Revolving Credit Loans, plus (b) outstanding Term Loans plus (c) outstanding Swing Loans plus (d) outstanding Reimbursement Obligations and Letter of Credit Borrowings.
FATCA ” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Official Bodies and implementing such Sections of the Code.
Federal Funds Effective Rate ” shall mean, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average rate (rounded upwards, if necessary, to the next 1/100 of 1%) charged by HSBC for such day for such transactions as determined by the Administrative Agent; provided that, if the Federal Funds Effective Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
Fee Letter ” shall mean the Fee Letter, dated as of January 31, 2019, by and among HSBC, the Arranger and the Borrower.
Foreign Lender ” shall mean a Lender that is not a U.S. Person.
Foreign Subsidiary ” shall mean any Subsidiary that is not a Domestic Subsidiary.
Fronting Exposure ” means, at any time there is a Defaulting Lender, (a) with respect to the Issuing Lender, such Defaulting Lender’s Ratable Share of the outstanding Letter of Credit Obligations with respect to Letters of Credit issued by the Issuing Lender other than Letter of Credit Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swing Loan Lender, such Defaulting Lender’s Ratable Share of outstanding Swing Loans made by the Swing Loan Lender other than Swing Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders.
GAAP ” shall mean generally accepted accounting principles as are in effect from time to time, and applied on a consistent basis (subject to the provisions of Section 1.3 ).
Grantor Joinder ” shall mean a joinder by a Person as a Grantor under the Security Agreement in the form of Exhibit I to the Security Agreement.
Guarantied Obligations ” shall have the meaning specified in Section 3.1 .
Guarantor ” shall mean each of the parties to this Agreement which is designated as a “Guarantor” on the signature page hereof and each other Person which joins this Agreement as a Guarantor after the date hereof.
Guarantor Joinder ” shall mean a joinder by a Person as a Guarantor under the Loan Documents in the form of Exhibit 1.1(G) .
Guaranty ” of any Person shall mean any obligation of such Person guaranteeing or in effect guaranteeing any liability or obligation of any other Person in any manner, whether directly or indirectly, including any agreement to indemnify or hold harmless any other Person, any performance bond or other suretyship arrangement and any other form of assurance against loss, except endorsement of negotiable or other instruments for deposit or collection in the ordinary course of business.
Hedge Agreement ” shall mean (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (and such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
HSBC ” shall mean HSBC Bank USA, National Association, and its successors and assigns.
ICC ” shall have the meaning specified in Section 11.11.1 .
Immaterial Subsidiary ” shall mean, as of any date of determination, any direct or indirect Subsidiary of the Borrower and any Person that becomes a direct or indirect Subsidiary of the Borrower, in each case that accounts for (a) less than 5% of total consolidated assets of the Borrower and its Subsidiaries and (b) less than 5% of consolidated gross revenue of the Borrower and its Subsidiaries.
Increase Effective Date ” shall have the meaning specified in Section 2.12.3 .
Indebtedness ” shall mean, as to any Person at any time, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a)      all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
(b)      all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;
(c)      net obligations of such Person under any Hedge Agreement;
(d)      all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business but including any earn out or similar obligations to the extent such obligation would be reflected as a liability on the balance sheet in accordance with GAAP);
(e)      all indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
(f)      capital leases and Synthetic Lease Obligations;
(g)      all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest in such Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends (excluding, in each case, redemption of unvested restricted stock awards from employees who are no longer employed by such Person and any cash paid in lieu of fractional shares in connection with any stock split or the redemption of any convertible note); and
(h)      any Guaranty of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person.
Indemnified Taxes ” shall mean (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document, and (b) to the extent not otherwise described in the preceding clause (a), Other Taxes.
Indemnitee ” shall have the meaning specified in Section 11.3.2 .
Information ” shall mean all information received from the Loan Parties or any of their Subsidiaries relating to the Loan Parties or any of such Subsidiaries or any of their respective businesses, other than any such information that is available to the Administrative Agent, any Lender or the Issuing Lender on a non-confidential basis prior to disclosure by the Loan Parties or any of their Subsidiaries; provided that, in the case of information received from the Loan Parties or any of their Subsidiaries after the date hereof, such information shall be deemed to be confidential unless (i) otherwise indicated by the Loan Parties, or (ii) such information is publicly available.
Insolvency Proceeding ” shall mean, with respect to any Person, (a) a case, action or proceeding with respect to such Person (i) before any court or any other Official Body under any bankruptcy, insolvency, reorganization or other similar Law now or hereafter in effect, or (ii) for the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator, conservator (or similar official) of any Loan Party or otherwise relating to the liquidation, dissolution, winding-up or relief of such Person, or (b) any general assignment for the benefit of creditors, composition, marshaling of assets for creditors, or other, similar arrangement in respect of such Person’s creditors generally or any substantial portion of its creditors, undertaken under any Law.
Interest Payment Date ” means (a) with respect to any Loans to which the Base Rate Option applies (other than a Swingline Loan), the last day of each March, June, September and December, (b) with respect to any Loan to which the LIBOR Rate Option applies, the last day of the Interest Period applicable to such Loan and, in the case of any Loan to which the LIBOR Rate Option applies with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period, (c) with respect to any Swingline Loan, the day that such Loan is required to be repaid, (d) in the event of any repayment or prepayment of any Loan, the date of such repayment or prepayment, and (e) the Revolving Credit Maturity Date and the Term Loan Maturity Date, as applicable.
Interest Period ” shall mean the period of time selected by the Borrower in connection with (and to apply to) any election permitted hereunder by the Borrower to have Loans bear interest under the LIBOR Rate Option. Subject to the last sentence of this definition, such period shall be one, two, three or six Months. Such Interest Period shall commence on the effective date of such Interest Rate Option, which shall be (a) the Borrowing Date if the Borrower is requesting new Loans, or (b) the date of renewal of or conversion to the LIBOR Rate Option if the Borrower is renewing or converting to the LIBOR Rate Option applicable to outstanding Loans. Notwithstanding the second sentence hereof: (i) any Interest Period which would otherwise end on a date which is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (ii) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period, and (iii) the Borrower shall not select, convert to or renew an Interest Period for any portion of the Loans that would end after the Revolving Credit Maturity Date or the Term Loan Maturity Date, as applicable, for such Loan.
Interest Rate Option ” shall mean any LIBOR Rate Option or Base Rate Option.
Investment ” shall mean, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other securities of another Person, (b) a loan, advance or capital contribution to, Guaranty or assumption of Indebtedness of, or purchase or other acquisition of any other debt or equity participation of interest in, another Person, including any partnership or Joint Venture interest in such other Person and any arrangement pursuant to which the investor Guaranties Indebtedness of such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
IRS ” shall mean the United States Internal Revenue Service.
ISP98 ” shall have the meaning specified in Section 11.11.1 .
Issuing Lender ” shall mean HSBC, in its individual capacity as issuer of Letters of Credit hereunder, PNC Bank, National Association, in its individual capacity as issuer of the Existing Letter of Credit and Letters of Credit hereunder, and any other Lender that the Borrower, the Administrative Agent and such other Lender may mutually agree from time to time to issue Letters of Credit hereunder.
Joint Venture ” shall mean a corporation, partnership, limited liability company or other entity in which any Person other than the Loan Parties and their Subsidiaries holds, directly or indirectly, an equity interest.
Law ” shall mean any law (including common law), constitution, statute, treaty, regulation, rule, ordinance, opinion, release, ruling, order, injunction, writ, decree, bond, judgment, authorization or approval, lien or award by or settlement agreement with any Official Body.
Lender Bank Products ” shall mean agreements or other arrangements under which any Lender-Related Bank Product Provider provides any of the following products or services to any of the Loan Parties: (a) credit cards, (b) credit card processing services, (c) debit cards, (d) purchase cards, (e) ACH transactions, (f) cash management, including controlled disbursement, accounts or services or (g) any other treasury or cash management services.
Lender Provided Hedge Agreement ” shall mean a Hedge Agreement which is provided by any Lender-Related Hedge Provider.
Lender-Related Bank Product Provider ” shall mean any Person that, (a) (i) at the time it provides any Bank Product to any Loan Party, is a Lender or an Affiliate of a Lender or (ii) has provided a Bank Product to any Loan Party that exists on the Closing Date, and such Person is a Lender or an Affiliate of a Lender on the Closing Date and (b) except when the Lender-Related Bank Product Provider is HSBC and its Affiliates, has provided prior written notice to the Administrative Agent which has been acknowledged by the Borrower of the existence of such Bank Product. In no event shall any Lender- Related Bank Product Provider acting in such capacity be deemed a Lender for purposes hereof to the extent of and as to Bank Products except that each reference to the term “ Lender ” in Section 10 shall be deemed to include such Lender-Related Bank Product Provider. In no event shall the approval of any such Person in its capacity as Lender-Related Bank Product Provider be required in connection with the release or termination of any guaranty or Collateral hereunder or under any of the other Loan Documents.
Lender-Related Hedge Provider ” shall mean any Person that, (a) (i) at the time it enters into a Hedge Agreement with any Loan Party, is a Lender or an Affiliate of a Lender or (ii) has entered into a Hedge Agreement with any Loan Party that exists on the Closing Date, and such Person is a Lender or an Affiliate of a Lender on the Closing Date and (b) except when the Lender-Related Hedge Provider is HSBC and its Affiliates, has provided prior written notice to the Administrative Agent which has been acknowledged by the Borrower of the existence of such Hedge Agreement. In no event shall any Lender- Related Hedge Provider acting in such capacity be deemed a Lender for purposes hereof to the extent of and as to Hedging Obligations except that each reference to the term “ Lender ” in Section 10 shall be deemed to include such Lender-Related Hedge Provider. In no event shall the approval of any such Person in its capacity as Lender-Related Hedge Provider be required in connection with the release or termination of any guaranty or Collateral hereunder or under any of the other Loan Documents.
Lenders ” shall mean the financial institutions named on Schedule 1.1(A) and their respective successors and assigns as permitted hereunder, each of which is referred to herein as a Lender. Unless the context requires otherwise, the term “Lender” includes the Swing Loan Lender.
Letter of Credit ” shall have the meaning specified in Section 2.9.1 .
Letter of Credit Borrowing ” shall have the meaning specified in Section 2.9.3 .
Letter of Credit Exposure ” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time plus (b) the aggregate amount of all Letter of Credit disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time. The Letter of Credit Exposure of any Lender at any time shall be its Ratable Share of the total Letter of Credit Exposure at such time. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP98 (or another rule or contractual provision having a similar effect), such Letter of Credit shall be deemed to be outstanding in the amount so remaining available to be drawn.
Letter of Credit Fee ” shall have the meaning specified in Section 2.9.2 .
Letter of Credit Obligation ” shall mean, as of any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit on such date (if any Letter of Credit shall increase in amount automatically in the future, such aggregate amount available to be drawn shall currently give effect to any such future increase) plus the aggregate Reimbursement Obligations and Letter of Credit Borrowings on such date.
Letter of Credit Sublimit ” shall mean the Issuing Lender’s commitment to issue Letters of Credit to the Borrower pursuant to Section 2.9.1 hereof in an aggregate principal amount up to $10,000,000.
LIBOR Rate ” shall mean, with respect to any Loans under the LIBOR Rate Option for any Interest Period, the rate per annum equal to the London interbank offered rate as administered by ICE Benchmark Administration Limited (or any successor to, or substitute for, such service, providing rate quotations comparable to those currently provided by ICE Benchmark Administration Limited, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market) for deposits in Dollars (for delivery on such day) for such Interest Period as displayed on the Bloomberg Page BBAM1 screen page that displays such rate (or, in the event such rate does not appear on a page of the Bloomberg Page BBAM1 screen, on the appropriate page of such other information service that publishes such rate as shall be selected by the Administrative Agent from time to time in its reasonable discretion) at approximately 11:00 a.m. (London time) on the day which is two Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period (each such rate, the “ LIBOR Screen Rate ”); provided if such offered rate shall be less than zero, such rate shall be zero for the purposes of this Agreement. In the event that no such rate is available to the Administrative Agent, LIBO Rate shall be equal to a rate per annum equal to the average rate (rounded upwards, if necessary, to the next 1/100 of 1%) at which the Administrative Agent determines that Dollars in an amount comparable to the amount of the applicable advances are being offered to prime banks at approximately 11:00 a.m. (London time) on the day which is two Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period for settlement in immediately available funds by leading banks in the London interbank market selected by the Administrative Agent; provided if such determination by the Administrative Agent shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
LIBOR Rate Option ” shall mean the option of the Borrower to have Loans bear interest at the rate and under the terms set forth in Section 4.1.1(b) .
LIBOR Screen Rate ” shall have the meaning specified in the definition of “LIBOR Rate”.
Lien ” shall mean any mortgage, deed of trust, pledge, lien, security interest, charge or other encumbrance or security arrangement of any nature whatsoever, whether voluntarily or involuntarily given, including any conditional sale or title retention arrangement, and any assignment, deposit arrangement or lease intended as, or having the effect of, security.
Loan Documents ” shall mean this Agreement, the Security Documents, the Fee Letter, the Notes, and any other instruments, certificates or documents delivered in connection herewith or therewith.
Loan Parties ” shall mean the Borrower and the Guarantors.
Loan Request ” shall mean a request for a Revolving Credit Loan, a Term Loan or a Swing Loan substantially in the form of Exhibit 2.5.1 .
Loans ” shall mean, collectively, all Revolving Credit Loans, Term Loans and Swing Loans, and “Loan” shall mean any Revolving Credit Loan, Term Loan or Swing Loan.
Material Adverse Effect ” means (a) a material adverse change in, or a material adverse effect on, the operations, business, assets, properties, liabilities (actual or contingent) or financial condition of the Borrower and its Subsidiaries, taken as a whole; (b) a material impairment of the rights and remedies of the Administrative Agent or any Lender under any Loan Document, or of the ability of the Borrower and the Guarantors taken as a whole to perform their obligations under the Loan Documents to which they are a party; (c) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower and the Guarantors of any Loan Document to which it is a party; or (d) a material adverse effect on the Administrative Agent’s first priority security interest (subject to Permitted Liens) in the Collateral.
Material Subsidiary ” shall mean any direct or indirect Subsidiary of the Borrower and any Person that becomes a direct or indirect Subsidiary of the Borrower, which, as of the most recent fiscal quarter of the Borrower, for the period of four consecutive fiscal quarters then ended, for which financial statements have been delivered pursuant to Section 8.3.1 or Section 8.3.2 accounts for (a) 5% or more of total consolidated assets of the Borrower and its Subsidiaries or (b) 5% or more of consolidated gross revenue of the Borrower and its Subsidiaries; provided that, if as of the end of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 8.3.1 or Section 8.3.2 (x) the aggregate amount of the total consolidated assets of the Borrower and its Subsidiaries attributable to Subsidiaries that are not Material Subsidiaries is equal to or greater than twenty percent (20%) of the total consolidated assets of the Borrower and its Subsidiaries for any such period as of the end of any such fiscal quarter or (y) the aggregate amount of the consolidated gross revenue of the Borrower and its Subsidiaries attributable to Subsidiaries that are not Material Subsidiaries is equal to or greater than twenty percent (20%) of consolidated gross revenue of the Borrower and its Subsidiaries as of the end of any such fiscal quarter, then, in each case, the Borrower shall designate sufficient Subsidiaries as “Material Subsidiaries” to eliminate such excess, and such designated Subsidiaries shall for all purposes of this Agreement constitute Material Subsidiaries. All Material Subsidiaries as of the Closing Date are set forth on Schedule 1.1(C).
Maximum Rate ” shall have the meaning specified in Section 4.1 .
Minimum Cash Collateral Amount ” means, at any time, (a) with respect to Cash Collateral consisting of cash or deposit account balances, an amount equal to 103% of the Fronting Exposure of the Issuing Lender with respect to Letters of Credit issued and outstanding at such time, and (b) otherwise, an amount determined by the Administrative Agent and the Issuing Lender in their sole and absolute discretion.
Month ”, with respect to an Interest Period under the LIBOR Rate Option, shall mean the interval between the days in consecutive calendar months numerically corresponding to the first day of such Interest Period. If any LIBOR Rate Interest Period begins on a day of a calendar month for which there is no numerically corresponding day in the month in which such Interest Period is to end, the final month of such Interest Period shall be deemed to end on the last Business Day of such final month.
Moody’s ” shall mean Moody’s Investors Service, Inc.
Multiemployer Plan ” shall mean any “employee pension benefit plan” (within the meaning of Section 3(2) of ERISA) which is a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA and subject to Title IV of ERISA and to which the Borrower or any member of the ERISA Group is then making or accruing an obligation to make contributions or, within the preceding five Plan years, has made or had an obligation to make such contributions.
Net Debt Proceeds ” shall mean, in the case of the issuance, placement or sale of any Indebtedness by the Borrower or any of its Subsidiaries of the type referred to in clause (a) of the definition thereof (excluding Indebtedness permitted to be outstanding pursuant to Section 8.2.1 ), the sum of: (a) the gross cash proceeds received by the Borrower or any of its Subsidiaries from such issuance, placement or sale of such Indebtedness (including any cash payments received by way of deferred payment of principal pursuant to a promissory note or installment receivable or otherwise, but only as and when received); minus (b) in connection with such issuance, placement or sale of such Indebtedness, all reasonable and customary fees and expenses and underwriters’ discounts and commissions paid in cash by the Borrower or any of its Subsidiaries to Persons other than the Borrower, any of its Subsidiaries or any of their Affiliates.
Net Disposition Proceeds ” shall mean the sum of: (a) the gross cash proceeds received by the Borrower or any of its Subsidiaries (i) from any sale, conveyance, assignment, lease or other transfer or disposition permitted under Section 8.2.7 (each, a “ Permitted Disposition ”) or (ii) as a result of the taking of any of their assets under the power of eminent domain, condemnation or similar proceeding (each, a “ Taking ”), including any cash payments received by way of a deferred payment of principal pursuant to a note or installment receivable or otherwise, but only when and as received; minus (b) in connection with such Permitted Disposition or Taking (i) all reasonable and customary fees and expenses paid in cash by the Borrower or any of its Subsidiaries which have not been paid to the Borrower, any of its Subsidiaries or any of their Affiliates and (ii) all taxes actually paid or reasonably estimated by the Borrower (determined in the ordinary course of business by a financial officer of the Borrower) to be payable in cash in the same year of such Permitted Disposition in connection with such Permitted Disposition.
Net Extraordinary Receipts ” shall mean any cash received by or paid to or for the account of any Person not in the ordinary course of business, including, without limitation, tax refunds, pension plan reversions, judgments, proceeds of any settlement in connection with any cause of action or indemnity payments received by or paid to or for the account of any Person, in each case, not in the ordinary course of business minus any amounts received by or paid to any Person that are applied to (i) reimburse such Person for monies expended previously on account of the issue giving rise to such receipts (including legal fees and expenses), (iii) remediate or otherwise remedy the issue giving rise to such receipts and (iii) all taxes actually paid or reasonably estimated by the Borrower to be payable in cash.  For the avoidance of doubt, “Net Extraordinary Receipts” shall not include any Net Debt Proceeds, Net Disposition Proceeds or Net Insurance Proceeds.
Net Insurance Proceeds ” shall mean the insurance proceeds (other than proceeds of business interruption insurance) that have been received on account of the loss or damage to any of the property of the Borrower or any of its Subsidiaries, net of all out-of-pocket fees and expenses paid in cash, including all taxes actually paid or reasonably estimated by the Borrower (determined in the ordinary course of business by a financial officer of the Borrower) to be payable in cash during the year that such event occurred or during the next succeeding year by the Borrower or any of its Subsidiaries (to Persons other than the Borrower, any of its Subsidiaries or any of their Affiliates) in connection with the adjustment, settlement or collection of any general liability or casualty insurance claims.
Non-Consenting Lender ” shall have the meaning specified in Section 11.1.4 .
Non-Defaulting Lender ” shall mean, at any time, each Lender that is not a Defaulting Lender at such time.
Non-Guarantor Subsidiary ” shall mean any Subsidiary of the Borrower that is not a Guarantor.
Notes ” shall mean, collectively, the promissory notes in the form of Exhibit 1.1(N)(1) evidencing the Revolving Credit Loans, in the form of Exhibit 1.1(N)(2) evidencing the Swing Loan, and in the form of Exhibit 1.1(N)(3) evidencing the Term Loans, and “ Note ” shall mean any of the foregoing.
Notice Date ” shall have the meaning specified in Section 2.13.2 .
Obligation ” shall mean any obligation or liability of any of the Loan Parties, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due, under or in connection with (a) this Agreement, the Notes, the Letters of Credit or any other Loan Document whether to the Administrative Agent, any of the Lenders or their Affiliates or other persons provided for under such Loan Documents, (b) any Lender Provided Hedge Agreement and (c) any Lender Provided Bank Products; provided, however, that the “Obligations” of a Loan Party shall exclude any Excluded Hedge Agreement with respect to such Loan Party.
Official Body ” shall mean the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank) and, to the extent applicable, any group or body charged with setting financial accounting or regulatory capital rules or standards (including, the Financial Accounting Standards Board, the Bank for International Settlements or the Basel Committee on Banking Supervision or any successor or similar authority to any of the foregoing).
Order ” shall have the meaning specified in Section 2.9.9 .
Other Connection Taxes ” shall mean, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising solely from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
Other Taxes ” shall mean all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 5.7 ).
Participant ” has the meaning specified in Section 11.8.4 .
Participant Register ” shall have the meaning specified in Section 11.8.4 .
Participation Advance ” shall have the meaning specified in Section 2.9.3 .
Payment In Full ” and “ Paid in Full ” shall mean the indefeasible payment in full in cash of the Loans and other Obligations hereunder (other than unasserted indemnity obligations), termination of the Commitments and expiration or termination of all Letters of Credit.
PBGC ” shall mean the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA or any successor.
Permitted Acquisitions ” shall mean, investments consisting of an Acquisition by any Loan Party or any Subsidiary of a Loan Party, provided that (a) no Default shall have occurred and be continuing or would result from such Acquisition, (b) the acquired entity or business is engaged in the same or similar line of business as the Borrower or a business reasonably related thereto, (c) in the case of an Acquisition of the equity interests of another Person, the board of directors (or other comparable governing body) of such other Person shall have duly approved such Acquisition, (d) the Loan Parties shall, on a pro forma basis, be in compliance with the Consolidated Total Leverage Ratio required to be maintained pursuant to Section 8.2.14 as of the most recent fiscal quarter end for which the Borrower was required to deliver financial statements pursuant to Section 8.3.1 or 8.3.2 , (e) if the purchase price for such Acquisition exceeds $50,000,000, the Borrower shall have delivered to the Administrative Agent at least three (3) Business Days prior to such Acquisition (i) a Compliance Certificate demonstrating that, upon giving effect to such Acquisition on a pro forma basis, the Loan Parties are in compliance with the Consolidated Total Leverage Ratio required to be maintained pursuant to Section 8.2.14 as of the most recent fiscal quarter end for which the Borrower was required to deliver financial statements pursuant to Section 8.3.1 or 8.3.2 , and (ii) pro forma financial statements for the Borrower and its Subsidiaries after giving effect to such Acquisition for the twelve month period ending as of the most recent fiscal quarter in a form satisfactory to the Administrative Agent, (f) the representations and warranties made by the Loan Parties in each Loan Document shall be true and correct in all material respects at and as if made as of the date of such Acquisition (after giving effect thereto) except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties are true and correct in all material respects as of such earlier date), and (g) all actions required to be taken with respect to such acquired entity (if a Material Subsidiary) or assets under Sections 8.1.9 and 8.1.12 shall have been taken. For the avoidance of doubt, to the extent each of the above conditions is satisfied no further consent with respect to such Acquisition shall be required from the Administrative Agent or any Lender.
Permitted Investments ” shall mean:
(a)      direct obligations of the United States of America or any agency or instrumentality thereof or obligations backed by the full faith and credit of the United States of America maturing in twelve (12) months or less from the date of acquisition;
(b)      commercial paper maturing in 180 days or less rated not lower than A-1, by Standard & Poor’s or P-1 by Moody’s on the date of acquisition;
(c)      demand deposits, time deposits or certificates of deposit maturing within one year in commercial banks whose obligations are rated A-1, A or the equivalent or better by Standard & Poor’s on the date of acquisition;
(d)      money market or mutual funds whose investments are limited to those types of investments described in clauses (a)-(c) above; and
(e)      investments made under cash management agreements with any Lenders.
Permitted Liens ” shall mean:
(a)      Liens for taxes, assessments, or similar charges, which are not yet due and payable or are being contested in good faith through appropriate proceedings with adequate reserves established in accordance with GAAP;
(b)      Pledges or deposits made in the ordinary course of business to secure payment of workmen’s compensation, or to participate in any fund in connection with workmen’s compensation, unemployment insurance, old-age pensions or other social security programs;
(c)      Liens of mechanics, materialmen, warehousemen, carriers, or other like Liens, securing obligations incurred in the ordinary course of business that are not yet due and payable or are being contested in good faith through appropriate proceedings with adequate reserves established in accordance with GAAP, and Liens of landlords securing obligations to pay lease payments that are not yet due and payable or in default or are being contested in good faith through appropriate proceedings with adequate reserves established in accordance with GAAP;
(d)      Good-faith pledges or deposits made in the ordinary course of business to secure performance of bids, tenders, contracts (other than for the repayment of borrowed money) or leases, not in excess of the aggregate amount due thereunder, or to secure statutory obligations, or surety, appeal, indemnity, performance or other similar bonds required in the ordinary course of business;
(e)      Encumbrances, including, but not limited to, zoning, building and land use Laws and restrictions, easements, rights-of-way, covenants, other restrictions on the real property and all matters of record or that would be shown on an accurate survey of the real property, none of which materially impairs the use of such property, and none of which is violated in any material respect by existing or proposed structures or land use;
(f)      Any Lien existing on the date of this Agreement and described on Schedule 1.1(B) , provided that the principal amount secured thereby is not hereafter increased, and no additional assets become subject to such Lien;
(g)      purchase money Liens upon or in any fixed or capital assets or proceeds thereof to secure the purchase price or the cost of construction or improvement of such fixed or capital assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition, construction or improvement of such fixed or capital assets (including Liens securing any capital lease obligations); provided (i) that such Lien secures Indebtedness permitted under Section 8.2.1(c) ; (ii) such Lien attaches to such asset concurrently or within 90 days after the acquisition, improvement or completion of the construction thereof; (iii) such Lien does not extend to any other asset and (iv) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or capital asset; provided , further , that in each case, individual financings of fixed and other capital assets provided by one lender or lessor may be cross-collateralized to other outstanding financings of fixed or capital assets provided by such lender or lessor to the extent such other financing is otherwise permitted under Section 8.2.1(c) ;
(h)      Liens securing judgments for the payment of money not constituting an Event of Default under Section 9.1.6 , and Liens arising under ERISA or the Code with respect to an employee benefit plan not constituting an Event of Default under Section 9.1.9 ;
(i)      any (i) interest or title of a lessor or sublessor under any lease not prohibited by this Agreement, (ii) Lien or restriction that the interest or title of such lessor or sublessor may be subject to, or (iii) subordination of the interest of the lessee or sublessee under such lease to any Lien or restriction referred to in the preceding clause (ii);
(j)      Liens arising from filing UCC financing statements relating solely to (i) operating leases and (ii) consignments and/or bailments;
(k)      customary rights of set-off, revocation, refund or chargeback under deposit agreements or under the Uniform Commercial Code or common law of banks or other financial institutions where the Company or any of its Subsidiaries maintains deposits (other than deposits intended as cash collateral) in the ordinary course of business;
(l)      Liens existing on property at the time of its acquisition or existing on the property of a Person that becomes a Subsidiary of the Borrower after the date hereof (including any replacements, renewals or extensions thereof); provided that (x) any Indebtedness secured thereby is permitted by this Agreement and such Liens cover solely the property so acquired or the property of the Person that became a Subsidiary and are not expanded to cover additional property (other than proceeds and products thereof and accessions thereto), (y) such Liens shall not have been created in contemplation of such Acquisition and (z) the aggregate principal amount of any Indebtedness secured thereby is otherwise permitted under Section 8.2.1(f) ;
(m)      Liens on insurance policies and the proceeds thereof securing insurance premium financing permitted hereunder;
(n)      exclusive and non-exclusive licenses between Loan Parties (with respect to intellectual property and other property), non-exclusive licenses between a Loan Party and another Person (other than a Loan Party) (with respect to intellectual property and other property), leases or subleases granted to third parties and not adversely interfering in any material respect with the ordinary conduct of the business of the Borrower or its Subsidiaries;
(o)      Liens securing payment of the Obligations and granted pursuant to any other Loan Document in favor of any Secured Party in accordance with the terms thereof; and
(p)      Other Liens securing Indebtedness in an aggregate amount not to exceed $20,000,000.
Notwithstanding the foregoing, the aggregate principal amount of any Indebtedness secured by Liens permitted pursuant to the foregoing clauses (g), (l) and (p) shall not exceed $50,000,000 at any time outstanding.
For the avoidance of doubt, until the Liens referred to in Section 8.1.12 are terminated in accordance with such Section, those Liens shall be Permitted Liens.
Person ” shall mean any individual, corporation, partnership, limited liability company, association, joint-stock company, trust, unincorporated organization, joint venture, government or political subdivision or agency thereof, or any other entity.
Plan ” shall mean at any time an “employee pension benefit plan” (within the meaning of Section 3(3) of ERISA) (including a Multiple Employer Plan, but not a Multiemployer Plan) which is covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code and either (i) is maintained by any member of the ERISA Group for employees of any member of the ERISA Group or (ii) has at any time within the preceding five years been maintained by any entity which was at such time a member of the ERISA Group for employees of any entity which was at such time a member of the ERISA Group.
Prime Rate ” shall mean the rate of interest per annum publicly announced from time to time by HSBC as its “prime rate” in effect at its office located at New York, New York; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective. The “prime rate” is a rate set by HSBC based upon various factors including HSBC’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by HSBC shall take effect at the opening of business on the day specified in the public announcement of such change.
Principal Office ” shall mean the main banking office of the Administrative Agent in New York, New York.
Qualified ECP Guarantor ” shall have the meaning specified in Section 3.9 .
Ratable Share ” shall mean, the following with respect to any Lender at any time, subject to reallocation with respect to a Defaulting Lender pursuant to Section 2.10 :
(a)      with respect to Revolving Credit Commitments, Revolving Credit Loans, Letter of Credit Obligations and Swing Loans, a percentage equal to a fraction, the numerator of which is such Lender’s Revolving Credit Commitment and the denominator of which is the aggregate Revolving Credit Commitments of all Lenders ( provided that, if the Revolving Credit Commitments have terminated or expired, the Ratable Share shall be determined based upon such Lender’s share of the aggregate Revolving Facility Usage at that time);
(b)      with respect to the Term Loan Commitments and Term Loans, as the case may be, a percentage equal to a fraction, the numerator of which is the outstanding principal amount of such Lender’s Term Loan Commitment or Term Loan, as the case may be, and the denominator of which is the aggregate outstanding principal amount of all Term Loan Commitments or Term Loans, as the case may be; and
(c)      with respect to the Aggregate Credit Exposure, a percentage equal to a fraction, the numerator of which is the sum of such Lender’s Total Credit Exposure, and the denominator of which is the sum of the Aggregate Credit Exposure of all Lenders.
Recipient ” shall mean (a) the Administrative Agent, (b) any Lender and (c) the Issuing Lender, as applicable.
Register ” shall have the meaning specified in Section 11.8.3 .
Reimbursement Obligation ” shall have the meaning specified in Section 2.9.3 .
Related Parties ” shall mean, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates.
Relief Proceeding ” shall mean any proceeding seeking a decree or order for relief in respect of any Loan Party or Subsidiary of a Loan Party in a voluntary or involuntary case under any applicable bankruptcy, insolvency, reorganization or other similar law now or hereafter in effect, or for the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator, conservator (or similar official) of any Loan Party or Subsidiary of a Loan Party for any substantial part of its property, or for the winding-up or liquidation of its affairs, or an assignment for the benefit of its creditors.
Required Lenders ” shall mean, at any time, Lenders holding more than 50% of the aggregate Revolving Credit Exposure, Revolving Credit Commitments, and outstanding Term Loans; provided that, the Revolving Credit Exposure, the Revolving Credit Commitments and outstanding Term Loans of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.
Revolving Credit Commitment ” shall mean, with respect to each Lender, the commitment, if any, of such Lender to make Revolving Credit Loans and to acquire participations in Letters of Credit and Swing Loans hereunder, expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving Facility Usage hereunder, as such commitment may be reduced or increased from time to time in accordance with the terms of this Agreement. The initial amount of each Lender’s Revolving Credit Commitment is set forth opposite its name on Schedule 1.1(A) in the column labeled “Amount of Commitment for Revolving Credit Loans,”, as such Commitment is thereafter assigned or modified, including in connection with Section 2.12 hereof, and “ Revolving Credit Commitments ” shall mean the aggregate Revolving Credit Commitments of all of the Lenders.
Revolving Credit Exposure ” means, as to any Revolving Lender at any time, the aggregate principal amount at such time of its outstanding Revolving Credit Loans and such Revolving Lender’s Ratable Share of the Letter of Credit Exposure and its participation in Swing Loans at such time.
Revolving Credit Increase ” shall have the meaning specified in Section 2.12.1 .
Revolving Credit Increase Lender ” shall have the meaning specified in Section 2.12.4 .
Revolving Credit Loans ” shall mean, collectively, all Revolving Credit Loans made by the Lenders to the Borrower, and “ Revolving Credit Loan ” shall mean any Revolving Credit Loan made by any Lender to the Borrower pursuant to Section 2.1 .
Revolving Credit Maturity Date ” shall mean February 26, 2024 (as such date as may be extended under Section 2.13) or any earlier date on which repayment of the Obligations in respect of the Revolving Credit Loans is accelerated pursuant to the terms hereof.
Revolving Facility ” shall have the meaning specified in the definition of “Facility” in this Section.
Revolving Facility Usage ” shall mean at any time the sum of the outstanding Revolving Credit Loans, the outstanding Swing Loans, and the Letter of Credit Obligations.
Revolving Lender ” means, as of any date of determination, a Lender with a Revolving Credit Commitment or, if the Revolving Credit Commitments have terminated or expired, a Lender with Revolving Facility Usage.
Sanctioned Country ” means a country subject to a sanctions program maintained by any Compliance Authority.
Sanctioned Person ” means any (a) a Person listed on any of the lists of specifically designated nationals or designated persons or entities (or equivalent) held by any Compliance Authority, or (b) (i) an agency of the government of a Sanctioned Country or (ii) an organization controlled by a Sanctioned Country
Sanctions ” shall mean any sanctions program maintained by any Compliance Authority.
SEC ” shall mean the Securities and Exchange Commission, or any Official Body succeeding to any of its principal functions.
Secured Parties ” shall mean the Administrative Agent, each Lender and any other holder of Obligations.
Security Agreement ” shall mean the Security Agreement, dated as of the date hereof, made by the Loan Parties in favor of the Administrative Agent for the benefit of the Secured Parties in the form of Exhibit 1.1(O) .
Security Documents ” shall mean the Security Agreement and all other security documents hereafter delivered to the Administrative Agent granting a Lien on any property of any Person to secure the Obligations.
Solvent ” shall mean, with respect to any Person on any date of determination, taking into account any right of reimbursement, contribution or similar right available to such Person from other Persons, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair saleable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and other commitments as they mature in the normal course of business, (d) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature, and (e) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such Person is engaged. In computing the amount of contingent liabilities at any time, it is intended that such liabilities will be computed at the amount which, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
Standard & Poor’s ” shall mean Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business.
Standby Letter of Credit ” shall have the meaning specified in Section 2.9.1 .
Statements ” shall have the meaning specified in Section 6.1.7(a) .
Subsidiary ” of any Person at any time shall mean any corporation, trust, partnership, limited liability company or other business entity (a) of which more than 50% of the outstanding voting securities or other interests normally entitled to vote for the election of one or more directors or trustees (regardless of any contingency which does or may suspend or dilute the voting rights) is at such time owned directly or indirectly by such Person or one or more of such Person’s Subsidiaries, or (b) over which the power to direct or cause the direction of the management or policies, whether through the ability to exercise voting power, by contract or otherwise is possessed by such Person or one or more of such Person’s Subsidiaries.
Swing Loan Commitment ” shall mean HSBC’s commitment to make Swing Loans to the Borrower pursuant to Section 2.1.2 hereof in an aggregate principal amount up to $15,000,000.
Swing Loan Lender ” shall mean HSBC, in its capacity as a lender of Swing Loans.
Swing Loan Note ” shall mean the Swing Loan Note of the Borrower in the form of Exhibit 1.1(N)(2) evidencing the Swing Loans, together with all amendments, extensions, renewals, replacements, refinancings or refundings thereof in whole or in part.
Swing Loan Request ” shall mean a request for Swing Loans made in accordance with Section 2.5.2 hereof.
Swing Loans ” shall mean, collectively, all Swing Loans made by HSBC to the Borrower, and “ Swing Loan ” shall mean any Swing Loan made by HSBC to the Borrower, in each case pursuant to Section 2.1.2 hereof.
Synthetic Lease Obligations ” shall mean the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such person (without regard to accounting treatment).
Taxes ” shall mean all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Official Body (excluding for this purpose any group or body charged with setting financial accounting or regulatory capital rules or standards rules or standards, such as the Financial Accounting Standards Board, the Bank for International Settlements or the Basel Committee on Banking Supervision or any successor or similar authority to any of the forgoing) , including any interest, additions to tax or penalties applicable thereto.
Term Facility ” has the meaning specified in the definition of “Facility” in this Section.
Term Lender ” shall mean, as of any date of determination, Lenders having a Term Loan Commitment or a Term Loan.
Term Loan ” means an advance by any Term Lender under the Term Facility made pursuant to Section 2.1.1 .
Term Loan Commitment ” means as to any Term Lender, the aggregate commitment of such Lender to make a Term Loan on the Closing Date as set forth on Schedule 1.1(A) in the column labeled “Amount of Term Loans” or in the Assignment and Assumption executed by such Lender pursuant to which such Lender shall have assumed its Term Loan, and “ Term Loan Commitments ” shall mean the aggregate Term Loan Commitments of all of the Lenders; provided, that, after the Closing Date, the Term Commitment for each Term Lender shall be zero.
Term Loan Maturity Date ” means February 26, 2024 or any earlier date on which repayment of the Obligations in respect of the Term Loans is accelerated pursuant to the terms hereof.
Total Credit Exposure ” means, as to any Lender at any time, the outstanding unused Commitments, the Revolving Facility Usage and the outstanding Term Loans of such Lender at such time.
Trade Letter of Credit ” shall have the meaning specified in Section 2.9.1 .
Type ”, when used in reference to any Loan or Borrowing Tranche, shall refer to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing Tranche, is determined by reference to the LIBOR Rate or the Base Rate.
UCC ” means the Uniform Commercial Code as in effect from time to time in the State of New York.
UCP ” shall have the meaning specified in Section 11.11.1 .
United States ” and “ U.S. ” shall mean the United States of America.
USA Patriot Act ” shall mean the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56.
U.S. Borrower ” shall mean any Borrower that is a U.S. Person.
U.S. Person ” shall mean any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
U.S. Tax Compliance Certificate ” shall have the meaning specified in Section 5.10.7 .
Withholding Agent ” shall mean any Loan Party and the Administrative Agent.
Write-Down and Conversion Powers ” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
1.2.      Construction . Unless the context of this Agreement otherwise clearly requires, the following rules of construction shall apply to this Agreement and each of the other Loan Documents: (a) references to the plural include the singular, the plural, the part and the whole and the words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation”; (b) the words “hereof,” “herein,” “hereunder,” “hereto” and similar terms in this Agreement or any other Loan Document refer to this Agreement or such other Loan Document as a whole; (c) article, section, subsection, clause, schedule and exhibit references are to this Agreement or other Loan Document, as the case may be, unless otherwise specified; (d) reference to any Person includes such Person’s successors and assigns; (e) reference to any agreement, including this Agreement and any other Loan Document together with the schedules and exhibits hereto or thereto, document or instrument means such agreement, document or instrument as amended, modified, replaced, substituted for, superseded or restated; (f) reference to any law or regulation herein shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, (g) relative to the determination of any period of time, “from” means “from and including,” “to” means “to but excluding,” and “through” means “through and including”; (h) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights, (i) section headings herein and in each other Loan Document are included for convenience and shall not affect the interpretation of this Agreement or such Loan Document, and (j) unless otherwise specified, all references herein to times of day shall constitute references to Eastern Time.
1.3.      Accounting Principles; Changes in GAAP . Except as otherwise provided in this Agreement, all computations and determinations as to accounting or financial matters and all financial statements to be delivered pursuant to this Agreement shall be made and prepared in accordance with GAAP (including principles of consolidation where appropriate), and all accounting or financial terms shall have the meanings ascribed to such terms by GAAP; provided, however, that all accounting terms used in Section 8.2 (and all defined terms used in the definition of any accounting term used in Section 8.2 ) shall have the meaning given to such terms (and defined terms) under GAAP as in effect on the date hereof applied on a basis consistent with, those used in preparing the audited financial statements for the fiscal year ended December 31, 2018 prior to the Closing Date and any subsequent audited financial statements delivered in accordance with Section 8.3.2 hereof. Notwithstanding the foregoing, if the Borrower notifies the Administrative Agent in writing that the Borrower wishes to amend any financial covenant in Section 8.2 of this Agreement, any related definition and/or the definition of the term Consolidated Total Leverage Ratio for purposes of interest, Letter of Credit Fee and Commitment Fee determinations to eliminate the effect of (i) any change in GAAP occurring after the Closing Date or (ii) any change in the application of accounting principles adopted by the Borrower from time to time which change in application is permitted by GAAP, in each case, on the operation of such financial covenants and/or interest, Letter of Credit Fee or Commitment Fee determinations (or if the Administrative Agent notifies the Borrower in writing that the Required Lenders wish to amend any financial covenant in Section 8.2 , any related definition and/or the definition of the term Consolidated Total Leverage Ratio for purposes of interest, Letter of Credit Fee and Commitment Fee determinations to eliminate the effect of any such change in GAAP), then the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratios or requirements to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, the Loan Parties’ compliance with such covenants and/or the definition of the term Consolidated Total Leverage Ratio for purposes of interest, Letter of Credit Fee and Commitment Fee determinations shall be determined on the basis of GAAP in effect immediately before the relevant change in GAAP became effective, until either such notice is withdrawn or such covenants or definitions are amended in a manner satisfactory to the Borrower and the Required Lenders, and the Loan Parties shall provide to the Administrative Agent, when they deliver their financial statements pursuant to Section 8.3.1 and 8.3.2 of this Agreement, such reconciliation statements as shall be reasonably requested by the Administrative Agent. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made in a manner such that any obligations relating to a lease that was accounted for by such Person as an operating lease as of January 1, 2019 and any similar lease entered into after the date of this Agreement by such Person shall be accounted for as obligations relating to an operating lease and not as a capital lease obligation.
1.4.      Calculation of Financial Covenants . Notwithstanding anything in this Agreement to the contrary, the parties hereto acknowledge and agree that all calculations of the Consolidated Total Leverage Ratio and the Consolidated Interest Coverage Ratio (including for purposes of determining the Applicable Margin) shall be made on a pro forma basis with respect to (x) any sale, lease, transfer or other disposition of all of the Equity Interests or all or substantially all of the assets of, a Subsidiary, (y) any sale, lease, transfer or other disposition of a line of business or division of any Loan Party or any Subsidiary, or (z) any Acquisition, in each case, occurring during the applicable period and that for purposes of calculating such financial covenants, any such transaction (including the incurrence of any Indebtedness therewith) shall be deemed to have occurred as of the first day of the most recent four fiscal quarter period preceding the date of such transaction for which financial statements were required to be delivered pursuant to Sections 8.3.1 or Section 8.3.2 . In connection with the foregoing, (a) with respect to any disposition referenced above in clauses (x) or (y), (i) income statement and cash flow statement items (whether positive or negative) attributable to the property disposed of shall be excluded to the extent relating to any period occurring prior to the date of such transaction and (ii) Indebtedness which is retired shall be excluded and deemed to have been retired as of the first day of the applicable period and (b) with respect to any Acquisition, (i) income statement and cash flow statement items attributable to the Person or property acquired shall be included to the extent relating to any period applicable in such calculations to the extent (A) such items are not otherwise included in such income statement and cash flow statement items for the Borrower and its Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in Section 1.1 and (B) such items are supported by financial statements or other information reasonably satisfactory to the Administrative Agent and (ii) any Indebtedness incurred or assumed by any Loan Party or any Subsidiary (including the Person or property acquired) in connection with such transaction and any Indebtedness of the Person or property acquired which is not retired in connection with such transaction (A) shall be deemed to have been incurred as of the first day of the applicable period and (B) if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination.

1.5.      Division . For all purposes under the Loan Documents, “division” means the division of the assets, liabilities and/or obligations of a Person among two or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the Person whose assets, liabilities and/or obligations are being divided and pursuant to which the Person whose assets, liabilities and/or obligations are being divided may or may not survive.

2.      THE REVOLVING CREDIT, TERM LOAN AND SWING LOAN FACILITIES
2.1.      Revolving Credit Commitments and Term Loan Commitments .
2.1.1.      Revolving Credit Loans and Term Loans . Subject to the terms and conditions hereof and relying upon the representations and warranties herein set forth, (a) each Revolving Lender severally agrees to make Revolving Credit Loans to the Borrower at any time or from time to time on or after the date hereof to the Revolving Credit Maturity Date; provided that after giving effect to each such Loan (i) the aggregate amount of Revolving Credit Loans from such Lender shall not exceed such Lender’s Revolving Credit Commitment minus such Lender’s Ratable Share of the outstanding Swing Loans and Letter of Credit Obligations and (ii) the Revolving Facility Usage shall not exceed the Revolving Credit Commitments and (b) each Term Lender severally agrees to make Term Loans available to the Borrower on the Closing Date in an amount equal to such Lender’s Term Loan Commitment. Within such limits of time and amount and subject to the other provisions of this Agreement, the Borrower may borrow, repay and reborrow Revolving Credit Loans pursuant to this Section 2.1 . Amounts repaid or prepaid in respect of Term Loans may not be reborrowed.
2.1.2.      Swing Loan Commitment . Subject to the terms and conditions hereof (including the agreements of the Lenders in this Section 2.1.2 ) and relying upon the representations and warranties herein set forth, the Swing Loan Lender shall make swing loans (the “Swing Loans”) to the Borrower at any time or from time to time after the date hereof to, but not including, the Revolving Credit Maturity Date, in an aggregate principal amount up to but not in excess of the Swing Loan Commitment; provided that after giving effect to such Loan, the Revolving Facility Usage shall not exceed the aggregate Revolving Credit Commitments of the Lenders. Within such limits of time and amount and subject to the other provisions of this Agreement, the Borrower may borrow, repay and reborrow pursuant to this Section 2.1.2 . Immediately upon the making of a Swing Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Loan Lender a risk participation in such Swing Loan in an amount equal to the product of such Lender’s Ratable Share times the amount of such Swing Loan.
2.2.      Nature of Lenders’ Obligations with Respect to Loans . Each Lender shall be obligated to participate in each request for Loans (other than a Swing Loan) pursuant to Section 2.5 in accordance with its Ratable Share. The aggregate principal amount of each Lender’s Revolving Credit Loans outstanding hereunder to the Borrower at any time shall never exceed its Revolving Credit Commitment minus its Ratable Share of the outstanding Swing Loans and Letter of Credit Obligations and the aggregate principal amount of each Lender’s Term Loan outstanding hereunder to the Borrower shall never exceed its Term Loan Commitment. The obligations of each Lender hereunder are several. The failure of any Lender to perform its obligations hereunder shall not affect the Obligations of the Borrower to any other party nor shall any other party be liable for the failure of such Lender to perform its obligations hereunder. The Lenders shall have no obligation to make (a) Revolving Credit Loans hereunder on or after the Revolving Credit Maturity Date, and (b) Term Loans hereunder after the Closing Date. Any Swing Loan shall be made in accordance with the procedures set forth in Section 2.5 .
2.3.      Commitment Fees . Accruing from the date hereof until the date on which the aggregate Revolving Credit Commitments terminate in accordance with the terms of this Agreement, the Borrower agrees to pay to the Administrative Agent for the account of each Lender according to its Ratable Share, a nonrefundable commitment fee (the “ Commitment Fee ”) equal to the Applicable Commitment Fee Rate (computed on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed) multiplied by the average daily difference between the amount of (i) the Revolving Credit Commitments and (ii) the Revolving Facility Usage (provided however, that solely in connection with determining the share of each Lender in the Commitment Fee, the Commitment Fee shall be calculated (according to each such Lender’s Ratable Share) as if the Revolving Facility Usage excludes the outstanding Swing Loans); provided , that any Commitment Fee accrued with respect to the Revolving Credit Commitment of a Defaulting Lender during the period prior to the time such Lender became a Defaulting Lender and unpaid at such time shall not be payable by the Borrower so long as such Lender shall be a Defaulting Lender except to the extent that such Commitment Fee shall otherwise have been due and payable by the Borrower prior to such time; and provided further that no Commitment Fee shall accrue with respect to the Revolving Credit Commitment of a Defaulting Lender so long as such Lender shall be a Defaulting Lender. Subject to the provisos in the directly preceding sentence, all Commitment Fees shall be payable in arrears on the last day of March, June, September and December of each year and on the Revolving Credit Maturity Date, commencing on the first such date to occur after the date hereof.
2.4.      Termination or Reduction of Commitments . The Borrower shall have the right, upon not less than three (3) Business Days’ notice to the Administrative Agent, to terminate the Revolving Credit Commitments or, from time to time, to reduce the aggregate amount of the Revolving Credit Commitments (ratably among the Lenders in proportion to their Ratable Shares); provided that no such termination or reduction of Revolving Credit Commitments shall be permitted if, after giving effect thereto and to any prepayments of the Revolving Credit Loans made on the effective date thereof, the Revolving Facility Usage would exceed the aggregate Revolving Credit Commitments of the Lenders. Any such reduction shall be in an amount equal to $5,000,000, or a whole multiple thereof, and shall reduce permanently the Revolving Credit Commitments then in effect. Any such reduction or termination shall be accompanied by prepayment of the Revolving Credit Loans, together with outstanding Commitment Fees, and the full amount of interest accrued on the principal sum to be prepaid (and all amounts referred to in Section 5.11 hereof) to the extent necessary to cause the aggregate Revolving Facility Usage after giving effect to such prepayments to be equal to or less than the Revolving Credit Commitments as so reduced or terminated. Any notice to reduce the Revolving Credit Commitments under this Section 2.4 shall be irrevocable; provided that any notice of a termination in full of the Revolving Credit Commitments under this Section 2.4 may be conditioned solely upon the effectiveness of another credit facility or any other financing, sale or similar transaction. The Revolving Credit Commitments shall be automatically and permanently reduced to zero on the Revolving Credit Maturity Date, and the Term Loan Commitments shall be automatically and permanently reduced to zero on the Closing Date.
2.5.      Revolving Credit Loan and Term Loan Requests; Swing Loan Requests .
2.5.1.      Revolving Credit Loan and Term Loan Requests . Except as otherwise provided herein, the Borrower may from time to time (a) prior to the Revolving Credit Maturity Date or on the Closing Date request the Lenders to make Revolving Credit Loans or Term Loans, respectively, or (b) prior to the Revolving Credit Maturity Date or the Term Loan Maturity Date, renew or convert the Interest Rate Option applicable to existing Revolving Credit Loans or Term Loans, respectively, pursuant to Section 4.2 , by delivering to the Administrative Agent, not later than 10:00 a.m., (i) three (3) Business Days prior to the proposed Borrowing Date with respect to the making of Loans to which the LIBOR Rate Option applies or the conversion to or the renewal of the LIBOR Rate Option for any Loans; (ii) one Business Day prior to the proposed Borrowing Date with respect to the making of a Loan to which the Base Rate Option applies; provided that any Loan Request (as defined below) for a Revolving Credit Loan to which the Base Rate Option applies to finance the reimbursement of any Reimbursement Obligation as contemplated by Section 2.9.1 may be given not later than 10:00 a.m. on the date of the proposed Borrowing Date, and (iii) the last day of the preceding Interest Period with respect to the conversion to the Base Rate Option for any Loan, of a duly completed Loan Request. Each Loan Request shall be irrevocable and shall specify the aggregate amount of the proposed Loans comprising each Borrowing Tranche, the Class and, if applicable, the Interest Period, which amounts shall be in (x) integral multiples of $1,000,000 and not less than $5,000,000 for each Borrowing Tranche under the LIBOR Rate Option, and (y) integral multiples of $500,000 and not less than $1,000,000 for each Borrowing Tranche under the Base Rate Option.
2.5.2.      Swing Loan Requests . Except as otherwise provided herein, the Borrower may from time to time prior to the Revolving Credit Maturity Date request the Swing Loan Lender to make Swing Loans by delivery to the Swing Loan Lender not later than 12:00 noon on the proposed Borrowing Date of a duly completed Loan Request. Each Loan Request shall be irrevocable and shall specify the proposed Borrowing Date and the principal amount of such Swing Loan, which shall be not less than $1,000,000.
2.6.      Making Revolving Credit Loans and Term Loans; Making Swing Loans; Presumptions by the Administrative Agent; Repayment of Revolving Credit Loans and Term Loans; Borrowings to Repay Swing Loans .
2.6.1.      Making Revolving Credit Loans and Term Loans . The Administrative Agent shall, promptly after receipt by it of a Loan Request pursuant to Section 2.5 , notify the Lenders of its receipt of such Loan Request specifying the information provided by the Borrower and the apportionment among the Lenders of the requested Loans as determined by the Administrative Agent in accordance with Section 2.2 . Each Lender shall remit the principal amount of each Loan to the Administrative Agent such that the Administrative Agent is able to, and the Administrative Agent shall, to the extent the Lenders have made funds available to it for such purpose and subject to Section 7.2 , fund such Loans to the Borrower in U.S. Dollars and immediately available funds at the Principal Office prior to 2:00 p.m., on the applicable Borrowing Date; provided that if any Lender fails to remit such funds to the Administrative Agent in a timely manner, the Administrative Agent may elect in its sole and absolute discretion to fund with its own funds the Loans of such Lender on such Borrowing Date, and such Lender shall be subject to the repayment obligation in Section 2.6.2 .
2.6.2.      Presumptions by the Administrative Agent . Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Loan that such Lender will not make available to the Administrative Agent such Lender’s share of such Loan, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.6.1 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Loan available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of a payment to be made by such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and (ii) in the case of a payment to be made by the Borrower, the interest rate applicable to Loans under the Base Rate Option. If such Lender pays its share of the applicable Loan to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
2.6.3.      Making Swing Loans . So long as the Swing Loan Lender elects to make Swing Loans, the Swing Loan Lender shall, after receipt by it of a Loan Request pursuant to Section 2.5.2 , fund such Swing Loan to the Borrower in U.S. Dollars and immediately available funds at the Principal Office prior to 3:00 p.m. on the Borrowing Date.
2.6.4.      Repayment of Revolving Credit Loans and Term Loans .
(a)      The Borrower shall repay to the Administrative Agent for the account of each Revolving Lender the then-unpaid principal amount of each Revolving Credit Loan on the Revolving Credit Maturity Date.
(b)      The Borrower shall repay to the Administrative Agent for the account of each Term Lender such Term Lender’s Ratable Share of the aggregate principal amount of Term Loans extended to the Borrower in quarterly installments equal to the amount set forth opposite such quarter in the table below on the last day of such quarter, with any then-unpaid principal amount, together with all other amounts owed with respect thereto, payable on the Term Loan Maturity Date:
Quarter
Amount
Quarter ending May 31, 2019
$1,250,000
Quarter ending August 31, 2019
$1,250,000
Quarter ending November 30, 2019
$1,250,000
Quarter ending February 29, 2020
$1,250,000
Quarter ending May 31, 2020
$1,250,000
Quarter ending August 31, 2020
$1,250,000
Quarter ending November 30, 2020
$1,250,000
Quarter ending February 28, 2021
$1,250,000
Quarter ending May 31, 2021
$2,500,000
Quarter ending August 31, 2021
$2,500,000
Quarter ending November 30, 2021
$2,500,000
Quarter ending February 28, 2022
$2,500,000
Quarter ending May 31, 2022
$3,750,000
Quarter ending August 31, 2022
$3,750,000
Quarter ending November 30, 2022
$3,750,000
Quarter ending February 28, 2023
$3,750,000
Quarter ending May 31, 2023
$3,750,000
Quarter ending August 31, 2023
$3,750,000
Quarter ending November 30, 2023
$3,750,000
Term Loan Maturity Date
Remainder

2.6.5.      Borrowings to Repay Swing Loans .
(a)      The Swing Loan Lender may, at its option, exercisable at any time for any reason whatsoever, demand repayment of the Swing Loans, and each Lender shall make a Revolving Credit Loan in an amount equal to such Lender’s Ratable Share of the aggregate principal amount of the outstanding Swing Loans, plus, if the Swing Loan Lender so requests, accrued interest thereon, provided that no Lender shall be obligated in any event to make Revolving Credit Loans in excess of its Revolving Credit Commitment minus its Ratable Share of Letter of Credit Obligations. Revolving Credit Loans made pursuant to the preceding sentence shall bear interest at the Base Rate Option and shall be deemed to have been properly requested in accordance with Section 2.5.1 without regard to any of the requirements of that provision. HSBC shall provide notice to the Lenders that such Revolving Credit Loans are to be made under this Section 2.6.5 and of the apportionment among the Lenders, and the Lenders shall be unconditionally obligated to fund such Revolving Credit Loans (whether or not the conditions specified in Section 2.5.1 are then satisfied) by the time the Swing Loan Lender so requests, which shall not be earlier than 10:00 a.m. on the next Business Day after the date the Lenders receive such notice from the Swing Loan Lender.
(b)      If for any reason any Swing Loan cannot be refinanced by such a Revolving Credit Loan in accordance with the foregoing Section 2.6.5(a) the request for Base Rate Loans submitted by the Swing Loan Lender as set forth herein shall be deemed to be a request by the Swing Loan Lender that each of the Lenders fund its risk participation in the relevant Swing Loan and each Lender’s payment to the Administrative Agent for the account of the Swing Loan Lender pursuant to the foregoing Section 2.6.5(a) shall be deemed payment in respect of such participation.
(c)      If any Lender fails to make available to the Administrative Agent for the account of the Swing Loan Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.6 by the time specified in Section 2.6.1 , the Swing Loan Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Loan Lender at a rate per annum equal to the greater of the Federal Funds Effective Rate and a rate of determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect, plus any administrative, processing or similar fees customarily charged by the Swing Loan Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Credit Loans included in the relevant Revolving Credit Loans or funded participation in the relevant Swing Loan, as the case may be. A certificate of the Swing Loan Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this Section 2.6.5(c) shall be conclusive absent manifest error.
(d)      Each Lender’s obligation to make Revolving Credit Loans or to purchase and fund risk participations in Swing Loans pursuant to this Section 2.6 shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Loan Lender, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a Default, or (iii) any other occurrence, event or condition, whether or not similar to any of the foregoing. No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swing Loans, together with interest as provided herein.
2.7.      Notes . Any Lender of a particular Class may request that Loans made by it with respect to such Class, as applicable, be evidenced by a promissory note (each, a “ Note ”) substantially in the form of Exhibit 1.1(N)(1) evidencing the Revolving Credit Loans with respect to a Revolving Lender, Exhibit 1.1(N)(2) evidencing the Swing Loans with respect to a Swing Loan Lender, and Exhibit 1.1(N)(3) evidencing the Term Loans with respect to a Term Lender. In such event, the Borrower shall prepare, execute and deliver to such Lender Notes payable to the order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns). Thereafter, the Loans evidenced by such Notes and interest thereon shall at all times (including after an assignment pursuant to Section 11.8.2 ) be represented by one or more Notes payable to the order of the payee named therein.
2.8.      Use of Proceeds . The proceeds of the Loans shall be used to (a) refinance the existing Indebtedness of the Borrower under the Existing Credit Agreement, and (b) provide for working capital, capital expenditures, acquisitions, research and development and other lawful corporate purposes of the Borrower.
2.9.      Letter of Credit Subfacility .
2.9.1.      Issuance of Letters of Credit . The Borrower or any Loan Party may at any time prior to the Revolving Credit Maturity Date request the issuance of a standby letter of credit (each a “ Standby Letter of Credit ”) or a trade letter of credit (each a “ Trade Letter of Credit ” and together with each Standby Letter of Credit and the Existing Letter of Credit, individually, a “ Letter of Credit ” and collectively, the “ Letters of Credit ”) on behalf of itself, another Loan Party or any Subsidiary of a Loan Party, or the amendment or extension of an existing Letter of Credit, by delivering to the Issuing Lender (with a copy to the Administrative Agent) a completed application and agreement for letters of credit, or request for such amendment or extension, as applicable, in such form as the Issuing Lender may specify from time to time, which shall specify the date of issuance, amendment or extension (which shall be a Business Day), the amount of such Letter of Credit, the name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend or extent such Letter of Credit, by no later than 10:00 a.m. at least ten (10) Business Days, or such shorter period as may be agreed to by the Issuing Lender, in advance of the proposed date of issuance. Promptly after receipt of any letter of credit application, the Issuing Lender shall confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit application and if not, such Issuing Lender will provide the Administrative Agent with a copy thereof. Unless the Issuing Lender has received notice from any Lender, the Administrative Agent or any Loan Party, at least one day prior to the requested date of issuance, amendment or extension of the applicable Letter of Credit, that one or more applicable conditions in Section 7 is not satisfied, then, subject to the terms and conditions hereof and in reliance on the agreements of the other Lenders set forth in this Section 2.9 , the Issuing Lender or any of the Issuing Lender’s Affiliates will issue the proposed Letter of Credit or agree to such amendment or extension, provided that each Letter of Credit shall (A) have a maximum maturity of twelve (12) months from the date of issuance (but such Letter of Credit may provide for the renewal thereof for additional one-year periods), and (B) in no event expire later than the Revolving Credit Maturity Date; provided , further that in no event shall (i) the Letter of Credit Obligations exceed, at any one time, the Letter of Credit Sublimit or (ii) the Revolving Facility Usage exceed, at any one time, the Revolving Credit Commitments. Each request by the Borrower for the issuance, amendment or extension of a Letter of Credit shall be deemed to be a representation by the Borrower that it shall be in compliance with the preceding sentence and with Section 7 after giving effect to the requested issuance, amendment or extension of such Letter of Credit. Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to the beneficiary thereof, the applicable Issuing Lender will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment. The Existing Letter of Credit shall be deemed to have been issued pursuant hereto, and from and after the Effective Date shall be subject to and governed by the terms and conditions hereof.
2.9.2.      Letter of Credit Fees . The Borrower shall pay (a) to the Administrative Agent for the ratable account of the Lenders a fee (the “ Letter of Credit Fee ”) equal to the Applicable Letter of Credit Fee Rate on the average daily amount available to be drawn under each Letter of Credit, and (b) to the Issuing Lender for its own account a fronting fee equal to 0.125% per annum on the average daily amount available to be drawn under each Letter of Credit. All Letter of Credit Fees and fronting fees shall be computed on the basis of a year of 360 days and actual days elapsed. All Letter of Credit Fees and fronting fees accrued through and including the last day of March, June, September and December of each year shall be payable on the third Business Day following such last day, commencing on the first such date to occur after the date hereof; provided that, any accrued Letter of Credit Fees shall be payable on the date on which such Letter of Credit terminates, all such fees shall be payable on the date on which the Revolving Credit Commitments terminate and any such fees accruing after the date on which the Revolving Credit Commitments terminate shall be payable on demand. The Borrower shall also pay to the Issuing Lender for the Issuing Lender’s sole account the Issuing Lender’s then in effect reasonable and customary fees and administrative expenses payable with respect to the Letters of Credit as the Issuing Lender may generally charge or incur from time to time in connection with the issuance, maintenance, amendment (if any), assignment or transfer (if any), negotiation, and administration of Letters of Credit.
2.9.3.      Disbursements, Reimbursement . Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Issuing Lender a participation in such Letter of Credit and each drawing thereunder in an amount equal to such Lender’s Ratable Share of the maximum amount available to be drawn under such Letter of Credit and the amount of such drawing, respectively.
(a)      In the event of any request for a drawing under a Letter of Credit by the beneficiary or transferee thereof, the Issuing Lender will promptly notify the Borrower and the Administrative Agent thereof. Provided that it shall have received such notice, the Borrower shall reimburse (such obligation to reimburse the Issuing Lender shall sometimes be referred to as a “ Reimbursement Obligation ”) the Issuing Lender prior to 12:00 noon on each date that an amount is paid by the Issuing Lender under any Letter of Credit (each such date, a “ Drawing Date ”) by paying to the Administrative Agent for the account of the Issuing Lender an amount equal to the amount so paid by the Issuing Lender. In the event the Borrower fails to reimburse the Issuing Lender (through the Administrative Agent) for the full amount of any drawing under any Letter of Credit by 12:00 noon on the Drawing Date, the Administrative Agent will promptly notify each Lender thereof, and the Borrower shall be deemed to have requested that Revolving Credit Loans be made by the Lenders under the Base Rate Option to be disbursed on the Drawing Date under such Letter of Credit, subject to the amount of the unutilized portion of the Revolving Credit Commitment and subject to the conditions set forth in Section 7.2 other than any notice requirements. Any notice given by the Administrative Agent or Issuing Lender pursuant to this Section 2.9.3(a) may be made by telephone, telecopy or electronic communication; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.
(b)      Each Lender shall upon any notice pursuant to Section 2.9.3(a) make available to the Administrative Agent for the account of the Issuing Lender an amount in immediately available funds equal to its Ratable Share of the amount of the drawing, whereupon the participating Lenders shall (subject to Section 2.9.3 ) each be deemed to have made a Revolving Credit Loan under the Base Rate Option to the Borrower in that amount. If any Lender so notified fails to make available to the Administrative Agent for the account of the Issuing Lender the amount of such Lender’s Ratable Share of such amount by no later than 2:00 p.m. on the Drawing Date, then interest shall accrue on such Lender’s obligation to make such payment, from the Drawing Date to the date on which such Lender makes such payment at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. The Administrative Agent and the Issuing Lender will promptly give notice (as described in Section 2.9.3(a) above) of the occurrence of the Drawing Date, but failure of the Administrative Agent or the Issuing Lender to give any such notice on the Drawing Date or in sufficient time to enable any Lender to effect such payment on such date shall not relieve such Lender from its obligation under this Section 2.9.3(b) .
(c)      With respect to any unreimbursed drawing that is not converted into Revolving Credit Loans under the Base Rate Option to the Borrower in whole or in part as contemplated by Section 2.9.3(a) because of the Borrower’s failure to satisfy the conditions set forth in Section 7.2 other than any notice requirements, or for any other reason, the Borrower shall be deemed to have incurred from the Issuing Lender a borrowing (each a “ Letter of Credit Borrowing ”) in the amount of such drawing. Such Letter of Credit Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the rate per annum applicable to the Revolving Credit Loans under the Base Rate Option. Each Lender’s payment to the Administrative Agent for the account of the Issuing Lender pursuant to Section 2.9.3 shall be deemed to be a payment in respect of its participation in such Letter of Credit Borrowing (each a “ Participation Advance ”) from such Lender in satisfaction of its participation obligation under this Section 2.9.3 .
2.9.4.      Repayment of Participation Advances .
(a)      Upon (and only upon) receipt by the Administrative Agent for the account of the Issuing Lender of immediately available funds from the Borrower (i) in reimbursement of any payment made by the Issuing Lender under the Letter of Credit with respect to which any Lender has made a Participation Advance to the Administrative Agent, or (ii) in payment of interest on such a payment made by the Issuing Lender under such a Letter of Credit, the Administrative Agent on behalf of the Issuing Lender will pay to each Lender, in the same funds as those received by the Administrative Agent, the amount of such Lender’s Ratable Share of such funds, except the Administrative Agent shall retain for the account of the Issuing Lender the amount of the Ratable Share of such funds of any Lender that did not make a Participation Advance in respect of such payment by the Issuing Lender.
(b)      If the Administrative Agent is required at any time to return to any Loan Party, or to a trustee, receiver, liquidator, custodian, or any official in any Insolvency Proceeding, any portion of any payment made by any Loan Party to the Administrative Agent for the account of the Issuing Lender pursuant to this Section in reimbursement of a payment made under any Letter of Credit or interest or fees thereon, each Lender shall, on demand of the Administrative Agent, forthwith return to the Administrative Agent for the account of the Issuing Lender the amount of its Ratable Share of any amounts so returned by the Administrative Agent plus interest thereon from the date such demand is made to the date such amounts are returned by such Lender to the Administrative Agent, at a rate per annum equal to the Federal Funds Effective Rate in effect from time to time.
2.9.5.      Documentation . Each Loan Party agrees to be bound by the terms of the Issuing Lender’s application and agreement for letters of credit and the Issuing Lender’s written regulations and customary practices relating to letters of credit, though such interpretation may be different from such Loan Party’s own. In the event of a conflict between such application or agreement and this Agreement, this Agreement shall govern. It is understood and agreed that, except in the case of gross negligence or willful misconduct, as and to the extent determined by a court of competent jurisdiction in a final and non-appealable judgment, the Issuing Lender shall not be liable for any error, negligence and/or mistakes, whether of omission or commission, in following any Loan Party’s instructions or those contained in the Letters of Credit or any modifications, amendments or supplements thereto.
2.9.6.      Determinations to Honor Drawing Requests . In determining whether to honor any request for drawing under any Letter of Credit by the beneficiary thereof, the Issuing Lender shall be responsible only to determine that the documents and certificates required to be delivered under such Letter of Credit have been delivered and that they comply on their face with the requirements of such Letter of Credit.
2.9.7.      Nature of Participation and Reimbursement Obligations . Each Lender’s obligation in accordance with this Agreement to make the Revolving Credit Loans or Participation Advances, as contemplated by Section 2.9.3 , as a result of a drawing under a Letter of Credit, and the Obligations of the Borrower to reimburse the Issuing Lender upon a draw under a Letter of Credit, shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Section 2.9 under all circumstances, including the following circumstances:
(a)      any set-off, counterclaim, recoupment, defense or other right which such Lender may have against the Issuing Lender or any of its Affiliates, the Borrower or any other Person for any reason whatsoever, or which any Loan Party may have against the Issuing Lender or any of its Affiliates, any Lender or any other Person for any reason whatsoever;
(b)      the failure of any Loan Party or any other Person to comply, in connection with a Letter of Credit Borrowing, with the conditions set forth in Sections 2.1 , 2.5 , 2.6 or 7.2 or as otherwise set forth in this Agreement for the making of a Revolving Credit Loan, it being acknowledged that such conditions are not required for the making of a Letter of Credit Borrowing and the obligation of the Lenders to make Participation Advances under Section 2.9.3 ;
(c)      any lack of validity or enforceability of any Letter of Credit;
(d)      any claim of breach of warranty that might be made by any Loan Party or any Lender against any beneficiary of a Letter of Credit, or the existence of any claim, set-off, recoupment, counterclaim, crossclaim, defense or other right which any Loan Party or any Lender may have at any time against a beneficiary, successor beneficiary any transferee or assignee of any Letter of Credit or the proceeds thereof (or any Persons for whom any such transferee may be acting), the Issuing Lender or its Affiliates or any Lender or any other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between any Loan Party or Subsidiaries of a Loan Party and the beneficiary for which any Letter of Credit was procured);
(e)      the lack of power or authority of any signer of (or any defect in or forgery of any signature or endorsement on) or the form of or lack of validity, sufficiency, accuracy, enforceability or genuineness of any draft, demand, instrument, certificate or other document presented under or in connection with any Letter of Credit, or any fraud or alleged fraud in connection with any Letter of Credit, or the transport of any property or provision of services relating to a Letter of Credit, in each case even if the Issuing Lender or any of its Affiliates has been notified thereof;
(f)      payment by the Issuing Lender or any of its Affiliates under any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Letter of Credit;
(g)      the solvency of, or any acts or omissions by, any beneficiary of any Letter of Credit, or any other Person having a role in any transaction or obligation relating to a Letter of Credit, or the existence, nature, quality, quantity, condition, value or other characteristic of any property or services relating to a Letter of Credit;
(h)      any failure by the Issuing Lender or any of its Affiliates to issue any Letter of Credit in the form requested by any Loan Party, unless the Issuing Lender has received written notice from such Loan Party of such failure within three Business Days after the Issuing Lender shall have furnished such Loan Party and the Administrative Agent a copy of such Letter of Credit and such error is material and no drawing has been made thereon prior to receipt of such notice;
(i)      any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of any Loan Party or Subsidiaries of a Loan Party;
(j)      any breach of this Agreement or any other Loan Document by any party thereto;
(k)      the occurrence or continuance of an Insolvency Proceeding with respect to any Loan Party;
(l)      the fact that a Default or an Event of Default shall have occurred and be continuing;
(m)      the fact that the Revolving Credit Maturity Date shall have passed or this Agreement or the Commitments hereunder shall have been terminated; and
(n)      any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
2.9.8.      [Reserved] .
2.9.9.      Liability for Acts and Omissions . As between any Loan Party and the Issuing Lender, or the Issuing Lender’s Affiliates, such Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the Issuing Lender shall not be responsible for any of the following, including any losses or damages to any Loan Party or other Person or property relating therefrom: (a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for an issuance of any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the Issuing Lender or its Affiliates shall have been notified thereof); (b) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (c) the failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any Loan Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any Loan Party and any beneficiary of any Letter of Credit or any such transferee; (d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (e) errors in interpretation of technical terms; (f) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or of the proceeds thereof; (g) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or (h) any consequences arising from causes beyond the control of the Issuing Lender or its Affiliates, as applicable, including any act or omission of any Official Body, and none of the above shall affect or impair, or prevent the vesting of, any of the Issuing Lender’s or its Affiliates rights or powers hereunder. Nothing in the preceding sentence or in Section 2.9.7 shall relieve the Issuing Lender from liability for the Issuing Lender’s gross negligence or willful misconduct (as determined by the final and nonappealable judgment of a court of competent jurisdiction) in connection with actions or omissions described in such clauses (a) through (h) of this Section 2.9.9 or the wrongful dishonor made by the Issuing Lender or any of Issuing Lender’s Affiliates of a proper demand for payment made under any Letter of Credit, except if such dishonor resulted from any act or omission, whether rightful or wrongful, or any present or future de jure or de facto government or Official Body. In no event shall the Issuing Lender or its Affiliates be liable to any Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit.
Without limiting the generality of the foregoing, the Issuing Lender and each of its Affiliates (a) may rely on any oral or other communication believed in good faith by the Issuing Lender or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (b) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (c) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the Issuing Lender or its Affiliate; (d) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (e) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (f) may settle or adjust any claim or demand made on the Issuing Lender or its Affiliate in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “ Order ”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the Issuing Lender or its Affiliates under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put the Issuing Lender or its Affiliates under any resulting liability to the Borrower or any Lender.
2.9.10.      Issuing Lender Reporting Requirements . Each Issuing Lender shall, on the first Business Day of each month, provide to Administrative Agent and Borrower a schedule of the Letters of Credit issued by it, in form and substance satisfactory to Administrative Agent, showing the date of issuance of each Letter of Credit, the account party, the original face amount (if any), and the expiration date of any Letter of Credit outstanding at any time during the preceding month, and any other information relating to such Letter of Credit that the Administrative Agent may request.
2.10.      Defaulting Lenders .
(a)      Defaulting Lender Adjustments . Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender, to the extent permitted by Applicable Law:
(i)      Waivers and Amendments . Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 11.1 .
(ii)      Defaulting Lender Waterfall . Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 9.2 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 9.2.3 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first , to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second , to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Lender or Swing Loan Lender hereunder; third , to Cash Collateralize the Issuing Lenders’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.11 ; fourth , as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Revolving Credit Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth , if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Revolving Credit Loans under this Agreement and (y) Cash Collateralize the Issuing Lenders’ future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.11 ; sixth , to the payment of any amounts owing to the Lenders, the Issuing Lenders or Swing Loan Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Lenders or Swing Loan Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh , so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth , to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Revolving Credit Loans or Letter of Credit Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Revolving Credit Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 7.2 were satisfied or waived, such payment shall be applied solely to pay the Revolving Credit Loans of, and Letter of Credit Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Revolving Credit Loans of, or Letter of Credit Obligations owed to, such Defaulting Lender until such time as all Revolving Credit Loans and funded and unfunded participations in Letter of Credit Obligations and Swing Loans are held by the Lenders pro rata in accordance with their Revolving Credit Commitments without giving effect to Section 2.10(a)(iv) . Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii)      Certain Fees .
(A)      No Defaulting Lender shall be entitled to receive any Commitment Fee for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).
(B)      Each Defaulting Lender shall be entitled to receive Letter of Credit Fees for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Ratable Share of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.11 .
(C)      With respect to any Commitment Fee or Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above, the Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in Letter of Credit Obligations or Swing Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to each Issuing Lender and Swing Loan Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such Issuing Lender’s or Swing Loan Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
(i)      Reallocation of Participations to Reduce Fronting Exposure . All or any part of such Defaulting Lender’s participation in Letter of Credit Obligations and Swing Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Ratable Shares (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that such reallocation does not cause the aggregate Revolving Facility Usage of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Credit Commitment. Subject to Section 11.14 , no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
(ii)      Cash Collateral, Repayment of Swing Loans . If the reallocation described in clause (iv) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under law, (x) first , prepay Swing Loans in an amount equal to the Swing Loan Lenders’ Fronting Exposure and (y) second , Cash Collateralize the Issuing Lenders’ Fronting Exposure in accordance with the procedures set forth in Section 2.11 .
(a)      Defaulting Lender Cure . If the Borrower, the Administrative Agent, the Swing Loan Lender and Issuing Lender agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swing Loans to be held pro rata by the Lenders in accordance with their Revolving Credit Commitments (without giving effect to Section 2.10(a)(iv) ), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(b)      New Swing Loans/Letters of Credit . So long as any Lender is a Defaulting Lender, (i) the Swing Loan Lender shall not be required to fund any Swing Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swing Loan and (ii) no Issuing Lender shall be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.
2.11.      Cash Collateral . At any time that there shall exist a Defaulting Lender, within one Business Day following the written request of the Administrative Agent or the Issuing Lenders (with a copy to the Administrative Agent) the Borrower shall Cash Collateralize the Issuing Lenders’ Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to Section 2.10(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less than the Minimum Cash Collateral Amount.
(a)      Grant of Security Interest . The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to the Administrative Agent, for the benefit of the Issuing Lenders, and agrees to maintain, a first priority security interest in all such Cash Collateral as security for the Defaulting Lenders’ obligation to fund participations in respect of Letter of Credit Obligations, to be applied pursuant to clause (b) below. If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent and the Issuing Lenders as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Cash Collateral Amount, the Borrower will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash Collateral provided by the Defaulting Lender).
(b)      Application . Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under this Section 2.10 or Section 2.11 in respect of Letters of Credit shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund participations in respect of Letter of Credit Obligations (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.
(c)      Termination of Requirement . Cash Collateral (or the appropriate portion thereof) provided to reduce the Issuing Lenders’ Fronting Exposure shall no longer be required to be held as Cash Collateral pursuant to this Section 2.11 following (i) the elimination of the applicable Fronting Exposure (including by the termination of Defaulting Lender status of the applicable Lender), or (ii) the determination by the Administrative Agent and the Issuing Lenders that there exists excess Cash Collateral; provided that, subject to Section 2.10 , the Person providing Cash Collateral and the Issuing Lenders may agree that Cash Collateral shall be held to support future anticipated Fronting Exposure or other obligations; and provided, further that, to the extent that such Cash Collateral was provided by the Borrower, such Cash Collateral shall remain subject to the security interest granted pursuant to the Loan Documents.
2.12.      Increase in Commitments .
2.12.1.      Request for Increase . The Borrower may from time to time, request by notice to the Administrative Agent an increase in the Revolving Credit Commitments (each, a “ Revolving Credit Increase ”); provided that (a) the principal amount of any Revolving Credit Increase requested pursuant to this Section 2.12 shall not exceed $100,000,000 (or a lesser amount in the event such amount represents all remaining availability under this Section), (b) no Revolving Credit Increase shall (i) increase the Letter of Credit Sublimit without the consent of each Issuing Lender or (ii) increase the Swing Loan Sublimit without the consent of the Swing Loan Lender, (c) not more than four (4) requests for Revolving Credit Increases in whole multiples of $1,000,000 (or a lesser amount in the event such amount represents all remaining availability under this Section) may be made by the Borrower during the term of this Agreement and (d) each Revolving Credit Increase shall constitute Obligations hereunder and shall be guaranteed pursuant to the terms of Section 3 hereof and secured by the Security Documents, in each case, on a pari passu basis with the other Obligations hereunder.
2.12.2.      Process for Increase . Revolving Credit Increases may be (but shall not be required to be) provided by any existing Lender, in each case on terms permitted in this Section 2.12.2 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other Person that qualifies as an assignee (each such other Person, an “ Additional Lender ”) pursuant to a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent; provided that (i) the Administrative Agent shall have consented (in each case, such consent not to be unreasonably withheld) to each such Lender or proposed Additional Lender providing such Revolving Credit Increase and (ii) each Issuing Lender shall have consented (such consent not to be unreasonably withheld) to each such Lender or proposed Additional Lender providing such Revolving Credit Increase if such consent by the Issuing Lender would be required under Section 11.8.2 for an assignment of Loans or Revolving Credit Commitments to such Lender or proposed Additional Lender. No Lender shall have any obligation to increase its Revolving Credit Commitment and no consent of any Lender, other than the Lenders agreeing to provide any portion of an Incremental Increase, shall be required to effectuate such Revolving Credit Increase.
2.12.3.      Effective Date and Allocations . The Administrative Agent and the Borrower shall determine the effective date of any Revolving Credit Increase (the “ Increase Effective Date ”) and the final allocations therefor. The Administrative Agent shall promptly notify the Lenders of the final allocation of such Revolving Credit Increase and the Increase Effective Date.
2.12.4.      Conditions to Effectiveness of Increase . As a condition precedent to such increase, the Borrower shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the Increase Effective Date signed by an Authorized Officer of such Loan Party (a) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such Revolving Credit Increase and (b) in the case of the Borrower, certifying that, before and after giving effect to such increase, (i) the representations and warranties contained in Section 6 and the other Loan Documents are true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect, in all respects) on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.12 , the representations and warranties contained in subsections (a) and (b) of Section 6.1.7 shall be deemed to refer to the most recent statements furnished pursuant to Sections 8.3.1 and 8.3.2, respectively, (ii) no Default or Event of Default exists and is continuing and (iii) the Borrower and its Subsidiaries are in compliance on a pro forma basis with each of the financial covenants contained in Sections 8.2.14 and 8.2.15 (which, for the purposes of the pro forma calculation required herein, shall be determined regardless of whether the covenants in such Section would otherwise have been required to be tested pursuant to the terms thereof at such time). Each Revolving Credit Increase shall have the same terms as the outstanding Revolving Credit Loans and shall constitute Revolving Credit Loans and Revolving Credit Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents and shall, without limiting the foregoing, benefit equally and ratably with the Obligations from the Guarantors and security interests created by the Security Documents. Upon each Revolving Credit Increase (x) each Lender having a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Credit Increase (each, a “ Revolving Credit Increase Lender ”) in respect of such increase, and each such Revolving Credit Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Loans, will, in each case, equal each Lender’s Ratable Share (after giving effect to such increase in the Revolving Credit Commitments) and (y) if, on the date of such increase there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall, on or prior to the effectiveness of such Revolving Credit Increase, be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by any amounts required to be paid pursuant to Section 5.9.7 to the extent necessary to keep the outstanding Loans ratable with any revised Ratable Shares arising from such Revolving Credit Increase.
2.12.5.      Conflicting Provisions . This Section shall supersede any provisions in Section 11.1 to the contrary.
2.13.      Extension of Revolving Credit Maturity Date .
2.13.1.      Request for Extension . At least 30 days but not more than 60 days prior to the Revolving Credit Maturity Date in effect at such time (the “ Existing Revolving Credit Maturity Date ”), the Borrower, by notice to the Administrative Agent, may request up to two times an extension of the Existing Revolving Credit Maturity Date by one year from its then scheduled expiration.
2.13.2.      Lender Elections to Extend . Each Lender, acting in its sole and individual discretion, shall, by notice to the Administrative Agent given not earlier than twenty-five (25) days prior to the Existing Revolving Credit Maturity Date and not later than the date (the “ Notice Date ”) that is fifteen (15) days prior to the Existing Revolving Credit Maturity Date, advise the Administrative Agent whether or not such Lender agrees to such extension and each Lender that determines not to so extend its Lender Commitment (a “ Non-Extending Lender ”) shall notify the Administrative Agent of such fact promptly after such determination (but in any event no later than the Notice Date) and any Lender that does not so advise the Administrative Agent on or before the Notice Date shall be deemed to be a Non-Extending Lender. The election of any Lender to agree to such extension shall not obligate any other Lender to so agree.
2.13.3.      Notification by Administrative Agent . The Administrative Agent shall notify the Borrower of each Lender’s determination under this Section no later than the date ten (10) days prior to the Existing Revolving Credit Maturity Date (or, if such date is not a Business Day, on the next preceding Business Day).
2.13.4.      Additional Commitment Lenders . The Borrower shall have the right on or before the Existing Revolving Credit Maturity Date to replace each Non-Extending Lender with, and add as “Lenders” under this Agreement in place thereof, one or more assignees (each, an “ Additional Commitment Lender ”) with the approval of the Administrative Agent and the Issuing Lenders (which approvals shall not be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into an Assignment and Assumption Agreement pursuant to which such Additional Commitment Lender shall, effective as of the Initial Revolving Credit Maturity Date, undertake a Revolving Credit Commitment (and, if any such Additional Commitment Lender is already a Lender, its Revolving Credit Commitment shall be in addition to such Lender’s Revolving Credit Commitment hereunder on such date).
2.13.5.      Conditions to Effectiveness of Extensions . As a condition precedent to such extension, the Borrower shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the date of such extension signed by an Authorized Officer of such Loan Party (a) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such extension and (b) in the case of the Borrower, certifying that, before and after giving effect to such extension, (i) the representations and warranties contained in Section 6 and the other Loan Documents are true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect, in all respects) on and as of the date of such extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.13 , the representations and warranties contained in subsections (a) and (b) of Section 6.1.7 shall be deemed to refer to the most recent statements furnished pursuant to Sections 8.3.1 and 8.3.2, respectively, (ii) no Default or Event of Default exists and is continuing and (iii) the Borrower and its Subsidiaries are in compliance on a pro forma basis with each of the financial covenants contained in Sections 8.2.14 and 8.2.15 (which, for the purposes of the pro forma calculation required herein, shall be determined regardless of whether the covenants in such Section would otherwise have been required to be tested pursuant to the terms thereof at such time). On or before the Revolving Credit Maturity Date, (1) the Borrower shall have paid in full the principal of and interest on all of the Revolving Credit Loans made by each Non-Extending Lender to the Borrower hereunder and (2) the Borrower shall have paid in full all other amounts owing to such Non-Extending Lender hereunder.
2.13.6.      Amendment; Sharing of Payments . In connection with any extension of the Revolving Credit Maturity Date, each Borrower, the Administrative Agent and each extending Lender may make such amendments to this Agreement as the Administrative Agent determines to be reasonably necessary to evidence the extension. This Section shall supersede Section 11.1 .
2.13.7.      Minimum Extension Requirement . If (and only if) the total of the Revolving Credit Commitments of the Lenders that have agreed so to extend their Revolving Credit Maturity Date and the additional Revolving Credit Commitments of the Additional Commitment Lenders shall be more than 50% of the aggregate amount of the Revolving Credit Commitments in effect immediately prior to the Existing Revolving Credit Maturity Date, then, effective as of the Existing Revolving Credit Maturity Date, the Revolving Credit Maturity Date of each extending Lender and of each Additional Commitment Lender shall be extended to the date falling 364 days after the Existing Revolving Credit Maturity Date (except that, if such date is not a Business Day, such Revolving Credit Maturity Date as so extended shall be the next preceding Business Day) and each Additional Commitment Lender shall thereupon become a “Lender” for all purposes of this Agreement. For the avoidance of doubt, no extension of the Existing Revolving Credit Maturity Date shall apply to any Non-Extending Lender.
3.      GUARANTY
3.1.      Guarantied Obligations . To induce the Lenders to make loans and grant other financial accommodations to the Borrower hereunder, each Guarantor jointly and severally unconditionally, absolutely and irrevocably, guaranties as primary obligor and not merely as surety to the Administrative Agent for the benefit of the Secured Parties, the full and punctual payment and performance when due (whether on demand, at stated maturity, by acceleration, or otherwise and including any amounts which would become due but for the operation of an automatic stay under the federal bankruptcy code of the United States or any other Debtor Relief Law) of all Obligations, including, without limiting the generality of the foregoing, all obligations, liabilities, and indebtedness from time to time of the Borrower or any other Guarantor to the Administrative Agent, any Lender or any Affiliate of any Lender under or in connection with this Agreement or any other Loan Document, whether for principal, interest, fees, indemnities, expenses, or otherwise, and all refinancings or refundings thereof, whether such obligations, liabilities, or indebtedness are direct or indirect, secured or unsecured, joint or several, absolute or contingent, due or to become due, whether for payment or performance, now existing or hereafter arising (and including obligations, liabilities, and indebtedness arising or accruing after the commencement of any bankruptcy, insolvency, reorganization, or similar proceeding with respect to the Borrower or any Guarantor or which would have arisen or accrued but for the commencement of such proceeding, even if the claim for such obligation, liability, or indebtedness is not enforceable or allowable in such proceeding, and including all Obligations, liabilities, and indebtedness arising from any extensions of credit under or in connection with the Loan Documents from time to time, regardless of whether any such extensions of credit are in excess of the amount committed under or contemplated by the Loan Documents or are made in circumstances in which any condition to extension of credit is not satisfied) (all of the foregoing obligations, liabilities and indebtedness are referred to herein collectively as the “ Guarantied Obligations ” and each as a “ Guarantied Obligation ”). Without limitation of the foregoing, any of the Guarantied Obligations shall be and remain Guarantied Obligations entitled to the benefit of this Guaranty if the Administrative Agent or any Lender (or any one or more assignees or transferees thereof) from time to time assign or otherwise transfer all or any portion of their respective rights and obligations under the Loan Documents, or any other Guarantied Obligations, to any other Person. Notwithstanding any provision to the contrary contained herein or any other of the Loan Documents, Hedge Agreements or Lender Bank Products, the “Guarantied Obligations” of a Guarantor that are guaranteed under this Article III shall exclude any Excluded Hedge Agreements with respect to such Guarantor.
3.2.      Guaranty . Each Guarantor hereby promises to pay and perform all such Guarantied Obligations immediately upon demand of the Administrative Agent. All payments made hereunder shall be made by each Guarantor in immediately available funds in U.S. Dollars and shall be made without setoff, counterclaim, withholding, or other deduction of any nature.
3.3.      Obligations Absolute . The obligations of the Guarantors hereunder shall not be discharged or impaired or otherwise diminished by the failure, default, omission, or delay, willful or otherwise, by the Administrative Agent, or the Borrower or any other obligor on any of the Guarantied Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity. Each of the Guarantors agrees that the Guarantied Obligations will be paid and performed strictly in accordance with the terms of the Loan Documents, Hedge Agreements or Lender Bank Products, as applicable. Without limiting the generality of the foregoing, to the fullest extent permitted by law, each Guarantor hereby consents to, at any time and from time to time, and the joint and several obligations of each Guarantor hereunder shall not be diminished, terminated, or otherwise similarly affected by any of the following:
3.3.1.      Any lack of genuineness, legality, validity, enforceability or allowability (in a bankruptcy, insolvency, reorganization or similar proceeding, or otherwise), or any avoidance or subordination, in whole or in part, of any Loan Document or any of the Guarantied Obligations and regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of the Guarantied Obligations, any of the terms of the Loan Documents, or any rights of the Administrative Agent, any other Secured Party or any other Person with respect thereto;
3.3.2.      Any increase, decrease, or change in the amount, nature, type or purpose of any of, or any release, surrender, exchange, compromise or settlement of any of the Guarantied Obligations (whether or not contemplated by the Loan Documents as presently constituted); any change in the time, manner, method, or place of payment or performance of, or in any other term of, any of the Guarantied Obligations; any execution or delivery of any additional Loan Documents; or any amendment, modification or supplement to, or refinancing or refunding of, any Loan Document or any of the Guarantied Obligations;
3.3.3.      Any failure to assert any breach of or default under any Loan Document or any of the Guarantied Obligations; any extensions of credit in excess of the amount committed under or contemplated by the Loan Documents, or in circumstances in which any condition to such extensions of credit has not been satisfied; any other exercise or non-exercise, or any other failure, omission, breach, default, delay, or wrongful action in connection with any exercise or non-exercise, of any right or remedy against the Borrower or any other Person under or in connection with any Loan Document or any of the Guarantied Obligations; any refusal of payment or performance of any of the Guarantied Obligations, whether or not with any reservation of rights against any Guarantor; or any application of collections (including but not limited to collections resulting from realization upon any direct or indirect security for the Guarantied Obligations) to other obligations, if any, not entitled to the benefits of this Guaranty, in preference to Guarantied Obligations entitled to the benefits of this Guaranty, or if any collections are applied to Guarantied Obligations, any application to particular Guarantied Obligations;
3.3.4.      Any taking, exchange, amendment, modification, waiver, supplement, termination, subordination, compromise, release, surrender, loss, or impairment of, or any failure to protect, perfect, or preserve the value of, or any enforcement of, realization upon, or exercise of rights, or remedies under or in connection with, or any failure, omission, breach, default, delay, or wrongful action by the Administrative Agent, any other Secured Party or any other Person in connection with the enforcement of, realization upon, or exercise of rights or remedies under or in connection with, or, any other action or inaction by the Administrative Agent, any other Secured Party or any other Person in respect of, any direct or indirect security for any of the Guarantied Obligations. As used in this Guaranty, “direct or indirect security” for the Guarantied Obligations, and similar phrases, includes any collateral security, guaranty, suretyship, letter of credit, capital maintenance agreement, put option, subordination agreement, or other right or arrangement of any nature providing direct or indirect assurance of payment or performance of any of the Guarantied Obligations, made by or on behalf of any Person;
3.3.5.      Any merger, consolidation, liquidation, dissolution, winding-up, charter revocation, or forfeiture, or other change in, restructuring or termination of the corporate structure or existence of, the Borrower or any other Person; any bankruptcy, insolvency, reorganization or similar proceeding with respect to the Borrower or any other Person; or any action taken or election made by the Administrative Agent (including but not limited to any election under Section 1111(b)(2) of the United States Bankruptcy Code), any other Secured Party, the Borrower, or any other Person in connection with any such proceeding;
3.3.6.      Any defense, setoff, or counterclaim which may at any time be available to or be asserted by the Borrower or any other person with respect to any Loan Document or any of the Guarantied Obligations (other than the defense that the Guarantied Obligations shall have been fully and finally performed and indefeasibly paid); or any discharge by operation of law or release of the Borrower or any other Person from the performance or observance of any Loan Document or any of the Guarantied Obligations;
3.3.7.      Any other event or circumstance, whether similar or dissimilar to the foregoing, and whether known or unknown, which might otherwise constitute a defense available to, or limit the liability of, any Guarantor, a guarantor or a surety, excepting only full, strict, and indefeasible payment and performance of the Guarantied Obligations in full; and
3.3.8.      Each Guarantor acknowledges, consents, and agrees that new Guarantors may join in this Guaranty pursuant to Section 8.1.9 of this Agreement and each Guarantor affirms that its obligations shall continue hereunder undiminished.
3.4.      Waivers, etc . To the fullest extent permitted by Applicable Law, each of the Guarantors hereby waives any defense to or limitation on its obligations under this Guaranty arising out of or based on any event or circumstance referred to in Section 3.3 hereof. Without limitation and to the fullest extent permitted by Applicable Law, each Guarantor waives each of the following:
3.4.1.      All notices, disclosures and demand of any nature which otherwise might be required from time to time to preserve intact any rights against any Guarantor, including the following: any notice of any event or circumstance described in Section 3.3 hereof; any notice required by any law, regulation or order now or hereafter in effect in any jurisdiction; any notice of nonpayment, nonperformance, dishonor, or protest under any Loan Document or any of the Guarantied Obligations; any notice of the incurrence of any Guarantied Obligation; any notice of any default or any failure on the part of the Borrower or any other Person to comply with any Loan Document or any of the Guarantied Obligations or any direct or indirect security for any of the Guarantied Obligations; and any notice of any information pertaining to the business, operations, condition (financial or otherwise) or prospects of the Borrower or any other Person;
3.4.2.      Any right to any marshalling of assets, to the filing of any claim against the Borrower or any other Person in the event of any bankruptcy, insolvency, reorganization or similar proceeding, or to the exercise against the Borrower or any other Person of any other right or remedy under or in connection with any Loan Document or any of the Guarantied Obligations or any direct or indirect security for any of the Guarantied Obligations; any requirement of promptness or diligence on the part of the Administrative Agent, or any other Person; any requirement to exhaust any remedies under or in connection with, or to mitigate the damages resulting from default under, any Loan Document or any of the Guarantied Obligations or any direct or indirect security for any of the Guarantied Obligations; any benefit of any statute of limitations; and any requirement of acceptance of this Guaranty or any other Loan Document, and any requirement that any Guarantor receive notice of any such acceptance;
3.4.3.      Any defense or other right arising by reason of any law now or hereafter in effect in any jurisdiction pertaining to election of remedies (including but not limited to anti-deficiency laws, “one action” laws or the like), or by reason of any election of remedies or other action or inaction by the Administrative Agent (including but not limited to commencement or completion of any judicial proceeding or nonjudicial sale or other action in respect of collateral security for any of the Guarantied Obligations) or any other Secured Party, which results in denial or impairment of the right of the Administrative Agent to seek a deficiency against the Borrower or any other Person or which otherwise discharges or impairs any of the Guarantied Obligations; and
3.4.4.      Any and all defenses it may now or hereafter have based on principles of suretyship, impairment of collateral, or the like (other than the defense that the Guarantied Obligations shall have been fully and finally performed and indefeasibly paid).
3.5.      Reinstatement . This Guaranty is a continuing obligation of the Guarantors and shall remain in full force and effect notwithstanding that no Guarantied Obligations may be outstanding from time to time and notwithstanding any other event or circumstance. Upon Payment in Full, this Guaranty shall terminate; provided, however, that this Guaranty shall continue to be effective or be reinstated, as the case may be, any time any payment of any of the Guarantied Obligations is rescinded, recouped, avoided, or must otherwise be returned or released by the Administrative Agent or any Lender upon or during the insolvency, bankruptcy, or reorganization of, or any similar proceeding affecting, the Borrower or for any other reason whatsoever, all as though such payment had not been made and was due and owing.
3.6.      Subrogation . Each Guarantor waives and agrees it will not exercise any rights against the Borrower or any other Guarantor arising in connection with the Guarantied Obligations (including rights of subrogation, contribution, and the like) until Payment in Full. If any Guarantied Obligation shall be paid to any Guarantor by or on behalf of the Borrower or any other Guarantor by virtue of any right of subrogation, contribution, or the like, such amount shall be deemed to have been paid to such Guarantor for the benefit of, and shall be held in trust for the benefit of, the Administrative Agent and the other Secured Parties and shall forthwith be paid to the Administrative Agent to be credited and applied upon the Guarantied Obligations, whether matured or unmatured, in accordance with the terms of this Agreement.
3.7.      No Stay . Without limitation of any other provision of this Guaranty, if any declaration of default or acceleration or other exercise or condition to exercise of rights or remedies under or with respect to any Guarantied Obligation shall at any time be stayed, enjoined, or prevented for any reason (including but not limited to stay or injunction resulting from the pendency against the Borrower or any other Person of a bankruptcy, insolvency, reorganization or similar proceeding), each Guarantor agrees that, for the purposes of this Guaranty and their obligations hereunder, the Guarantied Obligations shall be deemed to have been declared in default or accelerated, and such other exercise or conditions to exercise shall be deemed to have been taken or met.
3.8.      Joint and Several Obligations . The obligations and additional liabilities of the Guarantors under this Guaranty are joint and several obligations of the Guarantors, and each Guarantor hereby waives to the full extent permitted by law any defense it may otherwise have to the payment and performance of the Obligations that its liability hereunder is limited and not joint and several. Each Guarantor acknowledges and agrees that the foregoing waivers and those set forth below serve as a material inducement to the agreement of the Administrative Agent and the Lenders to make the Loans, and that the Administrative Agent and each Lender is relying on each specific waiver and all such waivers in entering into this Guaranty. The undertakings of each Guarantor hereunder secure the obligations of itself and the other Guarantors. The Administrative Agent may, in its sole and absolute discretion, elect to enforce this Guaranty against any Guarantor without any duty or responsibility to pursue any other Guarantor and such an election by the Administrative Agent shall not be a defense to any action the Administrative Agent may elect to take against any Guarantor.
3.9.      Keepwell . Each Qualified ECP Guarantor (as defined below) hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds and other support as may be needed from time to time by each other Loan Party to honor all of its obligations under this Guaranty and the other Loan Documents in respect of obligations pursuant to such Hedge Agreement ( provided , however , that each Qualified ECP Guarantor shall only be liable under this Section for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section, or otherwise under this Agreement or any other Loan Document, voidable under Debtor Relief Laws and not for any greater amount). Subject to Section 3.6 , the obligations of each Qualified ECP Guarantor under this Section shall remain in full force and effect until all of the Guarantied Obligations and all the obligations of the Guarantors shall have been paid in full in cash and the Commitments terminated. Each Qualified ECP Guarantor intends that this Section constitute, and this Section shall be deemed to constitute, a “keepwell, support or other agreement” for the benefit of each other Loan Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act. For purposes of this Section, “ Qualified ECP Guarantor ” means, in respect of any Hedge Agreement, each Loan Party that has total assets exceeding $10,000,000 at the time the relevant guarantee or grant of the relevant security interest becomes effective with respect to such obligations pursuant to such Hedge Agreement or such other Person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another Person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
4.      INTEREST RATE
4.1.      Interest Rate Options . The Borrower shall pay interest in respect of the outstanding unpaid principal amount of the Loans as selected by it from the Base Rate Option or LIBOR Rate Option set forth below applicable to the Loans, it being understood that, subject to the provisions of this Agreement, the Borrower may select different Interest Rate Options and different Interest Periods to apply simultaneously to the Loans comprising different Borrowing Tranches and may convert to or renew one or more Interest Rate Options with respect to all or any portion of the Loans comprising any Borrowing Tranche; provided that there shall not be at any one time outstanding more than six (6) Borrowing Tranches in the aggregate among all of the Loans and provided , further that if a Default or an Event of Default exists and is continuing, the Borrower may not request, convert to, or renew the LIBOR Rate Option for any Loans and the Required Lenders may demand that all existing Borrowing Tranches bearing interest under the LIBOR Rate Option shall be converted immediately to the Base Rate Option, subject to the obligation of the Borrower to pay any indemnity under Section 5.11 in connection with such conversion. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under Applicable Law (collectively the “ Charges ”), shall exceed the maximum lawful rate (the “ Maximum Rate ”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with Applicable Law, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.
4.1.1.      Revolving Credit Interest Rate Options and Term Loan Interest Rate Options; Swing Line Interest Rate . The Borrower shall have the right to select from the following Interest Rate Options applicable to the Revolving Credit Loans and Term Loans:
(a)      Revolving Credit Base Rate Option and Term Loan Base Rate Option : A fluctuating rate per annum (computed on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed) equal to the Base Rate plus the Applicable Margin, such interest rate to change automatically from time to time effective as of the effective date of each change in the Base Rate; or
(b)      Revolving Credit LIBOR Rate Option and Term Loan LIBOR Rate Option : A rate per annum (computed on the basis of a year of 360 days and actual days elapsed) equal to the LIBOR Rate as determined for each applicable Interest Period plus the Applicable Margin.
Subject to Section 4.3 , only the Base Rate Option applicable to Revolving Credit Loans as set forth in clause (a) above shall apply to the Swing Loans.
4.1.2.      Rate Quotations . The Borrower may call the Administrative Agent on or before the date on which a Loan Request is to be delivered to receive an indication of the rates then in effect, but it is acknowledged that such projection shall not be binding on the Administrative Agent or the Lenders nor affect the rate of interest which thereafter is actually in effect when the election is made.
4.2.      Interest Periods . At any time when the Borrower shall select, convert to or renew a LIBOR Rate Option, the Borrower shall notify the Administrative Agent thereof at least three (3) Business Days prior to the effective date of such LIBOR Rate Option by delivering a Loan Request. The notice shall specify an Interest Period during which such Interest Rate Option shall apply. Notwithstanding the preceding sentence, the following provisions shall apply to any selection of, renewal of, or conversion to a LIBOR Rate Option:
4.2.1.      Amount of Borrowing Tranche . Each Borrowing Tranche of Loans under the LIBOR Rate Option shall be in integral multiples of, and not less than, the respective amounts set forth in Section 2.5.1 ; and
4.2.2.      Renewals . In the case of the renewal of a LIBOR Rate Option at the end of an Interest Period, the first day of the new Interest Period shall be the last day of the preceding Interest Period, without duplication in payment of interest for such day.
4.3.      Interest After Default . To the extent permitted by Law, (a) upon the occurrence of an Event of Default under Sections 9.1.1 (solely in respect of the payment of principal, interest and the fees described in Section 2.3, Section 2.9.2 and Section 10.8 ) or 9.1.11 or a breach of Sections 8.2.14 or 8.2.15 , all Obligations shall bear interest at the rate described in Sections 4.3.1 and 4.3.2 below, automatically, after as well as before judgment, and (b) upon the occurrence of any other Event of Default, and until such time such Event of Default shall have been cured or waived, all Obligations shall bear interest at the rate described in Sections 4.3.1 and 4.3.2 below, upon written demand by the Required Lenders to the Administrative Agent.
4.3.1.      Letter of Credit Fees, Interest Rate . The Letter of Credit Fees and the rate of interest for each Loan otherwise applicable pursuant to Section 2.9.2 or Section 4.1 , respectively, shall be increased by 2.0% per annum;
4.3.2.      Other Obligations . Each other Obligation hereunder if not paid when due shall bear interest at a rate per annum equal to the sum of the rate of interest applicable to Loans under the Base Rate Option plus an additional 2.0% per annum from the time such Obligation becomes due and payable and until it is Paid In Full; and
4.3.3.      Acknowledgment . The Borrower acknowledges that the increase in rates referred to in this Section 4.3 reflects, among other things, the fact that such Loans or other amounts have become a substantially greater risk given their default status and that the Lenders are entitled to additional compensation for such risk; and all such interest shall be payable by Borrower upon demand by Administrative Agent.
4.4.      Alternate Rate of Interest; Change in Legality .
4.4.1.      Alternate Rate of Interest . Notwithstanding any other provision of this Agreement, if prior to the commencement of any Interest Period for any Loan to which the LIBOR Rate Option applies:
(a)      the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the LIBOR Rate (including because the LIBOR Screen Rate is not available or published on a current basis) for an Interest Period with the duration of such Interest Period;
(b)      the Administrative Agent is advised by the Required Lenders that the LIBOR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing Tranche for an Interest Period with the duration of such Interest Period; or
(c)      the Administrative Agent determines (which determination shall be conclusive absent manifest error) that quotations of interest rates for the relevant deposits referred to in the definition of LIBOR Rate are not being provided in the relevant amounts or for the relevant maturities for purposes of determining rates of interest for Loans to which the LIBOR Rate Option applies as provided herein;
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone, telecopy or electronic communication followed promptly by written confirmation thereof delivered by telecopy (or if arrangements for doing so have been approved by the Administrative Agent, electronic communication) as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, then (i) any request by a Borrower for a Loan to which the LIBOR Rate Option applies pursuant to Section 2.5 shall be deemed rescinded, (ii) any conversion to or continuation of a Loan to which the LIBOR Rate applies pursuant to Section 2.5 shall be deemed rescinded and such affected Loan to which the LIBOR Rate Option applies shall be continued as Loan to which the Base Rate Option applies.
If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in clause (a) or (c) above have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in clause (a) or (c) have not arisen but either (w) the supervisor for the administrator of the LIBOR Screen Rate has made a public statement that the administrator of the LIBOR Screen Rate is insolvent (and there is no successor administrator that will continue publication of the LIBOR Screen Rate), (x) the administrator of the LIBOR Screen Rate has made a public statement identifying a specific date after which the LIBOR Screen Rate will permanently or indefinitely cease to be published by it (and there is no successor administrator that will continue publication of the LIBOR Screen Rate), (y) the supervisor for the administrator of the LIBOR Screen Rate has made a public statement identifying a specific date after which the LIBOR Screen Rate will permanently or indefinitely cease to be published or (z) the supervisor for the administrator of the LIBOR Screen Rate or an Official Body having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBOR Screen Rate may no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the LIBOR Rate that gives due consideration to any evolving or then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such alternate rate of interest exists, in such other manner of administration as the Administrative Agent determines is reasonably necessary in connection with the administration of this Agreement), and the Borrower and the Administrative Agent shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement, including an adjustment to the Applicable Margin (if any), as may be applicable; provided that, if such alternate rate of interest as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement. Notwithstanding anything to the contrary in Section 11.1 , such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five (5) Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders stating that such Required Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this paragraph (but, in the case of the circumstances described in clause (ii)(w), clause (ii)(x) or clause (ii)(y) of the first sentence of this paragraph), only to the extent the LIBOR Screen Rate for the applicable currency and such Interest Period is not available or published at such time on a current basis), (x) any request by a Borrower for a Loan to which the LIBOR Rate Option applies pursuant to Section 2.5 shall be deemed rescinded, (y) any conversion to or continuation of a Loan to which the LIBOR Rate applies pursuant to Section 2.5 shall be deemed rescinded and such affected Loan to which the LIBOR Rate Option applies shall be continued as Loan to which the Base Rate Option applies.
4.4.2.      Change in Legality . Notwithstanding any other provision of this Agreement, if any Change in Law shall make it unlawful for any Lender to make or maintain, or convert any Loan into, a Loan to which the LIBOR Rate Option applies, then, upon written notice by such Lender to the Borrower and to the Administrative Agent, which notice shall specify the extent of such unlawfulness (e.g., whether such unlawfulness applies to Loans to which the LIBOR Rate Option applies generally or only to Interest Periods of a particular length):
(a)      any request for the making or continuation of, or the conversion of Loans to which the Base Rate Option applies into, Loans to which the LIBOR Rate Option applies shall, solely as to such Lender and to the extent a Loan to which the LIBOR Rate Option applies by such Lender would be (or during the applicable Interest Period would become) unlawful, be disregarded and the Loan of such Lender that would be part of the applicable Borrowing Tranche of Loans to which the LIBOR Rate Option applies shall be made as, converted to or continue to be maintained as a Loan to which the Base Rate Option applies (or bear interest at such other rate as may be agreed between the Borrower and such Lender); and
(b)      each outstanding Loan to which the LIBOR Rate Option applies of such Lender shall, on the last day of the Interest Period therefor (unless such Loan may be continued as a Loan to which the LIBOR Rate Option applies for the full duration of any requested new Interest Period without being unlawful) or on such earlier date as such Lender shall specify is necessary pursuant to the applicable Change in Law, convert to a Loan to which the Base Rate Option applies.
4.5.      Selection of Interest Rate Options . If the Borrower fails to select a new Interest Period to apply to any Borrowing Tranche of Loans under the LIBOR Rate Option at the expiration of an existing Interest Period applicable to such Borrowing Tranche in accordance with the provisions of Section 4.2 , the Borrower shall be deemed to have converted such Borrowing Tranche to the Base Rate Option, as applicable to Revolving Credit Loans and Term Loans, commencing upon the last day of the existing Interest Period.
5.      PAYMENTS
5.1.      Payments . All payments and prepayments to be made in respect of principal, interest, Commitment Fees, Letter of Credit Fees, the Administrative Agent’s Fee or other fees or amounts due from the Borrower hereunder shall be payable prior to 1:00 p.m. on the date when due without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived by the Borrower, and without set-off, counterclaim or other deduction of any nature, and an action therefor shall immediately accrue. Such payments shall be made to the Administrative Agent at the Principal Office for the account of HSBC with respect to the Swing Loans and for the ratable accounts of the Lenders with respect to the Revolving Credit Loans in U.S. Dollars and in immediately available funds, and the Administrative Agent shall promptly distribute such amounts to the Lenders in immediately available funds. The Administrative Agent’s and each Lender’s statement of account, ledger or other relevant record shall, in the absence of manifest error, be conclusive as the statement of the amount of principal of and interest on the Loans and other amounts owing under this Agreement.
5.2.      Pro Rata Treatment of Lenders . Each borrowing of Loans shall be allocated to each Lender according to its Ratable Share, and each selection of, conversion to or renewal of any Interest Rate Option and each payment or prepayment by the Borrower with respect to principal, interest, Commitment Fees and Letter of Credit Fees (but excluding any fee under the Fee Letter and the Issuing Lender’s fronting fee) shall (except as otherwise may be provided with respect to a Defaulting Lender and except in the case of an event specified in Section 4.4 , 5.7 or 5.9 ) be payable ratably among the Lenders entitled to such payment in accordance with the amount of principal, interest, Commitment Fees and Letter of Credit Fees, as set forth in this Agreement. Notwithstanding any of the foregoing, each borrowing or payment or prepayment by the Borrower of principal, interest, fees or other amounts from the Borrower with respect to Swing Loans shall be made by or to HSBC according to Section 2.6.5 .
5.3.      Sharing of Payments by Lenders . If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided that:
(i)      if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii)      the provisions of this Section 5.3 shall not be construed to apply to (x) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in Participation Advances to any assignee or participant, other than to the Borrower or any Subsidiary thereof (as to which the provisions of this paragraph shall apply).
Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under Applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party in the amount of such participation.
5.4.      Presumptions by Administrative Agent . Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Lender hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Lender, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Lender, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or the Issuing Lender, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
5.5.      Interest Payment Dates . Interest on the Loans shall be due and payable on each Interest Payment Date. Interest on the principal amount of each Loan or other monetary Obligation shall be due and payable on demand after such principal amount or other monetary Obligation becomes due and payable (whether on the stated Maturity Date, upon acceleration or otherwise).
5.6.      Prepayments .
5.6.1.      Voluntary Prepayments . The Borrower shall have the right at its option from time to time to prepay the Loans in whole or part without premium or penalty (except as provided in Section 5.7 below, in Section 5.9 and Section 5.11 ). Whenever the Borrower desires to prepay any part of the Loans, it shall provide a prepayment notice to the Administrative Agent by (x) 1:00 p.m. at least three (3) Business Days prior to the date of prepayment of any Loans to which the LIBOR Rate Option applies, (y) 1:00 p.m. at least one (1) Business Day prior to the date of prepayment of any Loans to which the Base Rate Option applies, and (z) 12:00 noon on the date of prepayment of any Swing Loans, setting forth the following information:
(a)      the date, which shall be a Business Day, on which the proposed prepayment is to be made;
(b)      a statement indicating the application of the prepayment between the Term Loans, the Revolving Credit Loans and Swing Loans;
(c)      a statement indicating the application of the prepayment between Loans to which the Base Rate Option applies and Loans to which the LIBOR Rate Option applies; and
(d)      the total principal amount of such prepayment, which shall be in an amount that would be permitted in the case of an advance of a Term Loan or Revolving Credit Loan of the same Type as provided in Section 2.5 .
All prepayment notices shall be irrevocable; provided that any notice of prepayment in full of the Obligations (accompanied by a termination in full of the Revolving Credit Commitments) under this Section 5.6 may be conditioned solely upon the effectiveness of another credit facility or any other financing, sale or other similar transaction. Subject to the proviso above, the principal amount of the Loans for which a prepayment notice is given, together with interest on such principal amount, shall be due and payable on the date specified in such prepayment notice as the date on which the proposed prepayment is to be made. Any prepayment hereunder shall be subject to the Borrower’s Obligation to indemnify the Lenders under Section 5.11 . Voluntary prepayments of the Term Loans shall be applied, at the Borrower’s election, on a pro rata basis to the remaining installments of the Term Loans or in the inverse order of maturity.
5.6.2.      Mandatory Prepayments .
(a)      The Borrower shall, subject to clause (c) below, (i) with respect to the receipt of Net Extraordinary Receipts, Net Disposition Proceeds or Net Insurance Proceeds, in each case in excess of $5,000,000 from any one or series of related transactions or events, within three (3) Business Days following the receipt by it or any of its Subsidiaries of such proceeds, and, (ii) with respect to Net Debt Proceeds, no later than one (1) Business Day following the receipt by it or any of its Subsidiaries of such proceeds, apply 100% of all such Net Debt Proceeds, Net Extraordinary Receipts, Net Disposition Proceeds and Net Insurance Proceeds to the repayment of Term Loans as set forth in Section 5.6.3 .
(b)      The Borrower shall deliver to the Administrative Agent (i) not later than two (2) Business Days prior to the time of each prepayment required under this Section a certificate signed by a financial officer setting forth in reasonable detail the calculation of the amount of such prepayment, other than with respect of any Net Debt Proceeds, in which case, such certificate shall be delivered no later than one (1) Business Day in advance of such prepayment, and (ii) notice of each mandatory prepayment on or before 10:00 a.m. one (1) Business Day in advance of such prepayment. Notwithstanding anything herein to the contrary, failure by the Borrower to deliver the notices contemplated under this clause (b) shall not constitute an Event of Default.
(c)      With respect to any Net Disposition Proceeds or Net Insurance Proceeds received by the Borrower or any of its Subsidiaries, at the election of the Borrower, and so long as no Default or Event of Default shall have occurred and be continuing, the Borrower or its applicable Subsidiary (or any combination of the foregoing) may reinvest all or any portion of such Net Disposition Proceeds or Net Insurance Proceeds; provided that the Borrower shall deliver to the Administrative Agent, on or prior to date of receipt of such proceeds, notice to invest (or commitment to invest) (provided that failure by the Borrower to deliver any such notice of reinvestment under this clause (c) shall not constitute an Event of Default) all or any portion of such proceeds in long-term assets useful in the business of the Borrower or any of its Subsidiaries within 180 days after receipt of such proceeds, and, in such instance, no such prepayment shall be required in respect to such proceeds except to the extent that any of such proceeds therefrom have not been reinvested by the end of such 180-day period or, with respect to commitments to invest, if such proceeds have actually been invested within 90 days of the date of the commitment to invest.
5.6.3.      Application of Prepayments, etc. Each mandatory prepayment of any Loans made pursuant to Section 5.6.2 shall be without premium or penalty but subject to Section 5.11 , applied, to make a mandatory prepayment of the scheduled repayment of the Term Loans in the inverse order of maturity of principal and related interest until Paid in Full. Each mandatory prepayment of any Loans made pursuant to Section 5.6.2 shall be accompanied by accrued interest on the amount prepaid to the date of such prepayment and amounts, if any, required to be paid pursuant to Section 5.11 as a result of such prepayment being made on such date.
5.7.      Replacement of a Lender . If any Lender requests compensation under Section 5.9 , or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Official Body for the account of any Lender pursuant to Section 5.10 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with Section 5.8 , or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 11.8 ), all of its interests, rights (other than its existing rights to payments pursuant to Section 5.9 or Section 5.10 ) and obligations under this Agreement and the related Loan Documents to an assignee eligible under this Agreement that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:
(a)      the Borrower shall have paid to the Administrative Agent the assignment fee specified in Section 11.8 ;
(b)      such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and Participation Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 5.11 ) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);
(c)      in the case of any such assignment resulting from a claim for compensation under Section 5.9.1 or payments required to be made pursuant to Section 5.10 , such assignment will result in a reduction in such compensation or payments thereafter;
(d)      such assignment does not conflict with Applicable Law; and
(e)      in the case of any assignment from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply. No Lender shall be obligated to find an assignee eligible under this Agreement for purposes of this Section 5.7 .
5.8.      Designation of a Different Lending Office . If any Lender requests compensation under Section 5.9 , or requires the Borrower to pay any Indemnified Taxes or additional amounts to any Lender or any Official Body for the account of any Lender pursuant to Section 5.10 , then such Lender shall (at the request of the Borrower) use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 5.9 or Section 5.10 , as the case may be, in the future, and (ii) would not subject such Lender to any material unreimbursed cost or expense and would not otherwise be materially disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment
5.9.      Increased Costs .
5.9.1.      Increased Costs Generally . If any Change in Law shall:
(a)      impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement contemplated by Section 5.9.5 ) or the Issuing Lender;
(b)      subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(c)      impose on any Lender, the Issuing Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any Loan or of maintaining its obligation to make any such Loan, or to increase the cost to such Lender, the Issuing Lender or such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender, the Issuing Lender or other Recipient hereunder (whether of principal, interest or any other amount) then, upon request of such Lender, the Issuing Lender or other Recipient, the Borrower will pay to such Lender, the Issuing Lender or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Lender, as the case may be, for such additional costs incurred or reduction suffered.
5.9.2.      Capital Requirements . If any Lender or the Issuing Lender determines that any Change in Law affecting such Lender or the Issuing Lender or any lending office of such Lender or such Lender’s or the Issuing Lender’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Lender’s capital or on the capital of such Lender’s or the Issuing Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit or Swing Loans held by, such Lender, or the Letters of Credit issued by the Issuing Lender, to a level below that which such Lender or the Issuing Lender or such Lender’s or the Issuing Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Lender’s policies and the policies of such Lender’s or the Issuing Lender’s holding company with respect to capital adequacy and liquidity), then from time to time the Borrower will pay to such Lender or the Issuing Lender, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Lender or such Lender’s or the Issuing Lender’s holding company for any such reduction suffered.
5.9.3.      Certificates for Reimbursement; Repayment of Outstanding Loans; Borrowing of New Loans . A certificate of a Lender or the Issuing Lender setting forth the amount or amounts necessary to compensate such Lender or the Issuing Lender or its holding company, as the case may be, as specified in Sections 5.9.1 or 5.9.2 and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender or the Issuing Lender, as the case may be, the amount shown as due on any such certificate within ten (10) days after receipt thereof.
5.9.4.      Delay in Requests . Failure or delay on the part of any Lender or the Issuing Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or the Issuing Lender’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or the Issuing Lender pursuant to this Section for any increased costs incurred or reductions suffered more than six (6) months prior to the date that such Lender or the Issuing Lender, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or the Issuing Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six (6) month period referred to above shall be extended to include the period of retroactive effect thereof).
5.9.5.      Eurocurrency Liabilities . The Borrower shall pay to each Lender, as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “ Eurocurrency liabilities ”), additional interest on the unpaid principal amount of each Loan to which the LIBOR Rate Option applies equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive), which shall be due and payable on each date on which interest is payable on such Loan; provided that, the Borrower shall have received at least ten (10) days’ prior notice (with a copy to the Administrative Agent) of such additional interest from such Lender. If a Lender fails to give notice ten (10) days prior to the relevant interest payment date pursuant to Section 5.5 , such additional interest shall be due and payable ten (10) days from receipt of such notice.
5.10.      Taxes .
5.10.1.      Issuing Lender . For purposes of this Section 5.10 , the term “Lender” includes the Issuing Lender and the term “Applicable Law” includes FATCA.
5.10.2.      Payments Free of Taxes . Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be without deduction or withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Official Body in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 5.10 ) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
5.10.3.      Payment of Other Taxes by the Loan Parties . The Loan Parties shall timely pay to the relevant Official Body in accordance with Applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
5.10.4.      Indemnification by the Loan Parties . The Loan Parties shall jointly and severally indemnify each Recipient, within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 5.10 ) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Official Body. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
5.10.5.      Indemnification by the Lenders . Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of any of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.8.4 relating to the maintenance of a Participant Register, and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Official Body. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this Section 5.10.5 .
5.10.6.      Evidence of Payments . As soon as practicable after any payment of Taxes by any Loan Party to an Official Body pursuant to this Section 5.10 , such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Official Body evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
5.10.7.      Status of Lenders .
(a)      Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 5.10.7(b)(i) , (b)(ii) and (b)(iii) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(b)      Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Borrower,
(i)      any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(ii)      any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:
(A)          in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(B)          executed originals of IRS Form W-8ECI;
(C)          in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit 5.10.7(A) to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “ U.S. Tax Compliance Certificate ”) and (y) executed originals of IRS Form W-8BEN or W-8BEN-E; or
(D)          to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit 5.10.7(B) or Exhibit 5.10.7(C) , IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit 5.10.7(D) on behalf of each such direct and indirect partner;
(iii)      any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(iv)      if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (iv), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
5.10.8.      Treatment of Certain Refunds . If any party determines, in its sole and absolute discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 5.10 (including by the payment of additional amounts pursuant to this Section 5.10 ), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 5.10 with respect to the Taxes giving rise to such refund), net of all out- of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Official Body with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this Section 5.10.8 (plus any penalties, interest or other charges imposed by the relevant Official Body) in the event that such indemnified party is required to repay such refund to such Official Body. Notwithstanding anything to the contrary in this Section 5.10.8 , in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 5.10.8 the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
5.10.9.      Survival . Each party’s obligations under this Section 5.10 shall survive the resignation of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all Obligations.
5.11.      Indemnity . In addition to the compensation or payments required by Section 5.9 or Section 5.10 , the Borrower shall indemnify each Lender against all liabilities, losses or expenses (including loss of anticipated profits, any foreign exchange losses and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan, from fees payable to terminate the deposits from which such funds were obtained or from the performance of any foreign exchange contract) which such Lender sustains or incurs as a consequence of any:
(a)      payment, prepayment, conversion or renewal of any Loan to which a LIBOR Rate Option applies on a day other than the last day of the corresponding Interest Period (whether or not such payment or prepayment is mandatory, voluntary or automatic and whether or not such payment or prepayment is then due),
(b)      attempt by the Borrower to revoke (expressly, by later inconsistent notices or otherwise) in whole or part any Loan Requests under Section 2.5 or Section 4.2 or notice relating to prepayments under Section 5.6 , or
If any Lender sustains or incurs any such loss or expense, it shall from time to time notify the Borrower of the amount determined in good faith by such Lender (which determination may include such assumptions, allocations of costs and expenses and averaging or attribution methods as such Lender shall deem reasonable) to be necessary to indemnify such Lender for such loss or expense. Such notice shall set forth in reasonable detail the basis for such determination. Such amount shall be due and payable by the Borrower to such Lender ten (10) Business Days after such notice is given.
6.      REPRESENTATIONS AND WARRANTIES
6.1.      Representations and Warranties . The Loan Parties, jointly and severally, represent and warrant to the Administrative Agent and each of the Lenders as follows:
6.1.1.      Organization and Qualification; Power and Authority; Compliance With Laws; Title to Properties; Event of Default . Each Loan Party and each Subsidiary of each Loan Party (a) is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, (b) has the lawful power to own or lease its properties and to engage in the business it presently conducts or proposes to conduct, (c) is duly licensed or qualified and in good standing (to the extent such concept is applicable) in each jurisdiction where the property owned or leased by it or the nature of the business transacted by it or both makes such licensing or qualification necessary, except where the failure to be licensed or qualified could not reasonably be expected to have a Material Adverse Effect, (d) has full power to enter into, execute, deliver and carry out this Agreement and the other Loan Documents to which it is a party, to incur the Indebtedness contemplated by the Loan Documents and to perform its Obligations under the Loan Documents to which it is a party, (e) is in compliance in all material respects with all Applicable Laws (other than Environmental Laws which are specifically addressed in Section 6.1.14 and Sanctions and Anti-Corruption Laws which are specifically addressed in Section 6.1.18 and Section 6.1.19 ) in all jurisdictions in which any Loan Party or Subsidiary of any Loan Party is presently or will be doing business except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, and (f) has good title to or valid leasehold interest in all properties, assets and other rights which it purports to own or lease or which are reflected as owned or leased on its books and records, free and clear of all Liens except Permitted Liens. No Default or Event of Default exists or is continuing.
6.1.2.      Subsidiaries and Owners . Schedule 6.1.2 states as of the Closing Date the name of each of the Borrower’s Subsidiaries, its jurisdiction of organization and the percentage of Equity Interests owned. The Borrower and each Subsidiary of the Borrower has good title to all of the Equity Interests it purports to own, free and clear in each case of any Lien (other than Liens created by the Security Documents and Permitted Liens) and all such Equity Interests have been validly issued, fully paid and nonassessable.
6.1.3.      Investment Companies . None of the Loan Parties or Subsidiaries of any Loan Party is an “investment company” registered or required to be registered under the Investment Company Act of 1940 or under the “control” of an “investment company” as such terms are defined in the Investment Company Act of 1940 and shall not become such an “investment company” or under such “control.”
6.1.4.      Validity and Binding Effect . Each Loan Party has the right, power and authority and has taken all necessary corporation or other entity action to authorize the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party. This Agreement and each of the other Loan Documents (a) has been duly and validly executed and delivered by each Loan Party, and (b) constitutes, or will constitute, legal, valid and binding obligations of each Loan Party which is or will be a party thereto, enforceable against such Loan Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
6.1.5.      No Conflict; Material Agreements; Consents . Neither the execution and delivery of this Agreement or the other Loan Documents by any Loan Party nor the consummation of the transactions herein or therein contemplated or compliance with the terms and provisions hereof or thereof by any of them will (a) violate, constitute a default under or result in any breach of (i) the terms and conditions of the certificate of incorporation, bylaws, certificate of limited partnership, partnership agreement, certificate of formation, limited liability company agreement or other organizational documents of any Loan Party or (ii) any Law or any material agreement or instrument or order, writ, judgment, injunction or decree to which any Loan Party or any of its Subsidiaries is a party or by which it or any of its Subsidiaries is bound or to which it is subject, in each case, except where such violation, default or breach could not reasonably be expected to have a Material Adverse Effect or (b) result in the creation or enforcement of any Lien, charge or encumbrance whatsoever upon any property (now or hereafter acquired) of any Loan Party or any of its Subsidiaries (other than Liens granted under the Loan Documents). There is no default under such material agreement (referred to above) that has had or could reasonably be expected to have a Material Adverse Effect and none of the Loan Parties or their Subsidiaries is bound by any contractual obligation, or subject to any restriction in any organization document, or any requirement of Law which has had or could reasonably be expected to have a Material Adverse Effect. No consent, approval, exemption, order or authorization of, or a registration or filing with, any Official Body or any other Person is required by any Law or any agreement in connection with the execution, delivery and carrying out of this Agreement and the other Loan Documents, except such as have been obtained or made and are in full force and effect.
6.1.6.      Litigation . There are no actions, suits, proceedings or investigations pending or, to the knowledge of any Authorized Officer of any Loan Party, threatened, in writing, against such Loan Party or any Subsidiary of such Loan Party at law or in equity before any Official Body as to which there is a reasonable likelihood of an adverse determination and which, if adversely determined, could reasonably be expected to have a Material Adverse Effect. None of the Loan Parties or any Subsidiaries of any Loan Party is in violation of any order, writ, injunction or any decree of any Official Body which could reasonably be expected to have a Material Adverse Effect.
6.1.7.      Financial Statements .
(a)      Historical Statements . The Borrower has delivered to the Administrative Agent copies of its audited consolidated year-end financial statements for and as of the end of the fiscal years ended December 31, 2015, December 31, 2016 and December 31, 2017. In addition, the Borrower has delivered to the Administrative Agent copies of its unaudited consolidated interim financial statements for the fiscal year to date and as of the end of the fiscal quarter ended September 30, 2018 (all such annual and interim statements being collectively referred to as the “ Statements ”). The Statements were compiled from the books and records maintained by the Borrower’s management, are correct and complete in all material respects and fairly represent in all material respects the consolidated financial condition of the Borrower and its Subsidiaries as of the respective dates thereof and the results of operations for the fiscal periods then ended and have been prepared in accordance with GAAP, subject (in the case of the interim statements) to normal year-end audit adjustments and the absence of footnotes.
(b)      Accuracy of Financial Statements . Neither the Borrower nor any Subsidiary of the Borrower has any liabilities, contingent or otherwise, or forward or long- term commitments that are not disclosed in financial statements referred to above or in the notes thereto, and except as disclosed therein there are no unrealized or anticipated losses from any commitments of the Borrower or any Subsidiary of the Borrower which could reasonably be expected to have a Material Adverse Effect. Since December 31, 2018, there has been no event or development which has had or could reasonably be expected to have a Material Adverse Effect.
6.1.8.      Margin Stock . None of the Loan Parties or any Subsidiaries of any Loan Party engages or intends to engage principally, or as one of its important activities, in the business of extending credit for the purpose, immediately, incidentally or ultimately, of purchasing or carrying margin stock (within the meaning of Regulation U, T or X as promulgated by the Board of Governors of the Federal Reserve System). No part of the proceeds of any Loan has been or will be used, immediately, incidentally or ultimately, to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock or which is inconsistent with the provisions of the regulations of the Board of Governors of the Federal Reserve System. None of the Loan Parties or any Subsidiary of any Loan Party holds or intends to hold margin stock in such amounts that more than 25% of the reasonable value of the assets of any Loan Party or Subsidiary of any Loan Party are or will be represented by margin stock.
6.1.9.      Full Disclosure . Neither this Agreement nor any other Loan Document, nor any certificate, statement, agreement or other documents (other than information of a general economic, forward-looking or industry nature) furnished to the Administrative Agent or any Lender in connection herewith or therewith, when taken as a whole, contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein and therein (when taken as a whole), in light of the circumstances under which they were made, not materially misleading; provided , that with respect to projected financial information, the Loan Parties only represent that such information was prepared in good faith based upon assumptions that were reasonable at the time made (it being understood that projections are subject to significant uncertainties and contingencies and no assurance can be given that any particular projection will be realized and variances may be material). There is no fact known to any Loan Party which materially adversely affects the business, property, assets, financial condition or results of operations of any Loan Party or Subsidiary of any Loan Party which has not been set forth in this Agreement or in the certificates, statements, agreements or other documents furnished in writing to the Administrative Agent and the Lenders prior to or at the date hereof in connection with the transactions contemplated hereby.
6.1.10.      Taxes . All federal, state, local and other tax returns required to have been filed with respect to each Loan Party and each Subsidiary of each Loan Party have been filed, and payment or adequate provision has been made for the payment of all federal, state, and other taxes, fees, assessments and other governmental charges which have become due and payable pursuant to said returns or to assessments received, except to the extent (i) that such taxes, fees, assessments and other charges are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves or other appropriate provisions, if any, are being maintained in accordance with GAAP or (ii) to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect.
6.1.11.      Patents, Trademarks, Copyrights, Licenses, Etc. . Each Loan Party and each Subsidiary of each Loan Party owns or possesses all the material patents, trademarks, service marks, trade names, copyrights, licenses, registrations, franchises, permits and rights necessary to own and operate its properties and to carry on its business as presently conducted and planned to be conducted by such Loan Party or Subsidiary, without known possible, alleged or actual conflict with the rights of others, expect, in each case, to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect.
6.1.12.      Insurance . The properties of each Loan Party and each of its Subsidiaries are insured pursuant to policies and other bonds which are valid and in full force and effect and which provide adequate coverage from reputable and financially sound insurers in amounts sufficient to insure the assets and risks of each such Loan Party and Subsidiary in accordance with prudent business practice in the industry of such Loan Parties and Subsidiaries.
6.1.13.      ERISA Compliance . Each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other federal or state Laws. Each Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS or an application for such a letter is currently being processed by the IRS with respect thereto and, to the knowledge of any Authorized Officer of the Borrower, nothing has occurred which would prevent, or cause the loss of, such qualification. Borrower and each ERISA Affiliate have made all required contributions to each Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Plan. Except as could not reasonably be expected to have a Material Adverse Effect, (a) no ERISA Event has occurred or is reasonably expected to occur; (b) neither Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (c) neither Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; (d) neither Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA; and (e) except to the extent required under Section 4980B of the Code and Section 601 et seq . of ERISA or similar state laws no employee benefit plan sponsored or maintained by the Borrower or its Subsidiaries provides health or welfare benefits (through the purchase of insurance or otherwise) for any retired or former employee of the Borrower or any of its Subsidiaries.
6.1.14.      Environmental Matters . Each Loan Party is and, to the knowledge of the Authorized Officers of each respective Loan Party, each of its Subsidiaries is and has been in compliance in all material respects with applicable Environmental Laws except as disclosed on Schedule 6.1.14 ; provided that such matters so disclosed could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
6.1.15.      Labor Matters . There are no collective bargaining agreements or Multiemployer Plans covering the employees of any Loan Party or any Subsidiary as of the Closing Date and neither any Loan Party nor any Subsidiary is subject to any strikes, walkouts, work stoppages or other material labor difficulty as of the Closing Date.
6.1.16.      Security Documents . The Security Agreement, upon execution and delivery thereof by the parties thereto, is effective to create, in favor of the Administrative Agent, for the benefit of the Secured Parties, a legal, valid and enforceable security interest in the Collateral described therein and proceeds thereof. In the case of any Equity Interests constituting part of the Collateral, when the Administrative Agent obtains control of any stock certificates representing such Equity Interests, and in the case of any other Collateral described in the Security Agreement, when financing statements and other filings in appropriate form are or have been filed in the appropriate offices, the Security Agreement shall constitute a fully perfected first priority Lien on, and security interest in, all right, title and interest of each Loan Party in such Collateral and the proceeds thereof solely to the extent a security interest can be perfected solely by such filing or other action required thereunder as security for the Obligations, in each case prior and superior in right to any other Person (except, in the case of Collateral (other than Equity Interests), Permitted Liens).
6.1.17.      Solvency . The Borrower is Solvent, and the Borrower and its Subsidiaries on a consolidated basis are Solvent.
6.1.18.      Sanctions . Neither the Borrower, any Guarantor or any of their respective Subsidiaries, or to the knowledge of an Authorized Officer, no other Covered Entity (a) is a Sanctioned Person or is resident in any Sanctioned Country; (b) has any of its assets in a Sanctioned Country or has any assets in the possession, custody or control of a Sanctioned Person, in each case, in violation of Sanctions; or (c) does business in or with, or derives operating income from investments in or transactions with, any Sanctioned Country or Sanctioned Person, in each case, in violation of Sanctions. In addition to the foregoing, each of the Loan Parties represents and warrants that (a) the proceeds of the Loans and Letters of Credit will not be used to fund any operations in, finance any investments or activities in, or, make any payments to, a Sanctioned Country or Sanctioned Person in violation of Sanctions and (b) the funds used to repay the Loans are not derived from any unlawful activity.
6.1.19.      Anti-Corruption . Neither the Borrower, any Guarantor or any of their respective Subsidiaries, or to the knowledge of an Authorized Officer, no other Covered Entity, has taken any action, directly or indirectly, that would result in a violation by such persons of any applicable Anti-Corruption Laws. The Borrower, each other Loan Party and each of its and their Subsidiaries has conducted its business in compliance with the applicable Anti-Corruption Laws and has instituted and maintains policies and procedures to promote and achieve compliance with such Anti-Corruption Laws.
6.1.20.      EEA Financial Institution . No Loan Party is an EEA Financial Institution.
7.      CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT
The obligation of each Lender to make Loans and of the Issuing Lender to issue Letters of Credit hereunder is subject to the performance by each of the Loan Parties of its Obligations to be performed hereunder at or prior to the making of any such Loans or issuance of such Letters of Credit and to the satisfaction of the following further conditions:
7.1.      Closing Date .
7.1.1.      Deliveries . On the Closing Date, the Administrative Agent shall have received each of the following in form and substance satisfactory to the Administrative Agent and the Lenders:
(a)      A certificate of each of the Loan Parties signed by an Authorized Officer, dated the Closing Date stating that (i) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects, (ii) no Default or Event of Default exists, (iii) no action, suit, investigation or proceeding is pending or, to the knowledge of any Authorized Officer of the applicable Loan Party, threatened in writing in any court or before any arbitrator or Official Body that could reasonably be expected to have a Material Adverse Effect and (iv) no event or condition has occurred since December 31, 2018 that has had or could reasonably be expected to have a Material Adverse Effect;
(b)      A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (i) all corporate or other entity action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (ii) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (iii) copies of its organizational documents as in effect on the Closing Date certified by the appropriate official where such documents are filed in a governmental office together with certificates from the appropriate governmental officials as to the continued existence and good standing of each Loan Party in its place of organization (if applicable);
(c)      This Agreement, the Security Agreement, the Notes and each of the other Loan Documents duly executed by an Authorized Officer;
(d)      A written opinion of Hunton Andrews Kurth LLP, special counsel for the Loan Parties, in each case, dated the Closing Date and as to matters reasonably requested by the Administrative Agent;
(e)      A duly completed Compliance Certificate, dated as of the Closing Date, and duly executed and delivered by the chief financial officer of the Borrower, evidencing compliance with the financial covenants set forth in Sections 8.2.14 and 8.2.15 for the fiscal quarter ended September 30, 2018;
(f)      All material consents required to effectuate the transactions contemplated hereby and from (i) all relevant Official Bodies and (ii) any other Person whose consent or approval the Lenders deem necessary or appropriate to effect the transactions contemplated hereby;
(g)      Satisfactory evidence that all the Indebtedness (and any existing commitments related thereto) under the Existing Credit Agreement, together with all interest, all prepayment premiums and other amounts due and payable with respect thereto, will have been paid in full upon the making of the initial Loans and all obligations with respect thereto will, concurrently with the making of the initial Loans, be terminated (other than contingent indemnification obligations);
(h)      True and correct copies of: (i) annual audited consolidated financial statements of the Borrower for each of the last three (3) fiscal years ended more than 90 days prior to the Closing Date, in each case prepared in accordance with GAAP consistently applied and without any “going concern” (or similar qualification) or any qualification or exception as to the scope of audit, by independent certified public accountants of nationally recognized standing, (ii) unaudited consolidated financial statements for any quarterly interim period or period of the Borrower ending more than 45 days prior to the Closing Date, together with unaudited financial statements for the corresponding period of the prior year (all of which shall have been reviewed by the independent accountants for the Borrower as provided in Statement on Auditing Standards No. 100), (iii) customary additional unqualified audited and unaudited financial statements for all recent, probable or pending acquisitions and (iv) at least 30 days prior to the Closing Date, financial projections for the Borrower and its Subsidiaries for the period from the Closing Date through the fiscal year ending on December 31, 2023, prepared on a pro forma basis after giving effect to the transactions contemplated by this Agreement and the other Loan Documents, certified by a financial officer of the Borrower, including consolidated income statements (with Consolidated EBITDA clearly noted), consolidated balance sheets and consolidated cash flow statements, a pro forma schedule of sources and uses and a pro forma consolidated balance sheet of the Borrower and its Subsidiaries as of the Closing Date;
(i)      Evidence of the insurance coverage required to be maintained pursuant to Section 8.1.3 , together with evidence that the Administrative Agent has been named as a lender’s loss payee and an additional insured on all related insurance policies;
(j)      Original certificates (if any) evidencing all of the issued and outstanding Equity Interests required to be pledged pursuant to the terms of the Security Agreement, which certificates shall be accompanied by undated stock and other powers duly executed in blank by each relevant Loan Party;
(k)      The original promissory notes (including any master intercompany notes) evidencing intercompany Indebtedness required to be pledged pursuant to the terms of the Security Agreement, duly endorsed in blank by each relevant Loan Party in favor of the Administrative Agent for the benefit of the Secured Parties;
(l)      Uniform Commercial Code financing statements naming the Borrower and each of the other Loan Parties, as the case may be, as the debtor and the Administrative Agent as secured party, such Uniform Commercial Code financing statements to be filed under the Uniform Commercial Code of all applicable jurisdictions as may be necessary or appropriate to perfect the first priority security interest of the Administrative Agent for the benefit of the Secured Parties pursuant to the Security Agreement;
(m)      Delivery of appropriate trademark, copyright and patent security agreements or supplements to be filed with the United States Patent and Trademark Office and United States Copyright Office to the extent relevant;
(n)      [Reserved];
(o)      Satisfactory Uniform Commercial Code or similar search reports for the applicable jurisdiction, federal, state or other tax Liens, judgment, litigation and bankruptcy reports dated a date reasonably near (but prior to) the Closing Date, listing all effective Uniform Commercial Code or similar financing statements, federal, state or other tax Liens, and judgment Liens which name the Borrower or any other Loan Party, as the debtor, and pending litigation and bankruptcies against the Borrower or any other Loan Party, and which are filed or pending, as applicable, in each jurisdiction in which Uniform Commercial Code or similar filings are to be made pursuant to this Agreement or the other Loan Documents and any other appropriate jurisdictions, together with copies of such financing statements (none of which (other than any Permitted Liens and Liens to be terminated on or prior to the Closing Date) shall cover any of the Collateral);
(p)      Search results from the United States Patent and Trademark Office and United States Copyright Office to the extent any patents, trademarks or copyrights form a part of the Collateral;
(q)      A solvency certificate duly executed by a financial officer of the Borrower on behalf of the Borrower and each other Loan Party, dated the Closing Date;
(r)      An IRS Form W-8 or W-9 duly executed by an Authorized Officer of the Borrower; and
(s)      Such other documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
7.1.2.      USA Patriot Act . The Administrative Agent and each Lender shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act, in each case, to the extent requested in writing at least five (5) Business Days prior to the Closing Date.
7.1.3.      Due Diligence . The Administrative Agent and the Lenders shall have completed a satisfactory due diligence investigation of the business, assets, contracts, agreements, liabilities (including contingent liabilities), operations and condition (financial and otherwise) of each Loan Party. Without limiting the foregoing, the Administrative Agent and the Lenders shall have completed due diligence investigations of the Loan Parties and their Subsidiaries in scope, and with results, satisfactory to the Lenders, including, without limitation, U.S. Department of Treasury Office of Foreign Assets Control Foreign Corrupt Practices Act and “know your customer” due diligence.
7.1.4.      Payment of Fees . The Borrower shall have paid (or made arrangements for the payment at closing of) all fees and expenses payable on or before the Closing Date as required by this Agreement, the Fee Letter or any other Loan Document, to the extent invoiced two (2) days prior to the Closing Date.
7.1.5.      Lender Agreement . For purposes of determining compliance with the conditions specified in this Section 7, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
7.2.      Each Loan or Letter of Credit . At the time of making any Loans or issuing, extending or increasing any Letters of Credit and after giving effect to the proposed extensions of credit: (a) the representations and warranties of the Loan Parties set forth in the Loan Documents shall be true and correct in all material respects (except to the extent already qualified by materiality, in which case any such representation or warranty shall be true and correct in all respects), other than to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except to the extent already qualified by materiality, in which case any such representation or warranty shall be true and correct in all respects) as of such earlier date, (b) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such making of a Loan or issuance, extension or increase of any Letter of Credit, and (c) the Borrower shall have delivered to the Administrative Agent a duly executed and completed Loan Request or to the Issuing Lender an application for a Letter of Credit, as the case may be.
8.      COVENANTS
The Loan Parties, jointly and severally, covenant and agree that until Payment In Full, the Loan Parties shall comply at all times with the following covenants:
8.1.      Affirmative Covenants .
8.1.1.      Preservation of Existence, Etc . Each Loan Party shall, and shall cause each of its Subsidiaries to, maintain its legal existence as a corporation, limited partnership, limited liability company or other business entity and its license or qualification and good standing in each jurisdiction in which its ownership or lease of property or the nature of its business makes such license or qualification necessary, except (a) where such failure to do so could not reasonably be expected to have a Material Adverse Effect or (b) as otherwise expressly permitted in Section 8.2.6 .
8.1.2.      Payment of Liabilities, Including Taxes, Etc . Each Loan Party shall, and shall cause each of its Subsidiaries to, duly pay and discharge all liabilities to which it is subject or which are asserted against it, promptly as and when the same shall become due and payable, including all taxes, assessments and governmental charges upon it or any of its properties, assets, income or profits, prior to the date on which penalties attach thereto, except (a) to the extent that such liabilities, including taxes, assessments or charges, are being contested in good faith and by appropriate and lawful proceedings diligently conducted and for which such reserve or other appropriate provisions, if any, as shall be required by GAAP shall have been made or (b) to the extent such failure could not reasonably be expected to have a Material Adverse Effect
8.1.3.      Maintenance of Insurance . Each Loan Party shall, and shall cause each of its Subsidiaries to, insure its properties and assets against loss or damage by fire and such other insurable hazards as such assets are commonly insured (including fire, extended coverage, property damage, workers’ compensation, public liability and business interruption insurance) and against other risks in such amounts as similar properties and assets are insured by prudent companies in similar circumstances carrying on similar businesses, and with reputable and financially sound insurers, including self-insurance to the extent customary.
8.1.4.      Maintenance of Properties and Leases . Each Loan Party shall, and shall cause each of its Subsidiaries to, maintain in good repair, working order and condition (ordinary wear and tear and casualty excepted) in accordance with the general practice of other businesses of similar character and size, all of those properties useful or necessary to its business, and from time to time, such Loan Party will make or cause to be made all appropriate repairs, renewals or replacements thereof.
8.1.5.      Visitation Rights . Each Loan Party shall, and shall cause each of its Subsidiaries to, permit any of the officers or authorized employees or representatives of the Administrative Agent (or if any Event of Default has occurred and is continuing, any Lender), upon reasonable prior notice, to visit and inspect any of its properties during normal business hours and to examine and make excerpts from its books and records and discuss its business affairs, finances and accounts with its officers, all in such detail as the Administrative Agent may reasonably request, provided that so long as no Event of Default has occurred and is continuing, the Administrative Agent and its designated representatives shall not be reimbursed for more than one such visit and inspection per year. In the event any Lender desires to conduct an audit of any Loan Party after an Event of Default, such Lender shall make a reasonable effort to conduct such audit contemporaneously with any audit to be performed by the Administrative Agent. To the extent that the Administrative Agent or any Lender obtains possession of any proprietary information in the course of such visit or inspection, the Administrative Agent and each Lender shall handle such information in accordance with Section 11.9 of this Agreement.
8.1.6.      Keeping of Records and Books of Account . The Borrower shall, and shall cause each Subsidiary of the Borrower to, maintain and keep proper books of records and accounts which enable the Borrower and its Subsidiaries to issue financial statements in accordance with GAAP and as otherwise required by Applicable Laws of any Official Body having jurisdiction over the Borrower or any Subsidiary of the Borrower.
8.1.7.      Compliance with Laws; Use of Proceeds . Each Loan Party shall, and shall cause each of its Subsidiaries to, comply with all Applicable Laws, including all Environmental Laws, in all respects; provided that it shall not be deemed to be a violation of this Section 8.1.7 if any failure to comply with any Law would not result in fines, penalties, remediation costs, other similar liabilities or injunctive relief which in the aggregate could not reasonably be expected to have a Material Adverse Effect. The Loan Parties will use the Letters of Credit and the proceeds of the Loans only in accordance with Section 2.8 and as permitted by Applicable Law.
8.1.8.      Sanctions and Anti-Corruption Laws . The Borrower will not, directly or indirectly, use the proceeds of the Loans or any Letter of Credit, or lend, contribute or otherwise make available such proceeds to any Loan Party or any Subsidiary of a Loan Party, joint venture partner or other Person, (i) to fund in violation of Sanctions any activities or business of or with any Person, or in any country or territory, or (ii) in any other manner that would result in a violation of Sanctions by any Person (including any Person participating in the Loans or Letters of Credit, whether as Administrative Agent, Arranger, Issuing Lender, Lender, underwriter, advisor, investor or otherwise). No part of the proceeds of the Loans or any Letter of Credit will be used, directly or indirectly (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, or (ii) for any other payment that could constitute a violation of any Anti-Corruption Law.
8.1.9.      Guarantors . Subject to the last sentence of this Section 8.1.9 , within thirty (30) days after a Person becomes a Material Subsidiary (either by qualifying independently as such or being designated by the Borrower as a Guarantor pursuant to the definition of “ Material Subsidiary ”) (or such later date as the Administrative Agent may agree in its sole and absolute discretion), then:
(a) the Borrower shall cause such Person to (i) become a Guarantor by executing and delivering to the Administrative Agent a Guarantor Joinder, substantially in the form of Exhibit 1.1(G) , or such other documents as the Administrative Agent shall deem appropriate for such purpose, (ii) become a party to the Security Agreement by executing and delivering to the Administrative Agent a Grantor Joinder, substantially in the form of Exhibit I to the Security Agreement, or such other documents as the Administrative Agent shall deem appropriate for such purpose, (ii) deliver to the Administrative Agent documents of the types referred to in Section 7.1.1 and favorable opinions of counsel to such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to in clauses (i) and (ii)), (iii) deliver to the Administrative Agent in form and substance satisfactory to the Administrative Agent and the Lenders, the original promissory notes evidencing intercompany Indebtedness required to be pledged pursuant to the terms of the Security Agreement, duly endorsed in blank by such Person in favor of the Administrative Agent for the benefit of the Secured Parties, (iv) deliver to the Administrative Agent in form and substance satisfactory to the Administrative Agent and the Lenders, (x) Uniform Commercial Code or similar search reports for the applicable jurisdiction, federal, state or other tax Liens, judgment, litigation and bankruptcy reports dated a date reasonably near (but prior to) the date such Person becomes a Guarantor and a party to the Security Agreement, listing all effective Uniform Commercial Code or similar financing statements, federal, state or other tax Liens, and judgment Liens which name such Person, as the debtor, and pending litigation and bankruptcies against such Person, and which are filed or pending, as applicable, in each jurisdiction in which Uniform Commercial Code or similar filings are to be made pursuant to this Agreement or the other Loan Documents and any other appropriate jurisdictions, together with copies of such financing statements (none of which (other than Permitted Liens)) shall cover any of the Collateral), and (y) search results from the United States Patent and Trademark Office and United States Copyright Office to the extent any patents, trademarks or copyrights form a part of the Collateral being granted by such Person, and (v) deliver to the Administrative Agent in form and substance satisfactory to the Administrative Agent and the Lenders, (x) Uniform Commercial Code financing statements naming such Person, as the debtor and the Administrative Agent as secured party, such Uniform Commercial Code financing statements to be filed under the Uniform Commercial Code of all applicable jurisdictions as may be necessary or appropriate to perfect the first priority security interest of the Administrative Agent for the benefit of the Secured Parties pursuant to the Security Agreement, and (y) appropriate trademark, copyright and patent security agreements or supplements to be filed with the United States Patent and Trademark Office and United States Copyright Office to the extent relevant; and
(b) the Administrative Agent shall have received from the direct parent of such Material Subsidiary, (i) a pledge (or reaffirmation of such Loan Party’s pledge) of its Equity Interests in such Material Subsidiary in favor of the Administrative Agent pursuant to the Security Agreement, together with updated schedules to the Security Agreement setting forth such Person’s Equity Interests in such Material Subsidiary, and (ii) any other Security Documents requested by the Administrative Agent in respect of such Person’s pledge of its Equity Interests in such Material Subsidiary in favor of the Administrative Agent, in each case, all in form content and scope satisfactory to the Required Lenders.
Notwithstanding anything herein or in any other Loan Document to the contrary, (A) no Material Subsidiary that is a non-Domestic Subsidiary shall be required to become a Guarantor pursuant to this Section 8.1.9 ; provided, that the Administrative Agent shall have received from the direct parent of such Material Subsidiary, to the extent the parent is a Loan Party or a Domestic Subsidiary (1) a reaffirmation of such Loan Party’s pledge of 65% of its Equity Interests in such Material Subsidiary in favor of the Administrative Agent pursuant to the Security Agreement, together with updated schedules to the Security Agreement setting forth such Person’s Equity Interests in such Material Subsidiary, (2) to the extent such parent is not a Loan Party, a pledge agreement of such Domestic Subsidiary pledging 65% of its Equity Interests in such Material Subsidiary in favor of the Administrative Agent pursuant to a Security Document in form, content and scope satisfactory to the Required Lenders, and (3) any other Security Documents requested by the Administrative Agent in respect of such Loan Party’s or Domestic Subsidiary’s pledge of 65% of its Equity Interests in such Material Subsidiary in favor of the Administrative Agent, in each case, all in form, content and scope satisfactory to the Required Lenders, and (B) in respect of any Material Subsidiary set forth on Schedule 1.1(C) on the Closing Date that is not a Domestic Subsidiary and which is not subject to a pledge of 65% of its Equity Interests on the Closing Date, to the extent requested by the Administrative Agent thereafter, the Borrower shall promptly cause to be delivered to the Administrative Agent from the direct parent of such Material Subsidiary, to the extent the direct parent is a Loan Party or a Domestic Subsidiary, any Security Documents requested by it in respect of such Person’s pledge of 65% of its Equity Interests in such Material Subsidiary in favor of the Administrative Agent, all in form, content and scope satisfactory to the Required Lenders.
8.1.10.      ERISA Compliance . Do, and cause each of its ERISA Affiliates to do, each of the following: (a) maintain each Plan in compliance in all material respects with the applicable provisions of ERISA, the Code and other federal or state law; (b) cause each Plan that is qualified under Section 401(a) of the Code to maintain such qualification; and (c) make all required contributions to any Plan subject to Section 412, Section 430 or Section 431 of the Code.
8.1.11.      Anti-Corruption Laws . Each of the Borrower, each other Loan Party and each of its and their Subsidiaries shall conduct its business in compliance in all material respects with applicable Anti-Corruption Laws and maintain policies and procedures designed to promote and achieve compliance with such Anti-Corruption Laws.
8.1.12.      Further Assurances .
(a)      The Loan Parties will execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of Uniform Commercial Code or similar financing statements and other documents), which may be required under any Applicable Law, or which the Administrative Agent or the Required Lenders may reasonably request, to effectuate the transactions contemplated by the Loan Documents or to grant, preserve, protect or perfect the Liens (subject to the Liens permitted by Section 8.2.2 ) securing all Obligations and created or intended to be created by the Loan Documents as and to the extent expressly contemplated thereby, all at the expense of the Borrower as to the extent contemplated. The Borrower also agrees to provide to the Administrative Agent, from time to time upon the reasonable request of the Administrative Agent, evidence reasonably satisfactory to the Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Loan Documents.
(b)      If any property or asset forming a part of the Collateral is acquired by any Loan Party after the Closing Date, the Borrower will notify the Administrative Agent thereof in the first Compliance Certificate required to be delivered pursuant to Section 8.3.3 after such acquisition; provided , however , that such notice shall not be required if (i) the Administrative Agent has a valid first priority perfected security interest in such property or asset by virtue of any actions previously taken by or on behalf of the Administrative Agent and (ii) such actions are not required by the terms of Security Agreement, and will cause such property or asset to be subjected to a first priority security interest in favor of the Administrative Agent (subject, in the case of non-possessory security interests, to the Liens permitted by Section 8.2.2 ) and the Loan Parties will take such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens.
(c)      Within 60 days after the Closing Date (or such later date as the Administrative Agent may agree in its sole and absolute discretion), 3D Systems, Inc. shall file, or cause to be filed, and such Loan Party shall deliver to the Administrative Agent evidence of filing or recordation, as applicable, of, (i) a UCC-3 termination relating to the UCC-1 financing statement filed with the Secretary of State of California under filing number 14-7441585706, naming Pym Particles Productions, LLC, as secured party, and (ii) terminations of the security interests held by U.S. Bank National Association, as Agent, over such Loan Party’s (x) trademarks with registration numbers 2705637, 2327581, and 2478949 and (y) copyright with registration number TXu000343358.
8.2.      Negative Covenants .
8.2.1.      Indebtedness . Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, at any time create, incur, assume or suffer to exist any Indebtedness, except:
(a)      Indebtedness in respect of the Obligations;
(b)      Existing Indebtedness as set forth on Schedule 8.2.1 (including any extensions or renewals thereof; provided there is no increase in the amount thereof (other than for accrued interest, premiums, costs and expenses) or other significant change in the terms thereof);
(c)      Indebtedness of the Borrower and its Subsidiaries incurred to finance the purchase price or the cost of construction or improvement of such fixed or capital assets or the acquisition, construction or improvement of such fixed or capital assets (including any capital lease obligations); provided (i) that such Indebtedness is incurred prior to or within 90 days after such acquisition, improvement or completion of the construction thereof, (ii) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or capital asset and (iii) the aggregate outstanding principal amount of such Indebtedness does not exceed $30,000,000 at any time;
(d)      [Reserved];
(e)      Indebtedness (contingent or otherwise) of the Borrower or any Subsidiary existing or arising under any Hedge Agreement, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view”; and (ii) such Hedge Agreement does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(f)      Indebtedness of a Person existing at the time such Person became a Subsidiary or assets were acquired from such Person in connection with an Investment permitted pursuant to Section 8.2.4 , to the extent that (i) such Indebtedness was not incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or the acquisition of such assets, (ii) neither the Borrower nor any Subsidiary thereof (other than such Person or any other Person that such Person merges with or that acquires the assets of such Person) shall have any liability or other obligation with respect to such Indebtedness and (iii) the aggregate outstanding principal amount of such Indebtedness does not exceed $20,000,000 at any time outstanding;
(g)      Unsecured intercompany Indebtedness:
(i)      owed by any Loan Party to another Loan Party;
(ii)      owed by any Loan Party to any Non-Guarantor Subsidiary ( provided that such Indebtedness shall be by an intercompany note in the form attached as Exhibit 8.2.1(G) );
(iii)      owed by any Non-Guarantor Subsidiary to any other Non-Guarantor Subsidiary; and
(iv)      owed by any Non-Guarantor Subsidiary to any Loan Party to the extent permitted pursuant to Section 8.2.4;
(h)      Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or other similar instrument drawn against insufficient funds in the ordinary course of business;
(i)      Indebtedness under performance bonds, surety bonds, release, appeal and similar bonds, statutory obligations or with respect to workers’ compensation claims, in each case incurred in the ordinary course of business, and reimbursement obligations in respect of any of the foregoing;
(j)      Indebtedness of Foreign Subsidiaries in an aggregate principal amount not to exceed $20,000,000 at any time outstanding;
(k)      Indebtedness of any Loan Party or any Subsidiary thereof not otherwise permitted pursuant to this Section in an aggregate principal amount not to exceed $20,000,000 and which Indebtedness may be secured to the extent such Liens are permitted pursuant to clause (o) of the definition of “Permitted Liens”;
(l)      Indebtedness consisting of the financing of insurance premiums in the ordinary course of business; and
(m)      unsecured Indebtedness of any Loan Party or any Subsidiary thereof not otherwise permitted pursuant to this Section at any time outstanding so long as (i) no Default or Event of Default exists or would result therefrom, (ii) the Borrower shall have delivered a Compliance Certificate demonstrating that, as of the most recent fiscal quarter end for which the Borrower was required to deliver financial statements pursuant to Section 8.3.1 or 8.3.2 and upon giving effect to the incurrence of such Indebtedness the Consolidated Total Leverage Ratio shall be no greater than 0.25 below the applicable Consolidated Total Leverage Ratio required to be maintained under Section 8.2.14 , (iii) such Indebtedness shall not have a maturity date or require mandatory prepayment or redemption earlier than the date that is ninety-one (91) days after the Revolving Credit Maturity Date; and (iv) the material terms and conditions of such Indebtedness shall be no more restrictive than the terms and conditions set forth in this Agreement.
Notwithstanding the foregoing, the aggregate principal amount of all Indebtedness permitted to be incurred pursuant to the foregoing clauses (c), (f), (j) and (k) shall not exceed $50,000,000 at any time outstanding.
8.2.2.      Liens . Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, at any time create, incur, assume or suffer to exist any Lien on any of its property or assets, tangible or intangible, now owned or hereafter acquired, or agree or become liable to do so, except Permitted Liens.
8.2.3.      [Reserved] .
8.2.4.      Loans and Investments . Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, at make any Investments, except:
(a)      trade credit in the ordinary course of business;
(b)      Permitted Investments;
(c)      Investments by the Borrower and its Subsidiaries existing on the date hereof in the capital stock of its Subsidiaries;
(d)      Guaranties of Indebtedness permitted by this Agreement;
(e)      Investments by (i) any Loan Party in any other Loan Party, (ii) any Subsidiary that is not a Loan Party in any Loan Party or any other Subsidiary that is not a Loan Party and (iii) any Loan Party in any Subsidiary that is not a Loan Party; provided that (A) any investment consisting of loans or advances to any Loan Party pursuant to clause (i) above shall be subordinated to the payment of the Obligations in a manner reasonably satisfactory to the Required Lenders and (B) the aggregate amount of all investments permitted pursuant to clause (iii) above at any time outstanding together with the aggregate amount of any assets permitted to be sold, transferred or leased from or by a Loan Party to any Subsidiary that is not a Loan Party pursuant to Section 8.2.7(g) over the term of this Agreement shall not exceed $20,000,000;
(f)      intercompany accounts receivable and accounts payable arising in the ordinary course of business for services rendered or the purchase or sale of assets among the Borrower and its Subsidiaries to the extent such purchase or sale is not otherwise prohibited under this Agreement;
(g)      Investments by any Loan Party in any Subsidiary that is not a Loan Party as long as the proceeds of such Investment are promptly used by such Subsidiary to consummate a Permitted Acquisition;
(h)      issuances of common Equity Interests in connection with the consummation of Permitted Acquisitions;
(i)      Permitted Acquisitions;
(j)      Investments in the form of loans and advances to officers, directors and employees in the ordinary course of business in an aggregate amount not to exceed at any time outstanding $5,000,000 (determined without regard to any write-downs or write-offs of such loans or advances);
(k)      Investments in Joint Ventures; provided , that the aggregate amount of all such Investments shall not at any time exceed $25,000,000 in any fiscal year;
(l)      Investments in the form of Lender Provided Bank Products or Lender Provided Hedge Agreements permitted by Section 8.2.1(a) ; and
(m)      Investments not otherwise permitted pursuant to this Section in an aggregate amount not to exceed $30,000,000 over the term of this Agreement; provided that, immediately before and immediately after giving pro forma effect to any such Investments, no Default or Event of Default shall have occurred and be continuing.
Notwithstanding the foregoing, the aggregate principal amount of all Investments permitted to be made pursuant to the foregoing clauses (e), (j) and (m) shall not exceed $50,000,000 at any time outstanding, as reduced by any amounts expended pursuant to clause (k) above in the applicable fiscal year.
8.2.5.      Dividends and Related Distributions and Restricted Payments . Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of shares of its Equity Interests, on account of the purchase, redemption, retirement or acquisition of shares of its Equity Interests (or warrants, options or rights therefor), except, so long as, immediately before and immediately after giving pro forma effect to any such dividend or other distribution, no Event of Default has occurred and is continuing:
(a)      Each Subsidiary may make payments to the Borrower, the other Loan Parties and any other Person that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such payment is being made;
(b)      The Borrower and each Subsidiary of the Borrower may issue shares (or warrants, options or rights therefor) pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Company and its Subsidiaries;
(c)      Each of the Loan Parties may redeem, retire or otherwise acquire shares of its Equity Interests or options or other equity or phantom equity in respect of its Equity Interests from present or former officers, employees, directors or consultants (or their family members or trusts or other entities for the benefit of any of the foregoing) or make severance payments to such Persons in connection with the death, disability or termination of employment or consultancy of any such officer, employee, director or consultant in an aggregate amount not to exceed $20,000,000 per fiscal year;
(d)      Each of the Loan Parties may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person;
(e)      Each of the Loan Parties may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its common stock or other common Equity Interests;
(f)      The Loan Parties may make payments not otherwise permitted pursuant to this Section not exceeding $30,000,000 in the aggregate in any fiscal year of the Borrower.
8.2.6.      Liquidations, Mergers, Consolidations, Acquisitions . Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, dissolve, liquidate or wind-up its affairs, or become a party to any merger, consolidation or division; provided that:
(a)      any Loan Party other than the Borrower may consolidate or merge into another Loan Party which is wholly-owned by one or more of the other Loan Parties or the Borrower;
(b)      any Subsidiary may merge with (i) the Borrower, provided further that the Borrower shall be the continuing or surviving person, or (ii) any one or more other Subsidiaries, provided further that when any Guarantor is merging with another Subsidiary, the Guarantor shall be the continuing or surviving Person;
(c)      any Subsidiary that is not a Loan Party may liquidate or dissolve if a Responsible Officer of the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and could not reasonably be expected to be disadvantageous to the Lenders;
(d)      any Subsidiary may dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Subsidiary; provided further that if the transferor in such transaction is a Guarantor, then the transferee must either be the Borrower or a Guarantor; and
(e)      the Borrower or any other Loan Party may merge with another Person in connection with a Permitted Acquisition so long as the Borrower (or such Loan Party if the Borrower is not a party to such merger) is the continuing or surviving entity.
8.2.7.      Dispositions of Assets or Subsidiaries . Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, sell, convey, assign, lease or otherwise transfer or dispose of, or divide, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (including sale, assignment or other disposition of accounts, contract rights, chattel paper, equipment or general intangibles with or without recourse or of Capital Stock of a Subsidiary of such Loan Party), except:
(a)      transactions involving the sale of inventory in the ordinary course of business;
(b)      any sale, transfer or lease of assets in the ordinary course of business which are no longer useful or required in the conduct of such Loan Party’s or such Subsidiary’s business;
(c)      any sale, transfer or lease of assets by any Loan Party or any Subsidiary thereof to a Loan Party or from a Subsidiary that is not a Loan Party to another Subsidiary that is not a Loan Party;
(d)      any sale, transfer or lease of assets in the ordinary course of business which are replaced by substitute assets;
(e)      sales or other dispositions permitted pursuant to Section 8.2.6;
(f)      licenses (with respect to intellectual property and other property), leases or subleases granted to third parties in the ordinary course of business not adversely interfering in any material respect with the ordinary conduct of the business of the Borrower or its Subsidiaries;
(g)      any sale, lease or transfer of assets from any Loan Party to any Subsidiary that is not a Loan Party; provided that the aggregate amount of all such dispositions pursuant to this clause (g) over the term of this Agreement together with the aggregate amount of all investments made pursuant to Section 8.2.4(e)(iii) at any time outstanding shall not exceed $20,000,000; and
(h)      any sale, transfer or lease of assets not otherwise permitted pursuant to this Section; provided that (i) at the time of sale, transfer or lease of such assets, no Default or Event of Default shall exist or would result from such sale, transfer or lease of such assets, (ii) such sale, transfer or lease of such assets is made for fair market value and the consideration received shall be no less than 75% in cash, and (iii) the aggregate fair market value of all property disposed of in reliance on this clause (h) shall not exceed (x) $50,000,000 in any fiscal year of the Borrower, as reduced by any amounts expended pursuant to clause (g) above in the applicable fiscal year, and (y) $200,000,000 during the term of this Agreement.
8.2.8.      Affiliate Transactions . Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, enter into or carry out any transaction with any Affiliate of any Loan Party (including purchasing property or services from or selling property or services to any Affiliate of any Loan Party or other Person) unless such transaction (a) is not otherwise prohibited by this Agreement, is entered into in the ordinary course of business upon fair and reasonable arm’s-length terms and conditions and is in accordance with all Applicable Law or (b) is otherwise permitted by this Agreement.
8.2.9.      [Reserved] .
8.2.10.      Continuation of or Change in Business . Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, engage in any material line of business substantially different from those lines of business as conducted by the Loan Parties and the Subsidiaries as of the Closing Date and any line of business reasonably related or incidental thereto.
8.2.11.      [Reserved] .
8.2.12.      Changes in Organizational Documents . Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, amend in any respect its certificate of incorporation (including any provisions or resolutions relating to Capital Stock), by-laws, certificate of limited partnership, partnership agreement, certificate of formation, limited liability company agreement or other organizational documents if such amendment would be adverse in any material respect to the Lenders.
8.2.13.      [Reserved] .
8.2.14.      Maximum Consolidated Total Leverage Ratio . The Loan Parties shall not permit the Consolidated Total Leverage Ratio, calculated as of the end of each fiscal quarter for the four fiscal quarters then ended, to exceed (a) 3.50 to 1.00 for the fiscal quarter ending March 31, 2019 through and including the fiscal quarter ending December 31, 2020, (b) 3.25 to 1.00 for the fiscal quarter ending March 31, 2021 through and including the fiscal quarter ending December 31, 2021, and (c) 3.00 to 1.00 for each fiscal quarter thereafter.
8.2.15.      Minimum Interest Coverage Ratio . If, in any given fiscal quarter of the Borrower there were any Facility Outstandings at any time during such fiscal quarter, the Loan Parties shall not permit the Consolidated Interest Coverage Ratio, calculated as of the end of such fiscal quarter for the four fiscal quarters then ended, to be less than 3.50 to 1.0.
8.2.16.      No Burdensome Agreements (including Negative Pledges) . Each of the Loan Parties shall not, and shall not permit any Subsidiary, to enter into or suffer to exist or become effective any agreement that (a) limits the ability of (i) any Subsidiary to make any dividends or other distributions to the Borrower or any other Loan Party or to otherwise transfer property to the Borrower or any other Loan Party, (ii) any Subsidiary to Guaranty Indebtedness of the Borrower or (iii) of the Borrower or any Subsidiary to create, incur or suffer to exist Liens on the property or revenues of such Person, whether now owned or hereafter acquired, other than (A) this Agreement and the other Loan Documents, (B) with respect to a Subsidiary imposed pursuant to an agreement that has been entered into in connection with a disposition of assets permitted under this Agreement of all or substantially all of the equity interests or assets of such Subsidiary, (C) any agreements governing any purchase money Liens, capital lease obligations or other Permitted Liens otherwise permitted hereby (in which case, other than as otherwise permitted by the second proviso in clause (g) of the definition of Permitted Liens, any prohibition or limitation shall only be effective against the assets (and proceeds thereof) financed thereby), (D) customary provisions restricting assignment of any licensing agreement (in which a Loan Party or its Subsidiaries are the licensee) with respect to a contract entered into by a Loan Party or its Subsidiaries in the ordinary course of business and (E) customary provisions restricting subletting, sublicensing or assignment of any intellectual property license or any lease governing any leasehold interests of a Loan Party and its Subsidiaries and (b) requires the grant of a Lien to secure the obligation of such Person if a Lien is granted to secure another obligation of such Person.
8.3.      Reporting Requirements . The Loan Parties will furnish or cause to be furnished to the Administrative Agent (for distribution to the Lenders):
8.3.1.      Quarterly Financial Statements . As soon as available and in any event within forty-five (45) days (or on the date required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available or other extension granted thereunder for the filing of such form) after the end of each of the first three fiscal quarters in each fiscal year (beginning with the fiscal quarter ending March 31, 2019), financial statements of the Borrower, consisting of a consolidated balance sheet as of the end of such fiscal quarter and related consolidated statements of income, stockholders’ equity and cash flows for the fiscal quarter then ended and the fiscal year through that date, all in reasonable detail and certified (subject to normal year-end audit adjustments) by the Chief Executive Officer, President or Chief Financial Officer of the Borrower as having been prepared in accordance with GAAP, (subject to normal year-end audit adjustments and the absence of footnotes) and setting forth in comparative form the respective financial statements for the corresponding date and period in the previous fiscal year.
8.3.2.      Annual Financial Statements . As soon as available and in any event within ninety (90) days (or on the date required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available or other extension granted thereunder for the filing of such form) after the end of each fiscal year of the Borrower (beginning with the fiscal year ended December 31, 2018), financial statements of the Borrower consisting of a consolidated balance sheet as of the end of such fiscal year, and related consolidated statements of income, stockholders’ equity and cash flows for the fiscal year then ended, all in reasonable detail and setting forth in comparative form the financial statements as of the end of and for the preceding fiscal year, and audited and certified by independent certified public accountants of nationally recognized standing (without any “going concern” or similar qualification or exception).
8.3.3.      Certificate of the Borrower . Concurrently with the financial statements of the Borrower furnished to the Administrative Agent and to the Lenders pursuant to Sections 8.3.1 and 8.3.2 , a certificate (each a “ Compliance Certificate ”) of the Borrower signed by the Chief Executive Officer, President or Chief Financial Officer of the Borrower, in the form of Exhibit 8.3.3 .
8.3.4.      Notices .
(a)      Default . Promptly after any Authorized Officer of any Loan Party has knowledge of the occurrence of a Default or an Event of Default, a certificate signed by an Authorized Officer setting forth the details of such Default or Event of Default and the action which such Loan Party proposes to take with respect thereto.
(b)      Litigation . Promptly after any Authorized Officer of any Loan Party has knowledge of any action, suit or proceeding by or before any arbitrator or Official Body against or affecting the Borrower or any of its Subsidiaries as to which there is a reasonable likelihood of an adverse determination with respect to the Borrower or any of its Subsidiaries and that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect.
(c)      Other Notices .
(i)      Concurrently with the delivery of the Compliance Certificate required to be delivered pursuant to Section 8.3.3 , if any Loan Party has, during the prior fiscal quarter, filed an application for the registration of any Intellectual Property with the United States Patent and Trademark Office or the United States Copyright Office, the Borrower shall provide the Administrative Agent with notice thereof (and, if requested by the Administrative Agent thereafter, shall execute and deliver any and all agreements, instruments, documents and papers as the Administrative Agent may reasonably request pursuant to Section 8.1.12 of this Agreement).
(ii)      Concurrently with the delivery of the Compliance Certificate required to be delivered pursuant to Section 8.3.3 , the Borrower shall notify the Administrative Agent if it, or the applicable Loan Party, knows that any application or registration relating to any item of the Intellectual Property (as defined in the Security Agreement) with a fair market value in excess of $500,000, could reasonably be expected to become abandoned, dedicated to the public, placed in the public domain, invalid or unenforceable, or of any adverse final, unappealable determinations (including the institution of, or any final determination in, any proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any foreign counterpart thereof or any court) regarding the applicable Loan Party’s ownership of any item of the Intellectual Property with a fair market value in excess of $500,000, its right to register the same or to keep, maintain and enforce the same.
(iii)      At least 10 days’ prior to any Loan Party (a) changes its location (as defined in Section 9 307 of the NYUCC) or (b) changes its legal name (as reflected on the signature pages to this Agreement), the Borrower shall provide notice of such change to the Administrative Agent.
(a)      Erroneous Financial Information . Promptly after an Authorized Officer of any Loan Party has knowledge of an event where the Borrower or its accountants conclude or advise that any previously issued financial statement, audit report or interim review should no longer be relied upon or that disclosure should be made or action should be taken to prevent future reliance, notice in writing setting forth the details thereof and the action which the Borrower proposes to take with respect thereto.
(b)      ERISA Event . Promptly after an Authorized Officer of any Loan Party has knowledge of the occurrence of any ERISA Event, notice in writing setting forth the details thereof and the action which the Borrower proposes to take with respect thereto.
(c)      Material Defaults . Promptly after any Authorized Officer of any Loan Party has knowledge of the same, notice of any event which constitutes or which with the passage of time or giving of notice or both would constitute a default or event of default under any material contract to which the Borrower or any of its Subsidiaries is a party or by which the Borrower or any Subsidiary thereof or any of their respective properties may be bound which could reasonably be expected to have a Material Adverse Effect.
(d)      Other Reports . Promptly upon their becoming available to the Borrower:
(i)      SEC Reports; Shareholder Communications . Promptly after the same become publicly available, copies of each annual, regular, periodic and special report, registration statement, proxy, financial statement or other report or communication filed with the SEC under Section 13 or 15(d) of the Exchange Act, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto; and
(ii)      Other Information . Such other reports and information as any of the Lenders may from time to time reasonably request.
Documents required to be delivered pursuant to Sections 8.3.1 , 8.3.2 and 8.3.4(g) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the Borrower’s website at www.3dsystems.com or the SEC’s Electronic Data Gathering and Retrieval System.
9.      EVENTS OF DEFAULT
9.1.      Events of Default . An Event of Default shall mean the occurrence or existence of any one or more of the following events or conditions (whatever the reason therefor and whether voluntary, involuntary or effected by operation of Law):
9.1.1.      Payments Under Loan Documents . The Borrower or any other Loan Party shall fail to pay, when and as required to be paid herein, (i) any principal of any Loan, Reimbursement Obligation or Letter of Credit or Obligation, (ii) within three (3) days after the same becomes due, any interest on any Loan, Reimbursement Obligation or Letter of Credit Obligation or any fees payable pursuant to Section 2.3 , Section 2.9.2 and Section 10.8 , or (iii) within five (5) days after the same becomes due, any other amount becoming due and owing hereunder or under the other Loan Documents;
9.1.2.      Breach of Warranty . Any representation or warranty made at any time by any of the Loan Parties herein or by any of the Loan Parties in any other Loan Document, or in any certificate, other instrument or statement furnished pursuant to the provisions hereof or thereof, shall prove to have been false or misleading in any material respect as of the time it was made or furnished;
9.1.3.      Breach of Certain Covenants . Any of the Loan Parties shall default in the observance or performance of any covenant contained in Sections 8.1.1 , 8.1.5 , 8.1.7 , 8.1.8 , 8.1.11 , 8.1.12 , 8.2 or 8.3.4 ;
9.1.4.      Breach of Financial Statement and Compliance Certificate Covenants . Any of the Loan Parties shall default in the observance or performance of any covenant contained in Sections 8.3.1 , 8.3.2 or 8.3.3 and such default shall continue unremedied for two (2) Business Days;
9.1.5.      Breach of Other Covenants . Any of the Loan Parties shall default in the observance or performance of any other covenant, condition or provision hereof or of any other Loan Document and such default shall continue unremedied for a period of thirty (30) days after the earlier of (i) knowledge thereof by an Authorized Officer of any Loan Party or (ii) notice thereof from the Administrative Agent to the Borrower (which notice will be given at the request of any Lender);
9.1.6.      Defaults in Other Agreements or Indebtedness . A default or event of default shall occur at any time under the terms of any other agreement involving borrowed money or the extension of credit or any other Indebtedness under which any Loan Party or Subsidiary of any Loan Party may be obligated as a borrower or guarantor in excess of $10,000,000 in the aggregate, and such breach, default or event of default consists of the failure to pay (beyond any period of grace permitted with respect thereto, whether waived or not) any Indebtedness when due (whether at stated maturity, by acceleration or otherwise) or if such breach or default permits or causes the acceleration of any Indebtedness (whether or not such right shall have been waived) or the termination of any commitment to lend;
9.1.7.      Final Judgments or Orders . (i) Any final judgments for the payment of money in excess of $10,000,000 in the aggregate (to the extent not covered by an unaffiliated third party insurer that has not denied coverage) shall be entered against any Loan Party by a court having jurisdiction; or (ii) there is entered against the Borrower or any Subsidiary any one or more orders or non-monetary final judgments that have, individually or in the aggregate, a Material Adverse Effect, in either case, which order or judgment is not discharged, vacated, bonded or stayed pending appeal within a period of sixty (60) days from the date of entry;
9.1.8.      Loan Document Unenforceable; Impairment of Security . Any of the Loan Documents shall cease to be legal, valid and binding agreements enforceable against the Loan Party executing the same or such Loan Party’s successors and assigns (as permitted under the Loan Documents) in accordance with the respective terms thereof or shall in any way be terminated (except in accordance with its terms) or become or be declared ineffective or inoperative or shall in any way be challenged or contested by any Loan Party or any Subsidiary thereof in writing or cease to give or provide the respective rights, titles, interests, remedies, powers or privileges intended to be created thereby, or any Lien or security interest in favor of the Administrative Agent for the benefit of the Secured Parties securing (or required to secure) any Obligation shall, in whole or in part, cease to be a perfected first priority security interest (subject to Permitted Liens);
9.1.9.      Events Relating to Plans and Benefit Arrangements . (i) An ERISA Event occurs with respect to a Plan which has resulted or could reasonably be expected to result in liability of Borrower under Title IV of ERISA to the Plan or the PBGC in an aggregate amount in excess of $5,000,000, or (ii) Borrower fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to withdrawal liability (including withdrawal liability assessed against the Borrower in its capacity as an ERISA Affiliate of another entity) under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of $10,000,000;
9.1.10.      Change of Control . A Change of Control shall occur.
9.1.11.      Relief Proceedings . (i) A Relief Proceeding shall have been instituted against any Loan Party or Subsidiary of a Loan Party (other than an Immaterial Subsidiary) and such Relief Proceeding shall remain undismissed or unstayed and in effect for a period of sixty (60) consecutive days or such court shall enter a decree or order granting any of the relief sought in such Relief Proceeding, (ii) any Loan Party or Subsidiary of a Loan Party (other than an Immaterial Subsidiary) institutes, or takes any action in furtherance of, a Relief Proceeding, or (iii) any Loan Party or any Subsidiary of a Loan Party (other than an Immaterial Subsidiary) ceases to be Solvent or admits in writing its inability to pay its debts as they mature.
9.2.      Consequences of Event of Default .
9.2.1.      Events of Default Other Than Bankruptcy, Insolvency or Reorganization Proceedings . If an Event of Default specified under Sections 9.1.1 through 9.1.10 shall occur and be continuing, the Lenders and the Administrative Agent shall be under no further obligation to make Loans and the Issuing Lender shall be under no obligation to issue Letters of Credit and the Administrative Agent may, and upon the request of the Required Lenders, the Administrative Agent shall (i) by written notice to the Borrower, declare the unpaid principal amount of the Obligations then outstanding and all interest accrued thereon, any unpaid fees and all other Indebtedness of the Borrower to the Lenders hereunder to be forthwith due and payable, and the same shall thereupon become and be immediately due and payable to the Administrative Agent for the benefit of each Lender without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived, and (ii) require the Borrower to, and the Borrower shall thereupon, deposit in a non-interest-bearing account with the Administrative Agent, as cash collateral for its Obligations under the Loan Documents, an amount equal to the maximum amount currently or at any time thereafter available to be drawn on all outstanding Letters of Credit, and the Borrower hereby pledges to the Administrative Agent and the Lenders, and grants to the Administrative Agent and the Lenders a security interest in, all such cash as security for such Obligations. In addition, if an Event of Default shall have occurred and be continuing, the Administrative Agent and the Lenders shall have, in addition to all rights and remedies provided for in the UCC and Applicable Law, all such rights (including the right of foreclosure) with respect to the Collateral as provided in the Security Agreement and the other Security Documents; and
9.2.2.      Bankruptcy, Insolvency or Reorganization Proceedings . If an Event of Default specified under Section 9.1.11 shall occur, the Lenders shall be under no further obligations to make Loans hereunder and the Issuing Lender shall be under no obligation to issue Letters of Credit and the unpaid principal amount of the Loans then outstanding and all interest accrued thereon, any unpaid fees and all other Indebtedness of the Borrower to the Lenders hereunder and thereunder shall be immediately due and payable, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived; and
9.2.3.      Set-off . If an Event of Default shall have occurred and be continuing, each Lender, the Issuing Lender, and each of their respective Affiliates and any participant of such Lender or Affiliate which has agreed in writing to be bound by the provisions of Section 5.3 is hereby authorized at any time and from time to time, to the fullest extent permitted by Applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, the Issuing Lender or any such Affiliate or participant to or for the credit or the account of any Loan Party against any and all of the Obligations of such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender, the Issuing Lender, Affiliate or participant, irrespective of whether or not such Lender, Issuing Lender, Affiliate or participant shall have made any demand under this Agreement or any other Loan Document and although such Obligations of the Borrower or such Loan Party may be contingent or unmatured or are owed to a branch or office of such Lender or the Issuing Lender different from the branch or office holding such deposit or obligated on such Indebtedness. The rights of each Lender, the Issuing Lender and their respective Affiliates and participants under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, the Issuing Lender or their respective Affiliates and participants may have. Each Lender and the Issuing Lender agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application; and
9.2.4.      Application of Proceeds . From and after the date on which the Administrative Agent has taken any action pursuant to this Section 9.2 and until Payment in Full, any and all proceeds received by the Administrative Agent from the exercise of any remedy by the Administrative Agent, shall be applied, subject to the provisions of Section 2.10 with respect to any Defaulting Lender, as follows:
(i)      First , to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts, including attorney fees, payable to the Administrative Agent in its capacity as such, the Issuing Lender in its capacity as such and the Swing Loan Lender in its capacity as such, ratably among the Administrative Agent, the Issuing Lender and Swing Loan Lender in proportion to the respective amounts described in this clause First payable to them;
(ii)      Second , to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders under the Loan Documents, including attorney fees, ratably among the Lenders in proportion to the respective amounts described in this clause Second payable to them;
(iii)      Third , to payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans and Reimbursement Obligations, ratably among the Lenders in proportion to the respective amounts described in this clause Third payable to them;
(iv)      Fourth , to payment of that portion of the Obligations constituting unpaid principal of the Loans, Reimbursement Obligations and payment obligations then owing under Lender Provided Hedge Agreements and Lender Bank Products, ratably among the Lenders, the Issuing Lender, and the Lenders or Affiliates of Lenders which provide Lender Provided Hedge Agreements and Lender Bank Products, in proportion to the respective amounts described in this clause Fourth held by them;
(v)      Fifth , to the Administrative Agent for the account of the Issuing Lender, to Cash Collateralize any undrawn amounts under outstanding Letters of Credit; and
(vi)      Last , the balance, if any, to the Loan Parties or as required by Law.
Excluded Hedge Agreements with respect to any Guarantor shall not be paid with amounts received from such Guarantor or such Guarantor’s assets, but appropriate adjustments shall be made with respect to payments from other Loan Parties to preserve the allocation to Obligations otherwise set forth above in this Section 9.2.4 .
10.      THE ADMINISTRATIVE AGENT
10.1.      Appointment and Authority . Each of the Lenders and the Issuing Lender hereby irrevocably appoints HSBC to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Section 10 are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Lender, and neither the Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions.
10.2.      Rights as a Lender . The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
10.3.      Exculpatory Provisions . The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, including, without limitation, the Security Documents and its duties thereunder shall be administrative in nature only, whether or not a Default or Event of Default has occurred and is continuing. Without limiting the generality of the foregoing, the Administrative Agent:
(a)      shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing;
(b)      shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or Applicable Law, including, for the avoidance of doubt, any action that may be in violation of the automatic stay or that may effect a forfeiture, modification or termination of a property interest in violation of any applicable bankruptcy/insolvency laws and the Administrative Agent shall in all cases be fully justified in failing or refusing to act under the Agreement or any other Loan Document unless it first receives further assurances of its indemnification from the Lenders that the Administrative Agent reasonably believes it may require, including prepayment of any related expenses and any other protection it requires against any and all costs, expenses and liabilities it may incur in taking or continuing to take any such discretionary action at the direction of the Required Lenders; and
(c)      shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 11.1 and 9.2 ) or in the absence of its own gross negligence or willful misconduct as and to the extent determined by a court of competent jurisdiction in a final and non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice describing such Default or Event of Default, and stating that such written notice is a “Notice of Default” or “Notice of Event of Default”, is given to the Administrative Agent by the Borrower, a Lender or the Issuing Lender. The Administrative Agent will notify the Lenders and the Issuing Lender of its receipt of any such written notice.
The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Section 7 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
10.4.      Reliance by Administrative Agent . The Administrative Agent shall be entitled to conclusively rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or the Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or the Issuing Lender prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
10.5.      Delegation of Duties . The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Section 10 shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent.
10.6.      Resignation of Administrative Agent . The Administrative Agent may at any time give notice of its resignation to the Lenders, the Issuing Lender and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, with approval from the Borrower (so long as no Event of Default has occurred and is continuing), to appoint a successor, such approval not to be unreasonably withheld or delayed. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may on behalf of the Lenders and the Issuing Lender, appoint a successor Administrative Agent; provided that if the Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any Collateral held by the Administrative Agent on behalf of the Lenders or the Issuing Lender under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such Collateral until such time as a successor Administrative Agent is appointed) and (ii) except for any indemnity payments owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and the Issuing Lender directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section 10.6 . Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent (other than any rights to indemnity payments owed to the retiring Administrative Agent), and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Section 10 and Section 11.3 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.
If HSBC resigns as Administrative Agent under this Section 10.6 , HSBC shall also resign as an Issuing Lender. Upon the appointment of a successor Administrative Agent hereunder, such successor shall (i) succeed to all of the rights, powers, privileges and duties of HSBC as the retiring Issuing Lender and Administrative Agent and HSBC shall be discharged from all of its respective duties and obligations as Issuing Lender and Administrative Agent under the Loan Documents, and (ii) issue letters of credit in substitution for the Letters of Credit issued by HSBC, if any, outstanding at the time of such succession or make other arrangement satisfactory to HSBC to effectively assume the obligations of HSBC with respect to such Letters of Credit.
10.7.      Non-Reliance on Administrative Agent and Other Lenders . Each Lender and the Issuing Lender represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and the Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
10.8.      Administrative Agent’s Fee . The Borrower shall pay to the Administrative Agent a non-refundable fee (the “ Administrative Agent’s Fee ”) under the terms of the Fee Letter, as amended from time to time.
10.9.      [Reserved] .
10.10.      No Reliance on Administrative Agent’s Customer Identification Program . Each Lender acknowledges and agrees that neither such Lender, nor any of its Affiliates, participants or assignees, may rely on the Administrative Agent to carry out such Lender’s, Affiliate’s, participant’s or assignee’s customer identification program, or other obligations required or imposed under or pursuant to the USA Patriot Act or the regulations thereunder, including the regulations contained in 31 CFR 103.121 (as hereafter amended or replaced, the “ CIP Regulations ”), or any other Sanctions, including any programs involving any of the following items relating to or in connection with any of the Loan Parties, their Affiliates or their agents, the Loan Documents or the transactions hereunder or contemplated hereby: (i) any identity verification procedures, (ii) any recordkeeping, (iii) comparisons with government lists, (iv) customer notices or (v) other procedures required under the CIP Regulations or such other Laws.
10.11.      Enforcement . Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against any Loan Party shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 10.1 for the benefit of all the Lenders and the Issuing Lenders.
10.12.      Administrative Agent May File Proof of Claim . In case of the pendency of any proceeding under any Debtor Relief Law or other judicial proceeding under any other Applicable Law relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or issued Letters of Credit shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:
(a)     to file and prove a claim for the whole amount of principal, interest and unpaid fees in respect of the Loans, issued Letters of Credit and all other Obligations that are owing and unpaid under the terms of this Agreement and other Loan Documents and to file such documents as may be necessary or advisable in order to have the claims of the Lenders, Issuing Lenders and Administrative Agent (including any claim for reasonable compensation, expenses, disbursements and advances of any of the foregoing entities and their respective agents, counsel and other advisors) allowed in such judicial proceedings; and
(b)     to collect and receive any monies or other property payable or deliverable on account of any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator or similar official in any such judicial proceeding is hereby authorized by each Lender and Issuing Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the Issuing Lender, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.3 , 2.9.2 10.8 and 11.3 .
10.13.      Collateral and Guaranty Matters .
(a)      The Administrative Agent may, but shall not be obligated, to take such action as it deems necessary to perfect or continue the perfection of the Liens on the Collateral held for the benefit of the Lenders. The Administrative Agent shall not release any of the Collateral held for the benefit of the Lenders, or any Liens on the Collateral held for the benefit of the Lenders, except: (i) upon the written direction of the Required Lenders; provided that, pursuant to Section 11.1.3 , the release of all or substantially all of the Collateral in any transaction or series of transactions prior to Payment in Full shall require the consent of all Lenders (other than Defaulting Lenders); (ii) upon Payment in Full; (iii) for Collateral consisting of a debt instrument if the indebtedness evidenced thereby has been paid in full; or (iv) where such release is expressly permitted under the Loan Documents to which it is a party. To the extent that the Required Lenders waive the provisions of Section 8.2.7 or property is sold, conveyed, assigned or otherwise disposed of as permitted by Section 8.2.7 such property shall be transferred free and clear of any Liens in favor of the Administrative Agent and the Lenders and the Administrative Agent is hereby authorized to take all action reasonably requested by the Borrower to effect the foregoing.
(b)      Subject to the terms of this Agreement, the Administrative Agent agrees to administer and enforce the Security Documents to which it is a party and to foreclose upon, collect and dispose of the Collateral and to apply the proceeds therefrom, for the benefit of the Secured Parties, as provided in this Agreement, and otherwise to perform its duties and obligations as the Administrative Agent hereunder in accordance with the terms hereof; provided, that the Administrative Agent shall have no duties or responsibilities except those expressly set forth in the Security Documents to which it is a party as Administrative Agent, and no implied covenants or obligations shall be read into any such Security Documents against the Administrative Agent.
(c)      Notwithstanding anything contained herein to the contrary, the Administrative Agent shall not be required to exercise any discretion or take any action but shall only be required to act or refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders, in each case, as specified therein, and such instructions shall be binding upon the Administrative Agent and each of the Secured Parties; provided, that the written instructions of all of the Secured Parties shall be required where expressly provided for herein; provided further that the Administrative Agent shall not be required to take any action which is contrary to any provision of the Security Documents or Applicable Law.
(d)      Notwithstanding any other provision of the Security Documents, in no event shall the Administrative Agent be required to foreclose on, or take possession of, the Collateral, if, in the judgment of the Administrative Agent, such action would be in violation of any Applicable Law pertaining thereto, or if the Administrative Agent reasonably believes that such action would result in the incurrence of liability by the Administrative Agent for which it is not fully indemnified by the Secured Parties.
(e)      The Administrative Agent shall not be responsible to the other Secured Parties for (i) any recital statements, representations or warranties by the Borrower or any of the Secured Parties (other than the Administrative Agent) contained in this Agreement or the Loan Documents, or any certificate or other document delivered by the Borrower, the other Loan Parties or any of the Secured Parties thereunder, (ii) the value, validity, effectiveness, genuineness, enforceability (other than as to the Administrative Agent with respect to such documents to which the Administrative Agent is a party) or sufficiency of this Agreement or any other document referred to or provided for herein or therein or of the Collateral held by the Administrative Agent under the Loan Documents, (iii) the performance or observance by the Borrower, the other Loan Parties or any of the Secured Parties (other than as to itself) of any of their respective agreements contained herein or therein, nor shall the Administrative Agent be liable because of the invalidity or unenforceability of any provisions of this Agreement (other than as to itself) or (iv) the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of Law or by reason of any action or omission to act on its part hereunder, the validity of the title of the Loan Parties to the Collateral, insuring the Collateral or the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral.
(f)      The Administrative Agent may at any time request instructions from the Required Lenders as to a course of action to be taken by it hereunder and under any of the Security Documents or in connection herewith and therewith or any other matters relating hereto and thereto.
(g)      Neither the Administrative Agent nor any of its Related Parties shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewith, except for its or their own gross negligence or willful misconduct, as determined by a final and nonappealable judgment of a court of competent jurisdiction.
(h)      In the event that the Administrative Agent is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any obligation for the benefit of another, which in the Administrative Agent’s sole and absolute discretion may cause the Administrative Agent to be considered an “owner or operator” under the provisions of the Comprehensive Environmental Response, Compensation and Liability Act (“ CERCLA ”), 42 U.S.C. §9601, et seq., or otherwise cause the Administrative Agent to incur liability under CERCLA or any other federal, state or local Law, the Administrative Agent reserves the right, instead of taking such action, to either resign as the Administrative Agent or arrange for the transfer of the title or control of the asset to a court-appointed receiver. Except for such claims or actions arising directly from the gross negligence or willful misconduct of the Administrative Agent, as determined by a final and nonappealable judgment of a court of competent jurisdiction, the Administrative Agent shall not be liable to any person or entity for any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Administrative Agent’s actions and conduct as authorized, empowered and directed hereunder or relating to the discharge, release or threatened release of hazardous materials into the environment. If at any time after any foreclosure on the Collateral (or a transfer in lieu of foreclosure) upon the exercise of remedies in accordance with the Security Documents it is necessary or advisable to take possession, own, operate or manage any portion of the Collateral by any Person other than the Loan Parties, the Administrative Agent shall appoint an appropriately qualified Person to possess, own, operate or manage such Collateral.
10.14.      Merger . Any entity into which the Administrative Agent in its individual capacity may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidations which the Administrative Agent in its individual capacity may be party, or any corporation to which substantially all of the corporate trust or agency business of the Administrative Agent in its individual capacity may be transferred, shall be the Administrative Agent under this Agreement without further action.
10.15.      Certain ERISA Matters .
(a)      Each Lender (x) represents and warrants, as of the date such person becomes a Lender party hereto, to, and (y) covenants, from the date such Person becomes a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:
(i)      such Lender is not using “plan assets” of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments or this Agreement,
(ii)      the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
(iii)      (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or
(iv)      such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole and absolute discretion, and such Lender.
(b)      In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person becomes a Lender party hereto, to, and (y) covenants, from the date such Person becomes a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto).
11.      MISCELLANEOUS
11.1.      Modifications, Amendments or Waivers . With the written consent of the Required Lenders, the Administrative Agent, acting on behalf of all the Lenders, and the Borrower, on behalf of the Loan Parties, may from time to time enter into written agreements amending or changing any provision of this Agreement or any other Loan Document or the rights of the Lenders or the Loan Parties hereunder or thereunder, or may grant written waivers or consents hereunder or thereunder. Any such agreement, waiver or consent made with such written consent shall be effective to bind all the Lenders and the Loan Parties; provided, that no such agreement, waiver or consent may be made which will:
11.1.1.      Increase of Commitment . Increase the amount of the Revolving Credit Commitment of any Lender hereunder without the consent of such Lender;
11.1.2.      Extension of Payment; Reduction of Principal, Interest or Fees; Modification of Terms of Payment . Whether or not any Loans are outstanding, extend the Revolving Credit Maturity Date or the Term Loan Maturity Date or the time for payment of principal or interest of any Loan (excluding the due date of any mandatory prepayment of a Loan), the Commitment Fee or any other fee payable to any Lender, or reduce the principal amount of or the rate of interest borne by any Loan or reduce the Commitment Fee or any other fee payable to any Lender, without the consent of each Lender directly affected thereby;
11.1.3.      Release of Guarantor or Collateral . Release any Guarantor from its Obligations under Section 3 (except for sales of assets permitted by Section 8.2.7 ) or release all or substantially all of the Collateral in any transaction or series of related transactions (except as permitted by Section 10.13 or as otherwise specifically permitted or contemplated in this Agreement or the Security Agreement), in each case without the consent of all Lenders (other than Defaulting Lenders); or
11.1.4.      Miscellaneous . Amend Section 5.2 , 10.3 or 5.3 or this Section 11.1 , alter any provision regarding the pro rata treatment of the Lenders or requiring all Lenders to authorize the taking of any action or change any provision of the definition of Required Lenders, in each case without the consent of all of the Lenders; provided that no agreement, waiver or consent which would modify the interests, rights or obligations of the Administrative Agent, the Issuing Lender, or the Swing Loan Lender may be made without the written consent of the Administrative Agent, the Issuing Lender or the Swing Loan Lender, as applicable, and provided, further that, if in connection with any proposed waiver, amendment or modification referred to in Sections 11.1.1 through 11.1.4 above, the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained (each a “ Non-Consenting Lender ”), then the Borrower shall have the right to replace any such Non-Consenting Lender with one or more replacement Lenders pursuant to Section 5.7 . Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender, and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender.
11.2.      No Implied Waivers; Cumulative Remedies . No course of dealing and no delay or failure of the Administrative Agent or any Lender in exercising any right, power, remedy or privilege under this Agreement or any other Loan Document shall affect any other or future exercise thereof or operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any further exercise thereof or of any other right, power, remedy or privilege. The rights and remedies of the Administrative Agent and the Lenders under this Agreement and any other Loan Documents are cumulative and not exclusive of any rights or remedies which they would otherwise have.
11.3.      Expenses; Indemnity; Damage Waiver .
11.3.1.      Costs and Expenses . The Borrower shall pay (a) all reasonable and documented out-of-pocket fees and expenses incurred by the Administrative Agent, the Arranger and their respective Affiliates (including, but not limited to, the reasonable and documented out-of-pocket fees and expenses associated with the preparation, due diligence, administration, syndication, travel and all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent, and, if reasonably necessary, of a single local counsel to the Administrative Agent in each relevant jurisdiction and a single special counsel in each reasonably necessary specialty, and in the case of any conflict of interest, one additional local and/or special counsel (as applicable)), in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery of the Commitment Letter, this Agreement and the other Loan Documents, the administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (b) all reasonable and documented out-of-pocket expenses incurred by the Issuing Lender in connection with the issuance, amendment or extension of any Letter of Credit or any demand for payment thereunder as provided in Section 2.9.2 , (c) all out-of-pocket expenses incurred by the Administrative Agent, the Arranger, any Lender or the Issuing Lender (including the fees, charges and disbursements of any counsel for the Administrative Agent, the Arranger any Lender or the Issuing Lender), in connection with the enforcement or protection of its rights (i) in connection with the Commitment Letter, this Agreement and the other Loan Documents, including its rights under this Section, or (ii) in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit, and (d) all reasonable and documented out-of-pocket expenses of the Administrative Agent’s regular employees and agents engaged periodically to perform audits of the Loan Parties’ books, records and business properties.
11.3.2.      Indemnification by the Borrower . The Borrower shall indemnify the Administrative Agent, the Arranger (and any sub-agent thereof), each Lender and the Issuing Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “ Indemnitee ”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower or any other Loan Party arising out of, in connection with, or as a result of (a) the execution or delivery of the Commitment Letter, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance or nonperformance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, (b) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the Issuing Lender to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (c) breach of representations, warranties or covenants of the Borrower under the Commitment Letter or the Loan Documents, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, including any such items or losses relating to or arising under Environmental Laws or pertaining to environmental matters, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by the Borrower or any other Loan Party against an Indemnitee for a breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if the Borrower or such Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction. This Section 11.3.2 shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
11.3.3.      Reimbursement by Lenders . To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under Sections 11.3.1 or 11.3.2 to be paid by it to the Administrative Agent (or any sub-agent thereof), the Arranger, the Issuing Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the Arranger, the Issuing Lender or such Related Party, as the case may be, such Lender’s Ratable Share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent), the Arranger or the Issuing Lender in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent), the Arranger or Issuing Lender in connection with such capacity.
11.3.4.      Waiver of Consequential Damages, Etc . To the fullest extent permitted by Applicable Law, in no event shall any Indemnitee be liable, on any theory of liability, for special, indirect, consequential, exemplary or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred to in Section 11.3.2 shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
11.3.5.      Payments . All amounts due under this Section shall be payable not later than ten (10) days after demand therefor and presentation of a reasonably detailed invoice.
11.4.      Holidays . Whenever payment of a Loan to be made or taken hereunder shall be due on a day which is not a Business Day such payment shall be due on the next Business Day (except as provided in Section 4.2 ) and such extension of time shall be included in computing interest and fees, except that the Loans shall be due on the Business Day preceding the Revolving Credit Maturity Date or the Term Loan Maturity Date, as applicable, if the Revolving Credit Maturity Date or the Term Loan Maturity Date, as applicable, is not a Business Day. Whenever any payment or action to be made or taken hereunder (other than payment of the Loans) shall be stated to be due on a day which is not a Business Day, such payment or action shall be made or taken on the next following Business Day, and such extension of time shall not be included in computing interest or fees, if any, in connection with such payment or action.
11.5.      Notices; Effectiveness; Electronic Communication .
11.5.1.      Notices Generally . Except in the case of notices and other communications expressly permitted to be given by telephone, telecopy or electronic communication (and except as provided in Section 11.5.2 ), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy (a) if to a Lender, to it at its address set forth in its administrative questionnaire, or (b) if to any other Person, to it at its address set forth on Schedule 1.1(A) .
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by telecopy shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices delivered through electronic communications to the extent provided in Section 11.5.2 , shall be effective as provided in such Section.
11.5.2.      Electronic Communications . Notices and other communications to the Lenders and the Issuing Lender hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices to any Lender or the Issuing Lender if such Lender or the Issuing Lender, as applicable, has notified the Administrative Agent that it is incapable of receiving notices by electronic communication. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications. Unless the Administrative Agent otherwise prescribes, (a) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement); provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (b) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (a) of notification that such notice or communication is available and identifying the website address therefor.
11.5.3.      Change of Address, Etc . Any party hereto may change its address, e-mail address or telecopier number for notices and other communications hereunder by notice to the other parties hereto.
11.6.      Severability . The provisions of this Agreement are intended to be severable. If any provision of this Agreement shall be held invalid or unenforceable in whole or in part in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without in any manner affecting the validity or enforceability thereof in any other jurisdiction or the remaining provisions hereof in any jurisdiction.
11.7.      Duration; Survival . All representations and warranties of the Loan Parties contained herein or made in connection herewith shall survive the execution and delivery of this Agreement, the completion of the transactions hereunder and Payment In Full. All covenants and agreements of the Borrower contained herein relating to the payment of interest with respect to clause (iii) of the definition of Applicable Margin, additional compensation or expenses and indemnification, including those set forth in the Notes, Section 5 and Section 11.3 , shall survive Payment In Full. All other covenants and agreements of the Loan Parties shall continue in full force and effect from and after the date hereof and until Payment In Full.
11.8.      Successors and Assigns .
11.8.1.      Successors and Assigns Generally . The provisions of this Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns permitted hereby, except that neither the Borrower nor any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (a) to an assignee in accordance with the provisions of Section 11.8.2 , (b) by way of participation in accordance with the provisions of Section 11.8.4 , or (c) by way of pledge or assignment of a security interest subject to the restrictions of Section 11.8.5 (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, express or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 11.8.4 and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
11.8.2.      Assignments by Lenders . Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it); provided that any such assignment shall be subject to the following conditions:
(a)      Minimum Amounts .
(i)      in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
(ii)      in any case not described in clause (a)(i) of this Section 11.8.2 , the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption Agreement with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption Agreement, as of the Trade Date) shall not be less than $5,000,000, in the case of any assignment in respect of the Revolving Credit Commitment of the assigning Lender, unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed).
(b)      Proportionate Amounts . Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loan or the Commitment assigned.
(c)      Required Consents . No consent shall be required for any assignment except to the extent required by paragraph (a)(ii) of this Section 11.8.2 and, in addition:
(i)      the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (x) an Event of Default has occurred and is continuing at the time of such assignment or (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof;
(ii)      the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for (x) assignments to a Person that is not a Lender with a Commitment or an Affiliate of a Lender or an Approved Fund and (y) assignments by a Defaulting Lender;
(iii)      the consent of the Issuing Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding); and
(iv)      the consent of the Swing Loan Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment of a Swing Loan.
(d)      Assignment and Assumption Agreement . The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption Agreement, together with a processing and recordation fee of $3,500, and the assignee, if it is not a Lender, shall deliver to the Administrative Agent an administrative questionnaire provided by the Administrative Agent.
(e)      No Assignment to Borrower . No such assignment shall be made to the Borrower or any of the Borrower’s Affiliates or Subsidiaries.
(f)      No Assignment to Natural Persons . No such assignment shall be made to a natural person.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 11.8.3 , from and after the effective date specified in each Assignment and Assumption Agreement, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption Agreement, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption Agreement, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Agreement covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 4.4 , 5.9 , and 11.3 with respect to facts and circumstances occurring prior to the effective date of such assignment. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 11.8.2 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 11.8.4 .
11.8.3.      Register . The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at its offices at 452 Fifth Avenue, New York, NY 10018 a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “ Register ”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice. Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s administrative questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in Section 11.8.2 and any written consent to such assignment required by Section 11.8.2 , the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that, if either the assigning Lender or the assignee shall have failed to make any payment required to be made by it pursuant to this Agreement, the Administrative Agent shall have no obligation to accept such Assignment and Assumption and record the information therein in the Register unless and until such payment shall have been made in full, together with all accrued interest thereon. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this Section 11.8.3 .
11.8.4.      Participations . Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “ Participant ”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (a) such Lender’s obligations under this Agreement shall remain unchanged, (b) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (c) the Borrower, the Administrative Agent, the Lenders, and the Issuing Lender shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree (other than as is already provided for herein) to any amendment, modification or waiver with respect to Sections 11.1.1 , 11.1.2 , or 11.1.3 that affects such Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 5.9 , 5.10 and 5.11 (subject to the requirements and limitations therein, including the requirements under Section 5.10.7 (it being understood that the documentation required under Section 5.10.7 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 11.8.2 ; provided that such Participant (A) agrees to be subject to the provisions of Section 5.7 and Section 5.8 as if it were an assignee under Section 11.8.2 ; and (B) shall not be entitled to receive any greater payment under Sections 5.9 or 5.10 , with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 5.7 and Section 5.8 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.2.3 as though it were a Lender; provided that such Participant agrees to be subject to Section 5.3 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “ Participant Register ”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
11.8.5.      Certain Pledges; Successors and Assigns Generally . Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
11.9.      Confidentiality .
11.9.1.      General . Each of the Administrative Agent, the Lenders and the Issuing Lender agrees to maintain the confidentiality of the Information, except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers, employees, agents, advisors and other representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by Applicable Laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and its obligations, (g) with the consent of the Borrower or (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to the Administrative Agent, any Lender, the Issuing Lender or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower or the other Loan Parties. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
11.9.2.      Sharing Information With Affiliates of the Lenders . Each Loan Party acknowledges that from time to time financial advisory, investment banking and other services may be offered or provided to the Borrower or one or more of its Affiliates (in connection with this Agreement or otherwise) by any Lender or by one or more Subsidiaries or Affiliates of such Lender and each of the Loan Parties hereby authorizes each Lender to share any information delivered to such Lender by such Loan Party and its Subsidiaries pursuant to this Agreement to any such Subsidiary or Affiliate subject to the provisions of Section 11.8.5 .
11.10.      Counterparts; Integration; Effectiveness .
11.10.1.      Counterparts; Integration; Effectiveness . This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent, constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof including any prior confidentiality agreements and commitments. Except as provided in Section 7 , this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or e-mail shall be effective as delivery of a manually executed counterpart of this Agreement.
11.11.      CHOICE OF LAW; SUBMISSION TO JURISDICTION; WAIVER OF VENUE; SERVICE OF PROCESS; WAIVER OF JURY TRIAL .
11.11.1.      Governing Law . This Agreement and the other Loan Documents and any claim, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement or any other Loan Document (except, as to any other Loan Document, as expressly set forth therein) and the transactions contemplated hereby and thereby shall be governed by, and construed in accordance with, the law of the State of New York, without regard to conflicts of law principles except Title 14 of Article 5 of the New York General Obligations law. Each Standby Letter of Credit issued under this Agreement shall be subject either to the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce (the “ ICC ”) at the time of issuance (“ UCP ”) or the rules of the International Standby Practices (ICC Publication Number 590) (“ ISP98 ”), as determined by the Issuing Lender, and each Trade Letter of Credit shall be subject to, and in each case to the extent not inconsistent therewith, the Laws of the State of New York.
11.11.2.      SUBMISSION TO JURISDICTION . THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE ISSUING LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
11.11.3.      WAIVER OF VENUE . THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN THIS SECTION 11.11. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT AND AGREES NOT ASSERT ANY SUCH DEFENSE.
11.11.4.      SERVICE OF PROCESS . EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.5. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
11.11.5.      WAIVER OF JURY TRIAL . EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, ADMINISTRATIVE AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
11.12.      USA Patriot Act Notice . Each Lender that is subject to the USA Patriot Act and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies Loan Parties that pursuant to the requirements of the USA Patriot Act, Loan Parties must provide information to Administrative Agent that enables it to verify and record information that identifies the Loan Parties, which information includes the name and address of Loan Parties and other information that will allow such Lender or Administrative Agent, as applicable, to identify the Loan Parties in accordance with the USA Patriot Act.
11.13.      No Advisory or Fiduciary Responsibility .
11.13.1.      In connection with all aspects of each transaction contemplated hereby, each Loan Party acknowledges and agrees, and acknowledges its Affiliates’ understanding, that (i) the facilities provided for hereunder and any related arranging or other services in connection therewith (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document) are an arm’s-length commercial transaction between the Borrower and its Affiliates, on the one hand, and the Administrative Agent, the Arranger and the Lenders, on the other hand, and the Borrower is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver or other modification hereof or thereof), (ii) in connection with the process leading to such transaction, each of the Administrative Agent, the Arranger and the Lenders is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary, for the Borrower or any of its Affiliates, stockholders, creditors or employees or any other Person, (iii) none of the Administrative Agent, the Arranger or the Lenders has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Borrower with respect to any of the transactions contemplated hereby or the process leading thereto, including with respect to any amendment, waiver or other modification hereof or of any other Loan Document (irrespective of whether the Arranger or any Lender has advised or is currently advising the Borrower or any of its Affiliates on other matters) and none of the Administrative Agent, the Arranger or the Lenders has any obligation to the Borrower or any of its Affiliates with respect to the financing transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents, (iv) the Arranger and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from, and may conflict with, those of the Borrower and its Affiliates, and none of the Administrative Agent, the Arranger or the Lenders has any obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship and (v) the Administrative Agent, the Arranger and the Lenders have not provided and will not provide any legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and the Loan Parties have consulted their own legal, accounting, regulatory and tax advisors to the extent they have deemed appropriate.
11.13.2.      Each Loan Party acknowledges and agrees that each Lender, the Arranger and any Affiliate thereof may lend money to, invest in, and generally engage in any kind of business with, any of the Borrower or any Affiliate thereof or any other person or entity that may do business with or own securities of any of the foregoing, all as if such Lender, Arranger or Affiliate thereof were not a Lender or Arranger or an Affiliate thereof (or an agent or any other person with any similar role under the credit facilities) and without any duty to account therefor to any other Lender, the Arranger, the Borrower or any Affiliate of the foregoing. Each Lender, the Arranger and any Affiliate thereof may accept fees and other consideration from the Borrower or any Affiliate thereof for services in connection with this Agreement, the credit facilities or otherwise without having to account for the same to any other Lender, the Arranger, the Borrower or any Affiliate of the foregoing.
11.14.      Acknowledgement and Consent to Bail-In of EEA Financial Institutions . Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender that is an EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(b)      the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Lender that is an EEA Financial Institution; and
(c)      the effects of any Bail-In Action on any such liability, including, if applicable:
(i)      a reduction in full or in part or cancellation of any such liability;
(ii)      a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(i)      the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.

[ Remainder of this page intentionally left blank. Signature pages follow. ]


I N WITNESS WHEREOF , the parties hereto , by their officer s t h e r eu nto dul y author i zed , h a v e executed t hi s Agreement as of the day and y ear first above w ritt e n .
BORROWER :
3D SYSTEMS CORPORATION,
a D e l awa re corporation
By: /s/ Andrew M. Johnson ______
Andrew M. Johnson
Executive Vice President, Chief Legal
Officer and Secretary

GUA RA NT OR S:
3 D SYS T EMS, INC.,
a Californ i a corporation
By: /s/ Andrew M. Johnson ______
Andrew M. Johnson
Executive Vice President, Chief Legal
Officer and Secretary
    
3 D HOLDINGS, LLC,
a Delaware limited liability company
By: 3D SYSTEMS CORPORATION, ITS MANAGER
By: /s/ Andrew M. Johnson ______
Andrew M. Johnson
Executive Vice President, Chief Legal
Officer and Secretary

HSBC BANK USA , NATIONAL ASSOCIATION,
as Administrative Agen t
By: /s/ Nimish Pandley ______
Nimish Pandley
Assistant Vice President

HSBC BANK USA, NATIONAL ASSOCIATION ,
as Lender
By: /s/ Taylor Beringer ______
Taylor Beringer
Vice President

PNC BANK, NATIONAL ASSOCIATION ,
as Lender

By: /s/ Atlee Martz ______
Atlee Martz
Vice President



SUNTRUST BANK ,
as Lender

By: /s/ Mary K. Lundin ______
Mary K. Lundin
Director



FIRST TENNESSEE BANK NATIONAL ASSOCIATION ,
as Lender

By: /s/ Todd Warrick ______
Todd Warrick
Senior Vice President



FIFTH THIRD BANK ,
as Lender

By: /s/ Jose A. Rosado ______
Jose A. Rosado
Senior Vice President

SCHEDULE 1.1(A)
COMMITMENTS OF LENDERS AND ADDRESSES FOR NOTICES
Page 1 of 2
Part 1 - Commitments of Lenders
Lender
Amount of Commitment for Revolving
Credit Loans
Revolving Credit Commitment
Ratable Share
HSBC Bank USA National Association
PNC Bank, National Association
SunTrust Bank
First Tennessee Bank National Association
Fifth Third Bank
$100,000,000
$100,000,000
$100,000,000
$100,000,000
$100,000,000
$27,500,000
$22,500,000
$22,500,000
$15,000,000
$12,500,000
27.5%
22.5%
22.5%
15%
12.5%
Total
$100,000,000
$100,000,000
100%

Lender

Amount of Commitment for Term Loans

Term Loan Commitment

Ratable Share
HSBC Bank USA National Association
PNC Bank, National Association
SunTrust Bank
First Tennessee Bank National Association
Fifth Third Bank
Total
$100,000,000
$100,000,000
$100,000,000
$100,000,000
$100,000,000
$100,000,000
$27,500,000
$22,500,000
$22,500,000
$15,000,000
$12,500,000
$100,000,000
27.5%
22.5%
22.5%
15%
12.5%
100%
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

SCHEDULE 1.1(A)
COMMITMENTS OF LENDERS AND ADDRESSES FOR NOTICES
Page 2 of 2
Part 2 - Addresses for Notices to Borrower and Guarantors:
ADMINISTRATIVE AGENT
Name: HSBC Bank USA, National Association
Address: 452 Fifth Avenue
New York, NY 10018
Attention: Keisha McLaughlin
Telephone: (212) 525-7253/ (212) 525-1529
Telecopy: (917) 229-6659
Electronic Mail: ctlany.loanagency@us.hsbc.com

BORROWER AND EACH GUARANTOR:
Name: 3D Systems Corporation
Address: 333 Three D Systems Circle
Rock Hill, SC 29730
Attention: Vice President, Chief Legal Officer and Secretary
Telephone:
(803) 326-4003
Telecopy:
(803) 326-4796
Electronic Mail: Andrew.johnson@3dsystems.com


Schedule 1.1(B)
Permitted Liens
Debtor
Current
Secured Party
Location/Lien Type
Filing Number
Filing Date
Description of Collateral/Tax
3D Systems, Inc.
Bank of the West

and

Winthrop Resources Corporation
CA-SOS

UCC
157500965927
12/23/2015
Winthrop Resources Corporation is the owner of any and all of the assets and property, including, but not limited to, and all of the hardware, equipment, furniture, fixtures, intangibles, licenses and/or software, contained in the filing.

Lease Agreement Number TH120215

 
 
 
 
 
 
3D Systems, Inc.
Bank of the West

CA-SOS

UCC
167506681292
01/28/2016
Lease Agreement # TH120215 Lease Schedule # OOlR and scheduled attached to UCC.
 
 
 
 
 
 
3D Systems, Inc.
U.S. Bank Equipment Finance
CA-SOS

UCC
167558920043
12/01/2016
4 Copiers together with all replacements, parts, repairs, additions, accessions and accessories incorporated therein or affixed or attached thereto and any and all proceeds of the foregoing, including without limitation, insurance recoveries.


Schedule 1.1(C)
Material Subsidiaries
Legal Entity
Jurisdiction
3D Systems, Inc.
California
Layerwise NV
Belgium
3D Systems GmbH
Germany
Vertex-Dental B.V.
The Netherlands
3D Systems S.A.
Switzerland
Cimatron Ltd.
Israel
Simbionix USA Corporation
Ohio


Schedule 6.1.2
Subsidiaries
Name
Jurisdiction of Incorporation
% Owned

3D Canada Company
Canada
100%
3D Holdings, LLC
Delaware
100%
3D Systems S.A.
Switzerland
100%
3D Systems, Inc.
California
100%
3D European Holdings Ltd.
United Kingdom
100%
3D Latam LLC
Delaware
100%
3D Systems Asia-Pacific Pty Ltd
Australia
100%
3D Systems Benelux B.V.
The Netherlands
100%
3D Systems Corporation
Delaware
100%
3D Systems Europe Ltd.
United Kingdom
100%
3D Systems France SARL
France
100%
3D Systems GmbH
Germany
100%
3D Systems Hong Kong Co., Limited
Hong Kong
100%
3D Systems India, Inc.
Delaware
100%
3D Systems Italia S.r.l.
Italy
100%
3D Systems Industria E Comercio LTDA
Brazil
100%
3D Systems Japan K.K.
Japan
100%
3D Systems Korea, Inc.
Korea
100%
3D Systems Software GmbH

Germany
100%
3D Systems Software srl
Italy
100%
3D Systems, S.A. de C.V.
Mexico
100%
AMT, Inc.
Delaware
100%
Beijing Suntop Technology Co., Ltd.
China
100%
botObjects Ltd
United Kingdom
100%
Cimatron Ltd.
Israel
100%
Cimatron (Beijing) Technologies Co. Ltd.
China
100%
Cimatron Technologies India Pvt. Ltd.
India
100%
Cimatron Technologies, Inc. (Canada)
Canada
100%
Cimatron Technologies, Inc. (USA)
Michigan
100%
Cimatron Gibbs LLC
California
100%
Cimatron SARL
France
100%
Gentle Giant Studios, Inc.
California
100%
Geomagic (Shanghai) Software Co., Ltd.
Shanghai, China
100%
Geomagic, Inc.
Delaware
100%
Korea Cimatron Technologies
Korea
100%
LayerWise NV
Belgium
100%
LayerWise, Inc.
Delaware
100%
Medical Modeling Inc.
Colorado
100%
NextDent B.V.
The Netherlands
100%
OptoForm LLC
Delaware
100%
Phenix Systems
France
100%
Product Development Group LLC
Delaware
100%
Quickparts.com, Inc.
Delaware
100%
Rapidform, Inc.
California
100%
Robtec Ltda
Uruguay
70%
Shanghai Forever Technology & Development Co., Ltd.
China
100%
Simbionix Ltd.
Israel
100%
Simbionix USA Corporation
Ohio
100%
Sint-Tech
France
100%
Three D Sycode India Private Limited
India
100%
Vertex-Dental B.V.
The Netherlands
100%
Vertex-Dental Asia PTE Ltd
The Netherlands
100%
Vertex-Global Holding B.V.
The Netherlands
100%
Vertex International B.V.
The Netherlands
100%
VIDAR Systems Corporation
Virginia
100%
Wuxi Easyway Model Design & Manufacture Co, Ltd.
China
100%
Wuxi Hengxinda Science and Technology Development Co., Ltd.(b)
China
100%
Z Corporation
Massachusetts
100%

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 


Schedule 6.1.14
Environmental Matters
None.


Schedule 8.2.1
Existing Indebtedness
1.
Real Property Lease Agreement dated February 8, 2006, as amended, between Lex Rock Hill LP and 3D Systems Corporation for the office at 333 Three D Systems Circle, Rock Hill, SC 29730, assigned on September 28, 2017 from Lex Rock Hill LP to 3D Fields LLC.
2.
Equipment leases between LayerWise NV and KBC Bank NV.
3.
Equipment leases between LayerWise NV and ES Finance NV.

EXHIBIT 1.1(A)
FORM OF
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption (the “ Assignment and Assumption ”) is dated as of the Effective Date set forth below and is entered into by and between [the][each] Assignor identified in item 1 below ([the][each, an] “ Assignor ”) and [the][each] Assignee identified in item 2 below ([the][each, an] “ Assignee ”). [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees] hereunder are several and not joint.] Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the “ Credit Agreement ”), receipt of a copy of which is hereby acknowledged by [the][each] Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.

For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors] under the respective facilities identified below (including without limitation any letters of credit, guarantees, and swingline loans included in such facilities), and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “ Assigned Interest ”). Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by [the][any] Assignor.

1.    Assignor[s]:        ________________________________

______________________________
    

2.
Assignee[s]:         ______________________________

______________________________
[Assignee is an [Affiliate][Approved Fund] of [ identify Lender ]

3.
Borrower(s):        ______________________________

4.
Administrative Agent:    HSBC BANK USA, NATIONAL ASSOCIATION, as the administrative agent under the Credit Agreement

5.
Credit Agreement:    The Credit Agreement dated as of February 27, 2019 (as amended, amended and restated, supplemented or otherwise modified from time to time), among 3D Systems Corporation, the Guarantors party thereto, the Lenders party thereto, HSBC Bank USA, National Association, as the Administrative Agent

6.
Assigned Interest[s]:

Assignor[s]
Assignee[s]
Facility Assigned
Aggregate Amount of Commitment/Loans for all Lenders
Amount of Commitment/Loans Assigned 8
Percentage Assigned of Commitment/
Loans
CUSIP Number
 
 
 
$
$
%
 
 
 
 
$
$
%
 
 
 
 
$
$
%
 

[7.
Trade Date:    ______________]

Effective Date:                  , 20      [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR[S]
[NAME OF ASSIGNOR]


By:______________________________
Name:
Title:

[NAME OF ASSIGNOR]


By:______________________________
Name:
Title:

ASSIGNEE[S]
[NAME OF ASSIGNEE]


By:______________________________
Name:
Title:

[NAME OF ASSIGNEE]


By:______________________________
Name:
Title:


Consented to and Accepted:

HSBC BANK USA, NATIONAL ASSOCIATION, as
Administrative Agent

By: _________________________________
Name:
Title:

Consented to:

[HSBC BANK USA, NATIONAL ASSOCIATION], as
Issuing Lender

By: ________________________________
Name:
Title:

[PNC BANK NATIONAL ASSOCIATION], as
Issuing Lender

By: ________________________________
Name:
Title:

Consented to:

[3D SYSTEMS CORPORATION, a Delaware corporation]


By: ________________________________
Name:
Title:



ANNEX 1
____________
CREDIT FACILITY
STANDARD TERMS AND CONDITIONS
FOR ASSIGNMENT AND ASSUMPTION
1.     Representations and Warranties .
1.1     Assignor[s] . [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and (iv) it is not a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document, or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.

1.2.     Assignee[s] . [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee under Section [ Successors and Assigns ] of the Credit Agreement (subject to such consents, if any, as may be required thereunder), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 8.3 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) if it is a Foreign Lender attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.

2.     Payments . From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective Date. Notwithstanding the foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after the Effective Date to [the][the relevant] Assignee.

3.     General Provisions . This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption . This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.


EXHIBIT 1.1(G)
FORM OF
JOINDER AND ASSUMPTION AGREEMENT
THIS JOINDER AGREEMENT (the “ Agreement ”) dated as of _____________, 201_ is by and between __________, a __________ (the “ New Subsidiary ”), and HSBC Bank USA, National Association, in its capacity as Administrative Agent under that certain Credit Agreement dated as of February 27, 2019 (as amended, amended and restated, modified, supplemented or extended from time to time, the “ Credit Agreement ”) among 3D Systems Corporation, a Delaware corporation (the “ Borrower ”), the Guarantors from time to time party thereto, the Lenders from time to time party thereto and HSBC Bank USA, National Association, as Administrative Agent. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.
The Loan Parties are required by Section 8.1.9 of the Credit Agreement to cause the New Subsidiary to become a “Guarantor” thereunder. Accordingly, the New Subsidiary hereby agrees as follows with the Administrative Agent, for the benefit of the holders of the Obligations:
1.    The New Subsidiary hereby acknowledges, agrees and confirms that, by its execution of this Agreement, the New Subsidiary will be deemed to be a party to the Credit Agreement and a “Guarantor” for all purposes of the Credit Agreement, and shall have all of the obligations of a Guarantor thereunder as if it had executed the Credit Agreement. The New Subsidiary hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions applicable to the Guarantors contained in the Credit Agreement.
2.    The New Subsidiary hereby represents and warrants to the Administrative Agent, the Lenders that:
(a)    The New Subsidiary’s exact legal name and jurisdiction of formation, incorporation or organization are as set forth on the signature pages hereto.
(b)    The New Subsidiary’s taxpayer identification number and organization number (or, in each case, its foreign equivalent) are set forth on Schedule 1 hereto.
(c)     Schedule 2 hereto includes each Subsidiary of the New Subsidiary, including (i) jurisdiction of formation, (ii) number of shares of each class of Equity Interests outstanding, (iii) percentage of outstanding shares of each class owned by the New Subsidiary (directly or indirectly) of such Equity Interests and (iv) number and effect, if exercised, of all outstanding options, warrants, rights of conversion or purchase and all other similar rights with respect thereto.
3.    The address of the New Subsidiary for purposes of all notices and other communications is the address designated for all Loan Parties on Schedule 1.1(A) to the Credit Agreement or such other address as the New Subsidiary may from time to time notify the Administrative Agent in writing.
4.    This Agreement may be executed in multiple counterparts, each of which shall constitute an original but all of which when taken together shall constitute one contract.
5.    THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

[SIGNATURE PAGES FOLLOW]


IN WITNESS WHEREOF, the New Subsidiary has caused this Joinder Agreement to be duly executed by its authorized officer, and the Administrative Agent, for the benefit of the holders of the Obligations, has caused the same to be accepted by its authorized officer, as of the day and year first above written.
[NEW SUBSIDIARY]
By:     
Name:
Title:
Acknowledged and accepted:
HSBC BANK USA, NATIONAL ASSOCIATION
as Administrative Agent
By:     
Name:
Title:



Schedule 1
Taxpayer Identification Number; Organizational Number


Schedule 2
Equity Interests


EXHIBIT 1.1(N)(1)
FORM OF
REVOLVING CREDIT NOTE
$          _____________, 20__
FOR VALUE RECEIVED, the undersigned, 3D SYSTEMS CORPORATION, a Delaware corporation (herein called the “ Borrower ”), hereby promises to pay to the order of ______________________ (the “ Lender ”), the lesser of (i) the principal sum of _____________________________________________________ (US $ __________), or (ii) the aggregate unpaid principal balance of all Revolving Credit Loans made by the Lender to the Borrower pursuant to the Credit Agreement, dated as of February 27, 2019, among the Borrower, the Guarantors now or hereafter party thereto, the Lenders now or hereafter party thereto and HSBC Bank USA, National Association, as the Administrative Agent (the “ Administrative Agent ”) (as amended, amended and restated, modified, or supplemented from time to time, the “ Credit Agreement ”), payable on the Revolving Credit Maturity Date, together with interest on the unpaid principal balance hereof from time to time outstanding from the date hereof at the rate or rates per annum specified by the Borrower pursuant to, or as otherwise provided, in the Credit Agreement.
Interest on the unpaid principal balance hereof from time to time outstanding from the date hereof will be payable at the times provided for in the Credit Agreement. Upon the occurrence and during the continuation of an Event of Default, if required by the Credit Agreement, the Borrower shall pay interest on the entire principal amount of the then outstanding Revolving Credit Loans evidenced by this Revolving Credit Note and all other obligations due and payable to the Lender pursuant to the Credit Agreement and the other Loan Documents at a rate per annum as set forth in Section 4.1 of the Credit Agreement. Such interest rate will accrue before and after any judgment has been entered.
Subject to the provisions of the Credit Agreement, payments of both principal and interest shall be made without setoff, counterclaim, or other deduction of any nature at the office of the Administrative Agent as provided under the Credit Agreement unless otherwise directed in writing by the holder hereof Administrative Agent, in lawful money of the United States of America in immediately available funds.
This Note is one of the Revolving Credit Notes referred to in, and is entitled to the benefits of, the Credit Agreement and the other Loan Documents, including the representations, warranties, covenants and conditions contained or granted therein. The Credit Agreement, among other things, contains provisions for acceleration of the maturity hereof upon the happening of certain stated events and also for prepayments, in certain circumstances, on account of principal hereof prior to maturity upon the terms and conditions therein specified. To the extent permitted by applicable law, the Borrower waives presentment, demand, notice, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Note and the Credit Agreement.
This Note shall bind the Borrower and its successors and assigns, and the benefits hereof shall inure to the benefit of the Lender and its successors and permitted assigns. All references herein to the “Borrower” and the “Lender” shall be deemed to apply to the Borrower and the Lender, respectively, and their respective successors and assigns as permitted under the Credit Agreement.
This Note and any other documents delivered in connection herewith and the rights and obligations of the parties hereto and thereto shall for all purposes be governed by and construed and enforced in accordance with the internal laws of the State of New York.
All capitalized terms used herein shall, unless otherwise defined herein, have the same meanings given to such terms in the Credit Agreement.
[SIGNATURES APPEARS ON THE FOLLOWING PAGE]

IN WITNESS WHEREOF, and intending to be legally bound hereby, the undersigned has

executed this Note by its duly authorized officer with the intention that it constitute a sealed instrument.
BORROWER:
3D SYSTEMS CORPORATION
By:     
Name:
    
Title:
    


EXHIBIT 1.1(N)(2)
FORM OF
SWING LOAN NOTE
$15,000,000.00    _______________, 2019
FOR VALUE RECEIVED, the undersigned, 3D SYSTEMS CORPORATION, a Delaware corporation (herein called the “ Borrower ”), hereby promises to pay to the order of HSBC BANK USA, NATIONAL ASSOCIATION (the “ Lender ”), the lesser of (i) the principal sum of FIFTEEN MILLION AND 00/100 DOLLARS (US$15,000,000.00), or (ii) the aggregate unpaid principal balance of all Swing Loans made by the Lender to the Borrower pursuant to the Credit Agreement, dated as of February 27, 2019, among the Borrower, the Guarantors now or hereafter party thereto, the Lenders now or hereafter party thereto and HSBC Bank USA, National Association, as the Administrative Agent (the “ Administrative Agent ”) (as amended, amended and restated, modified, or supplemented from time to time, the “ Credit Agreement ”), payable at the place and time provided in the Credit Agreement, together with interest on the unpaid principal balance hereof from time to time outstanding from the date hereof at the rate or rates per annum specified by the Borrower pursuant to, or as otherwise provided, in the Credit Agreement.
Interest on the unpaid principal balance hereof from time to time outstanding from the date hereof will be payable at the times provided for in the Credit Agreement. Upon the occurrence and during the continuation of an Event of Default, if required by the Credit Agreement, the Borrower shall pay interest on the entire principal amount of the then outstanding Swing Loans evidenced by this Swing Loan Note and all other obligations due and payable to the Lender pursuant to the Credit Agreement and the other Loan Documents at a rate per annum as set forth in Section 4.1 of the Credit Agreement. Such interest rate will accrue before and after any judgment has been entered.
Subject to the provisions of the Credit Agreement, payments of both principal and interest shall be made without setoff, counterclaim, or other deduction of any nature at the office of the Administrative Agent provided in the Credit Agreement, unless otherwise directed in writing by the holder hereof Administrative Agent, in lawful money of the United States of America in immediately available funds.
This Note is one of the Swing Loan Notes referred to in, and is entitled to the benefits of, the Credit Agreement and the other Loan Documents, including the representations, warranties, covenants and conditions contained or granted therein. The Credit Agreement, among other things, contains provisions for acceleration of the maturity hereof upon the happening of certain stated events and also for prepayments, in certain circumstances, on account of principal hereof prior to maturity upon the terms and conditions therein specified. To the extent permitted by applicable law, the Borrower waives presentment, demand, notice, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Note and the Credit Agreement.
This Note shall bind the Borrower and its successors and assigns, and the benefits hereof shall inure to the benefit of the Lender and its successors and permitted assigns. All references herein to the “Borrower” and the “Lender” shall be deemed to apply to the Borrower and the Lender, respectively, and their respective successors and assigns as permitted under the Credit Agreement.
This Note and any other documents delivered in connection herewith and the rights and obligations of the parties hereto and thereto shall for all purposes be governed by and construed and enforced in accordance with the internal laws of the State of New York.
All capitalized terms used herein shall, unless otherwise defined herein, have the same meanings given to such terms in the Credit Agreement.
[SIGNATURES APPEARS ON THE FOLLOWING PAGE]

IN WITNESS WHEREOF, and intending to be legally bound hereby, the undersigned has

executed this Note by its duly authorized officer with the intention that it constitute a sealed instrument.
BORROWER:
3D SYSTEMS CORPORATION
By:     
Name:
    
Title:


EXHIBIT 1.1(N)(3)
FORM OF
TERM LOAN NOTE
$     __     _________, 20__
FOR VALUE RECEIVED, the undersigned, 3D SYSTEMS CORPORATION, a Delaware corporation (herein called the “ Borrower ”), hereby promises to pay to the order of __________________________ (the “ Lender ”), the lesser of (i) the principal sum of ___________________________________________ (US $ _________________), or (ii) the aggregate unpaid principal balance of all Term Loans made by the Lender to the Borrower pursuant to the Credit Agreement, dated as of February 27, 2019, among the Borrower, the Guarantors now or hereafter party thereto, the Lenders now or hereafter party thereto and HSBC Bank USA, National Association, as the Administrative Agent (the “ Administrative Agent ”) (as amended, amended and restated, modified, or supplemented from time to time, the “ Credit Agreement ”), payable on the Term Loan Maturity Date, together with interest on the unpaid principal balance hereof from time to time outstanding from the date hereof at the rate or rates per annum specified by the Borrower pursuant to, or as otherwise provided, in the Credit Agreement.
Interest on the unpaid principal balance hereof from time to time outstanding from the date hereof will be payable at the times provided for in the Credit Agreement. Upon the occurrence and during the continuation of an Event of Default, if required by the Credit Agreement, the Borrower shall pay interest on the entire principal amount of the then outstanding Term Loans evidenced by this Term Loan Note and all other obligations due and payable to the Lender pursuant to the Credit Agreement and the other Loan Documents at a rate per annum as set forth in Section 4.1 of the Credit Agreement. Such interest rate will accrue before and after any judgment has been entered.
Subject to the provisions of the Credit Agreement, payments of both principal and interest shall be made without setoff, counterclaim, or other deduction of any nature at the office of the Administrative Agent as provided under the Credit Agreement unless otherwise directed in writing by the holder hereof Administrative Agent, in lawful money of the United States of America in immediately available funds.
This Note is one of the Term Loan Notes referred to in, and is entitled to the benefits of, the Credit Agreement and the other Loan Documents, including the representations, warranties, covenants and conditions contained or granted therein. The Credit Agreement, among other things, contains provisions for acceleration of the maturity hereof upon the happening of certain stated events and also for prepayments, in certain circumstances, on account of principal hereof prior to maturity upon the terms and conditions therein specified. To the extent permitted by applicable law, the Borrower waives presentment, demand, notice, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Note and the Credit Agreement.
This Note shall bind the Borrower and its successors and assigns, and the benefits hereof shall inure to the benefit of the Lender and its successors and permitted assigns. All references herein to the “Borrower” and the “Lender” shall be deemed to apply to the Borrower and the Lender, respectively, and their respective successors and assigns as permitted under the Credit Agreement.
This Note and any other documents delivered in connection herewith and the rights and obligations of the parties hereto and thereto shall for all purposes be governed by and construed and enforced in accordance with the internal laws of the State of New York.
All capitalized terms used herein shall, unless otherwise defined herein, have the same meanings given to such terms in the Credit Agreement.
[SIGNATURES APPEARS ON THE FOLLOWING PAGE]

IN WITNESS WHEREOF, and intending to be legally bound hereby, the undersigned has

executed this Note by its duly authorized officer with the intention that it constitute a sealed instrument.
BORROWER:
3D SYSTEMS CORPORATION
By:     
Name:
    
Title:
    

EXHIBIT 2.5.1
FORM OF
REVOLVING/TERM/SWING LOAN REQUEST
TO:
Name: HSBC Bank USA, National Association
Address: 452 Fifth Avenue
New York, NY 10018
Attention: Keisha McLaughlin
Telephone: (212) 525-7253/ (212) 525-1529
Telecopy: (917) 229-6659
Electronic Mail: ctlany.loanagency@us.hsbc.com

FROM:        3D Systems Corporation, a Delaware corporation (the “ Borrower ”)

RE:
Credit Agreement (as it may be amended, amended and restated, modified or supplemented, the “ Agreement ”) dated as of February 27, 2019 by and among the Borrower, the Guarantors now and hereafter party thereto, the Lenders now and hereafter party thereto and HSBC Bank USA, National Association, as the Administrative Agent (the “ Administrative Agent ”)

Capitalized terms not otherwise defined herein shall have the respective meanings ascribed to them by the Agreement.

A.
Pursuant to Section [2.5.1][2.5.2] of the Agreement, the undersigned Borrower irrevocably requests [check one line under 1(a) below and fill in blank space next to the line as appropriate]:

1.(a)
__ A new [Revolving Credit Loan][Term Loan][Swing Loan] OR

__ Renewal of the LIBOR Rate Option applicable to an outstanding [Revolving Credit Loan][Term Loan] , originally made on _________ __, ____ OR
__ Conversion of the Base Rate Option applicable to an outstanding [Revolving Credit Loan][Term Loan] originally made on ______________ to a Loan to which the LIBOR Rate Option applies, OR
__ Conversion of the LIBOR Rate Option applicable to an outstanding [Revolving Credit Loan][Term Loan] originally made on ___________ __, ___ to a Loan to which the Base Rate Option applies.
SUCH NEW, RENEWED OR CONVERTED LOAN SHALL BEAR INTEREST:
[Check one line under 1(b) below and fill in blank spaces in line next to line]:
1.(b)(i) __
Under the Base Rate Option. Such Loan shall have a Borrowing Date of ____________, __ (which date shall be (i) be (1) one Business Day subsequent to the Business Day of receipt by the Bank by 10:00 a.m. of this Loan Request for making a new [Revolving Credit Loan][Term Loan][Swing Loan] to which the Base Rate Option applies, or (ii) the last day of the preceding Interest Period if a [Revolving Credit Loan][Term Loan] to which the LIBOR Rate Option applies is being converted to a Loan to which the Base Rate Option applies).
OR
(ii) __
Under the LIBOR Rate Option. Such Loan shall have a Borrowing Date of _____________ (which date shall be (i) (3) three Business Days subsequent to the Business Day of receipt by the Bank by 10:00 a.m. of this Loan Request for making a new [Revolving Credit Loan][Term Loan] to which the LIBOR Rate Option applies, renewing a Loan to which the LIBOR Rate Option applies, or converting a Loan to which the Base Rate Option applies to a Loan to which the LIBOR Rate Option applies, or (ii) the same Business Day as the last day of the preceding Interest Period if a [Revolving Credit Loan][Term Loan] to which the LIBOR Rate Option applies is being convert to a Loan to which the Base Rate Option applies).
2.
Such Loan is in the principal amount of U.S. $____________ or the principal amount to be renewed or converted is U.S. $______________
not to be less than $ 5,000,000 and in increments of $ 1,000,000 for each Borrowing Tranche to which the LIBOR Rate Option applies and not less than $ 1,000,000 and in increments of $ 500,000 for each Borrowing Tranche to which the Base Rate Option applies
3.
[Complete blank below if the Borrower is selecting the LIBOR Rate Option]:

Such Loan shall have an Interest Period of [one Month, two Months, three Months, or six Months].
__________________________________
B.
As of the date hereof and the date of making of the above-requested Loan (and after giving effect thereto): the Loan Parties have performed and complied with all covenants and conditions of the Agreement; the representations and warranties of the Loan Parties set forth in the Loan Documents are true and correct in all material respects (except to the extent already qualified by materiality, in which case any such representation or warranty is true and correct in all respects), other than to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (except to the extent already qualified by materiality, in which case any such representation or warranty is true and correct in all respects) as of such earlier date; no Default or Event of Default has occurred and is continuing; and the making of such Loan shall not violate any Law applicable to any Loan Party or Subsidiary of any Loan Party or any of the Lenders.
[SIGNATURE PAGE FOLLOWS]


[SIGNATURE PAGE 1 OF 1 TO LOAN REQUEST]
The undersigned certifies to the Administrative Agent, solely in such person’s capacity as an

officer of the Borrower and not in such person’s individual capacity, as to the accuracy of the foregoing.
BORROWER:
3D SYSTEMS CORPORATION
By:     
Name:
    
Title:
Date: _________, 20__


EXHIBIT 5.10.7(A)
FORM OF
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of February 27, 2019 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among 3D Systems Corporation, a Delaware corporation, the Guarantors from time to time party thereto, HSBC Bank USA, National Association, as Administrative Agent, and each lender from time to time party thereto.
Pursuant to the provisions of Section 5.10.7 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a “ten percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF LENDER]
By:     
Name:

    Title:
Date: ________ __, 20[ ]


EXHIBIT 5.10.7(B)
FORM OF
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of February 27, 2019 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among 3D Systems Corporation, a Delaware corporation, the Guarantors from time to time party thereto, HSBC Bank USA, National Association, as Administrative Agent, and each lender from time to time party thereto.
Pursuant to the provisions of Section 5.10.7 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a “ten percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF PARTICIPANT]
By:     
Name:

    Title:
Date: ________ __, 20[ ]


EXHIBIT 5.10.7(C)
FORM OF
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of February 27, 2019 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among 3D Systems Corporation, a Delaware corporation, the Guarantors from time to time party thereto, HSBC Bank USA, National Association, as Administrative Agent, and each lender from time to time party thereto.
Pursuant to the provisions of Section 5.10.7 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a “bank” extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a “ten percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF PARTICIPANT]
By:     
Name:

    Title:
Date: ________ __, 20[ ]



EXHIBIT 5.10.7(D)
FORM OF
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of February 27, 2019 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among 3D Systems Corporation, a Delaware corporation, the Guarantors from time to time party thereto, HSBC Bank USA, National Association, as Administrative Agent, and each lender from time to time party thereto.
Pursuant to the provisions of Section 5.10.7 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a “bank” extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a “ten percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF LENDER]
By:     
Name:

    Title:
Date: ________ __, 20[ ]


EXHIBIT 8.2.1(G)
FORM OF
MASTER INTERCOMPANY PROMISSORY NOTE
(this "Note")


February 27, 2019
Rock Hill, South Carolina


FOR VALUE RECEIVED , 3D System, Inc., a California corporation (the "Maker" ) promises to pay on demand to the lenders listed on Schedule 1 attached hereto (each, individually, in its capacity as a lender hereunder is referred to herein as a "Payee" and, collectively, the "Payees" ) the principal amount of all advances made by any such Subsidiary to the Maker from time to time outstanding.

The Maker also promises to pay interest from time to time on the principal amount outstanding under this Note at a rate per annum as shall be agreed upon from time to time by the Maker and each Payee.

Reference is hereby made to that certain Credit Agreement dated as of the date hereof (as amended, amended and restated, supplemented or otherwise modified, the “ Credit Agreement ”), entered into by and among 3D Systems Corporation, as a borrower, the Maker, as a guarantor, the other guarantors party thereto from time to time, the lenders party thereto from time to time (each individually referred to herein as a “ Lender ” and collectively as “ Lenders ”), and HSBC Bank USA, National Association, as administrative agent for Lenders (in such capacity, “ Administrative Agent ”). Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Credit Agreement.

All payments of principal and interest in respect of this Note shall be made on demand in lawful money of the United States of America, unless otherwise agreed upon by the Maker and any Payee, in same day funds to the account of the applicable Payee located at such place as shall be designated in writing for such purpose.

By acceptance of this Note, each Payee acknowledges and agrees that any and all obligations of the Maker under this Note to such Payee shall be subordinate in right of payment to the payment in full of the Obligations under the Credit Agreement; provided , that so long as no Default or Event of Default has occurred and is continuing, the Maker may make payments to such Payee at any time or times and the Maker will not make any payment to such Payee if a Default or Event of Default has occurred and is continuing. Upon any distribution to creditors of the Maker in a liquidation or dissolution of the Maker in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the Maker or its property, in an assignment for the benefit of creditors or any marshalling of the Maker's assets and liabilities, (i) holders of the Obligations under the Credit Agreement are entitled to receive payment in full of all obligations due in respect of such Obligations (including interest after the commencement of any such proceeding at the rate specified in the Indebtedness to which such Obligations relate) before any Payee shall be entitled to receive any payment with respect to this Note; and (ii) until all Obligations are paid in full, any distribution to which any Payee would be entitled but for this paragraph shall be made to holders entitled to the benefit of the Obligations, as their interests may appear.

Whenever any payment on this Note shall be declared to be due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time shall be included in the computation of the payment of interest on this Note.

So long as no Default or Event of Default has occurred and is continuing, the obligations of the Maker arising under this Note may be prepaid in whole or in part at any time without penalty or premium.

In no event shall any interest be payable under this Note to the extent that the payment thereof would be prohibited by Applicable Law.

The Maker hereby acknowledges and agrees that this Note amends and restates in its entirety each and every other promissory note heretofore executed by the Maker in favor of such Payee.

THE MAKER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON THIS NOTE. THE MAKER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PAYEE TO ACCEPT THIS NOTE.

The right to plead any and all statutes of limitations as a defense to demand hereunder is hereby waived to the extent permitted by law. The Maker, for itself and its successors and assigns, waives presentment, protest and notice thereof or of dishonor, and waives the right to be released by reason of any extension of time or change in the terms of payment or any change, alteration or release of any security given for the payment hereof.

THIS NOTE SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAWS OF THE STATE OF NEW YORK) WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.


[Remainder of page intentionally left blank]



IN WITNESS WHEREOF, the Maker has caused this Note to be duly executed and delivered by its duly authorized officer or authorized representative, as of the day and year and at the place first written above.


3D SYSTEMS, INC.


By: ________________________________
Name:
Title:


Schedule 1

Payees

1.
3D Canada Company
2.
3D Systems S.A.
3.
3D European Holdings Ltd.
4.
3D Latam LLC
5.
3D Systems Asia-Pacific Pty Ltd
6.
3D Systems Benelux B.V.
7.
3D Systems Europe Ltd.
8.
3D Systems France SARL
9.
3D Systems GmbH
10.
3D Systems Hong Kong Co., Limited
11.
3D Systems India, Inc.
12.
3D Systems Italia S.r.l.
13.
3D Systems Industria E Comercio LTDA
14.
3D Systems Japan K.K.
15.
3D Systems Korea, Inc.
16.
3D Systems Software GmbH
17.
3D Systems Software srl
18.
3D Systems, S.A. de C.V.
19.
AMT, Inc.
20.
Beijing Suntop Technology Co., Ltd.
21.
botObjects Ltd
22.
Cimatron Ltd.
23.
Cimatron (Beijing) Technologies Co. Ltd.
24.
Cimatron Technologies India Pvt. Ltd.
25.
Cimatron Technologies, Inc. (Canada)
26.
Cimatron Technologies, Inc. (USA)
27.
Cimatron Gibbs LLC
28.
Cimatron SARL
29.
Gentle Giant Studios, Inc.
30.
Geomagic (Shanghai) Software Co., Ltd.
31.
Geomagic, Inc.
32.
Korea Cimatron Technologies
33.
LayerWise NV
34.
LayerWise, Inc.
35.
Medical Modeling Inc.
36.
NextDent B.V.
37.
OptoForm LLC
38.
Phenix Systems
39.
Product Development Group LLC
40.
Quickparts.com, Inc.
41.
Rapidform, Inc.
42.
Robtec Ltda
43.
Shanghai Forever Technology & Development Co., Ltd.
44.
Simbionix Ltd.
45.
Simbionix USA Corporation
46.
Sint-Tech
47.
Three D Sycode India Private Limited
48.
Vertex-Dental B.V.
49.
Vertex-Dental Asia PTE Ltd
50.
Vertex-Global Holding B.V.
51.
Vertex International B.V.
52.
VIDAR Systems Corporation
53.
Wuxi Easyway Model Design & Manufacture Co, Ltd.
54.
Wuxi Hengxinda Science and Technology Development Co., Ltd.(b)
55.
Z Corporation

EXHIBIT 8.3.3
FORM OF
COMPLIANCE CERTIFICATE
This certificate is delivered pursuant to Section 8.3.3 of that certain Credit Agreement dated as of February 27, 2019 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”) by and among 3D Systems Corporation, a Delaware corporation (the “ Borrower ”), the Guarantors from time to time party thereto (the “ Guarantors ”), the Lenders from time to time party thereto (the “ Lenders ”) and HSBC Bank USA, National Association, as administrative agent for the Lenders (the “ Administrative Agent ”). Unless otherwise defined herein, terms defined in the Credit Agreement are used herein with the same meanings.
The undersigned officer,                  , the          [ President/Chief Executive Officer/Chief Financial Officer ] of the Borrower, does hereby certify, solely in such person’s capacity as an officer of the Borrower and not in such person’s individual capacity, as of the quarter/year ended      , 20      (the “ Report Date ”), as follows:

1.     Maximum Consolidated Total Leverage Ratio (Section 8.2.14). As of the Report Date, the Maximum Consolidated Total Leverage Ratio (as calculated on Schedule 1 ) of _.__ to 1.00 is not greater than (a) 3.50 to 1.00 for the fiscal period ending March 31, 2019 through and including the fiscal quarter ending December 31, 2020, (b) 3.25 to 1.00 for the fiscal quarter ending March 31, 2021 through and including the fiscal quarter ending December 31, 2021, and (c) thereafter, 3.00 to 1.00, in each case as required in Section 8.2.14 of the Credit Agreement.
[2.     Minimum Interest Coverage Ratio (Section 8.2.15). As of the Report Date, the Consolidated Interest Coverage Ratio (as calculated on Schedule 1 ) of _.__ to 1.00 is not less than 3.50 to 1.00 as required in Section 8.2.15 of the Credit Agreement.]
[2.][3.] Default or Event of Default . No Default or Event of Default has occurred and is continuing or exists as of the date hereof.


[3.][4.] Additional Collateral . [SELECT ONE] [Attached hereto as Schedule 2 is the] -- OR -- [There is no] additional Collateral required to be disclosed in Annex III , IV , V , VI , VII or VIII of the Security Agreement from the Closing Date or from the date the most recent Compliance Certificate has been delivered.


[[4.][5.] Intellectual Property . Attached hereto as Schedule [2][3], for the fiscal quarter ended __, 20__, is a list of any application or registration relating to any item of the Intellectual Property (as defined in the Security Agreement) with a fair market value in excess of $500,000, which could reasonably be expected to become abandoned, dedicated to the public, placed in the public domain, invalid or unenforceable, or of any adverse final, unappealable determinations (including the institution of, or any final determination in, any proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any foreign counterpart thereof or any court) regarding the applicable Loan Party’s ownership of any item of the Intellectual Property with a fair market value in excess of $500,000, its right to register the same or to keep, maintain and enforce the same.]
[SIGNATURES FOLLOW]


SIGNATURE PAGE 1 OF 1 TO
COMPLIANCE CERTIFICATE
IN WITNESS WHEREOF, the undersigned has executed this Certificate this ____ day of _____________, 20__.
BORROWER:
3D SYSTEMS CORPORATION
By:     
Name:
    
Title:



Schedule 1
Calculations of Financial Covenants
1.    Consolidated EBITDA
(i)
net income
$_____________
(ii)
to the extent deducted in determining net income for such period
 
 
(a)
Depreciation and amortization
$_____________
 
(b)
other non-cash charges to net income and non-cash expenses (including, but not limited to, non-cash stock-based compensation expenses)
$_____________
 
(c)
interest expense
$_____________
 
(d)
income tax expense
$_____________
 
(e)
one time and non-recurring third-party transaction fees, costs, and expenses directly incurred and paid in cash in connection with the consummation of any Permitted Acquisition or other Investment permitted under Section 8.2.4 of the Credit Agreement
$_____________
 
(f)
one time and non-recurring cash consolidation or restructuring charges, integration costs and Costs Savings and Synergies incurred in connection with any Permitted Acquisition or other Investment permitted under Section 8.2.4 of the Credit Agreement and which Cost Savings and Synergies are hereby certified to be costs savings and synergies for such period reflective of actual or reasonably anticipated costs savings and synergies expected to be realized or achieved in the twelve months following the action or event giving rise thereto, net of the amount of actual benefits realized during such period from such action or event, as determined in good faith and which are directly attributable to the Permitted Acquisition or other Investment permitted under Section 8.2.4 of the Credit Agreement, expected to have a continuing impact and factually supportable, in each case determined on a basis consistent with Article 11 of Regulation S-X
$_____________
 
(g)
other one time or extraordinary cash charges
$_____________
(iii)
non-cash credits to net income
$_____________
(iv)
Consolidated EBITDA
[(i) + (ii)(a) + (ii)(b) + (ii)(c) + (ii)(d) + (ii)(e) + (ii)(f) + (ii)(g) – (iii)]
$_____________
2.    Consolidated Total Funded Indebtedness    
(a)
outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including Obligations under the Credit Agreement) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments
$_____________
(b)
all purchase money Indebtedness
$_____________
(c)
all direct obligations arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments
$_____________
(d)
all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business but including any earn out or similar obligations to the extent such obligation would be reflected as a liability on the balance sheet in accordance with GAAP)
$_____________
(e)
Indebtedness in respect of capital leases and Synthetic Lease Obligations
$_____________
(f)
net obligations of such Person under any Hedge Agreement
$_____________
(g)
any Guaranty with respect to outstanding Indebtedness of the types specified in clauses (a) through (f) above of Persons other than the Borrower or any Subsidiary
$_____________
(h)
all Indebtedness of the types referred to in (a) through (g) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which the Borrower or a Subsidiary is a general partner or joint venturer, unless such Indebtedness is expressly made non-recourse to the Borrower or such Subsidiary.
$_____________
(i)
Consolidated Total Funded Indebtedness
[(a) + (b) + (c) + (d) + (e) + (f) + (g) + (h)]
$_____________
3.    Consolidated Total Leverage Ratio
(a)
Consolidated Total Funded Indebtedness (2(i) above)
$_____________
(b)
Consolidated EBITDA (1(iv) above)
$_____________
(c)
Consolidated Total Leverage Ratio
[(a)/(b)]
___________:1.0
4.    Consolidated Interest Coverage Ratio
(a)
Consolidated EBITDA (1(iv) above)
$_____________
(b)
cash interest expense
$_____________
(c)
Consolidated Interest Coverage Ratio
[(a)/(b)]
___________:1.0

[Schedule 2]
Updated Annexes to Security Agreement
[See attached.]

[Schedule [2][3]]
Intellectual Property
[See attached.]



US_ACTIVE-144767176


SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of February 27, 2019 (this “ Agreement ”), by and among 3D Systems Corporation, a Delaware corporation (together with its successors and assigns, the “ Borrower ”), 3D Holdings, LLC, a Delaware corporation (“ 3D Holdings ”), 3D Systems, Inc., a California corporation (“ 3D Inc. ”, and together with the Borrower, 3D Holdings and the Additional Grantors that become party hereto after the date hereof, each a “ Grantor ” and collectively, the “ Grantors ”), and HSBC Bank USA, National Association, as administrative agent (in such capacity, the “ Administrative Agent ”), for the benefit of the Secured Parties.
The Grantors, certain Lenders party thereto from time to time and the Administrative Agent are parties to that certain Credit Agreement dated as of the date hereof (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), providing, subject to the terms and conditions thereof, for the making of extensions of credit and other financial accommodations to the Borrower.
In accordance with the Credit Agreement, the Grantors (other than the Borrower) have agreed to guarantee the Borrower’s obligations under the Credit Agreement.
To induce the Lenders to enter into the Credit Agreement and to extend credit and other financial accommodations thereunder, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Grantors have agreed to grant a security interest in the Collateral (as hereinafter defined) as security for the Obligations (as defined in the Credit Agreement). Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS; TERMS GENERALLY; ETC.
Section 1.1      Definitions . Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement.
Section 1.2      Certain Uniform Commercial Code Terms . As used herein, the terms “ Accession ”, “ Account ”, “ As-Extracted Collateral ”, “ Chattel Paper ”, “ Commodity Account ”, “ Commodity Contract ”, “ Deposit Account ”, “ Document ”, “ Electronic Chattel Paper ”, “ Equipment ”, “ Fixture ”, “ General Intangible ”, “ Goods ”, “ Instrument ”, “ Inventory ”, “ Investment Property ”, “ Letter-of-Credit Right ”, “ Payment Intangible ”, “ Proceeds ”, “ Promissory Note ”, “ Software ” and “ Tangible Chattel Paper ” have the respective meanings set forth in Article 9 of the NYUCC, and the terms “ Certificated Security ”, “ Entitlement Holder ”, “ Financial Asset ”, “ Instruction ”, “ Securities Account ”, “ Security ”, “ Security Certificate ”, “ Security Entitlement ”, “ Supporting Obligation ” and “ Uncertificated Security ” have the respective meanings set forth in Article 8 of the NYUCC.
Section 1.3      Additional Definitions . In addition, as used herein:
Additional Grantor ” is defined in Section 5.14 .
Collateral ” has the meaning set forth in Article III .
Contingent Secured Obligations ” means obligations of each Grantor in respect of (a) Letters of Credit issued by the Issuing Lender for the account of the Borrower under any Loan Document and (b) any other claim that may be payable to any Secured Party by any Grantor under any Loan Document that is not yet due and payable.
Copyright Collateral ” means (a) all Copyrights of a Grantor, whether now owned or hereafter acquired by such Grantor, including each Copyright identified in Annex IV (as such Annex may be amended or supplemented from time to time), (b) income, royalties, damages and payments now and hereafter due and/or payable with respect thereto, including, payments under all licenses entered into in connection therewith and damages and payments for past or future infringements thereof, (c) rights to sue and recover for past, present or future infringements thereof and all other rights whatsoever accruing thereunder or pertaining thereto and (d) each Grantor’s rights corresponding thereto throughout the world.
Copyrights ” means all works of authorship and copyrightable subject matter, and copyrights, whether registered or unregistered, copyright registrations and applications therefor, including renewals, revisions, derivative works, enhancements, modifications, updates, new releases and other revisions and extensions thereof.
Excluded Accounts ” means (a) Deposit Accounts the balance of which consists exclusively of (i) withheld income taxes and federal, state or local employment taxes in such amounts as are required in the reasonable judgment of the Grantors to be paid to the Internal Revenue Service or state or local government agencies with respect to current or former employees of any one or more of the Grantors and (ii) amounts required to be paid over to an employee benefit plan pursuant to DOL Reg. Sec. 25 10.3-102 on behalf of or for the benefit of employees of one or more Grantors or amounts used for workers’ compensation and similar expenses of one or more Grantors, (b) all segregated Deposit Accounts constituting (and the balance of which consists solely of funds set aside in connection with) tax accounts, payroll accounts, trust accounts, social security accounts, any other fiduciary accounts and insurance accounts, and (c) other Deposit Accounts the aggregate balance of which does not exceed $500,000 at any time.
Grantor ” has the meaning set forth in the preamble hereto.
Grantor Registered Intellectual Property ” has the meaning set forth in Section 2.7(a).
Initial Pledged Equity Interests ” means the Equity Interests of each Issuer beneficially owned by each Grantor on the date hereof and identified in Annex III (Part A) (as such Annex may be amended or supplemented from time to time).
Intellectual Property ” means, collectively, all Copyright Collateral, all Patent Collateral, all Trademark Collateral and all Trade Secret Collateral together with (a) all inventions, (b) all licenses or user or other agreements granted to a Grantor with respect to any of the foregoing, in each case whether now or hereafter owned or used, (c) all Software, and other forms of technology (whether or not embodied in any tangible form and including all tangible embodiments of the foregoing such as blueprints, compilations of information, instruction manuals, notebooks, prototypes, reports, samples, studies, and summaries); any and all other rights relating to any of the foregoing; and all copies and tangible embodiments of the foregoing, in whatever form or medium, (d) all field repair data, sales data and other information relating to sales or service of products now or hereafter manufactured, (e) all accounting information and all media in which or on which any information or knowledge or data or records may be recorded or stored and all computer programs used for the compilation or printout of such information, knowledge, records or data, (f) all licenses, consents, permits, variances, certifications and approvals of governmental agencies now or hereafter held by a Grantor and (g) all causes of action, claims and warranties now or hereafter owned or acquired by a Grantor in respect of any of the items listed above.
Intellectual Property Security Agreement ” has the meaning set forth in Section 4.1(e) .
Issuers ” means, collectively, (a) the respective Persons identified on Annex III (Part A) (as such Annex may be amended or supplemented from time to time) under the caption “Issuer”, (b) any other Person that shall at any time be a Subsidiary of any Grantor and (c) the issuer of any equity securities hereafter owned by each Grantor.
NYUCC ” means the Uniform Commercial Code as in effect from time to time in the State of New York.
Patent Collateral means (a) all U.S. Patents of a Grantor, whether now owned or hereafter acquired by such Grantor, including each Patent identified in Annex V (as such Annex may be amended or supplemented from time to time), (b) licenses pertaining to any Patents whether Grantor is a licensor or licensee and (c) all income, royalties, damages and payments now or hereafter due and/or payable with respect thereto, including, all damages and payments for past or future infringements thereof and rights to sue therefor, and all rights corresponding thereto.
Patents ” means all patents (including certificates of invention and other patent equivalents), utility models, and applications for the foregoing, including provisional applications, and all continuations, continuations-in-part, divisions, reissues, re-examinations, renewals, and extensions thereof or related thereto, and all applications or counterparts in any jurisdiction pertaining to any of the foregoing.
Pledged Equity Interests ” means, collectively, the Equity Interests of each Issuer beneficially owned by each Grantor means, collectively, (a) the Initial Pledged Equity Interests and (b) all other Equity Interests of any Issuer now or hereafter owned by each Grantor, together in each case with (i) all certificates representing the same, (ii) all shares, securities, moneys or other property representing a dividend on or a distribution or return of capital on or in respect of the Pledged Equity Interests, or resulting from a split-up, revision, reclassification or other like change of the Pledged Equity Interests or otherwise received in exchange therefor, and any warrants, rights or options issued to the holders of, or otherwise in respect of, the Pledged Equity Interests and (iii) without prejudice to any provision of any of the Loan Documents prohibiting any merger or consolidation by an Issuer, all Equity Interests of any successor entity of any such merger or consolidation.
Software ” means all software, including software code (in any form, including source code and executable or object code), subroutines, user interfaces, techniques, and web sites.
Trade Secrets ” means common law and statutory trade secrets and other confidential, technical, business or proprietary information (including ideas, formulas, compositions, designs, inventions, and conceptions of inventions whether patentable or un-patentable, customer lists, identification of suppliers, data, plans, blueprints, specifications, designs, drawings, recorded knowledge, surveys, engineering reports, test reports, manuals, materials standards, processing standards, performance standards, catalogs, algorithms, APIs, databases, schemata and schematics, design documents and analyses, diagrams, documentation, formulae, know-how, literary works, mask works, logistics information, graphics, images, photographs, publicity rights, maps, marketing plans and collateral, methods, methodologies, network configurations, architectures, topologies and topographies, processes, program listings, programming tools, proprietary information, protocols, sales data, and specifications).
Trade Secret Collateral ” means Trade Secrets obtained by or used in or contemplated at any time for use in the business of any Grantor (including all patent applications in preparation for filing anywhere in the world), whether or not such Trade Secrets have been reduced to a writing or other tangible form (including all documents and things embodying, incorporating or referring in any way to such Trade Secrets) all Trade Secret licenses, including each Trade Secret license referred to in Annex VI attached hereto (as such Annex may be amended or supplemented from time to time), and including the right to sue for, to enjoin and to collect damages for the actual or threatened misappropriation of any Trade Secret and for the breach or enforcement of any such Trade Secret license.
Trademark Collateral ” means (a) all Trademarks of a Grantor, whether now owned or hereafter acquired by such Grantor, including each Trademark identified in Annex VI (as such Annex may be amended or supplemented from time to time), (b) licenses pertaining to any Trademarks, whether the Grantor is a licensor or licensee, (c) all income, royalties, damages and payments now or hereafter due and/or payable with respect to any such mark or any such license, including, damages and payments for past, present or future infringements thereof and (d) all rights to sue and recover for all past, present and future infringements thereof and all rights to sue therefor. Notwithstanding the foregoing, the Trademark Collateral does not and shall not include any Trademark that would be rendered invalid, abandoned, void or unenforceable by reason of its being included as part of the Trademark Collateral.
Trademarks ” means all trade names, trademarks and service marks, trade dress, logos, distinguishing guises and indicia, corporate names, business names, domain names (URLs), whether or not registered, including all common law rights, trademark and service mark registrations, and applications for trademark and service mark registrations including all renewals of trademark and service mark registrations together, with the goodwill connected with the use of, and symbolized by, each of the foregoing.
ARTICLE II     
REPRESENTATION AND WARRANTIES
Each Grantor represents and warrants to the Administrative Agent and the other Secured Parties on and as of the date hereof that:
Section 2.1      Organizational Matters; Enforceability, Etc .
(a)      Such Grantor is duly organized and formed, validly existing and in good standing under the Laws of the jurisdiction of its organization. The execution, delivery and performance of this Agreement, and the grant of the security interests pursuant hereto, (i) are within such Grantor’s powers and have been duly authorized by all necessary corporate, limited liability company or other action (as applicable), (ii) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except for (1) such as have been obtained or made and are in full force and effect and (2) filings and recordings in respect of the security interests created pursuant hereto, (iii) will not violate any applicable Law or the organizational documents of such Grantor or any order of any Governmental Authority binding upon such Grantor or its property, (iv) will not violate any indenture, agreement or other instrument binding upon such Grantor or any of its assets, or give rise to a right thereunder to require any payment to be made by any such Person and (v) except for the security interests created pursuant hereto, will not result in the creation or imposition of any Lien on any asset of such Grantor.
(b)      This Agreement has been duly executed and delivered by such Grantor and constitutes, a legal, valid and binding obligation of such Grantor, enforceable against such Grantor in accordance with its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
Section 2.2      Title . Such Grantor is the sole beneficial owner of the Collateral and no Lien exists upon the Collateral (and no right or option to acquire the same exists in favor of any other Person) other than (a) the security interest created or provided for herein, which security interest constitutes a valid first and prior perfected Lien on the Collateral and (b) the Liens expressly permitted by the Loan Documents. There exists no Lien on the Pledged Equity Interests of such Grantor.
Section 2.3      Names; Filing Details; Etc. The full and correct legal name, type of organization, jurisdiction of organization and mailing address of such Grantor as of the date hereof are correctly set forth in Annex I . The U.C.C. financing statements containing the description of the Collateral that have been prepared for filing in the office specified in Annex I hereto constitute all the filings and recordations (except with respect to Intellectual Property) that are, as of the Closing Date, necessary to publish notice of and protect the validity of and to establish a legal, valid and perfected security interest in favor of the Administrative Agent (for the benefit of the Secured Parties) in respect of all Collateral in which a security interest may be perfected by filing such financing statements.
Section 2.4      Changes in Circumstances . Such Grantor has not (a) within the period of four (4) months prior to the date hereof, changed its location (as defined in Section 9‑307 of the NYUCC), (b) within five (5) years prior to the date hereof, except as specified in Annex I , heretofore changed its name or (c) within five (5) years prior to the date hereof, except as specified in Annex II , heretofore become a “new debtor” (as defined in Section 9‑102(a)(56) of the NYUCC) with respect to a currently effective security agreement previously entered into by any other Person.
Section 2.5      Pledged Equity Interests .
(a)      The Initial Pledged Equity Interests constitute (i) 100% of the issued and outstanding Equity Interests of each Issuer other than a non-Domestic Subsidiary beneficially owned by a Grantor on the date hereof (other than any Equity Interests held in a Securities Account referred to in Annex VII (as such Annex may be amended or supplemented from time to time)), and (ii) in the case of each Issuer that is a non-Domestic Subsidiary, (A) 65% of the issued and outstanding shares of voting stock of such Issuer and (B) 100% of all other issued and outstanding shares of capital stock of whatever class of such Issuer beneficially owned by such Grantor on the date hereof, in each case whether or not registered in the name of such Grantor. Annex III (Part A) correctly identifies, as at the date hereof, the respective Issuers of the Initial Pledged Equity Interests and (in the case of any corporate Issuer) the respective class and par value of such Equity Interests and the respective number of such Equity Interests (and registered owner thereof) represented by each such certificate.
(b)      The Pledged Equity Interests are, and all other Pledged Equity Interests in which such Grantor shall hereafter grant a security interest pursuant to Article III will be, (i) duly authorized, validly existing, fully paid and non‑assessable (in the case of any Equity Interests issued by a corporation) and (ii) duly issued and outstanding (in the case of any Equity Interests in any other entity), and none of such Pledged Equity Interests are or will be subject to any contractual restriction on the transfer of such Pledged Equity Interests (except for any such restriction contained herein or in the Loan Documents, or under the organizational documents of such Issuer).
Section 2.6      Promissory Notes . Annex III (Part B) (as such Annex may be amended or supplemented from time to time) sets forth a complete and correct list of all Promissory Notes (other than any held in a Securities Account referred to in Annex VII (as such Annex may be amended or supplemented from time to time)) held by such Grantor on the date hereof.
Section 2.7      Intellectual Property .
(a)      Annexes IV V and  VI , respectively, set forth a complete and correct list of all copyright registrations, copyright registration applications, patent registrations, patent applications, trademark registrations and trademark registration applications owned by such Grantor which are registered or pending in the United States Copyright Office, USPTO, and the trademark offices of the States and territories of the United States, and the trademark offices of other nations throughout the world on the date hereof (or, in the case of any supplement to said Annexes IV V and  VI , effecting a pledge thereof, as of the date of such supplement) (collectively, the “ Grantor Registered Intellectual Property ”).
(b)      Except pursuant to licenses and other user agreements entered into by such Grantor in the ordinary course of business that are listed in said Annexes IV V and  VI (including as supplemented by any supplement effecting a pledge thereof), such Grantor has done nothing to authorize or enable any other Person to use any Grantor Registered Intellectual Property, and all Grantor Registered Intellectual Property is in full force and effect.
(c)      To such Grantor’s knowledge, except as set forth in said Annexes IV V and  VI (as supplemented by any supplement effecting a pledge thereof), there is no violation by others of any right of such Grantor with respect to the Grantor Registered Intellectual Property. Except as set forth in said Annexes IV V and  VI (as so supplemented), there is no action, proceeding, claim or complaint pending or, to such Grantor’s knowledge, threatened to be brought against such Grantor by any Person which could reasonably be expected to jeopardize any of such Grantor’s interests in any of the Grantor Registered Intellectual Property, except those which could not reasonably be expected, in the aggregate, to have a Material Adverse Effect.
(d)      The Grantor Registered Intellectual Property is subsisting and has not been adjudicated invalid or unenforceable, in whole or in part, and is valid, unexpired and enforceable.
(e)      With respect to the Grantor Registered Intellectual Property, such Grantor has made all filings and recordations required by applicable law to have been made with the USPTO, the United States Copyright Office, or with any applicable foreign equivalent patent, trademark or copyright office to record its interest in such Grantor Registered Intellectual Property.
(f)      No Grantor has made any assignment or agreement in conflict with the security interest in the Intellectual Property of any Grantor hereunder.
Section 2.8      Deposit Accounts, Securities Accounts and Commodity Accounts . Annex VII (as such Annex may be amended or supplemented from time to time) sets forth a complete and correct list of all Deposit Accounts, Securities Accounts and Commodity Accounts of such Grantor on the date hereof.
Section 2.9      Commercial Tort Claims . Annex VIII (as such Annex may be amended or supplemented from time to time) sets forth a complete and correct list of all commercial tort claims of such Grantor in existence on the date hereof.
ARTICLE III     
COLLATERAL
As collateral security for the Payment In Full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations, each Grantor hereby pledges and grants to the Administrative Agent, for the ratable benefit of the Secured Parties, a security interest in all of such Grantor’s right, title and interest in, to and under the following property, in each case whether tangible or intangible, wherever located, and whether now owned by such Grantor or hereafter acquired and whether now existing or hereafter coming into existence (all of the property described in this Article III being collectively referred to herein as “ Collateral ”):
(a)      all Accounts:
(b)      all As-Extracted Collateral;
(c)      all Chattel Paper;
(d)      all Deposit Accounts;
(e)      all Documents;
(f)      all Equipment;
(g)      all Fixtures;
(h)      all General Intangibles;
(i)      all Goods not covered by the other clauses of this Article III ;
(j)      the Pledged Equity Interests;
(k)      all Instruments, including all Promissory Notes;
(l)      all Intellectual Property;
(m)      all Inventory;
(n)      all Investment Property not covered by other clauses of this Article III , including all Securities, all Securities Accounts and all Security Entitlements with respect thereto and Financial Assets carried therein, and all Commodity Accounts and Commodity Contracts;
(o)      all Letter-of-Credit Rights;
(p)      all commercial tort claims, as defined in Section 9‑102(a)(13) of the NYUCC, arising out of the events described in Annex VIII (as such Annex may be amended or supplemented from time to time);
(q)      all other tangible and intangible personal property whatsoever of such Grantor; and
(r)      all Proceeds of any of the Collateral, all Accessions to and substitutions and replacements for, any of the Collateral, and all offspring, rents, profits and products of any of the Collateral, and, to the extent related to any Collateral, all books, correspondence, credit files, records, invoices and other papers (including all tapes, cards, computer runs and other papers and documents in the possession or under the control of such Grantor or any computer bureau or service company from time to time acting for such Grantor).
IT BEING UNDERSTOOD, HOWEVER, that (A) in the case of any of the foregoing that consists of general or limited partnership interests in a general or limited partnership, the security interest hereunder shall be deemed to be created only to the maximum extent permitted under the applicable organizational instrument pursuant to which such partnership is formed, (B) in no event shall the security interest granted under this Article III attach to any lease, license, contract, property rights or agreement to which the Grantor is a party (or to any of its rights or interests thereunder) if the grant of such security interest would constitute or result in either (i) the abandonment, invalidation or unenforceability of any right, title or interest of the Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, property rights or agreement (other than to the extent that any such term would be rendered ineffective by Section 9‑406, 9‑407, 9‑408 or 9‑409 of the Uniform Commercial Code as in effect in the relevant jurisdiction); provided that, immediately upon the ineffectiveness, lapse or termination of any such provision, the Collateral will include, and the Grantors will be deemed to have granted a Lien in all such rights and interests as if such provision had never been in effect, (C) the security interest granted under this Article III shall not attach to any Excluded Accounts, and (D) the security interest created hereby in Equity Interests constituting voting stock of any Issuer that is a non-Domestic Subsidiary shall be limited to that portion of such voting stock that does not exceed 65% of the aggregate issued and outstanding voting stock of such Issuer.
ARTICLE IV     
FURTHER ASSURANCES; REMEDIES.
In furtherance of the grant of the security interest pursuant to Article III , each Grantor hereby agrees with the Administrative Agent and the other Secured Parties as follows:
Section 4.1      Delivery and Other Perfection . Each Grantor shall promptly from time to time give, execute, deliver, file, record, authorize or obtain all such financing statements, continuation statements, notices, instruments, documents, agreements or consents or other papers as may be necessary or reasonably desirable in the judgment of the Administrative Agent, to create, preserve, perfect, maintain the perfection of or validate the security interest granted pursuant hereto or to enable the Administrative Agent to exercise and enforce its rights on behalf of the Secured Parties hereunder with respect to such security interest, and without limiting the foregoing, shall:
(a)      if any of the Pledged Equity Interests, Investment Property or Financial Assets constituting part of the Collateral are received by the Grantor, forthwith (x) deliver to the Administrative Agent the certificates or instruments representing or evidencing the same, duly endorsed in blank or accompanied by such instruments of assignment and transfer in such form and substance as the Administrative Agent, may reasonably request, all of which thereafter shall be held by the Administrative Agent, pursuant to the terms of this Agreement, as part of the Collateral and (y) take such other action as the Administrative Agent, may reasonably deem necessary or appropriate to duly record or otherwise perfect the security interest created hereunder in such Collateral;
(b)      promptly from time to time deliver to the Administrative Agent any and all Instruments with a face value in excess of $100,000 constituting part of the Collateral, endorsed and/or accompanied by such instruments of assignment and transfer in such form and substance as the Administrative Agent, may request; provided that (other than in the case of the promissory notes described in Annex III (Part B) (as such Annex may be amended or supplemented from time to time)) so long as no Event of Default shall have occurred and be continuing, such Grantor may retain for collection in the ordinary course any Instruments received by such Grantor in the ordinary course of business and the Administrative Agent shall, promptly upon request of such Grantor, make appropriate arrangements for making any Instrument delivered by such Grantor available to such Grantor for purposes of presentation, collection or renewal (any such arrangement to be effected, to the extent requested by the Administrative Agent, against trust receipt or like document);
(c)      promptly upon request of the Required Lenders enter into such control agreements, each in form and substance reasonably acceptable to the Administrative Agent, as may be required to perfect the security interest created hereby in any and all Deposit Accounts and Securities Accounts (other than Excluded Accounts);
(d)      (i) promptly upon request of the Required Lenders, maintain all Electronic Chattel Paper so that the Administrative Agent has control of such Electronic Chattel Paper in the manner specified in Section 9-105 of the Uniform Commercial Code of the applicable jurisdiction and (ii) promptly from time to time use commercially reasonable efforts to obtain the consent of the issuer to an assignment of proceeds of the applicable letter of credit with respect to any Letter-of-Credit Rights not constituting Supporting Obligation and are in excess of $100,000 and promptly furnish to the Administrative Agent true copies thereof;
(e)      promptly from time to time upon the request of the Administrative Agent, execute and deliver such short-form security agreements in the Form of Exhibit II (each an “ Intellectual Property Security Agreement ” and collectively, the “ Intellectual Property Security Agreements ”) to the extent not otherwise covered by an Intellectual Property Security Agreement;
(f)      keep books and records relating to the Collateral in accordance with GAAP, and stamp or otherwise mark such books and records in such manner as the Administrative Agent may reasonably require in order to reflect the security interests granted by this Agreement; and
(g)      not grant or extend the time for payment of any Account, or compromise or settle any Account for less than the full amount thereof, or release any person or property, in whole or in part, from payment thereof, or amend, supplement or modify any Account in any manner that could reasonably be likely to adversely affect the value thereof, or allow any credit or discount thereon, other than as normal and customary in the ordinary course of a Grantor’s business (including as a result of reserving as an uncollectable balance any Account).
Section 4.2      Other Financing Statements or Control . Except as otherwise permitted under the Loan Documents, each Grantor shall not (a) file or suffer to be on file, or authorize or permit to be filed or to be on file, in any jurisdiction, any financing statement or like instrument with respect to any of the Collateral in which the Administrative Agent is not named as the sole secured party, except for any filing or instrument made in connection with any Liens permitted by the Loan Documents or (b) cause or permit any Person other than the Administrative Agent to have “control” (as defined in Section 9‑104, 9‑105, 9‑106 or 9‑107 of the NYUCC) of any Deposit Account, Electronic Chattel Paper, Investment Property or Letter-of-Credit Right constituting part of the Collateral.
Section 4.3      Preservation of Rights . The Administrative Agent shall not be required to take steps necessary to preserve any rights against prior parties to any of the Collateral.
Section 4.4      Special Provisions Relating to Certain Collateral .
(a)      Pledged Equity Interests .
(i)      Each Grantor will cause the Pledged Equity Interests to constitute at all times (A) 100% of the total number of Equity Interests of each Issuer other than a non-Domestic Subsidiary then issue and outstanding owned by such Grantor and (B) in the case of any Issuer that is a non-Domestic Subsidiary, 65% of the total number of Equity Interests of voting stock of such Issuer and 100% of the total number of Equity Interests of all other classes of capital stock of such Issuer then issued and outstanding owned by such Grantor.
(ii)      So long as no Event of Default shall have occurred and be continuing and the applicable Grantor has not received notice of the Administrative Agent’s intent to exercise voting, consensual and other powers of ownership, each Grantor shall have the right to exercise all voting, consensual and other powers of ownership pertaining to the Pledged Equity Interests for all purposes not inconsistent with the terms of this Agreement, the Loan Documents or any other instrument or agreement referred to herein or therein; and the Administrative Agent shall execute and deliver to such Grantor or cause to be executed and delivered to such Grantor all such proxies, powers of attorney, dividend and other orders, and all such instruments, without recourse, as such Grantor may reasonably request for the purpose of enabling such Grantor to exercise the rights and powers that it is entitled to exercise pursuant to this Section 4.4(a)(ii) .
(iii)      Unless and until an Event of Default shall have occurred and be continuing, each Grantor shall be entitled to receive and retain any dividends, distributions or proceeds on the Pledged Equity Interests paid in cash out of earned surplus.
(iv)      If an Event of Default shall have occurred and be continuing, whether or not the Administrative Agent exercises any available right to declare any Obligations due and payable or seeks or pursues any other relief or remedy available to it under applicable Law or under this Agreement, the Loan Documents or any other agreement relating to such Obligation, all dividends and other distributions on the Pledged Equity Interests shall be paid directly to the Administrative Agent, for the benefit of the Secured Parties, and retained by it in a cash collateral account as part of the Collateral, subject to the terms of this Agreement, and, if the Administrative Agent shall so request in writing, each Grantor agrees to execute and deliver to the Administrative Agent appropriate additional dividend, distribution and other orders and documents to that end; provided that if such Event of Default is cured, any such dividend or distribution theretofore paid to the Administrative Agent shall, upon request of such Grantor (except to the extent theretofore applied to the Obligations), be returned by the Administrative Agent to such Grantor.
(v)      Not without executing and delivering, or causing to be executed and delivered, to the Administrative Agent such agreements, documents and instruments as the Administrative Agent may reasonably require, issue or acquire any Pledged Equity Interests consisting of an interest in a partnership or a limited liability company that (A) is dealt in or traded on a securities exchange or in a securities market, (B) by its terms expressly provides that it is a Security governed by Article 8 of the UCC, (C) is an investment company security, (D) is held in a Securities Account or (E) constitutes a Security or a financial asset.
(vi)      Without the prior written consent of the Administrative Agent, no Grantor will (A) vote to enable, or take any other action to permit, any applicable Issuer to issue any Investment Property or Equity Interests constituting partnership or limited liability company interests, except for those additional Investment Property or Equity Interests constituting partnership or limited liability company interests that will be subject to the security interest granted herein in favor of the Secured Parties or (B) enter into any agreement or undertaking, except in connection with a Permitted Disposition, restricting the right or ability of such Grantor or the Administrative Agent to sell, assign or transfer any Investment Property or Pledged Equity or Proceeds thereof. The Grantors will defend the right, title and interest of the Administrative Agent in and to any Investment Property and Pledged Equity against the claims and demands of all Persons whomsoever.
(vii)      If any Grantor shall become entitled to receive or shall receive (A) any Certificated Securities (including, without limitation, any certificate representing a stock dividend or a distribution in connection with any reclassification, increase or reduction of capital or any certificate issued in connection with any reorganization), option or rights in respect of the ownership interests of any Issuer, whether in addition to, in substitution of, as a conversion of, or in exchange for, any Investment Property, or otherwise in respect thereof or (B) any sums paid upon or in respect of any Investment Property upon the liquidation or dissolution of any Issuer, such Grantor shall accept the same as the agent of the Secured Parties, hold the same in trust for the Secured Parties, segregated from other funds of such Grantor, and promptly deliver the same to the Administrative Agent, on behalf of the Secured Parties, in accordance with the terms hereof.
(b)      Intellectual Property .
(i)      Solely for the purpose of enabling the Administrative Agent to exercise rights and remedies under Section 4.5 after the occurrence and during the continuation of an Event of Default, and for no other purpose, each Grantor hereby grants to the Administrative Agent an irrevocable, non‑exclusive license (exercisable without payment of royalty or other compensation to such Grantor) to use, assign, license or sublicense any of the Intellectual Property now owned or hereafter acquired by such Grantor, wherever the same may be located, including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer programs used for the compilation or printout thereof; provided, that such license shall only be deemed valid if it does not result in the abandonment, invalidation or unenforceability of any right, title or interest of the Grantor in such Intellectual Property or a breach or termination pursuant to the terms of, or a default under, any related license, contract, property rights or agreement.
(ii)      Notwithstanding anything contained herein to the contrary, but subject to any provision of the Loan Documents that limit the rights of any Grantor to dispose of its property, so long as no Event of Default shall have occurred and be continuing, each Grantor will be permitted to exploit, use, enjoy, protect, license, sublicense, assign, sell, dispose of or take other actions with respect to the Intellectual Property in the ordinary course of the business of such Grantor. In furtherance of the foregoing, so long as no Event of Default shall have occurred and be continuing, the Administrative Agent shall from time to time, upon the request of a Grantor, execute and deliver any instruments, certificates or other documents, in the form so requested, that such Grantor shall have certified are appropriate in its judgment to allow it to take any action permitted above. The exercise of rights and remedies under Section 4.5 by the Administrative Agent shall not terminate the rights of the holders of any licenses or sublicenses theretofore granted by any Grantor in accordance with the first sentence of this clause (ii) .
(iii)      No Grantor shall do any act, or omit to do any act, whereby any of the Patent Collateral may lapse or become abandoned, dedicated to the public or unenforceable unless such Grantor has either (x) reasonably determined in good faith that such Patent Collateral is of immaterial economic value or (y) has a valid business purpose to do so.
(iv)      No Grantor shall, and no Grantor shall permit any of its licensees to, unless such Grantor has either (x) reasonably determined in good faith that the applicable Trademark Collateral is of immaterial economic value or (y) has a valid business purpose to do otherwise: (A) fail to continue to use any of the Trademark Collateral in order to maintain all of the Trademark Collateral in full force and effect free from any claim of abandonment for non-use, (B) fail to maintain as in the past the quality of products and services offered under all of the Trademark Collateral, (C) fail to employ all of the Trademark Collateral registered with any Federal, state or foreign authority with an appropriate notice of such registration or (D) do or permit any act or knowingly omit to do any act whereby any of the Trademark Collateral may lapse or become invalid or unenforceable.
(v)      No Grantor shall, unless such Grantor has either (x) reasonably determined in good faith that any of the Copyright Collateral or any of the Trade Secrets Collateral is of immaterial value or (y) has a valid business purpose to do otherwise, do or permit any act or knowingly omit to do any act whereby any of the Copyright Collateral or any of the Trade Secrets Collateral may lapse or become invalid or unenforceable or placed in the public domain expect upon expiration of the end of an unrenewable term of a registration thereof.
(vi)      Concurrently with the delivery of the Compliance Certificate required to be delivered pursuant to Section 8.3.3 of the Credit Agreement, Borrower shall notify the Administrative Agent if it, or the applicable Grantor, knows that any application or registration relating to any item of the Intellectual Property with a fair market value in excess of $500,000, could reasonably be expected to become abandoned, dedicated to the public, placed in the public domain, invalid or unenforceable, or of any adverse final, unappealable determinations (including the institution of, or any final determination in, any proceeding in the USPTO, the United States Copyright Office or any foreign counterpart thereof or any court) regarding the applicable Grantor’s ownership of any item of the Intellectual Property with a fair market value in excess of $500,000, its right to register the same or to keep, maintain and enforce the same.
(vii)      Each Grantor shall take commercially reasonable steps, including in any proceeding before the USPTO and the United States Copyright Office to maintain and pursue any application (and to obtain the relevant registration) filed with respect to, and to maintain any registration of, the Intellectual Property as applicable, including the filing of applications for renewal, affidavits of use, affidavits of incontestability and opposition, interference and cancellation proceedings and the payment of fees and taxes (except to the extent that the dedication, abandonment, or invalidation is permitted under the foregoing clauses (iii) , (iv) and (v) ).
(c)      Chattel Paper . Each Grantor will (i) deliver to the Administrative Agent each original of each item of Chattel Paper in excess of $100,000 at any time constituting part of the Collateral and (ii) cause each such original and each copy thereof to bear a conspicuous legend, in form and substance reasonably satisfactory to the Administrative Agent, indicating that such Chattel Paper is subject to the security interest granted hereby and that purchase of such Chattel Paper by a Person other than the Administrative Agent without the consent of the Administrative Agent would violate the rights of the Administrative Agent.
Section 4.5      Remedies .
(a)      Rights and Remedies Generally upon an Event of Default . If an Event of Default shall have occurred and is continuing, the Administrative Agent shall have all of the rights and remedies with respect to the Collateral of a secured party under the NYUCC (whether or not the Uniform Commercial Code is in effect in the jurisdiction where the rights and remedies are asserted) and such additional rights and remedies to which a secured party is entitled under the laws in effect in any jurisdiction where any rights and remedies hereunder may be asserted, including the right, to the fullest extent permitted by law, to exercise all voting, consensual and other powers of ownership pertaining to the Collateral as if the Administrative Agent were the sole and absolute owner thereof (and each Grantor agrees to take all such action as may be appropriate to give effect to such right); provided , however , that the Administrative Agent shall have no duties or responsibilities except those expressly set forth in this Agreement and the Security Documents to which it is a party as Administrative Agent, and no implied covenants or obligations shall be read into this Agreement or any other such Security Documents against the Administrative Agent; and without limiting the foregoing, the Administrative Agent may in each case, at any time after the occurrence and during the continuation of an Event of Default:
(i)      in its name or in the name of any Grantor or otherwise, demand, sue for, collect or receive any money or other property at any time payable or receivable on account of or in exchange for any of the Collateral, but shall be under no obligation to do so;
(ii)      make any reasonable compromise or settlement deemed desirable with respect to any of the Collateral and may extend the time of payment, arrange for payment in installments, or otherwise modify the terms of, any of the Collateral;
(iii)      require each Grantor to notify (and such Grantor hereby authorizes the Administrative Agent so to notify) each account debtor in respect of any Account, Chattel Paper or General Intangible, and each obligor on any Instrument, constituting part of the Collateral that such Collateral has been assigned to the Administrative Agent hereunder, and to instruct that any payments due or to become due in respect of such Collateral shall be made directly to the Administrative Agent or as it may direct (and if any such payments, or any other Proceeds of Collateral, are received by such Grantor they shall be held in trust by such Grantor for the benefit of the Administrative Agent and as promptly as possible remitted or delivered to the Administrative Agent for application as provided herein);
(iv)      require each Grantor to assemble the Collateral at such place or places, reasonably convenient to the Administrative Agent and such Grantor, as the Administrative Agent may direct;
(v)      apply any cash collateral account and any money or other property therein to payment of the Obligations;
(vi)      require each Grantor to cause the Pledged Equity Interests to be transferred of record into the name of the Administrative Agent or its nominee (and the Administrative Agent agrees that if any of such Pledged Equity Interests is transferred into its name or the name of its nominee, the Administrative Agent will thereafter promptly give to such Grantor copies of any notices and communications received by it with respect to such Pledged Equity Interests); and
(vii)      sell, lease, assign or otherwise dispose of all or any part of the Collateral, at such place or places as the Administrative Agent deems best, and for cash or for credit or for future delivery (without thereby assuming any credit risk), at public or private sale, without demand of performance or notice of intention to effect any such disposition or of the time or place thereof (except such notice as is required by applicable statute and cannot be waived), and the Administrative Agent or anyone else may be the purchaser, lessee, assignee or recipient of any or all of the Collateral so disposed of at any public sale (or, to the extent permitted by law, at any private sale) and thereafter hold the same absolutely, free from any claim or right of whatsoever kind, including any right or equity of redemption (statutory or otherwise), of any Grantor, any such demand, notice and right or equity being hereby expressly waived and released. In the event of any sale, assignment, or other disposition of any of the Trademark Collateral, the goodwill connected with and symbolized by the Trademark Collateral subject to such disposition shall be included. The Administrative Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the sale may be so adjourned.
The Proceeds of each collection, sale or other disposition under this Section 4.5 , including by virtue of the exercise of any license granted to the Administrative Agent in Section 4.4(b) , shall be applied in accordance with Section 4.9 .
(b)      Certain Securities Act Limitations . Each Grantor recognizes that, by reason of certain prohibitions contained in the Securities Act of 1933, as amended, and applicable state securities laws, the Administrative Agent may be compelled, with respect to any sale of all or any part of the Collateral, to limit purchasers to those who will agree, among other things, to acquire the Collateral for their own account, for investment and not with a view to the distribution or resale thereof. Each Grantor acknowledges that any such private sales may be at prices and on terms less favorable to the Secured Parties than those obtainable through a public sale without such restrictions, and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that the Administrative Agent shall have no obligation to engage in public sales and no obligation to delay the sale of any Collateral for the period of time necessary to permit the issuer thereof to register it for public sale.
(c)      Exculpatory Provisions with Respect to the Administrative Agent .
(i)      Notwithstanding anything contained herein to the contrary, the Administrative Agent shall not be required to exercise any discretion or take any action but shall only be required to act or refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders, in each case, as specified therein, and such instructions shall be binding upon the Administrative Agent and each of the Secured Parties; provided, however, that the written instructions of all of the Secured Parties shall be required where expressly provided for herein; provided, further, that the Administrative Agent shall not be required to take any action which is contrary to any provision of the Security Documents or applicable Law.
(ii)      Notwithstanding any other provision of this Agreement or any other Security Document, in no event shall the Administrative Agent be required to foreclose on, or take possession of, the Collateral, if, in the judgment of the Administrative Agent, such action would be in violation of any applicable Law, rule or regulation pertaining thereto, or if the Administrative Agent reasonably believes that such action would result in the incurrence of liability by the Administrative Agent for which it is not fully indemnified by the Secured Parties.
(iii)      The powers conferred on the Administrative Agent under this Agreement and the other Security Documents are solely to protect its interest in the Collateral and shall not impose any duty upon it to exercise any such powers. Except for the safe custody and preservation of the Collateral in its possession and the accounting for monies actually received by it, the Administrative Agent shall have no other duty as to the Collateral, whether or not the Administrative Agent or any of the other Lenders or Issuing Lenders has or is deemed to have knowledge of any matters, or as to the taking of any necessary steps to preserve rights against any parties or any other rights pertaining to the Collateral. The Administrative Agent hereby agrees to exercise reasonable care in respect of the custody and preservation of the Collateral. The Administrative Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if such Collateral is accorded treatment substantially equal to that which the Administrative Agent accords its own property.
(iv)      The Administrative Agent may at any time request instructions from the Required Lenders as to a course of action to be taken by it hereunder and under any of the Security Documents or in connection herewith and therewith or any other matters relating hereto and thereto.
(d)      Notice . Each Grantor agrees that to the extent the Administrative Agent is required by applicable law to give reasonable prior notice of any sale or other disposition of any Collateral, ten (10) Business Days’ notice shall be deemed to constitute reasonable prior notice.
(e)      Nonexclusive Nature of Remedies . Failure by the Administrative Agent or the Secured Parties to exercise any right, remedy or option under this Agreement, any other Loan Document, any other document relating to the Obligations, or as provided by Law, or any delay by the Administrative Agent or the Secured Parties in exercising the same, shall not operate as a waiver of any such right, remedy or option. No waiver hereunder shall be effective unless it is in writing, signed by the party against whom such waiver is sought to be enforced and then only to the extent specifically stated, which in the case of the Administrative Agent or the Secured Parties shall only be granted as provided herein. To the extent permitted by Law, neither the Administrative Agent, the Secured Parties, nor any party acting as attorney for the Administrative Agent or the Secured Parties, shall be liable hereunder for any acts or omissions or for any error of judgment or mistake of fact or law other than their gross negligence or willful misconduct hereunder as determined by a final non-appealable judgment of a court of competent jurisdiction. The rights and remedies of the Administrative Agent and the Secured Parties under this Agreement shall be cumulative and not exclusive of any other right or remedy which the Administrative Agent or the Secured Parties may have.
Section 4.6      Deficiency . If the proceeds of sale, collection or other realization of or upon the Collateral pursuant to Section 4.5 are insufficient to cover the costs and expenses of such realization and the Payment In Full of the Obligations, each Grantor shall remain liable for any deficiency.
Section 4.7      Locations; Names, Etc . Without at least 10 days’ prior written notice to the Administrative Agent, no Grantor shall (i) change its location (as defined in Section 9‑307 of the NYUCC), and (ii) change its name from the name shown as its current legal name on Annex I .
Section 4.8      Private Sale . The Administrative Agent shall incur no liability as a result of the sale of the Collateral, or any part thereof, at any private sale pursuant to Section 4.5 conducted in a commercially reasonable manner. Each Grantor hereby waives any claims against the Administrative Agent or any Secured Party arising by reason of the fact that the price at which the Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale or was less than the aggregate amount of the Obligations, even if the Administrative Agent accepts the first offer received and does not offer the Collateral to more than one offeree.
Section 4.9      Application of Proceeds . The Proceeds of any collection, sale or other realization of all or any part of the Collateral pursuant hereto, and any other cash at the time held by the Administrative Agent under this Article IV , shall be applied by the Administrative Agent in accordance with Section 9.2.4 of the Credit Agreement. For purposes hereof, whenever this Agreement contemplates that cover shall be provided for Contingent Secured Obligations, such cover shall be effected by the payment to the Administrative Agent of any amount that will be deposited into a cash collateral account to be held by the Administrative Agent as collateral security for the payment of such Contingent Secured Obligations as and when they become due and payable.
Section 4.10      Attorney-in-Fact . Without limiting any rights or powers granted by this Agreement to the Administrative Agent, each Grantor hereby irrevocably constitutes and appoints the Administrative Agent and any officer or agent thereof, with full power of substitution, as such Grantor’s true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Grantor and in the name of such Grantor or in such Grantor’s own name, for the purpose of carrying out the terms of this Agreement, to take, upon the occurrence and during the continuance of any Event of Default, any and all actions and execute any and all documents and instruments that may, in the judgment of the Administrative Agent, be necessary to accomplish the purposes of this Agreement. Without limiting the generality of the foregoing, so long as the Administrative Agent shall be entitled under this Article IV to make collections in respect of the Collateral, the Administrative Agent shall have the right and power to receive, endorse and collect all checks made payable to the order of any Grantor representing any dividend, payment or other distribution in respect of the Collateral or any part thereof and to give full discharge for the same.
Section 4.11      Advances . On failure of any Grantor to perform any of the covenants and agreements contained herein or in any other Loan Document, the Administrative Agent may, at the written direction of the Required Lenders, perform the same and in so doing may expend such sums as the Administrative Agent may reasonably deem advisable in the performance thereof, including, without limitation, the payment of any insurance premiums, the payment of any taxes, a payment to obtain a release of a Lien or potential Lien, expenditures made in defending against any adverse claim and all other expenditures which the Administrative Agent may make for the protection of the security hereof or which may be compelled to make by operation of Law. All such sums and amounts so expended shall be repayable by the Grantors on a joint and several basis promptly within ten days after presentation of an invoice in reasonable detail, shall constitute additional Obligations and shall bear interest from the date said amounts are expended at the Default Rate. No such performance of any covenant or agreement by the Administrative Agent on behalf of any Grantor, and no such advance or expenditure therefor, shall relieve the Grantors of any Default or Event of Default. The Administrative Agent may, after the occurrence and during the continuation of an Event of Default, at the written direction of the Required Lenders, make any payment hereby authorized in accordance with any bill, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien, title or claim except to the extent such payment is being contested in good faith by a Grantor in appropriate proceedings and against which adequate reserves are being maintained in accordance with GAAP.
Section 4.12      Perfection and Recordation . Each Grantor authorizes the Administrative Agent to file Uniform Commercial Code financing statements describing the Collateral as “all assets” or “all personal property and fixtures” or words of similar effect of such Grantor ( provided that no such description shall be deemed to modify the description of Collateral set forth in Article III ).
Section 4.13      Termination and Release .
(a)      Upon Payment In Full of all of the Obligations, this Agreement shall terminate and the Collateral shall be automatically released from the Liens granted hereunder and the other Loan Documents without further action by any Person. The Administrative Agent shall forthwith cause to be assigned, transferred and delivered, against receipt but without any recourse, warranty or representation whatsoever, any remaining Collateral and money received in respect thereof, to or on the order of each Grantor and to be released and canceled all licenses and rights referred to in Section 4.4(b) . The Administrative Agent shall also, at the expense of each Grantor, execute and deliver to such Grantor upon such termination such Uniform Commercial Code termination statements, and such other documentation as shall be reasonably requested by such Grantor to effect the termination and release of the liens on the Collateral as required by this Section 4.13 .
(b)      Upon any sale, lease, transfer or other disposition of any item of Collateral of any Grantor and upon the release of any Grantor from its obligations under its Guaranty, in each case permitted by, and in accordance with, the terms of the Loan Documents, the Administrative Agent will, at such Grantor’s expense, execute and deliver to such Grantor upon such release or termination such Uniform Commercial Code amendment statements or termination statements, as the case may be and such other documentation as shall be reasonably requested by such Grantor to effect the release of the liens on such item of Collateral or Grantor and return all such Collateral in its possession to the applicable Grantor.
Section 4.14      Standard of Care . The powers conferred on the Administrative Agent under this Agreement are solely to protect its interest in the Collateral and shall not impose any duty upon it to exercise any such powers. Except for the safe custody and preservation of the Collateral in its possession and the accounting for monies actually received by it, the Administrative Agent shall have no other duty as to the Collateral, whether or not the Administrative Agent or any of the other Lenders has or is deemed to have knowledge of any matters, or as to the taking of any necessary steps to preserve rights against any parties or any other rights pertaining to the Collateral. The Administrative Agent hereby agrees to exercise reasonable care in respect of the custody and preservation of the Collateral. The Administrative Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if such Collateral is accorded treatment substantially equal to that which the Administrative Agent accords its own property.
ARTICLE V     
MISCELLANEOUS.
Section 5.1      Notices . All notices, requests, instructions, directions and other communications provided for herein (including any modifications of, or waivers, requests or consents under, this Agreement) shall be in writing, shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile, and addressed to such party at its address or facsimile number set forth in Section 11.5 of the Credit Agreement, in an Assignment and Assumption or at such other address or facsimile number as may be designated by such party in a notice to the other parties given in accordance with Section 11.5 of the Credit Agreement. Each party agrees to conform and comply with the notices obligations undertaken in Section 11.5 of the Credit Agreement. Nothing herein or in Section 11.5 of the Credit Agreement shall prejudice the right of any Secured Party to give notice or other communication pursuant hereto in any other manner specified.
Section 5.2      No Waiver . No failure or delay or course of dealing on the part of the Secured Parties in the exercise of any power, right or privilege hereunder or under any other Loan Document shall impair such power, right or privilege or be construed to be a waiver of any default or acquiescence therein, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other power, right or privilege. The rights, powers and remedies given to the Administrative Agent and each Secured Party hereby are cumulative and shall be in addition to and independent of all rights, powers and remedies existing by virtue of any statute or rule of law or in any of the other Loan Documents or any of the Swap Agreements with respect to Swap Liabilities with a Lender or an Affiliate of a Lender or Cash Management Liabilities. Any forbearance or failure to exercise, and any delay in exercising, any right, power or remedy hereunder shall not impair any such right, power or remedy or be construed to be a waiver thereof, nor shall it preclude the further exercise of any such right, power or remedy.
Section 5.3      Amendments, Etc . The terms of this Agreement may be waived, altered or amended only by an instrument in writing duly executed by each Grantor and the Administrative Agent.
Section 5.4      Successors and Assigns . This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and the successors and assigns of the Secured Parties. No Grantor’s rights or obligations hereunder nor any interest therein may be assigned or delegated by any Grantor without the prior written consent of the Administrative Agent (and any purported assignment or delegation without such consent shall be null and void).
Section 5.5      Expenses . Section 11.3.1 of the Credit Agreement is hereby incorporated, mutatis mutandis , by reference as if such Section was set forth in full herein.
Section 5.6      Counterparts . This Agreement may be executed in any number of counterparts (and by different parties hereto on different counterparts), each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic transmission will be effective as delivery of a manually executed counterpart thereof.
Section 5.7      Applicable Law; Jurisdiction; Service of Process and Venue .
(a)      Applicable Law . This Agreement and any claim, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement and the transactions contemplated hereby shall be governed by, and construed in accordance with, the law of the State of New York, without regard to conflicts of law principles except Title 14 of Article 5 of the New York General Obligations law.
(b)      SUBMISSION TO JURISDICTION . EACH GRANTOR IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY SECURED PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AGAINST ANY GRANTOR OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c)      WAIVER OF VENUE . EACH GRANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY COURT REFERRED TO IN THIS SECTION 5.7(c). EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT AND AGREES NOT ASSERT ANY SUCH DEFENSE.
(d)      SERVICE OF PROCESS . EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 5.1. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
Section 5.8      WAIVER OF JURY TRIAL . EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 5.9      Headings . The various headings of this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement or any provisions hereof.
Section 5.10      Severability . If any provision of this Agreement is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Section 5.11      Entire Agreement . This Agreement and the other Loan Documents represent the entire agreement among the parties relating to the subject matter hereof and thereof, and there are no promises, undertakings, representations or warranties by any Secured Party with respect to the subject matter hereof and thereof not expressly set forth or referred to herein or in the other Loan Documents.
Section 5.12      No Fiduciary Relationship . The Secured Parties and the Administrative Agent may have economic interests that conflict with those of any Grantor, its stockholders and/or its Affiliates. Each Grantor agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Secured Party or the Administrative Agent, on the one hand, and any Grantor, its stockholders or its Affiliates, on the other. Each Grantor acknowledges and agrees that (a) the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions and (B) in connection therewith and with the process leading thereto (i) no Secured Party nor the Administrative Agent has assumed an advisory or fiduciary responsibility in favor of any Grantor, its stockholder or its Affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Secured Party or the Administrative Agent has advised, is currently advising or will advise any Grantor, its stockholders or its Affiliates on other matters) or any other obligation to any Grantor except the obligations expressly set forth in the Loan Documents and (ii) each Secured Party and the Administrative Agent is acting solely as principal and not as the agent or fiduciary for any Grantor, its management, stockholders, creditors or any other Person. Each Grantor acknowledges and agrees that such Grantor has consulted its own legal and financial advisors to the extent it deemed appropriate and it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto. Each Grantor agrees that it will not claim that the Administrative Agent or any Secured Party has rendered advisory services of any nature or respect, or owes any fiduciary or similar duty to such Grantor, in connection with such transaction or the process leading thereto.
Section 5.13      Set-Off . In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, upon the occurrence of any Event of Default each Lender (which term shall for the purposes of this Section 5.13 include the Issuing Lenders) and each of their Affiliates is hereby authorized by each Grantor at any time or from time to time subject to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed), without notice to any Grantor or to any other Person (other than the Administrative Agent), any such notice being hereby expressly waived to the fullest extent permitted by applicable law, to set off and to appropriate and to apply any and all deposits (time or demand, provisional or final, general or special, including Indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust accounts) and any other Indebtedness at any time held or owing by such Lender to or for the credit or the account of any Grantor against and on account of the obligations and liabilities of any Loan Party to such Lender hereunder, the Letters of Credit and participations therein and under the other Loan Documents, including all claims of any nature or description arising out of or connected hereto, the Letters of Credit and participations therein or with any other Loan Document, irrespective of whether or not (a) such Lender or such Affiliate shall have made any demand hereunder or (b) the principal of or the interest on the Loans or any amounts in respect of the Letters of Credit or any other amounts due hereunder shall have become due and payable pursuant to Article II of the Credit Agreement and although such obligations and liabilities, or any of them, may be contingent or unmatured.
Section 5.14      Additional Grantors . Each Person required to become a party to this Agreement pursuant to Section 8.1.9 of the Credit Agreement shall be referred to as an “Additional Grantor” and become a Grantor for all purposes of this Agreement upon execution and delivery by such Person of a Joinder Agreement in the form of Exhibit I hereto.
[Signature Page Follows]


IN WITNESS WHEREOF , the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.
3D SYSTEMS CORPORATION

By: /s/ Andrew M. Johnson ______
Andrew M. Johnson
Executive Vice President, Chief Legal
Officer and Secretary

3D HOLDINGS, LLC
By: 3D SYSTEMS CORPORATION, ITS MANAGER

By: /s/ Andrew M. Johnson ______
Andrew M. Johnson
Executive Vice President, Chief Legal
Officer and Secretary

3D SYSTEMS, INC.

By: /s/ Andrew M. Johnson ______
Andrew M. Johnson
Executive Vice President, Chief Legal
Officer and Secretary



HSBC BANK USA, NATIONAL ASSOCIATION ,
as Administrative Agent

By:
/s/ Nimish Pandley ______
Nimish Pandley
Assistant Vice President



NAMES, LOCATIONS AND FILING DETAILS

Names

Grantor’s correct legal name:
Previous names:
Additional names:
Type of organization:
Jurisdiction of organization/Principal Place of Residence
Mailing Address
3D SYSTEMS CORPORATION
None.
None.
Corporation
Delaware
333 Three D Systems Circle, Rock Hill, SC 29730
3D SYSTEMS, INC.
None.
None.
Corporation
California
333 Three D Systems Circle, Rock Hill, SC 29730
3D HOLDINGS, LLC
None.
None.
Limited liability company
Delaware
333 Three D Systems Circle, Rock Hill, SC 29730


Changes in Name

Grantor’s correct legal name:
Description of name changes:
3D SYSTEMS CORPORATION
None.
3D SYSTEMS, INC.
None.
3D HOLDINGS, LLC
None.


Changes in Location

Grantor’s correct legal name:
Description of location changes:
3D SYSTEMS CORPORATION
None.
3D SYSTEMS, INC.
None.
3D HOLDINGS, LLC
None.

Filing Office

Grantor’s correct legal name:
Filing Office:
3D SYSTEMS CORPORATION
Delaware Secretary of State
3D SYSTEMS, INC.
California Secretary of State
3D HOLDINGS, LLC
Delaware Secretary of State

    
NEW DEBTOR EVENTS
    

None.
    

PLEDGED EQUITY INTERESTS AND PROMISSORY NOTES


Part A
Pledged Stock, Pledged Partnership Interests and Pledged LLC Interests


Grantor:
Issuer:
Class of Equity Interest:
Par Value:
Certificate No(s).
No. of Equity Interests   /Units
Percentage of Outstanding Equity Interests   /Units
3D Systems Corporation
3D Holdings, LLC
Membership Interest
N/A
N/A
N/A
100%
3D Systems Corporation
3D Canada Company NSULC
Interests
N/A
N/A
N/A
100%
3D Systems Corporation
3D Systems SA
Interests
N/A
N/A
N/A
100%
3D Holdings, LLC
3D Systems, Inc.
Common Stock
N/A
15
1,000
100%
3D Systems, Inc.
Quickparts.com., Inc.
Common Stock
N/A
N/A
N/A
100%
3D Systems, Inc.
Z Corporation
Common Stock
N/A
C3
100
100%
3D Systems, Inc.
VIDAR Systems Corporation
Common Stock
$0.01
A1011
366,743
100%
3D Systems, Inc.
3D Systems India, Inc.
Common Stock
N/A
N/A
N/A
100%
3D Systems, Inc.
Geomagic, Inc.
Common Stock
N/A
N/A
N/A
100%
3D Systems, Inc.
Gentle Giant Studios, Inc.
Common Stock
N/A
20
10,000
100%
3D Systems, Inc.
Medical Modeling Inc.
Common Stock
N/A
N/A
N/A
100%
3D Systems, Inc.
Product Development Group LLC
Membership Interest
N/A
N/A
N/A
70%
3D Systems, Inc.
Simbionix USA Corporation
Common Stock
N/A
N/A
N/A
100%
3D Systems, Inc.
3D Systems Japan K.K.
Stock
N/A
N/A
N/A
100%
3D Systems, Inc.
3D European Holdings Ltd. UK
Interests
N/A
N/A
N/A
100%
3D Systems, Inc.
3D Systems Asia-Pacific Pty Ltd
Interests
N/A
N/A
N/A
100%
3D Systems, Inc.
3D Systems Korea, Inc.
Stock
N/A
N/A
N/A
100%
3D Systems, Inc.
Cimatron Ltd. Israel
Interests
N/A
N/A
N/A
100%
3D Systems, Inc.
3D Systems Hong Kong Co., Limited
Interests
N/A
N/A
N/A
100%


Part B

Pledged Notes


None.
    
LIST OF COPYRIGHTS, APPLICATIONS FOR COPYRIGHT REGISTRATIONS, LICENSES, THIRD PARTY VIOLATIONS AND CLAIMS OF VIOLATION BY THIRD PARTIES

    
Copyrights

Grantor
Title
Jurisdiction
Registration No.
Registration Date
3D Systems, Inc.
3D Systems, Inc., training manual SLA-1.
U.S.
TXu000343358
09-09-1988


Copyright Applications

None.

Exclusively Licensed Copyrights

None.


Exclusively Licensed Copyright Applications

None.

Other Licensed Copyrights

None.

Other Licensed Copyright Applications

None.

Third Party Violations of Copyrights

None.
Claims for Grantor Violation of Copyrights

None.
    

LIST OF PATENTS, PATENT APPLICATIONS, LICENSES, THIRD PARTY VIOLATIONS AND CLAIMS OF VIOLATION BY THIRD PARTIES


Patents – United States (US)

Grantor
Title
Jurisdiction
Patent No.
Issue Date
3D Systems, Inc.
COMPOSITIONS AND METHODS FOR SELECTIVE DEPOSITION
US
6,132,665
10/17/00
3D Systems, Inc.
METHOD AND APPARATUS FOR PRINTING RASTER LINES IN A SELECTIVE DEPOSITION MODELING SYSTEM
US
6,136,252
10/24/00
3D Systems, Inc.
METHOD AND APPARATUS FOR VARIABLY CONTROLLING THE TEMPERATURE IN A SELECTIVE DEPOSITION MODELING ENVIRONMENT
US
6,162,378
12/19/00
3D Systems, Inc.
METHOD AND APPARATUS FOR CONTROLLING THE DROP VOLUME IN A SELECTIVE DEPOSITION MODELING ENVIRONMENT
US
6,347,257
2/12/02
3D Systems, Inc.
METHOD AND APPARATUS FOR SELECTIVE DEPOSITION MODELING
US
6,352,668
3/5/02
3D Systems, Inc.
PHASE CHANGE SOLID IMAGING MATERIAL
US
6,395,811
5/28/02
3D Systems, Inc.
METHOD AND DEVICE FOR PRODUCING A SHAPED BODY
US
6,403,002
6/11/02
3D Systems, Inc.
FORCE REFLECTING HAPTIC INTERFACE
US
6,417,638
7/9/02
3D Systems, Inc.
SYSTEMS AND METHODS FOR INTERACTING WITH VIRTUAL OBJECTS IN A HAPTIC VIRTUAL REALITY ENVIRONMENT
US
6,421,048
7/16/02
3D Systems, Inc.
ELECTRONIC SPOT LIGHT CONTROL
US
6,426,840
7/30/02
3D Systems, Inc.
METHOD, APPARATUS, AND ARTICLE OF MANUFACTURE FOR A CONTROL SYSTEM IN A SELECTIVE DEPOSITION MODELING SYSTEM
US
6,490,496
12/3/02
3D Systems, Inc.
SURFACE SCANNING SYSTEM FOR SELECTIVE DEPOSITION MODELING
US
6,492,651
12/10/02
3D Systems, Inc.
PHASE CHANGE SOLID IMAGING MATERIAL
US
6,528,613
3/4/03
3D Systems, Inc.
ILLUMINATION UNIT AND A METHOD FOR POINT ILLUMINATION OF A MEDIUM
US
6,529,265
3/4/03
3D Systems, Inc.
EXTENDED LIFETIME FREQUENCY CONVERSION CRYSTALS
US
6,532,100
3/11/03
3D Systems, Inc.
SYSTEMS AND METHODS FOR SCULPTING VIRTUAL OBJECTS IN A HAPTIC VIRTUAL REALITY ENVIRONMENT
US
6,552,722
4/2/03
3D Systems, Inc.
STEREOLITHOGRAPHIC PROCESS OF MAKING A THREE-DIMENSIONAL OBJECT
US
6,558,606
5/6/03
3D Systems, Inc.
METHOD OF IMPROVING SURFACES IN SELECTIVE DEPOSITION MODELING
US
6,572,807
6/3/03
3D Systems, Inc.
SELECTIVE CONTROL OF MECHANICAL PROPERTIES IN STEREOLITHOGRAPHIC BUILD STYLE CONFIGURATION
US
6,574,523
6/3/03
3D Systems, Inc.
CALIBRATING A FOCUSED BEAM OF ENERGY IN A SOLID FREEFORM FABRICATION APPARATUS BY MEASURING THE PROPAGATION CHARACTERISTICS OF THE BEAM
US
6,646,728
11/11/03
3D Systems, Inc.
METHOD TO REDUCE DIFFERENTIAL SHRINKAGE IN THREE-DIMENSIONAL STEREOLITHOGRAPHIC OBJECTS
US
6,649,113
11/18/03
3D Systems, Inc.
COLOUR CHANGING COMPOSITION AND COLOURING POLYMERIC ARTICLES MADE THEREFROM
US
6,649,311
11/18/03
3D Systems, Inc.
DETOXIFICATION OF SOLID FREEFORM FABRICATION MATERIALS
US
6,660,208
12/9/03
3D Systems, Inc.
3-D SELECTION AND MANIPULATION WITH A MULTIPLE DIMENSION HAPTIC INTERFACE
US
6,671,651
12/30/03
3D Systems, Inc.
SELECTIVE LASER SINTERING WITH OPTIMIZED RASTER SCAN DIRECTION
US
6,677,554
1/13/04
3D Systems, Inc.
MICRO-SLICING CONTOUR SMOOTHING TECHNIQUE
US
6,678,571
1/13/04
3D Systems, Inc.
POWER MANAGEMENT IN SELECTIVE DEPOSITION MODELING
US
6,711,451
3/23/04
3D Systems, Inc.
POST PROCESSING THREE-DIMENSIONAL OBJECTS FORMED BY SELECTIVE DEPOSITION MODELING
US
6,752,948
6/2/04
3D Systems, Inc.
FAST THREE-DIMENSIONAL MODELLING METHOD AND DEVICE, AND THREE-DIMENSIONAL PART OBTAINED BY FAST THREE-DIMENSIONAL MODELLING
US
6,764,636
7/20/04
3D Systems, Inc.
STEREOLITHOGRAPHIC SUPPORTS
US
6,797,351
9/28/04
3D Systems, Inc.
SYSTEMS AND METHODS FOR SCULPTING VIRTUAL OBJECTS IN A HAPTIC VIRTUAL REALITY ENVIRONMENT
US
6,831,640
12/14/04
3D Systems, Inc.
FORCE REFLECTING HAPTIC INTERFACE
US
6,879,315
4/12/05
3D Systems, Inc.
POST PROCESSING THREE-DIMENSIONAL OBJECTS FORMED BY SOLID FREEFORM FABRICATION
US
6,916,441
7/12/05
3D Systems, Inc.
APPARATUS AND METHODS FOR FEEDING SHEETS OF MEDIA TO A MEDIA PROCESSOR
US
6,923,437
8/2/05
3D Systems, Inc.
SYSTEMS AND METHODS FOR THREE-DIMENSIONAL MODELING
US
6,958,752
10/25/05
3D Systems, Inc.
SELECTIVE LASER SINTERING WITH INTERLEAVED FILL SCAN
US
6,694,207
2/17/04
3D Systems, Inc.
METHOD FOR FORMING THREE-DIMENSIONAL OBJECTS
US
6,699,424
3/2/04
3D Systems, Inc.
CALIBRATING DEPOSITION RATES IN SELECTIVE DEPOSITION MODELING
US
6,782,303
8/24/04
3D Systems, Inc.
SYSTEMS AND METHODS FOR CREATING VIRTUAL OBJECTS IN A SKETCH MODE IN A HAPTIC VIRTUAL REALITY ENVIRONMENT
US
6,792,398
9/14/04
3D Systems, Inc.
METAL POWDER COMPOSITION FOR LASER SINTERING
US
6,814,926
11/9/04
3D Systems, Inc.
SINTERING USING THERMAL IMAGE FEEDBACK
US
6,815,636
11/9/04
3D Systems, Inc.
AUTOMATIC DETERMINATION AND SELECTION OF BUILD PARAMETERS FOR SOLID FREEFORM FABRICATION TECHNIQUES BASED ON AUTOMATIC PART FEATURE RECOGNITION
US
6,816,594
11/2/04
3D Systems, Inc.
SELECTIVE DEPOSITION MODELING WITH CURABLE PHASE CHANGE MATERIALS
US
6,841,116
1/11/05
3D Systems, Inc.
ULTRA-VIOLET LIGHT CURABLE HOT MELT COMPOSITION
US
6,841,589
1/11/05
3D Systems, Inc.
WETTING AGENT FOR INFILTRATED ALUMINUM PREFORMS
US
6,848,494
2/1/05
3D Systems, Inc.
METHODS, APPARATUS AND COMPUTER PROGRAM PRODUCTS FOR MODELING THREE-DIMENSIONAL COLORED OBJECTS
US
6,853,373
2/8/05
3D Systems, Inc.
UV-CURABLE COMPOSITIONS
US
6,855,748
2/15/05
3D Systems, Inc.
SYSTEMS AND METHODS FOR VOXEL WARPING
US
6,867,770
3/15/05
3D Systems, Inc.
QUANTIZED FEED SYSTEM FOR SOLID FREEFORM FABRICATION
US
6,902,246
6/7/05
3D Systems, Inc.
SUPPORT VOLUME CALCULATION FOR A CAD MODEL
US
6,907,307
6/14/05
3D Systems, Inc.
CONTINUOUS CALIBRATION OF A NON-CONTACT THERMAL SENSOR FOR LASER SINTERING
US
6,930,278
8/16/05
3D Systems, Inc.
SELECTIVE DEPOSITION MODELING BUILD STYLE PROVIDING ENHANCED DIMENSIONAL ACCURACY
US
6,936,212
8/30/05
3D Systems, Inc.
PASTE FILLED WITH METAL POWDER AND METAL PRODUCTS OBTAINED WITH SAME
US
6,974,656
12/13/05
3D Systems, Inc.
FORCE REFLECTING HAPTIC INTERFACE
US
6,985,133
1/10/06
3D Systems, Inc.
STEREOLITHOGRAPHIC RESINS WITH HIGH TEMPERATURE AND HIGH IMPACT RESISTANCE
US
6,989,225
1/24/06
3D Systems, Inc.
DETOXIFICATION OF SOLID FREEFORM FABRICATION MATERIALS
US
6,996,245
2/7/06
3D Systems, Inc.
METHODS, APPARATUS AND COMPUTER PROGRAM PRODUCTS FOR AUTOMATICALLY GENERATING NURBS MODELS OF TRIANGULATED SURFACES USING HOMEOMORPHISMS
US
6,996,505
2/7/06
3D Systems, Inc.
METHOD FOR CREATING A 3-D OBJECT
US
6,997,698
2/14/06
3D Systems, Inc.
VENTILATION AND COOLING IN SELECTIVE DEPOSITION MODELING
US
7,008,203
3/7/06
3D Systems, Inc.
COOLING TECHNIQUES IN SOLID FREEFORM FABRICATION
US
7,011,783
3/14/06
3D Systems, Inc.
METHODS, APPARATUS AND COMPUTER PROGRAM PRODUCTS THAT RECONSTRUCT SURFACES FROM DATA POINT SETS
US
7,023,432
4/4/06
3D Systems, Inc.
CONVECTION COOLING TECHNIQUES IN SELECTIVE DEPOSITION MODELING
US
7,033,160
4/25/06
3D Systems, Inc.
ACCUMULATION, CONTROL AND ACCOUNTING OF FLUID BY-PRODUCT FROM A SOLID DEPOSITION MODELING PROCESS
US
7,074,029
7/11/06
3D Systems, Inc.
THREE DIMENSIONAL PRINTING MATERIAL SYSTEM AND METHOD
US
7,087,109
8/8/06
3D Systems, Inc.
APPARATUS AND METHODS FOR TEXTURE MAPPING
US
7,095,418
8/22/06
3D Systems, Inc.
SYSTEMS AND METHODS FOR SCULPTING VIRTUAL OBJECTS IN A HAPTIC VIRTUAL REALITY ENVIRONMENT
US
7,102,635
9/5/06
3D Systems, Inc.
3-D SELECTION AND MANIPULATION WITH A MULTIPLE DIMENSION HAPTIC INTERFACE
US
7,103,499
9/5/06
3D Systems, Inc.
POST PROCESSOR FOR THREE-DIMENSIONAL OBJECTS
US
7,114,943
10/3/06
3D Systems, Inc.
GAS BUBBLE REMOVAL FROM INK-JET DISPENSING DEVICES
US
7,118,206
10/10/06
3D Systems, Inc.
SYSTEM FOR CREATING 3D PRODUCTS
US
7,144,242
12/5/06
3D Systems, Inc.
DYNAMICALLY CONFIGURED 3-D OBJECT CREATION SYSTEM
US
7,146,236
12/5/06
3D Systems, Inc.
APPARATUS AND METHODS FOR MODIFYING A MODEL OF AN OBJECT TO ENFORCE COMPLIANCE WITH A MANUFACTURING CONSTRAINT
US
7,149,596
12/12/06
3D Systems, Inc.
3-D OBJECT CREATION SYSTEM EMPLOYING VOXELS
US
7,162,324
1/9/07
3D Systems, Inc.
3-D OBJECT CREATION SYSTEM INCORPORATING TWO MATERIALS IN ONE LAYER
US
7,162,325
1/9/07
3D Systems, Inc.
PHASE CHANGE SUPPORT MATERIAL COMPOSITION
US
7,176,253
2/13/07
3D Systems, Inc.
3-D PRINTING SYSTEM WITH MULTIPLE PRINTHEADS AT INDEPENDENT TEMPERATURES
US
7,195,475
3/27/07
3D Systems, Inc.
UV-CURABLE COMPOSITIONS
US
7,202,286
4/10/07
3D Systems, Inc.
DIGITALLY ACTIVE 3-D OBJECT CREATION SYSTEM
US
7,206,654
4/17/07
3D Systems, Inc.
SYSTEMS AND METHODS FOR VOXEL WARPING
US
7,212,203
5/1/07
3D Systems, Inc.
PRINTING SYSTEM INCORPORATING DIFFERENT MATERIAL CURING METHODS
US
7,220,112
5/22/07
3D Systems, Inc.
3-D PRODUCT PRINTING SYSTEM INCORPORATING AN ELECTRICAL CONNECTION PRINTHEAD
US
7,220,115
5/2/07
3D Systems, Inc.
MICRO LIGHT MODULATOR ARRANGEMENT
US
7,227,677
6/5/07
3D Systems, Inc.
3-D OBJECT CREATION SYSTEM USING MULTIPLE MATERIALS IN MULTIPLE LAYERS
US
7,231,275
6/12/07
3D Systems, Inc.
PRINTED PRODUCT INCORPORATING INORGANIC SEMICONDUCTORS
US
7,231,276
6/12/07
3D Systems, Inc.
PHOTOCURABLE COMPOSITIONS FOR ARTICLES HAVING STABLE TENSILE PROPERTIES
US
7,232,850
6/19/07
3D Systems, Inc.
DIGITALLY ACTIVE 3-D OBJECT CREATION SYSTEM
US
7,249,942
7/31/07
3D Systems, Inc.
SYSTEMS AND METHODS FOR SCULPTING VIRTUAL OBJECTS IN A HAPTIC VIRTUAL REALITY ENVIRONMENT
US
7,259,761
8/21/07
3D Systems, Inc.
COOLING TECHNIQUES IN SOLID FREEFORM FABRICATION
US
7,261,541
8/28/07
3D Systems, Inc.
APPARATUS FOR THREE DIMENSIONAL PRINTING USING IMAGE LAYERS
US
7,261,542
8/28/07
3D Systems, Inc.
PNEUMATIC POWDER TRANSPORT SYSTEM
US
7,296,599
11/20/07
3D Systems, Inc.
DYNAMICALLY CONFIGURED 3-D OBJECT CREATION SYSTEM WITH BUILT-IN PRINTHEAD FAILURE CORRECTION MECHANISM
US
7,278,847
10/9/07
3D Systems, Inc.
POST PROCESSING THREE-DIMENSIONAL OBJECTS FORMED BY SELECTIVE DEPOSITION MODELING
US
7,285,237
10/23/07
3D Systems, Inc.
APPARATUS AND METHODS FOR 3D PRINTING
US
7,291,002
11/6/07
3D Systems, Inc.
INSTANTANEOUS PRICE QUOTATION SYSTEM FOR CUSTOM MANUFACTURED PARTS
US
7,305,367
12/4/07
3D Systems, Inc.
3D OBJECT CREATION SYSTEM COMPRISING A PLURALITY OF LAYER GROUPS AND FAULT DETECTION SYSTEM
US
7,306,319
12/11/07
3D Systems, Inc.
3D OBJECT CREATION SYSTEM COMPRISING A PLURALITY OF LAYER GROUPS
US
7,306,323
12/11/07
3D Systems, Inc.
PHOTOCURABLE COMPOSITIONS CONTAINING REACTIVE PARTICLES
US
7,307,123
12/11/07
3D Systems, Inc.
PRINTER SYSTEM FOR DEVELOPING A THREE-DIMENSIONAL STRUCTURE
US
7,322,674
1/29/08
3D Systems, Inc.
LASER SCANNING AND POWER CONTROL IN A RAPID PROTOTYPING SYSTEM
US
7,339,712
3/4/08
3D Systems, Inc.
APPARATUS AND METHOD FOR ALIGNING A REMOVABLE BUILD CHAMBER WITHIN A PROCESS CHAMBER
US
7,357,629
4/15/08
3D Systems, Inc.
RADIATION CURABLE COMPOSITIONS USEFUL IN IMAGE PROJECTION SYSTEMS
US
7,358,283
4/15/08
3D Systems, Inc.
ULTRA-VIOLET LIGHT CURABLE HOT MELT COMPOSITION
US
7,378,460
5/27/08
3D Systems, Inc.
APPARATUS AND METHODS FOR STENCILING AN IMAGE
US
7,382,378
6/3/08
3D Systems, Inc.
APPARATUS AND METHODS FOR SERVICING 3D PRINTERS
US
7,387,359
6/17/08
3D Systems, Inc.
PHASE CHANGE SUPPORT MATERIAL COMPOSITION
US
7,399,796
7/15/08
3D Systems, Inc.
APPARATUS AND METHODS FOR TEXTURE MAPPING
US
7,400,331
7/15/08
3D Systems, Inc.
FORCE REFLECTING HAPTIC INTERFACE
US
7,411,576
8/12/08
3D Systems, Inc.
DIGITALLY ACTIVE 3-D OBJECT CREATION SYSTEM
US
7,416,276
8/26/08
3D Systems, Inc.
CONVECTION COOLING TECHNIQUES IN SELECTIVE DEPOSITION MODELING
US
7,427,374
9/23/08
3D Systems, Inc.
THREE-DIMENSIONAL STRUCTURED PRINTING
US
7,455,804
11/25/08
3D Systems, Inc.
PNEUMATIC POWDER TRANSPORT SYSTEM
US
7,464,733
12/16/08
3D Systems, Inc.
PRINTER SYSTEM FOR DEVELOPING A 3-D PRODUCT
US
7,467,025
12/16/08
3D Systems, Inc.
THREE DIMENSIONAL OBJECT PRINTING
US
7,467,837
12/23/08
3D Systems, Inc.
MATERIAL DELIVERY TENSION AND TRACKING SYSTEM FOR USE IN SOLID IMAGING
US
7,467,939
12/23/08
3D Systems, Inc.
DEVICE FOR DEPOSITING LAYERS OF MATERIAL TO FORM 3-D OBJECTS
US
7,513,596
4/7/09
3D Systems, Inc.
RAPID PROTOTYPING AND MANUFACTURING SYSTEM AND METHOD
US
7,520,740
4/21/09
3D Systems, Inc.
CONTROLLED COOLING METHODS AND APPARATUS FOR LASER SINTERING PART-CAKE
US
7,521,652
4/21/09
3D Systems, Inc.
SENSING APPARATUS HAVING OPTICAL ASSEMBLY THAT COLLIMATES EMITTED LIGHT FOR DETECTION
US
7,528,374
5/5/09
3D Systems, Inc.
METHODS AND COMPOSITIONS FOR THREE-DIMENSIONAL PRINTING OF SOLID OBJECTS
US
7,550,518
6/23/09
3D Systems, Inc.
PRINTER SYSTEM INCLUDING CURING MECHANISMS
US
7,556,329
7/7/09
3D Systems, Inc.
CONTROLLED DENSIFICATION OF FUSIBLE POWDERS IN LASER SINTERING
US
7,569,174
8/4/09
3D Systems, Inc.
THERMOPLASTIC POWDER MATERIAL SYSTEM FOR APPEARANCE MODELS FROM 3D PRINTING SYSTEMS
US
7,569,273
8/4/09
3D Systems, Inc.
THREE-DIMENSIONAL STRUCTURED PRINTING
US
7,578,958
8/25/09
3D Systems, Inc.
RAPID PROTOTYPING AND MANUFACTURING SYSTEM AND METHOD
US
7,585,450
9/8/09
3D Systems, Inc.
SYSTEM FOR CREATING A THREE DIMENSIONAL OBJECT
US
7,591,536
9/22/09
3D Systems, Inc.
ACTINIC RADIATION CURABLE COMPOSITIONS AND THEIR USE
US
7,595,351
9/29/09
3D Systems, Inc.
VOLUME ELEMENT (VOXEL) PRINTING SYSTEM FOR PRINTING A THREE-DIMENSIONAL OBJECT
US
7,597,420
10/6/09
3D Systems, Inc.
SOLID IMAGING APPARATUS AND METHOD
US
7,614,866
11/10/09
3D Systems, Inc.
RAPID PROTOTYPING AND MANUFACTURING SYSTEM AND METHOD
US
7,621,733
11/24/09
3D Systems, Inc.
HAPTIC GRAPHICAL USER INTERFACE FOR ADJUSTING MAPPED TEXTURE
US
7,626,589
12/1/09
3D Systems, Inc.
CLAMPED QUANTIZED FEED SYSTEM FOR SOLID FREEFORM FABRICATION
US
7,648,664
1/19/10
3D Systems, Inc.
SYSTEM FOR CREATING A THREE DIMENSIONAL PRINTED STRUCTURE
US
7,658,464
2/9/10
3D Systems, Inc.
JETTABLE COMPOSITIONS
US
7,655,174
2/2/10
3D Systems, Inc.
PRINTING SYSTEM FOR LAYERED OBJECT PRINTING
US
7,686,412
3/30/10
3D Systems, Inc.
VOLUME ELEMENT PRINTING SYSTEM WITH AN OBJECT INSERTION DEVICE
US
7,689,314
3/30/10
3D Systems, Inc.
RAPID PROTOTYPING AND MANUFACTURING SYSTEM AND METHOD
US
7,690,909
4/6/10
3D Systems, Inc.
VOLUME ELEMENT PRINTING SYSTEM
US
7,693,595
4/6/10
3D Systems, Inc.
THREE-DIMENSION PRINTING SYSTEM INCLUDING SEMICONDUCTOR OBJECT INCORPORATION DEVICE
US
7,706,909
4/27/10
3D Systems, Inc.
IMAGER ASSEMBLY AND METHOD FOR SOLID IMAGING
US
7,706,910
4/27/10
3D Systems, Inc.
METHOD FOR REMOVING EXCESS UNCURED BUILD MATERIAL IN SOLID IMAGING
US
7,731,887
6/8/10
3D Systems, Inc.
SYSTEMS AND METHODS FOR DESIGN AND MANUFACTURE OF A MODIFIED BONE MODEL INCLUDING AN ACCURATE SOFT TISSUE MODEL
US
7,758,345
7/20/10
3D Systems, Inc.
EDGE SMOOTHNESS WITH LOW RESOLUTION PROJECTED IMAGES FOR USE IN SOLID IMAGING
US
7,758,799
7/20/10
3D Systems, Inc.
THREE DIMENSIONAL (3D) PRINTER SYSTEM WITH PLACEMENT AND CURING MECHANISMS
US
7,766,641
8/3/10
3D Systems, Inc.
SYSTEMS AND METHODS FOR THREE-DIMENSIONAL MODELING
US
7,710,415
5/4/10
3D Systems, Inc.
FORCE REFLECTING HAPTIC INTERFACE
US
7,714,836
5/11/10
3D Systems, Inc.
PHOTOCURABLE COMPOSITIONS FOR ARTICLES HAVING STABLE TENSILE PROPERTIES
US
7,718,111
5/18/10
3D Systems, Inc.
THREE DIMENSIONAL (3D) PRINTER SYSTEM WITH PLACEMENT AND CURING MECHANISMS
US
7,766,641
8/3/10
3D Systems, Inc.
THREE-DIMENSIONAL STRUCTURED PRINTING
US
7,767,132
8/3/10
3D Systems, Inc.
SOLID IMAGING SYSTEM WITH REMOVAL OF EXCESS UNCURED BUILD MATERIAL
US
7,771,183
8/10/10
3D Systems, Inc.
STEREOLITHOGRAPHIC APPARATUS
US
7,785,093
8/31/10
3D Systems, Inc.
THERMAL MANAGEMENT SYSTEM FOR A REMOVABLE BUILD CHAMBER FOR USE WITH A LASER SINTERING SYSTEM
US
7,790,096
9/7/10
3D Systems, Inc.
MATERIAL SYSTEMS AND METHODS OF THREE-DIMENSIONAL PRINTING
US
7,795,349
9/14/10
3D Systems, Inc.
PRODUCTION LINE INCORPORATING EQUIDISTANTLY SPACED APART SETS OF PRINTHEADS
US
7,797,069
9/14/10
3D Systems, Inc.
PRINTER SYSTEM INCLUDING A PLACEMENT MECHANISM FOR PLACING OBJECTS
US
7,797,071
9/14/10
3D Systems, Inc.
PROSTHETIC LIMB WITH REPLACEABLE FAIRING
US
7,797,072
9/14/10
3D Systems, Inc.
LASER SINTERING PROCESS CHAMBER GAS CURTAIN WINDOW CLEANSING IN A LASER SINTERING SYSTEM
US
7,807,947
10/5/10
3D Systems, Inc.
APPARATUS AND METHODS FOR STENCILING AN IMAGE
US
7,808,509
10/5/10
3D Systems, Inc.
PHOTOCURABLE COMPOSITION FOR PRODUCING CURED ARTICLES HAVING HIGH CLARITY AND IMPROVED MECHANICAL PROPERTIES
US
7,820,275
10/26/10
3D Systems, Inc.
APPARATUS AND METHODS FOR SERVICING 3D PRINTERS
US
7,824,001
11/2/10
3D Systems, Inc.
APPARATUS AND METHODS FOR HANDLING MATERIALS IN A 3-D PRINTER
US
7,828,022
11/9/10
3D Systems, Inc.
THREE-DIMENSIONAL OBJECT PRINTING SYSTEM
US
7,833,001
11/16/10
3D Systems, Inc.
SENSING APPARATUS HAVING ROTATING OPTICAL ASSEMBLY
US
7,858,382
12/28/10
3D Systems, Inc.
SYSTEMS AND METHODS FOR CREATING VIRTUAL OBJECTS IN A SKETCH MODE IN A HAPTIC VIRTUAL REALITY ENVIRONMENT
US
7,864,173
1/4/11
3D Systems, Inc.
JETTABLE COMPOSITIONS
US
7,871,556
1/18/11
3D Systems, Inc.
SELECTIVE LASER SINTERING POWDER RECYCLE SYSTEM
US
7,887,316
2/15/11
3D Systems, Inc.
SYSTEMS AND METHODS FOR SCULPTING VIRTUAL OBJECTS IN A HAPTIC VIRTUAL REALITY ENVIRONMENT
US
7,889,195
2/15/11
3D Systems, Inc.
APPARATUS AND METHODS FOR WRAPPING TEXTURE ONTO THE SURFACE OF A VIRTUAL OBJECT
US
7,889,209
2/15/11
3D Systems, Inc.
THREE DIMENSIONAL PRINTING MATERIAL SYSTEM AND METHOD USING PEROXIDE CURE
US
7,905,951
3/15/11
3D Systems, Inc.
BUBBLE-FREE CROSS-SECTIONS FOR USE IN SOLID IMAGING
US
7,906,061
3/15/11
3D Systems, Inc.
CONFIGURABLE SYSTEM FOR CREATING 3D OBJECT
US
7,914,105
3/29/11
3D Systems, Inc.
VOLUME ELEMENT PRINTING SYSTEM FOR SIMULTANEOUSLY PRINTING MULTIPLE LAYERS
US
7,920,936
4/5/11
3D Systems, Inc.
MATERIAL DELIVERY SYSTEM FOR USE IN SOLID IMAGING
US
7,931,460
4/26/11
3D Systems, Inc.
DUAL PHOTOINITIATOR, PHOTOCURABLE COMPOSITION, USE THEREOF AND PROCESS FOR PRODUCING A THREE DIMENSIONAL ARTICLE
US
7,964,248
6/21/11
3D Systems, Inc.
THREE DIMENSIONAL PRINTING MATERIAL SYSTEM AND METHOD USING PLASTICIZER-ASSISTED SINTERING
US
7,968,626
6/28/11
3D Systems, Inc.
APPARATUS AND METHODS FOR HANDLING MATERIALS IN A 3-D PRINTER
US
7,971,991
7/5/11
3D Systems, Inc.
VOLUME ELEMENT PRINTING SYSTEM WITH PRINTHEAD GROUPS OF VARYING VERTICAL DISPLACEMENT FROM SUBSTRATE
US
7,974,727
7/5/11
3D Systems, Inc.
APPARATUS AND METHODS FOR HANDLING MATERIALS IN A 3-D PRINTER
US
7,979,152
7/12/11
3D Systems, Inc.
APPARATUS AND METHODS FOR HAPTIC RENDERING USING DATA IN A GRAPHICS PIPELINE
US
7,990,374
8/2/11
3D Systems, Inc.
METHOD FOR TILTING SOLID IMAGE BUILD PLATFORM FOR REDUCING AIR ENTRAINMENT AND FOR BUILD RELEASE
US
8,003,039
8/23/11
3D Systems, Inc.
METHODS, APPARATUS AND COMPUTER PROGRAM PRODUCTS THAT MODEL THREE-DIMENSIONAL SURFACE STRUCTURES
US
8,004,517
8/23/11
3D Systems, Inc.
CUSTOM BRACES, CASTS AND DEVICES AND METHODS FOR DESIGNING AND FABRICATING
US
8,005,651
8/23/11
3D Systems, Inc.
PRINTING SYSTEM FOR CURED 3D STRUCTURES
US
8,016,409
9/13/11
3D Systems, Inc.
PRINTING SYSTEM FOR DEPOSITING LAYERS OF MATERIAL TO FORM 3-D OBJECTS
US
8,029,096
10/4/11
3D Systems, Inc.
SYSTEMS FOR HYBRID GEOMETRIC/VOLUMETRIC REPRESENTATION OF 3D OBJECTS
US
8,040,345
10/18/11
3D Systems, Inc.
AUTOMATIC GEOMETRIC CALIBRATION USING LASER SCANNING REFLECTOMETRY
US
8,040,530
10/18/11
3D Systems, Inc.
REGION-BASED SUPPORTS FOR PARTS PRODUCED BY SOLID FREEFORM FABRICATION
US
8,046,097
10/25/11
3D Systems, Inc.
COMPENSATION OF ACTINIC RADIATION INTENSITY PROFILES FOR THREE-DIMENSIONAL MODELERS
US
8,048,359
11/1/11
3D Systems, Inc.
METHOD FOR DESIGN AND PRODUCTION OF A CUSTOM-FIT PROSTHESIS
US
8,086,336
12/27/11
3D Systems, Inc.
SYSTEM FOR PRINTING 3D SEMICONDUCTOR PRODUCTS
US
8,087,755
1/3/12
3D Systems, Inc.
PHOTOCURABLE COMPOSITIONS
US
8,097,399
1/17/12
3D Systems, Inc.
CARTRIDGE FOR SOLID IMAGING APPARATUS AND METHOD
US
8,105,066
1/31/12
3D Systems, Inc.
RAPID PROTOTYPING AND MANUFACTURING SYSTEM AND METHOD
US
8,105,527
1/31/12
3D Systems, Inc.
LASER SINTERING PROCESSES USING THERMOPLASTIC COMPOSITIONS
US
8,114,334
2/14/12
3D Systems, Inc.
APPARATUS FOR THREE DIMENSIONAL PRINTING USING IMAGED LAYERS
US
8,119,053
2/21/12
3D Systems, Inc.
APPARATUS AND METHOD FOR COOLING PART CAKE IN LASER SINTERING
US
8,137,609
3/20/12
3D Systems, Inc.
THREE DIMENSIONAL PRINTING MATERIAL SYSTEM AND METHOD USING PEROXIDE CURE
US
8,157,908
4/17/12
3D Systems, Inc.
APPARATUS AND METHODS FOR SERVICING 3D PRINTERS
US
8,167,395
5/1/12
3D Systems, Inc.
THREE-DIMENSIONAL PRINTING MATERIAL SYSTEM WITH IMPROVED COLOR, ARTICLE PERFORMANCE, AND EASE OF USE
US
8,167,999
5/1/12
3D Systems, Inc.
APPARATUS AND METHODS FOR WRAPPING TEXTURE ONTO THE SURFACE OF A VIRTUAL OBJECT
US
8,174,535
5/8/12
3D Systems, Inc.
PHOTOCURABLE COMPOSITIONS CONTAINING REACTIVE POLYSILOXANE PARTICLES
US
8,182,882
5/22/12
3D Systems, Inc.
APPARATUS AND METHODS FOR HANDLING MATERIALS IN A 3-D PRINTER
US
8,185,229
5/22/12
3D Systems, Inc.
IMAGER AND METHOD FOR CONSISTENT REPEATABLE ALIGNMENT IN A SOLID IMAGING APPARATUS
US
8,221,671
7/17/12
3D Systems, Inc.
PHOTOCURABLE COMPOSITIONS FOR PREPARING ABS-LIKE ARTICLES
US
8,227,048
7/24/12
3D Systems, Inc.
METHODS OF AUTOMATIC GEOMETRIC CALIBRATION USING LASER SCANNING REFLECTOMETRY
US
8,237,788
8/7/12
3D Systems, Inc.
POLYESTER POWDER COMPOSITIONS, METHODS AND ARTICLES
US
8,247,492
8/21/12
3D Systems, Inc.
REGION-BASED SUPPORTS FOR PARTS PRODUCED BY SOLID FREEFORM FABRICATION
US
8,285,411
10/9/12
3D Systems, Inc.
SELECTIVE DEPOSITION MODELING METHODS FOR IMPROVED SUPPORT-OBJECT INTERFACE
US
8,318,076
11/27/12
3D Systems, Inc.
SYSTEM FOR PRINTING 3D STRUCTURE WITH INTEGRATED OBJECTS
US
8,333,456
12/18/12
3D Systems, Inc.
ANTIMONY-FREE PHOTOCURABLE RESIN COMPOSITION AND THREE DIMENSIONAL ARTICLE
US
8,334,025
12/18/12
3D Systems, Inc.
CURABLE COMPOSITION
US
8,362,148
1/29/13
3D Systems, Inc.
PROSTHETIC LIMB
US
8,366,789
2/5/13
3D Systems, Inc.
PHOTOCURABLE RESIN COMPOSITION FOR PRODUCING THREE DIMENSIONAL ARTICLES HAVING HIGH CLARITY
US
8,377,623
2/19/13
3D Systems, Inc.
REPLACEABLE FAIRING FOR PROSTHETIC LIMB OR BRACE
US
8,417,487
4/9/13
3D Systems, Inc.
DIMENSIONAL PRINTER SYSTEM EFFECTING SIMULTANEOUS PRINTING OF MULTIPLE LAYERS
US
8,454,345
6/4/13
3D Systems, Inc.
APPARATUS AND METHODS FOR WRAPPING TEXTURE ONTO THE SURFACE OF A VIRTUAL OBJECT
US
8,456,484
6/4/13
3D Systems, Inc.
SUPPORT MATERIAL AND APPLICATIONS THEREOF
US
8,460,451
6/11/13
3D Systems, Inc.
ELEVATOR AND METHOD FOR TILTING SOLID IMAGE BUILD PLATFORM FOR REDUCING AIR ENTRAINMENT AND FOR BUILD RELEASE
US
8,465,689
6/18/13
3D Systems, Inc.
THREE DIMENSIONAL PRINTING MATERIAL SYSTEM AND METHOD USING PLASTICIZER-ASSISTED SINTERING
US
8,506,862
8/13/13
3D Systems, Inc.
FABRICATION OF NON-HOMOGENEOUS ARTICLES VIA ADDITIVE MANUFACTURING USING THREE-DIMENSIONAL VOXEL-BASED MODELS
US
8,509,933
8/13/13
3D Systems, Inc.
PRINTING SYSTEM FOR CURED 3D STRUCTURES
US
8,521,320
8/27/13
3D Systems, Inc.
COMPENSATION OF ACTINIC RADIATION INTENSITY PROFILES FOR THREE-DIMENSIONAL MODELERS
US
8,568,646
10/29/13
3D Systems, Inc.
COMPOSITIONS AND METHODS FOR SELECTIVE DEPOSITION MODELING
US
8,575,258
11/5/13
3D Systems, Inc.
JETTABLE COMPOSITIONS
US
8,569,398
10/29/13
3D Systems, Inc.
SYSTEMS AND METHODS FOR INTERFACING WITH A VIRTUAL OBJECT IN A HAPTIC VIRTUAL ENVIRONMENT
US
8,576,222
11/5/13
3D Systems, Inc.
IMPROVEMENTS FOR RAPID PROTOTYPING APPARATUS
US
8,573,958
11/5/13
3D Systems, Inc.
POLYESTER POWDER COMPOSITIONS, METHODS AND ARTICLES
US
8,592,519
11/26/13
3D Systems, Inc.
CUSTOM BRACES, CASTS AND DEVICES HAVING LIMITED FLEXIBILITY AND METHODS FOR DESIGNING AND FABRICATING
US
8,613,716
12/24/13
3D Systems, Inc.
COMPOSITIONS AND METHODS FOR SELECTIVE DEPOSITION MODELING
US
8,642,692
2/4/14
3D Systems, Inc.
EDGE SMOOTHNESS WITH LOW RESOLUTION PROJECTED IMAGES FOR USE IN SOLID IMAGING
US
8,703,037
4/22/14
3D Systems, Inc.
IMAGING ASSEMBLY
US
8,708,685
4/29/14
3D Systems, Inc.
PRINTING SYSTEM FOR FORMING THREE DIMENSIONAL OBJECTS
US
8,761,918
6/24/14
3D Systems, Inc.
SELECTIVE DEPOSITION MODELING USING CW UV LED CURING
US
8,876,513
11/4/14
3D Systems, Inc.
APPARATUS AND METHODS FOR ADJUSTING A TEXTURE WRAPPED ONTO THE SURFACE OF A VIRTUAL OBJECT
US
8,963,958
2/24/15
3D Systems, Inc.
COMPOSITIONS AND METHODS FOR SELECTIVE DEPOSITION MODELING
US
8,975,352
3/10/15
3D Systems, Inc.
COLOR STABLE INKS AND APPLICATIONS THEREOF
US
8,980,406
3/17/15
3D Systems, Inc.
CUSTOM BRACES, CASTS AND DEVICES HAVING FENESTRATIONS AND METHODS FOR DESIGNING AND FABRICATING
US
8,986,234
3/24/15
3D Systems, Inc.
FORCE REFLECTING HAPTIC INTERFACE
US
8,994,643
3/31/15
3D Systems, Inc.
SYSTEMS AND METHODS FOR SEAM RESOLUTION
US
8,994,742
3/31/15
3D Systems, Inc.
APPARATUS AND METHODS FOR HAPTIC RENDERING USING A HAPTIC CAMERA VIEW
US
9,030,411
5/12/15
3D Systems, Inc.
CRUTCH APPARATUS AND METHOD FOR DESIGNING AND FABRICATING
US
9,032,982
5/19/15
3D Systems, Inc.
SOLID IMAGING SYSTEMS, COMPONENTS THEREOF, AND METHODS OF SOLID IMAGING
US
9,034,237
5/19/15
3D Systems, Inc.
BUILD MATERIAL AND APPLICATIONS THEREOF
US
9,157,007
10/13/15
3D Systems, Inc.
POWDER COMPOSITIONS AND METHODS OF MANUFACTURING ARTICLES THEREFROM
US
9,233,505
1/12/16
3D Systems, Inc.
APPARATUS AND METHODS FOR DETAILING SUBDIVISION SURFACES
US
9,305,391
4/5/16
3D Systems, Inc.
THREE DIMENSIONAL PRINTING MATERIAL SYSTEM AND METHOD
US
9,353,284
5/31/16
3D Systems, Inc.
A 3-D OBJECT SYSTEM INCORPORATING TWO MATERIALS IN ONE LAYER
US
9,364,848
6/14/16
3D Systems, Inc.
FABRICATION OF HYBRID SOLID-POROUS MEDICAL IMPLANTABLE DEVICES WITH ELECTRON BEAM MELTING TECHNOLOGY
US
9,364,896
6/14/16
3D Systems, Inc.
BUILD MATERIAL AND APPLICATIONS THEREOF
US
9,394,441
7/19/16
3D Systems, Inc.
WALL SMOOTHNESS, FEATURE ACCURACY AND RESOLUTION IN PROJECTED IMAGES VIA EXPOSURE LEVELS IN SOLID IMAGING
US
9,415,544
8/16/16
3D Systems, Inc.
SUPPORT STRUCTURES AND DEPOSITION TECHNIQUES FOR 3D PRINTING
US
9,469,057
10/18/16
3D Systems, Inc.
COLOR STABLE INKS AND APPLICATIONS THEREOF
US
9,469,073
10/18/16
3D Systems, Inc.
SYSTEM AND METHOD FOR DESIGNING AND FABRICATING STRING INSTRUMENTS
US
9,519,733
12/13/16
3D Systems, Inc.
CONFORMAL HAND BRACE
US
9,529,941
12/27/16
3D Systems, Inc.
CRUTCH APPARATUS AND METHOD FOR DESIGNING AND FABRICATING
US
9,532,917
1/3/17
3D Systems, Inc.
DIRECT WRITING FOR ADDITIVE MANUFACTURING SYSTEMS
US
9,533,451
1/3/17
3D Systems, Inc.
SUPPORT MATERIAL AND APPLICATIONS THEREOF
US
9,534,103
1/3/17
3D Systems, Inc.
BRACE WITH ELONGATED FENESTRATIONS
US
9,549,837
1/24/17
3D Systems, Inc.
POLYESTER POWDER COMPOSITIONS, METHODS AND ARTICLES
US
9,561,625
2/7/17
3D Systems, Inc.
POWDER COMPOSITIONS AND METHODS OF MANUFACTURING ARTICLES THEREFROM
US
9,611,355
4/4/17
3D Systems, Inc.
METHOD OF PRINTING A THREE-DIMENSIONAL ARTICLE
US
9,650,526
5/16/17
3D Systems, Inc.
OPAQUE INKS AND APPLICATIONS THEREOF
US
9,657,186
5/23/17
3D Systems, Inc.
WATER REMOVABLE COMPOSITIONS AND APPLICATIONS THEREOF
US
9,663,670
5/30/17
3D Systems, Inc.
INKS COMPRISING GELLANTS FOR 3D PRINTING
US
9,732,241
8/15/17
3D Systems, Inc.
SYSTEMS AND METHODS FOR CREATING NEAR REAL-TIME EMBOSSED MESHES
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9,734,629
8/15/17
3D Systems, Inc.
ADHESIVE FOR 3D PRINTING
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9,757,881
9/12/17
3D Systems, Inc.
METHOD FOR CREATING A DESIGN FOR A REPLACEABLE FAIRING
US
9,782,274
10/10/17
3D Systems, Inc.
SYSTEMS AND METHODS FOR CONSTRUCTION OF AN INSTRUCTION SET FOR THREE-DIMENSIONAL PRINTING OF A USER-CUSTOMIZABLEIMAGE OF A THREE-DIMENSIONAL STRUCTURE
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9,802,364
10/31/17
3D Systems, Inc.
THREE-DIMENSIONAL SOAP OBJECTS FORMED BY ADDITIVE MANUFACTURING
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9,816,058
11/14/17
3D Systems, Inc.
METHOD OF PRINTING GRAYSCALE AND FULL-COLOR 3D ARTICLES
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9,827,712
11/28/17
3D Systems, Inc.
METHODS AND DEVICES FOR COUNTERACTING STRESSES DURING 3D PRINTING
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9,833,953
12/5/17
3D Systems, Inc.
CONFORMAL HAND BRACE
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9,858,359
1/2/18
3D Systems, Inc.
INFILTRATED ARTICLES PREPARED BY A LASER SINTERING METHOD & METHOD OF MANUFACTURING THE SAME
US
9,862,148
1/9/18
3D Systems, Inc.
BIKINI BRACE
US
9,918,866
3/20/18
3D Systems, Inc.
CHUTE FOR LASER SINTERING SYSTEMS
US
9,931,785
4/3/18
3D Systems, Inc.
DIRECT WRITING FOR ADDITIVE MANUFACTURING SYSTEMS
US
9,981,314
5/29/18
3D Systems, Inc.
WATER REMOVABLE COMPOSITIONS AND APPLICATIONS THEREOF
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9,951,237
4/24/18
3D Systems, Inc.
METHOD AND APPARATUS FOR ADDING DETAIL TO A 3D SOLID MODEL USING A SECONDARY GEOMETRIC REPRESENTATION
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9,959,666
5/1/18
3D Systems, Inc.
3D PRINTING WASTE MATERIAL HANDLING AND TRANSFER
US
10,061,302
8/28/18
3D Systems, Inc.
POLYESTER POWDER COMPOSITIONS, METHODS AND ARTICLES
US
10,150,256
12/11/18
3D Systems, Inc.
COMPUTER INTERFACE
US
D510,739
10/18/05
3D Systems, Inc.
RESIN CONTAINER
US
D528,425
9/19/06
3D Systems, Inc.
BUILD PLATFORM
US
D575,313
8/19/08
3D Systems, Inc.
HOUSING FOR USE IN SOLID IMAGING
US
D587,808
3/3/09
3D Systems, Inc.
CARTRIDGE FOR USE IN SOLID IMAGING
US
D588,701
3/17/09
3D Systems, Inc.
MACHINE FOR RAPID PROTOTYPING OR RAPID MANUFACTURING
US
D600,726
9/22/09
3D Systems, Inc.
MOUTH GUIDE FOR USE IN REGISTRATION OF MEDICAL AND DENTAL IMAGING AND OTHER TYPES OF SCANNING MODALITIES
US
D655,816
3/13/12
3D Systems, Inc.
COMPUTER INTERFACE
US
D717,300
11/11/14
3D Systems, Inc.
THREE-DIMENSIONAL PRINTER FRAME
US
D776,174
1/10/17



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3D Systems, Inc.
Stereolithographic Supports
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3D Systems, Inc.
Electronic Spot Light Control
Belgium
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21-Jun-2006
3D Systems, Inc.
Method for Forming Three-Dimensional Objects
Belgium
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23-Aug-2006
3D Systems, Inc.
Micro-Slicing Contour Smoothing Technique
Belgium
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3-Nov-2004
3D Systems, Inc.
Photocurable Compositions containing Reactive Polysiloxane Particles
Canada
2481301
7-Jun-2011
3D Systems, Inc.
Photocurable Compositions For Producing Cured Articles Having High Clarity and Improved Mechanical Properties
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15-May-2012
3D Systems, Inc.
Antimony-Free Photocurable Resin Composition and Three-Dimensional Article
Canada
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16-Dec-2014
3D Systems, Inc.
Cryogenically Ground Branched Polyamide-12 Powder
Canada
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1-Nov-2016
3D Systems, Inc.
Photocurable Compositions for Articles Having Stable Tensile Properties
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ZL200480036235.0
2-Jan-2013
3D Systems, Inc.
Antimony-Free Photocurable Resin Composition and Three-Dimensional Article
China
ZL200680040412.1
23-Nov-2011
3D Systems, Inc.
Dual Phonotoinitator, Photocurable Composition, Use Thereof and Process for Producing a Three Dimensional Article
China
ZL20080016382.X
2-Feb-2013
3D Systems, Inc.
Curable Compositions
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5-Jul-2012
3D Systems, Inc.
Thermoplastic Powder Material System for Appearance Models from 3D Printing Systems
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ZL200480018360.9
28-Oct-2009
3D Systems, Inc.
Apparatus and Methods for 3D Printing
China
ZL200580038271.5
16-Feb-2011
3D Systems, Inc.
Cryogenically Ground Branched Polyamide-12 Powder
China
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3D Systems, Inc.
Apparatus And Methods For Handling Materials in a 3-D Printer
China
ZL200780026585.2
13-Mar-2013
3D Systems, Inc.
Three-Dimensional Printing Material System With Improved Color. Part Performance, and Ease of Use
China
Zl200880005474.8
8-Jan-2014
3D Systems, Inc.
Three Dimensional Printing Material System and Method Using Peroxide Cure
China
ZL200780048035.0
13-Feb-2013
3D Systems, Inc.
Material Delivery Tension and Tracking System for Use in SolidImaging
China
ZL200710101129.1
7-Nov-2012
3D Systems, Inc.
Region-Based Supports for Parts Produced by Solid Freeform Fabrication
China
ZL200880115528.6
24-Sep-2014
3D Systems, Inc.
Rapid Prototyping and Manufacturing System and Method
China
ZL200610132167.9
14-Nov-2012
3D Systems, Inc.
Material Delivery System for Use In Solid Imaging
China
ZL200710101130.4
8-Feb-2012
3D Systems, Inc.
Rapid Prototyping and Manufacturing System and Method
China
ZL200610139540.3
14-Nov-2012
3D Systems, Inc.
Rapid Prototyping and Manufacturing System and Method
China
ZL200610139541.8
7-Sep-2011
3D Systems, Inc.
Rapid Prototyping and Manufacturing System and Method
China
ZL200610139543.7
21-Dec-2011
3D Systems, Inc.
Wall Smoothness, Feature Accuracy and Resolution in Projected Images via Exposure Levels in Solid Imaging
China
ZL200710148533.4
11-Sep-2013
3D Systems, Inc.
Automatic Geometric Calibration Using Laser Scanning Reflectometry
China
ZL200880110678.8
25-Jun-2014
3D Systems, Inc.
Selective Deposition Modeling Using CW UV LED Curing
China
ZL200980121424.0
9-Jul-2014
3D Systems, Inc.
Imager Assembly and Method for Solid Imaging
China
ZL200780052032.4
14-Nov-2012
3D Systems, Inc.
Solid Imaging Apparatus and Method
China
ZL200810003474.6
19-Dec-2011
3D Systems, Inc.
Cartridge for Solid Imaging Apparatus and Method
China
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7-Sep-2011
3D Systems, Inc.
Imager and Method for Consistent Repeatable Alignment in a Solid Imaging Apparatus
China
ZL200810003482.0
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3D Systems, Inc.
Compensation of Actinic Radiation Intensity Profiles for Three-Dimensional Modelers
China
ZL200980141293.2
2-Apr-2014
3D Systems, Inc.
Stereolithography Systems and Methods Using Internal Laser Modulation
China
ZL201180066239.3
25-Nov-2015
3D Systems, Inc.
Compositions and Methods for Selective Deposition Modeling
China
ZL201080020580.0
17-Dec-2014
3D Systems, Inc.
Imaging Assembly
China
CN.201080035944.2
6-Apr-2016
3D Systems, Inc.
Support Material and Applications Thereof
China
ZL201280019649.7
25-Nov-2015
3D Systems, Inc.
Build Material and Application Thereof
China
ZL201280022282.4
14-Dec-2016
3D Systems, Inc.
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Germany
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Germany
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6-Nov-2013
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30-Apr-2014
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3-Mar-2004
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1805024
10-Apr-2013
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22-Aug-2012
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France
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8-May-2013
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France
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France
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6-Jun-2007
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21-Jun-2006
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18-Mar-2009
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14-May-2008
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23-Aug-2006
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3D Systems, Inc.
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France
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12-Aug-2015
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France
1385055
14-Mar-2007
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15-Jun-2011
3D Systems, Inc.
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6-Apr-2016
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2-Dec-2009
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29-May-2009
3D Systems, Inc.
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8-Jul-2015
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France
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18-May-2011
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20-Jan-2010
3D Systems, Inc.
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France
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4-Jan-2012
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France
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20-Jan-2010
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16-May-2012
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France
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4-Jan-2012
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France
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3-Jan-2018
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France
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19-Oct-2011
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27-Feb-2008
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France
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16-May-2012
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3-Nov-2010
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5-Oct-2011
3D Systems, Inc.
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France
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21-May-2014
3D Systems, Inc.
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11-Feb-2015
3D Systems, Inc.
Improved Rapid Prototyping and Manufacturing Systems and Method
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13-Apr-2016
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28-Jun-2017
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28-Mar-2012
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2-Jan-2013
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20-Jun-2012
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4-Apr-2018
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28-Jun-2017
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2-Oct-2013
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13-Jul-2011
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30-Mar-2016
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2678147
6-May-2015
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29-Aug-2018
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26-Apr-2017
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25-Apr-2018
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9-May-2018
3D Systems, Inc.
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9-May-2018
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9-May-2018
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France
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3-Oct-2018
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1072073
3-Nov-2004
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1033222
11-Dec-2002
3D Systems, Inc.
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1025982
27-Jul-2005
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France
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26-May-2004
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22-Jun-2005
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1033229
6-Oct-2004
3D Systems, Inc.
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3-Nov-2004
3D Systems, Inc.
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3D Systems, Inc.
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United Kingdom
1671183
6-Jan-2016
3D Systems, Inc.
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United Kingdom
1680712
20-Jan-2016
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United Kingdom
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22-Nov-2017
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United Kingdom
1941322
30-May-2018
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United Kingdom
2137576
29-Aug-2018
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United Kingdom
2118169
18-Jul-2012
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United Kingdom
2215525
10-Jan-2018
3D Systems, Inc.
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United Kingdom
2346669
29-Mar-2017
3D Systems, Inc.
Thermoplastic Powde Material System for Appearance Models from 3D Printing Systems
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1628823
26-Oct-2011
3D Systems, Inc.
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United Kingdom
2269808
22-Mar-2017
3D Systems, Inc.
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United Kingdom
1542858
16-Nov-2013
3D Systems, Inc.
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United Kingdom
1416792
30-Apr-2014
3D Systems, Inc.
Material Systems and Methods of Three-Dimensional Printing
United Kingdom
1226019
3-Mar-2004
3D Systems, Inc.
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United Kingdom
1805024
10-Apr-2013
3D Systems, Inc.
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2226200
9-Apr-2014
3D Systems, Inc.
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United Kingdom
1272334
14-Nov-2012
3D Systems, Inc.
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1385704
16-Nov-2011
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United Kingdom
2261009
12-Jul-2017
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1429911
14-Mar-2012
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United Kingdom
2001656
15-Oct-2014
3D Systems, Inc.
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United Kingdom
2024168
22-Aug-2012
3D Systems, Inc.
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United Kingdom
2450177
8-May-2013
3D Systems, Inc.
Three-Dimensional Printing Material System With Improved Color. Part Performance, And Ease of Use
United Kingdom
2109528
15-Mar-2017
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United Kingdom
2089215
18-Feb-2015
3D Systems, Inc.
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United Kingdom
2664442
14-Feb-2018
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Stereolithographic Method and Apparatus for Production of Three-Dimensional Object Using Recoating Parameters for Groups of Layers
United Kingdom
1025980
18-Oct-2006
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United Kingdom
1432566
6-Jun-2007
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28-May-2008
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United Kingdom
1120228
16-Aug-2006
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1237034
21-Jun-2006
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United Kingdom
1659438
18-Mar-2009
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United Kingdom
1245369
14-May-2008
3D Systems, Inc.
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United Kingdom
1270186
23-Aug-2006
3D Systems, Inc.
Ultraviolet Light Curable Hot Melt Composition
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1458825
5-Dec-2012
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1456307
7-Dec-2011
3D Systems, Inc.
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United Kingdom
1434683
19-Jul-2006
3D Systems, Inc.
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United Kingdom
1600281
8-Oct-2008
3D Systems, Inc.
Single Side Feed Parked Powder Wave Heating with Wave Flattener
United Kingdom
1600282
15-Aug-2007
3D Systems, Inc.
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United Kingdom
1375115
12-Aug-2015
3D Systems, Inc.
Stereolithographic Resins with High Temperature and High Impact Resistance
United Kingdom
1385055
14-Mar-2007
3D Systems, Inc.
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1466718
15-Jun-2011
3D Systems, Inc.
Nanoparticle-filled stereolithographic resins
United Kingdom
1508834
6-Apr-2016
3D Systems, Inc.
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United Kingdom
1634694
2-Dec-2009
3D Systems, Inc.
Controlled Densification of Fusible Powders in Laser Sintering
United Kingdom
2421003
10-Nov-2009
3D Systems, Inc.
Laser Sintering Powder Recycle System
United Kingdom
1700686
8-Jul-2015
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United Kingdom
1645402
18-May-2011
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1710625
20-Jan-2010
3D Systems, Inc.
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United Kingdom
2148244
4-Jan-2012
3D Systems, Inc.
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United Kingdom
1733866
20-Jan-2010
3D Systems, Inc.
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United Kingdom
1705616
16-May-2012
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United Kingdom
1704989
4-Jan-2012
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1707342
3-Jan-2018
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13-May-2009
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1842243
19-Oct-2011
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1721725
27-Feb-2008
3D Systems, Inc.
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2203297
16-May-2012
3D Systems, Inc.
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United Kingdom
1769901
7-Dec-2016
3D Systems, Inc.
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United Kingdom
1790463
3-Nov-2010
3D Systems, Inc.
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United Kingdom
1852244
5-Oct-2011
3D Systems, Inc.
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United Kingdom
1769903
21-May-2014
3D Systems, Inc.
Rapid Prototyping and Manufacturing System and Method
United Kingdom
1769904
11-Feb-2015
3D Systems, Inc.
Improved Rapid Protoyping and Manufacturing System and Method
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1769902
13-Apr-2016
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1894704
28-Jun-2017
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13-Jun-2018
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2271476
10-Apr-2013
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1946908
8-Jun-2011
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1946910
28-Mar-2012
3D Systems, Inc.
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1946907
2-Jan-2013
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1946911
23-Dec-2015
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1950032
20-Jun-2012
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2344323
4-Apr-2018
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2646223
28-Jun-2017
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United Kingdom
2429802
2-Oct-2013
3D Systems, Inc.
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United Kingdom
1735133
13-Jul-2011
3D Systems, Inc.
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2451630
3-Mar-2016
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United Kingdom
2678147
6-May-2015
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2683774
29-Aug-2018
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2774954
30-May-2018
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3044270
19-Aug-2018
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2748676
26-Apr-2017
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2849931
25-Apr-2018
3D Systems, Inc.
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United Kingdom
2585007
10-Aug-2016
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2496188
23-Jan-2019
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2309951
29-Aug-2018
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2803337
30-Jan-2019
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Improved Powder Distribution for Laser Sintering Systems
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2969486
9-May-2018
3D Systems, Inc.
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60 2014 025 195.1
9-May-2018
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2967963
9-May-2018
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3191554
3-Oct-2018
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1072073
3-Nov-2004
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United Kingdom
1033222
11-Dec-2002
3D Systems, Inc.
Method and Apparatus for Stereolithography Forming Three-Dimensional Objects With Reduced Distortion
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1025982
27-Jul-2005
3D Systems, Inc.
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United Kingdom
1031392
26-May-2004
3D Systems, Inc.
Stereolithographic Method and Apparatus with Enhanced Control of Prescribed Stimulation Production and Application
United Kingdom
1026564
22-Jun-2005
3D Systems, Inc.
Stereolithographic Method and Apparatus with Enhanced Control of Prescribed Stimulation Production and Application
United Kingdom
1033229
6-Oct-2004
3D Systems, Inc.
Micro-Slicing Contour Smoothing Technique
United Kingdom
1170115
3-Nov-2004
3D Systems, Inc.
Thermoplastic Powder Material System for Appearance Models from 3D Printing Systems
Hong Kong
HK1092420
7-Sep-2012
3D Systems, Inc.
Thermoplastic Powder Material System
Hong Kong
HK1152678
5-Jan-2018
3D Systems, Inc.
Apparatus and Methods for 3D Printing
Hong Kong
HK1077541
21-Feb-2014
3D Systems, Inc.
Material Systems and Methods of Three-Dimensional Printing
Hong Kong
HK1048617
3-Dec-2004
3D Systems, Inc.
Compositions For Three-DImensional Printing of Solid Objects
Hong Kong
1049299
7-Jun-2013
3D Systems, Inc.
Method And Apparatus For Prototyping A Three-Dimensional Apparatus
Hong Kong
1059761
7-Sep-2012
3D Systems, Inc.
Method and Apparatus for Prototyping a Three-Dimensional Apparatus
Hong Kong
1152010
29-Mar-2018
3D Systems, Inc.
Apparatus And Methods For Handling Materials In a 3-D Printer
Hong Kong
HK1126723
7-Jun-2013
3D Systems, Inc.
Three-Dimensional Printing Material System With Improved Color. Part Performance, and Ease of Use
Hong Kong
HK1135647
10-Oct-2014
3D Systems, Inc.
Three Dimensional Printing Material System and Method Using Peroxide Cure
Hong Kong
1135065
15-Nov-2013
3D Systems, Inc.
Photocurable Compositions For Producing Cured Articles Having High Clarity and Improved Mechanical Properties
India
241897
29-Jul-2010
3D Systems, Inc.
Photocurable Compositions for Preparing ABS-Like Articles
India
264001
28-Nov-2014
3D Systems, Inc.
Antimony-Free Photocurable Resin Composition and Three-Dimensional Article
India
269062
29-Sep-2015
3D Systems, Inc.
Dual Photoinitiator, Photocurable Composition, Use Thereof and Process for Producing a Three Dimensional Article
India
287105
5-Sep-2017
3D Systems, Inc.
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India
295193
28-Mar-2018
3D Systems, Inc.
Apparatus and Methods for 3D Printers
India
261989
25-Jul-2014
3D Systems, Inc.
Apparatus And Methods For Handling Materials In A 3-D Printer
India
300936
11-Sep-2018
3D Systems, Inc.
Three Dimensional Printing Material System and Method Using Peroxide Cure
India
276420
19-Oct-2016
3D Systems, Inc.
Material Delivery Tension and Tracking System for Use in SolidImaging
India
285351
18-Jul-2017
3D Systems, Inc.
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India
285780
28-Jul-2017
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India
293998
8-Mar-2018
3D Systems, Inc.
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India
274121
12-Jul-2016
3D Systems, Inc.
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India
262591
28-Aug-2014
3D Systems, Inc.
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Italy
1497696
17-Dec-2014
3D Systems, Inc.
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Italy
5.02016E+14
6-Jan-2016
3D Systems, Inc.
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Italy
5.02016E+14
20-Jan-2016
3D Systems, Inc.
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Italy
5.02018E+14
22-Nov-2017
3D Systems, Inc.
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Italy
1941322
30-May-2018
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Italy
2137576
29-Aug-2018
3D Systems, Inc.
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Italy
2118169
18-Jul-2012
3D Systems, Inc.
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Italy
5.02018E+14
10-Jan-2018
3D Systems, Inc.
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Italy
2346669
29-Mar-2017
3D Systems, Inc.
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Italy
1628823
16-Oct-2011
3D Systems, Inc.
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Italy
5.02017E+14
22-Mar-2017
3D Systems, Inc.
Apparatus and Methods for 3D Printing
Italy
1542858
6-Nov-2013
3D Systems, Inc.
Methods and Compositions for Three-Dimensional Printing
Italy
1415792
30-Apr-2014
3D Systems, Inc.
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Italy
1226019
3-Mar-2004
3D Systems, Inc.
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Italy
1805024
10-Apr-2013
3D Systems, Inc.
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Italy
2226200
9-Apr-2014
3D Systems, Inc.
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Italy
1272334
14-Nov-2012
3D Systems, Inc.
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Italy
1385704
16-Nov-2011
3D Systems, Inc.
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Italy
5.02017E+14
12-Jul-2017
3D Systems, Inc.
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Italy
1429911
14-Mar-2012
3D Systems, Inc.
Production of Three-Dimensional Objects by Use of Electromagnetic Radiation
Italy
2001656
15-Oct-2014
3D Systems, Inc.
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Italy
2024168
22-Aug-2012
3D Systems, Inc.
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Italy
2450177
8-May-2013
3D Systems, Inc.
Three-Dimensional Printing Material System With Improved Color. Part Performance, And Ease of Use
Italy
5.02017E+14
15-Mar-2017
3D Systems, Inc.
Three Dimensional Printing Material System and Method Using Peroxide Cure
Italy
2089215
18-Feb-2015
3D Systems, Inc.
Three Dimensional Printing Material System and Method Using Peroxide Cure
Italy
5.02018E+14
14-Feb-2018
3D Systems, Inc.
Quantized Feed System for Solid Freeform Fabrication
Italy
1432566
6-Jun-2007
3D Systems, Inc.
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Italy
1099734
28-May-2008
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Italy
1120228
16-Aug-2006
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Electronic Spot Light Control
Italy
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21-Jun-2006
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Italy
1659438
18-Mar-2009
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Detoxification of Solid Freeform Fabrication (SFF) Materials
Italy
1245369
14-May-2008
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Italy
1270186
23-Aug-2006
3D Systems, Inc.
Ultraviolet Light Curable Hot Melt Composition
Italy
1458825
5-Dec-2012
3D Systems, Inc.
Ultraviolet Light Curable Hot Melt Composition
Italy
1456307
7-Dec-2011
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Selective Deposition Modeling With Curable Phase Change Materials
Italy
1434683
19-Jul-2006
3D Systems, Inc.
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Italy
1600281
8-Oct-2008
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Single Side Feed Parked Powder Wave Heating with Wave Flattener
Italy
1600282
15-Aug-2007
3D Systems, Inc.
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Italy
1375115
12-Aug-2015
3D Systems, Inc.
Stereolithographic Resins with High Temperature and High Impact Resistance
Italy
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14-Mar-2007
3D Systems, Inc.
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Italy
1466718
15-Jun-2011
3D Systems, Inc.
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Italy
1508834
6-Apr-2016
3D Systems, Inc.
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Italy
1634694
2-Dec-2009
3D Systems, Inc.
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Italy
1700686
8-Jul-2015
3D Systems, Inc.
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Italy
1645402
18-May-2011
3D Systems, Inc.
Edge Smoothness with Low Resolution Projected Images for Use in Solid Imaging
Italy
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20-Jan-2010
3D Systems, Inc.
Improved Edge Smoothness With Low Resolution Projected Images for Use in Solid Imaging
Italy
2148244
4-Jan-2012
3D Systems, Inc.
Edge Smoothness with Low Resolution Projected Images for Use in Solid Imaging
Italy
48248BE/2010
20-Jan-2010
3D Systems, Inc.
Laser Scanning and Power Control in a Rapid Protoyting System
Italy
1705616
16-May-2012
3D Systems, Inc.
Apparatus and Method for Aligning a Removable Build Chamber Within a Process Chamber
Italy
1704989
4-Jan-2012
3D Systems, Inc.
Pneumatic Powder Transport System
Italy
5.02018E+14
3-Jan-2018
3D Systems, Inc.
Thermal Management System For A Removable Build Chamber For Use With A Laser Sintering System
Italy
1707341
13-May-2009
3D Systems, Inc.
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Italy
1855243
19-Oct-2011
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Laser Sintering Process Chamber Gas Curtain Window Cleansing In A Laser Sintering System
Italy
1721725
27-Feb-2008
3D Systems, Inc.
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Italy
2203297
16-May-2012
3D Systems, Inc.
Rapid Prototyping and Manufacturing System and Method
Italy
5.02017E+14
7-Dec-2016
3D Systems, Inc.
Rapid Prototyping and Manufacturing System and Method
Italy
1790463
3-Nov-2010
3D Systems, Inc.
Material Delivery System for Use in Solid Imaging
Italy
7251804.6
30-Apr-2007
3D Systems, Inc.
Rapid Prototyping Apparatus
Italy
1769903
21-May-2014
3D Systems, Inc.
Rapid Prototyping and Manufacturing System and Method
Italy
1769904
11-Feb-2015
3D Systems, Inc.
Improved Rapid Prototyping and Manufacturing System and Method
Italy
1769902
13-Apr-2016
3D Systems, Inc.
Wall Smoothness, Feature Accuracy and Resolution in Projected Images via Exposure Levels in Solid Imaging
Italy
5.02017E+14
28-Jun-2017
3D Systems, Inc.
Automatic Geometric Calibration Using Laser Scanning Reflectometry
Italy
5.02018E+14
4-Mar-2030
3D Systems, Inc.
Selective Deposition Modeling Using CV UV LED Curing
Italy
2271476
10-Apr-2013
3D Systems, Inc.
Solid Imaging System with Removal of Excess Uncured Build Material
Italy
1946908
8-Jun-2011
3D Systems, Inc.
Imager Assembly and Method for Solid Imaging
Italy
1946910
28-Mar-2012
3D Systems, Inc.
Solid Imaging Appartus and Method
Italy
1946907
2-Jan-2013
3D Systems, Inc.
Cartridge for Solid Imaging Apparatus and Method
Italy
1946911
23-Dec-2015
3D Systems, Inc.
Imager and Method for Consistent Repeatable Alignment in a Solid Imaging Apparatus
Italy
1950032
20-Jun-2012
3D Systems, Inc.
Compensation of Actinic Radiation Intensity Profiles for Three-Dimensional Modelers
Italy
5.02018E+14
4-Apr-2018
3D Systems, Inc.
Stereolithography Systems and Methods Using Internal Laser Modulation
Italy
2646223
28-Jun-2017
3D Systems, Inc.
Compositions and Methods for Selective Deposition Modeling
Italy
2429802
2-Oct-2013
3D Systems, Inc.
Apparatus for Three Dimensional Printing Using Thermal Layers
Italy
1735133
13-Jul-2011
3D Systems, Inc.
Imaging Assembly
Italy
2451630
30-Mar-2016
3D Systems, Inc.
Support Material and Applications Thereof
Italy
2678147
6-May-2015
3D Systems, Inc.
Build Material and Applications Thereof
Italy
2683774
29-Aug-2018
3D Systems, Inc.
Build Material and Applications Thereof
Italy
2774954
30-May-2018
3D Systems, Inc.
Build Material and Applications Thereof
Italy
3044270
29-Aug-2018
3D Systems, Inc.
Solid Imaging Systems, Components Thereof, and Methods of Solid Imaging
Italy
5.02017E+14
26-Apr-2017
3D Systems, Inc.
Adhesive for 3D Printing
Italy
2849931
25-Apr-2018
3D Systems, Inc.
Custom Braces, Casts and Devices Having Fenestrations, Limited Flexibility and Modular Construction and Methods for Designing and Fabricating
Italy
2585007
10-Aug-2016
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Replaceable Fairing For Prosthetic Limb or Brace
Italy
2496188
23-Jan-2019
3D Systems, Inc.
Prosthetic Limb
Italy
2309951
29-Aug-2018
3D Systems, Inc.
Prosthetic Limb
Italy
2803337
30-Jan-2019
3D Systems, Inc.
Improved Powder Distribution for Laser Sintering Systems
Italy
5.02018E+14
9-May-2018
3D Systems, Inc.
Three Dimensional Printing Material System and Method
Italy
5.02018E+14
9-May-2018
3D Systems, Inc.
Conformal Hand Brace
Italy
5.02018E+14
9-May-2018
3D Systems, Inc.
Build Materials Having a Metallic Appearance for 3D Printing
Italy
3191554
3-Oct-2018
3D Systems, Inc.
Laser With Absorption Optimized Pumping of a Gain Medium
Italy
1072073
3-Nov-2004
3D Systems, Inc.
Compositions and Methods for Selective Deposition Modeling
Italy
1033222
11-Dec-2002
3D Systems, Inc.
Micro-Slicing Contour Smoothing Technique
Italy
1170115
3-Nov-2004
3D Systems, Inc.
Photocurable Compositions containing Reactive Polysiloxane Particles
Japan
4553590
23-Jul-2010
3D Systems, Inc.
Photocurable Compositions for Articles Having Stable Tensile Properties
Japan
4772681
1-Jul-2011
3D Systems, Inc.
Photocurable Composition For Producing Cured Articles Having High Clarity and Improved Mechanical Properties
Japan
4874116
2-Dec-2011
3D Systems, Inc.
Photocurable Compositions for Preparing ABS-Like Articles
Japan
5306814
5-Jul-2013
3D Systems, Inc.
Antimony-Free Photocurable Resin Composition and Three-Dimensional Article
Japan
5250776
26-Apr-2013
3D Systems, Inc.
Dual Photonitiator, Photocurable Composition, Use Thereof and Process for Producing a Three Dimensional Article
Japan
5559033
13-Jun-2014
3D Systems, Inc.
Curable Compositions
Japan
5550351
30-May-2014
3D Systems, Inc.
Photocurable Resin Composition For Producing Three Dimensional Articles Having High Clarity
Japan
5881948
12-Feb-2016
3D Systems, Inc.
Thermoplastic Powder Material System for Appearance Models From 3D Printing Systems
Japan
4662942
14-Jan-2011
3D Systems, Inc.
Apparatus and Methods for 3D Printing
Japan
4782424
28-Sep-2011
3D Systems, Inc.
Material Systems and Methods of Three-Dimensional Printing
Japan
4624626
12-Nov-2010
3D Systems, Inc.
Apparatus and Methods for 3D Printers
Japan
5122960
2-Nov-2012
3D Systems, Inc.
Apparatus and Methods for Servicing 3D Printers
Japan
5678018
9-Jan-2015
3D Systems, Inc.
Compositions For Three-DImensional Printing of Solid Objects
Japan
5160711
21-Dec-2012
3D Systems, Inc.
Method And Apparatus For Prototyping A Three-Dimensional Apparatus
Japan
4491230
9-Apr-2010
3D Systems, Inc.
Method And Apparatus For Prototyping A Three-Dimensional Apparatus
Japan
4537476
25-Jun-2010
3D Systems, Inc.
Three-DImensional Printer
Japan
4611629
22-Oct-2010
3D Systems, Inc.
Apparatus And Methods For Handling Materials In a 3-D Printer
Japan
5243413
12-Apr-2013
3D Systems, Inc.
Three-Dimensional Printing Material System With Improved Color. Part Performance, and Ease of Use
Japan
5129267
9-Nov-2012
3D Systems, Inc.
Three Dimensional Printing Material System and Method Using Peroxide Cure
Japan
5189598
1-Feb-2013
3D Systems, Inc.
Cryogenically Ground Branched Polyamide-12 Powder
Japan
5711538
13-Mar-2015
3D Systems, Inc.
Laser With Absorption Optimized Pumping of a Gain Medium
Japan
3967754
8-Jun-2007
3D Systems, Inc.
Compositions and Methods for Selective Deposition Modeling
Japan
3396200
7-Feb-2003
3D Systems, Inc.
Method and Apparatus for Stereolithography Forming Three-Dimensional Objects With Reduced Distortion
Japan
4015339
21-Sep-2007
3D Systems, Inc.
Method, Apparatus, and Article of Manufacture for a Control System in a Selective Deposition Modeling System
Japan
4339484
10-Jul-2009
3D Systems, Inc.
Stereolithographic Method and Apparatus for Production of Three-Dimensional Object Using Recoating Parameters for Groups of Layers
Japan
3803223
12-May-2006
3D Systems, Inc.
Method and Apparatus for Forming Three-Dimensional Objects Using Line Width Compensation with Small Feature Retention
Japan
4002045
24-Aug-2007
3D Systems, Inc.
Stereolithographic Method and Apparatus with Enhanced Control of Prescribed Stimulation Production and Application
Japan
4503522
30-Apr-2010
3D Systems, Inc.
Quantized Feed System for Solid Freeform Fabrication
Japan
4527397
11-Jun-2010
3D Systems, Inc.
Stereolithographic Supports
Japan
3556911
21-May-2004
3D Systems, Inc.
Micro-Slicing Contour Smoothing Technique
Japan
3862523
6-Oct-2006
3D Systems, Inc.
Method to Reduce Differential Shrinkage in Three-Dimensional Stereolithographic Objects
Japan
3955448
11-May-2007
3D Systems, Inc.
Electronic Spot Light Control
Japan
4057311
21-Dec-2007
3D Systems, Inc.
Method for Forming Three-Dimensional Objects
Japan
4350934
31-Jul-2009
3D Systems, Inc.
Ultraviolet Light Curable Hot Melt Composition
Japan
4643140
10-Dec-2010
3D Systems, Inc.
Ultraviolet Light Curable Hot Melt Composition
Japan
4551087
16-Jul-2010
3D Systems, Inc.
Single Side Bi-Directional Feed For Laser Sintering
Japan
4146453
27-Jun-2008
3D Systems, Inc.
Single Side Feed Parked Powder Wave Heating with Wave Flattener
Japan
4146454
27-Jun-2008
3D Systems, Inc.
Ventilation and Cooling in Selective Deposition Modeling
Japan
3837126
4-Aug-2006
3D Systems, Inc.
Stereolithographic Resins Containing Selected Oxetane Compounds
Japan
4865190
18-Nov-2011
3D Systems, Inc.
Stereolithographic Resins with High Temperature and High Impact Resistance
Japan
4050667
7-Dec-2007
3D Systems, Inc.
Sintering Using Thermal Image Feedback
Japan
4146385
27-Jun-2008
3D Systems, Inc.
Nanoparticle-Filled Stereolithographic Resins
Japan
3971412
15-Jun-2007
3D Systems, Inc.
Continuous Calibration of a Non-Contact Thermal Sensor for Laser Sintering
Japan
4076091
8-Feb-2008
3D Systems, Inc.
Laser Sintering Powder Recycle System
Japan
4745867
20-May-2011
3D Systems, Inc.
Stereolithographic Apparatus
Japan
4745783
20-May-2011
3D Systems, Inc.
Laser Scanning And Power Control In A Rapid Prototyping System
Japan
4833701
30-Sep-2011
3D Systems, Inc.
Apparatus and Method for Aligning a Removable Build Chamber Within a Process Chamber
Japan
4805704
19-Aug-2011
3D Systems, Inc.
Pneumatic Powder Transport System
Japan
4919325
10-Feb-2012
3D Systems, Inc.
Thermal Management System For A Removable Build Chamber For Use With A Laser Sintering System
Japan
4919326
10-Feb-2012
3D Systems, Inc.
Material Delivery Tension and Tracking System for Use in SolidImaging
Japan
4787204
22-Jul-2011
3D Systems, Inc.
Laser Sintering Process Chamber Gas Curtain Window Cleansing In A Laser Sintering System
Japan
4898280
6-Jan-2012
3D Systems, Inc.
Region-Based Supports for Parts Produced by Solid Freeform Fabrication
Japan
5777136
17-Jul-2015
3D Systems, Inc.
Rapid Prototyping and Manufacturing System and Method
Japan
4999059
25-May-2012
3D Systems, Inc.
Material Delivery System for Use In Solid Imaging
Japan
4855998
4-Nov-2011
3D Systems, Inc.
Improved Rapid Prototyping and Manufacturing System and Method
Japan
5035874
13-Jul-2012
3D Systems, Inc.
Rapid Prototyping and Manufacturing System and Method
Japan
5192676
8-Feb-2013
3D Systems, Inc.
Rapid Prototyping and Manufacturing System and Method
Japan
5113364
19-Oct-2012
3D Systems, Inc.
Rapid Prototyping and Manufacturing System and Method
Japan
4919336
10-Feb-2012
3D Systems, Inc.
Wall Smoothness, Feature Accuracy and Resolution in Projected Images via Exposure Levels in Solid Imaging
Japan
4937044
2-Mar-2012
3D Systems, Inc.
Automatic Geometric Calibration Using Laser Scanning Reflectometry
Japan
5735803
24-Apr-2015
3D Systems, Inc.
Imager Assembly and Methods for Solid Imaging
Japan
6312237
30-Mar-2018
3D Systems, Inc.
Solid Imaging Apparatus and Method
Japan
4778005
8-Jul-2011
3D Systems, Inc.
Cartridge for Solid Imaging Apparatus and Method
Japan
4856102
4-Nov-2011
3D Systems, Inc.
Imager and Method for Consistent Repeatable Alignment in a Solid Imaging Apparatus
Japan
5096937
28-Sep-2012
3D Systems, Inc.
Compensation of Actinic Radiation Intensity Profiles for Three-Dimensional Modelers
Japan
5379236
4-Oct-2013
3D Systems, Inc.
Stereolithography Systems and Methods Using Intenal Laser Modulation
Japan
5739010
1-May-2015
3D Systems, Inc.
Compositions and Methods for Selective Deposition Modeling
Japan
5431576
13-Dec-2013
3D Systems, Inc.
Imaging Assembly
Japan
5792720
14-Aug-2015
3D Systems, Inc.
Solid Imaging Systems, Components Thereof, and Methods of Solid Imaging
Japan
6073900
13-Jan-2017
3D Systems, Inc.
Color Stable Inks and Applications Thereof
Japan
6384974
17-Aug-2018
3D Systems, Inc.
Custom Braces, Casts and Devices and Methods for Designing And Fabricating (Bespoke)
Japan
5421383
29-Nov-2013
3D Systems, Inc.
Replaceable Fairing for Prosthetic Limb or Brace
Japan
5723380
3-Apr-2015
3D Systems, Inc.
Prosthetic Limb (Bespoke)
Japan
5956408
24-Jun-2016
3D Systems, Inc.
BRACE WITH ELONGATED FENESTRATIONS
Japan
6073374
13-Jan-2017
3D Systems, Inc.
Bikini Brace
Japan
6218290
6-Oct-2017
3D Systems, Inc.
Improved Powder Distribution fo Laser Sintering System
Japan
6178491
21-Jul-2017
3D Systems, Inc.
Chute for Laser Sintering Systems
Japan
6178492
21-Jul-2017
3D Systems, Inc.
Three Dimensional Printing Material System and Method
Japan
6185648
4-Aug-2017
3D Systems, Inc.
Three Dimensional Printing Material System and Method
Japan
6384976
17-Aug-2018
3D Systems, Inc.
Conformal Hand Brace
Japan
6348966
8-Jun-2018
3D Systems, Inc.
Inks for 3D Printing
Japan
6374018
27-Jul-2018
3D Systems, Inc.
System and Method for Fabricating Custom Medical Implant Devices
Japan
6455946
28-Dec-2018
3D Systems, Inc.
Inks Comprising Gellants for3D Printing
Japan
6374034
27-Jul-2018
3D Systems, Inc.
Fracturing a Shell of a Three Dimensional Object
Japan
6406776
28-Sep-2018
3D Systems, Inc.
Water Dispersible Support Materials for 3D Printing
Japan
6391713
31-Aug-2018
3D Systems, Inc.
Inks Comprising Liquid Rubber for 3D Printing
Japan
6401391
14-Sep-2018
3D Systems, Inc.
Photocurable Compositions containing Reactive Polysiloxane Particles
Korea
-532613
3-Sep-2010
3D Systems, Inc.
Photocurable Compositions for Articles Having Stable Tensile Properties
Korea
10-1165481
6-Jul-2012
3D Systems, Inc.
Photocurable Composition For Producing Cured Articles Having High Clarity and Improved Mechanical Properties
Korea
10-1138169
12-Apr-2012
3D Systems, Inc.
Photocurable Compositions for Preparing ABS-Like Articles
Korea
10-1291891
25-Jul-2013
3D Systems, Inc.
Antimony-Free Photocurable Resin Composition and Three-Dimensional Article
Korea
-640725
13-Mar-2014
3D Systems, Inc.
Dual Photoinitiator, Photocurable Composition, Use Thereof and Process for Producing a Three Dimensional Article
Korea
10-1721254
23-Mar-2017
3D Systems, Inc.
Curable Compositions
Korea
-15795
24-Mar-2015
3D Systems, Inc.
Thermoplastic Powder Material System for Appearance Models From 3D Printing Systems
Korea
1513841
26-Jan-2012
3D Systems, Inc.
Thermoplastic Powder Material System For Appearance Mmodesl From 3D Printing Systems
Korea
10-1148770
16-May-2012
3D Systems, Inc.
Apparatus and Methods for 3D Printers
Korea
10-1342341
10-Dec-2013
3D Systems, Inc.
Compositions For Three-DImensional Printing of Solid Objects
Korea
10-838878
10-Jun-2008
3D Systems, Inc.
Apparatus And Methods For Handling Materials In a 3-D Printer
Korea
10-1436647
26-Aug-2014
3D Systems, Inc.
Apparatus and Methods for Handling Materials in a 3D Printer
Korea
10-1537494
10-Jul-2015
3D Systems, Inc.
Three Dimensional Printing Material System and Method Using Peroxide Cure
Korea
10-1407801
9-Jun-2014
3D Systems, Inc.
Custom Braces, Casts and Devices And Methods for Designing And Fabricating (Bespoke)
Korea
10-1595144
11-Feb-2016
3D Systems, Inc.
Replaceable Fairing For Prosthetic Limb or Brace (Bespoke)
Korea
10-1726013
5-Apr-2017
3D Systems, Inc.
Adjustable Brace
Korea
10-1630097
7-Jun-2016
3D Systems, Inc.
Proesthetic Limb (Bespoke)
Korea
10-1478868
26-Dec-2014
3D Systems, Inc.
Method, Apparatus, and Article of Manufacture for a Control System in a Selective Deposition Modeling System
Netherlands
1031392
26-May-2004


Licensed Patents

None.

Licensed Patent Applications

None.

Third Party Violations of Patents

None.


Claims for Grantor Violation of Patents

None.



ANNEX VI
to Security Agreement

    
LIST OF TRADE NAMES, TRADEMARKS, SERVICES MARKS, TRADEMARK AND SERVICE MARK REGISTRATIONS,
APPLICATIONS FOR TRADEMARK AND SERVICE MARK REGISTRATIONS, DOMAIN NAMES, LICENSES, THIRD PARTY VIOLATIONS AND CLAIMS OF VIOLATION BY THIRD PARTIES


Trademark Registrations – United States (US)

Grantor
Mark
Jurisdiction
Registration No.
Registration Date
3D SYSTEMS, INC.
3D SYSTEMS

U.S.
2705637
15-APR-2003
3D SYSTEMS, INC.
ACCUDENTAL

U.S.
3263092
10-JUL-2007
3D SYSTEMS, INC.
ACCURA
U.S.
2809333
27-JAN-2004
3D SYSTEMS, INC.
CAD PRO ADVANTAGE
and Design



DDD20181231EX1011IMAGE1.GIF
U.S.
3001588
27-SEP-2005
3D SYSTEMS, INC.
CLINICAL EXPRESS
U.S.
2659832
10-DEC-2002
3D SYSTEMS, INC.
DIAGNOSTIC PRO
ADVANTAGE and Design


DDD20181231EX1011IMAGE2.GIF
U.S.
3108714
27-JUN-2006
3D SYSTEMS, INC.
DOSIMETRY PRO
U.S.
2945612
03-MAY-2005
3D SYSTEMS, INC.
DURAFORM
U.S.
2611081
27-AUG-2002
3D SYSTEMS, INC.
FREEFORM

U.S.
2550418
19-MAR-2002
3D SYSTEMS, INC.
GEOMAGIC
U.S.
2139595
24-FEB-1998

Annex VI to Security Agreement



3D SYSTEMS, INC.
GEOMAGIC
and Design



DDD20181231EX1011IMAGE3.GIF
U.S.
2498373
16-OCT-2001
3D SYSTEMS, INC.
GEOMAGIC CAPTURE
U.S.
2774835
21-OCT-2003
3D SYSTEMS, INC.
GEOMAGIC STUDIO
U.S.
2546689
12-MAR-2002
3D SYSTEMS, INC.
GEOMAGIC WRAP
U.S.
2597286
23-JUL-2002
3D SYSTEMS, INC.
GEOMAGICSTUDIO
and Design


DDD20181231EX1011IMAGE4.GIF
U.S.
2558405
09-APR-2002
3D SYSTEMS, INC.
GHOST
U.S.
2086117
05-AUG-1997
3D SYSTEMS, INC.
NETTOUCH.
U.S.
2430161
20-FEB-2001
3D SYSTEMS, INC.
OPENHAPTICS

U.S.
3015264
15-NOV-2005
3D SYSTEMS, INC.
PHANTO PHANTOM and
 Design
DDD20181231EX1011IMAGE5.GIF
U.S.
2083626
29-JUL-1997
3D SYSTEMS, INC.
PHANTOM
U.S.
2720224
03-JUN-2003
3D SYSTEMS, INC.
QUICKPARTS
U.S.
2530901
15-JAN-2002
3D SYSTEMS, INC.
QUICKQUOTE
U.S.
2541884
19-FEB-2002
 
 
 
 
 
3D SYSTEMS, INC.
SMARTFEEDER
U.S.
2924512
01-FEB-2005
3D SYSTEMS, INC.
THERMOJET
U.S.
2478949
21-AUG-2001
3D SYSTEMS, INC.
VIDAR
U.S.
3546076
16-DEC-2008
3D SYSTEMS, INC.
VISIJET
U.S.
2776849
21-OCT-2003
3D SYSTEMS, INC.
VISIJET
U.S.
3098162
30-MAY-2006
3D SYSTEMS, INC.
WEBTOUCH.
U.S.
2188217
08-SEP-1998
3D SYSTEMS, INC.
WRAP
U.S.
2269984
10-AUG-1999
3D SYSTEMS, INC.
Z
U.S.
2577673
11-JUN-2002
3D SYSTEMS, INC.
ZB
U.S.
2692035
04-MAR-2003
3D SYSTEMS, INC.
ZP
U.S.
2577674
11-JUN-2002
3D SYSTEMS, INC.
ZPRINTER
U.S.
2778599
28-OCT-2003
3D SYSTEMS, INC.
3D SPRINT
U.S.
5396238
06-FEB-2018
3D SYSTEMS, INC.
3D SYSTEMS
U.S.
5410982
27-FEB-2018
3D SYSTEMS, INC.
3DME
U.S.
4436220
19-NOV-2013

Annex VI to Security Agreement



3D SYSTEMS, INC.
3DS and Design







DDD20181231EX1011IMAGE6.GIF
U.S.
5390031
30-JAN-2018
3D SYSTEMS, INC.
ARTHROVIEW
U.S.
4944284
26-APR-2016
3D SYSTEMS, INC.
ARTHROVIEW ANATOMICAL MODEL
U.S.
3592823
17-MAR-2009
3D SYSTEMS, INC.
BESPOKE INNOVATIONS
U.S.
4258079
11-DEC-2012
3D SYSTEMS, INC.
BLOKIFY
U.S.
4625931
21-OCT-2014
 
 
 
 
 
3D SYSTEMS, INC.
CIMATRON
U.S.
5017279
09-AUG-2016
3D SYSTEMS, INC.
CLEARVIEW
U.S.
4944282
26-APR-2016
3D SYSTEMS, INC.
CLS
U.S.
4283363
29-JAN-2013
3D SYSTEMS, INC.
COCOJET
U.S.
4920804
22-MAR-2016
3D SYSTEMS, INC.
CREATE WITH CONFIDENCE
U.S.
4425652
29-OCT-2013
3D SYSTEMS, INC.
CREATIVITY REIMAGINED
U.S.
4428832
05-NOV-2013
3D SYSTEMS, INC.
CUBEPRO
U.S.
4588255
19-AUG-2014
3D SYSTEMS, INC.
CUBEX
U.S.
4477071
04-FEB-2014
3D SYSTEMS, INC.
CUBIFY
U.S.
4588915
19-AUG-2014
3D SYSTEMS, INC.
DURAFORM
U.S.
3519767
21-OCT-2008
3D SYSTEMS, INC.
GENTLE GIANT
U.S.
5446164
17-APR-2018
3D SYSTEMS, INC.
HAPSTACK
U.S.
4803785
01-SEP-2015
3D SYSTEMS, INC.
INFINITY
U.S.
4929163
29-MAR-2016
3D SYSTEMS, INC.
LABRYNTH
U.S.
4311460
02-APR-2013
3D SYSTEMS, INC.
LASERFORM
U.S.
5018055
09-AUG-2016
3D SYSTEMS, INC.
MENTORLEARN
U.S.
3720780
08-DEC-2009
3D SYSTEMS, INC.
MY ROBOT NATION
U.S.
4195829
21-AUG-2012
3D SYSTEMS, INC.
OSTEOVIEW
U.S.
4944283
26-APR-2016
3D SYSTEMS, INC.
PROCEDURE REHEARSAL STUDIO
U.S.
3797749
01-JUN-2010
3D SYSTEMS, INC.
PROJET
U.S.
4202187
04-SEP-2012
3D SYSTEMS, INC.
PROX
U.S.
4931026
05-APR-2016
3D SYSTEMS, INC.
QUICKCAST
U.S.
3988232
05-JUL-2011

Annex VI to Security Agreement



3D SYSTEMS, INC.
QUICKHAPTICS
U.S.
3716656
24-NOV-2009
3D SYSTEMS, INC.
QUICKPARTS
U.S.
4279169
22-JAN-2013
3D SYSTEMS, INC.
U/S MENTOR
U.S.
4589402
19-AUG-2014
3D SYSTEMS, INC.
VIDAR SYSTEMS CORPORATION
U.S.
3645575
30-JUN-2009
3D SYSTEMS, INC.
VSP
U.S.
3834444
17-AUG-2010

Trademark Registration Applications

Grantor
Mark
Jurisdiction
ITU Status
Application No.
Filing Date
3D SYSTEMS, INC.
3D CONNECT
U.S.
SOU Filed
87597909
06-SEP-2017
3D SYSTEMS, INC.
3DXPERT
U.S.
SOU Not Filed
87159472
02-SEP-2016
 
 
 
 
 
 
3D SYSTEMS, INC.
DYNABOT
U.S.
SOU Filed
87890642
24-APR-2018
3D SYSTEMS, INC.
FABPRO

U.S.
SOU Filed
87533813
19-JUL-2017
3D SYSTEMS, INC.
FIGURE 4

U.S.
SOU Filed
87597941
06-SEP-2017
3D SYSTEMS, INC.
NEXTDENT

U.S.
SOU Filed
87597969
06-SEP-2017


Trademark Registrations – Non-US

Grantor
Mark
Jurisdiction
Registration No.
Registration Date
3D SYSTEMS, INC.
QUICKPARTS
Brazil
840715749
7/26/2016
3D SYSTEMS, INC.
FREEFORM
Canada
TMA5843333
6/25/2003
3D SYSTEMS, INC.
CUBE
China
13386207
4/28/2015
3D SYSTEMS, INC.
CUBITY-CLASS 40
China
13386206
2/14/2015
3D SYSTEMS, INC.
CUBIFY-CLASS 42
China
13386208
1/28/2015
3D SYSTEMS, INC.
3DS (FIGURATIVE) IN CLASS 07
China
10651331
3/21/2016
3D SYSTEMS, INC.
3DS (FIGURATIVE) IN CLASS 01
China
10651332
1/28/2014
3D SYSTEMS, INC.
SIMPOSIA
China
1103078
8/25/2011
3D SYSTEMS, INC.
GIBBS
Germany
39841918
8/29/2018
3D SYSTEMS, INC.
VIRTUAL GIBBS
Germany
39841920
 
3D SYSTEMS, INC.
CUBE
Ecuador
10587889
8/30/2012
3D SYSTEMS, INC.
CUBIFY
Ecuador
10587905
6/25/2012

Annex VI to Security Agreement



3D SYSTEMS, INC.
3DS (FIGURATIVE)
Ecuador
10727584
7/4/2015
3D SYSTEMS, INC.
CAD PRO ADVANTAGE LOGO
Ecuador
4049805
2/2/2006
3D SYSTEMS, INC.
PROJET
Ecuador
11063237
12/18/2012
3D SYSTEMS, INC.
GEOMAGIC STUDIO
Ecuador
9647223
5/23/2011
3D SYSTEMS, INC.
SENSABLE
Ecuador
905950
5/18/2000
3D SYSTEMS, INC.
PHANTOM
Ecuador
906008
11/29/1999
3D SYSTEMS, INC.
SINTAFLEX
Ecuador
F20778635
7/4/2005
3D SYSTEMS, INC.
GIBBS
Ecuador
729525
 
3D SYSTEMS, INC.
CIMATRON
Ecuador
15066988
5/24/2016
3D SYSTEMS, INC.
GENTLE GIANT
Ecuador
16607327
8/17/2017
3D SYSTEMS, INC.
3D CONNECT
Ecuador
17197948
1/8/2018
3D SYSTEMS, INC.
DURAFORM
Europe
644120/3
10/22/1999
3D SYSTEMS, INC.
ACCURA
Europe
2541282/5
6/5/2003
3D SYSTEMS, INC.
INSIGHT ROBOT
Europe
5057963
4/5/2007
3D SYSTEMS, INC.
INSIGHT ARTHROVR
Europe
6521421
1/8/2009
3D SYSTEMS, INC.
LAYERWISE
Europe
6856041
8/11/2009
3D SYSTEMS, INC.
DENTWISE
Europe
11568565
7/30/2013
3D SYSTEMS, INC.
INSIGHT VIEWER
Europe
5299987
8/30/2007
3D SYSTEMS, INC.
SIMPOSIA
Israel
1103078
8/25/2011
3D SYSTEMS, INC.
DURAFORM
India
1370879
3/28/2018
3D SYSTEMS, INC.
VISIJET
India
1370189
3/28/2018
3D SYSTEMS, INC.
FREEFORM
Japan
1301069
11/22/2005
3D SYSTEMS, INC.
DURAFORM
Japan
5294121
1/15/2010
3D SYSTEMS, INC.
ACCURA
Japan
4796491
9/21/2004
3D SYSTEMS, INC.
CUBE
Japan
5540059
11/30/2012
3D SYSTEMS, INC.
CUBIFY
Japan
5516736
8/24/2012
3D SYSTEMS, INC.
3DS (FIGURATIVE)
Japan
5531724
10/26/2012
3D SYSTEMS, INC.
PROJET
Japan
5592599
6/21/2013
3D SYSTEMS, INC.
PHANTOM
Japan
4865752
5/20/2005
3D SYSTEMS, INC.
SIMPOSIA
Japan
1103078
8/25/2011
3D SYSTEMS, INC.
CIMATON
Japan
5852473
5/20/2016
3D SYSTEMS, INC.
LASERFORM
Japan
5868577
7/22/2016
3D SYSTEMS, INC.
3DXPERT
Japan
5941346
4/21/2017
3D SYSTEMS, INC.
GENTLE GIANT
Japan
5995910
11/10/2017
3D SYSTEMS, INC.
3D SPRINT
Japan
1364879
5/11/2018
3D SYSTEMS, INC.
CUBIFY
Korea
41-294685
7/23/2014
3D SYSTEMS, INC.
CUBIFY
Korea
40-1409537
7/23/2014
3D SYSTEMS, INC.
MENTORLEARN
Russian
Federation
521034
8/25/2014
3D SYSTEMS, INC.
PROCEDURE REHEARSAL STUDIO
Russian
Federation
507357
2/26/2014
3D SYSTEMS, INC.
SIMBIONIX
Russian
Federation
507358
2/26/2014

Annex VI to Security Agreement



3D SYSTEMS, INC.
SIMPOSIA
Russian
Federation
1103078
8/25/2011
3D SYSTEMS, INC.
ANGIO MENTOR
Russian
Federation
521033
8/25/2014


Trademark Registration Applications – Non-US

Grantor
Mark
Jurisdiction
Status
Filing
Date
3D Systems, Inc.
Cube
Brazil
PENDING
10/15/2013
3D Systems, Inc.
3DS (figurative) in Class 40
China
PENDING
 03/21/2012
3D Systems, Inc.
Geomagic
China
PENDING
 07/07/2012
3D Systems, Inc.
Freeform
China
PENDING
 09/05/2014
3D Systems, Inc.
VIDAR
Ecuador
PENDING
  11/15/2007

3D Systems, Inc.
VIDAR SYSTEMS CORPORATION
Ecuador
PENDING
 11/15/2007

3D Systems, Inc.
Laserform
Ecuador
PENDING
2/24/2016

3D Systems, Inc.
3DXpert
Ecuador
PENDING
10/4/2016

3D Systems, Inc.
3DS (figurative)
India
PENDING
3/21/2012

3D Systems, Inc.
3DS (figurative)
Turkey
PENDING
11/28/2018



Domain Names

Registrar
Domain Name
Creation Date
Expiration
Date
101Domains
3dsystems.fr
Unknown
10/21/2019
101Domains
3dsystems.it
Unknown
11/4/2019
101Domains
cubify.co.za
Unknown
2/27/2021
101Domains
cubify.com.sg
Unknown
3/12/2021
101Domains
producitons3dprinters
Unknown
10/21/2019
101Domains
quickparts.com.ar
Unknown
3/12/2021
101Domains
quickparts.com.uy
Unknown
11/11/2019
101Domains
quickparts.uy
Unknown
11/11/2019
101Domains
steamtrax.asia
Unknown
6/30/2022
101Domains
stemtrax.asia
Unknown
6/30/2022
AmericanRegistry
dentwise.fr
2/7/2019
2/6/2020

Annex VI to Security Agreement



AmericanRegistry
dentwise.be
2/7/2019
2/6/2020
AmericanRegistry
layerwise.fr
2/7/2019
2/6/2020
AmericanRegistry
layerwise.be
2/6/2019
2/5/2020
AmericanRegistry
gibbscam.es
4/30/2009
7/31/2019
AmericanRegistry
gibbscam.jp
4/30/2009
7/31/2019
AmericanRegistry
gibbscam.fr
4/30/2009
7/31/2019
GoDaddy
3DBRYCE.COM
6/28/2007
6/28/2020
GoDaddy
3DHOMEPRINTER.COM
5/14/2007
5/14/2019
GoDaddy
3DHOMEPRINTERS.COM
5/14/2007
5/14/2019
GoDaddy
3DME.COM
1/28/1997
1/29/2021
GoDaddy
3dmedicalmodeling.net
11/3/2015
11/3/2020
GoDaddy
3dmedicalmodeling.org
11/3/2015
11/3/2020
GoDaddy
3dprintingfilament.com
9/30/2011
9/30/2021
GoDaddy
3DPRINTINGHARDWARE.COM
10/18/2007
10/18/2019
GoDaddy
3dprintingworld.com
7/20/2008
7/20/2019
GoDaddy
3DPROPARTS.COM
8/31/2007
8/31/2021
GoDaddy
3dsacademy.com
10/29/2015
10/29/2020
GoDaddy
3DSCULINARY.COM
5/12/2015
5/12/2025
GoDaddy
3DSCULINARY.US
5/12/2015
5/11/2020
GoDaddy
3DSCULINARYLAB.COM
5/12/2015
5/12/2020
GoDaddy
3DSCULINARYLAB.US
5/12/2015
5/11/2020
GoDaddy
3DSCULINARYLABS.COM
5/12/2015
5/12/2020
GoDaddy
3DSCULINARYLABS.US
5/12/2015
5/11/2020
GoDaddy
3DSPRINT.COM
9/23/2012
9/23/2024
GoDaddy
3DSPRINT.IO
12/12/2014
12/12/2024
GoDaddy
3DSPRINT.IT
12/13/2014
12/13/2019
GoDaddy
3DSPRINT.SOLUTIONS
12/12/2014
12/12/2022
GoDaddy
3DSPRINT.US
12/12/2014
12/11/2022
GoDaddy
3DSYSTE.MS
7/1/2013
7/1/2019
GoDaddy
3DSYSTEM1.COM
5/5/2010
5/5/2024
GoDaddy
3dsystems-europe.com
10/7/1997
10/6/2022
GoDaddy
3DSYSTEMS.COM
7/19/1996
7/18/2025
GoDaddy
3DSYSTEMS.COM.MX
11/6/2013
11/6/2021
GoDaddy
3DSYSTEMS.EMAIL
3/26/2014
3/26/2022
GoDaddy
3DSYSTEMS.MX
11/6/2013
11/6/2021
GoDaddy
3DSYSTEMS.NET
1/14/2000
1/14/2024
GoDaddy
3dsystems.nl
11/13/2006
10/30/2019
GoDaddy
3DSYSTEMS.SOLUTIONS
3/26/2014
3/26/2022
GoDaddy
3DSYSTEMS.SUPPORT
3/26/2014
3/26/2022
GoDaddy
3DSYSTEMS.SYSTEMS
3/26/2014
3/26/2024
GoDaddy
3DSYSTEMS.TECHNOLOGY
2/18/2014
2/18/2022
GoDaddy
3DSYSTEMS.TRAINING
3/26/2014
3/26/2022
GoDaddy
3DSYSTEMS1.COM
11/10/2007
11/10/2025

Annex VI to Security Agreement



GoDaddy
3dsystemsacademy.com
10/28/2015
10/28/2025
GoDaddy
3DSYSTEMSUNIVERSITY.COM
7/5/2006
7/5/2025
GoDaddy
3DWORLDCONFERENCE.COM
2/1/2007
2/1/2022
GoDaddy
3DXCUBATOR.COM
9/17/2014
9/17/2019
GoDaddy
3DYSTEMS.MOBI
3/5/2008
3/5/2022
GoDaddy
absprototypes.com
5/29/2002
5/29/2019
GoDaddy
ACCELERATEDTECHNOLOGIES.COM
12/23/1999
12/23/2021
GoDaddy
ACU-CAST.COM
9/24/1998
9/23/2024
GoDaddy
ACUCAST.COM
9/23/1998
9/22/2024
GoDaddy
AFFORDABLE3DPRINTING.COM
12/1/2008
12/1/2020
GoDaddy
ANGIOMENTOR.COM
6/17/2010
6/17/2020
GoDaddy
appparts.com
6/27/2006
6/27/2019
GoDaddy
approto.com
9/15/2002
9/15/2019
GoDaddy
approto1.com
11/10/2007
11/10/2019
GoDaddy
arcquote.com
10/30/2007
10/30/2019
GoDaddy
ATIRAPID.COM
6/2/1999
6/2/2019
GoDaddy
CAD2PROTOTYPE.COM
6/27/2006
6/27/2019
GoDaddy
cadincolor.com
6/27/2006
6/27/2019
GoDaddy
CADWITS.COM
3/12/2012
3/12/2022
GoDaddy
CASTINGPATTERNS.COM
11/29/1999
11/29/2026
GoDaddy
CERTIFIEDBY3D.COM
7/21/2008
7/21/2025
GoDaddy
CIMATRONTECH.COM
1/4/2002
1/4/2020
GoDaddy
colored-parts.com
6/27/2006
6/27/2019
GoDaddy
COLOREDPARTS.COM
6/27/2006
6/27/2020
GoDaddy
cranialvsp.com
11/5/2015
11/5/2023
GoDaddy
craniopagus.com
1/20/2004
1/20/2020
GoDaddy
CUBIFY.COM
1/2/2006
1/2/2022
GoDaddy
CUBIFY.NET
3/29/2011
3/29/2022
GoDaddy
CUBIFY.ORG
3/29/2011
3/29/2022
GoDaddy
DDDSPRINT.COM
12/12/2014
12/12/2021
GoDaddy
DDDWS.COM
3/12/2014
3/12/2020
GoDaddy
DENTAL3DPRINTERS.COM
3/20/2009
3/20/2022
GoDaddy
DENTALDIGITALDIGITIZER.COM
5/4/2010
5/4/2019
GoDaddy
DENTALDIGITIZER.COM
5/4/2010
5/4/2024
GoDaddy
DENTALFILMDIGITIZER.COM
1/12/2010
1/12/2024
GoDaddy
DENTALFILMDIGITIZERS.COM
1/12/2010
1/12/2021
GoDaddy
dentalvsp.com
2/22/2011
2/22/2022
GoDaddy
DESKTOPFACTORIES.COM
10/15/2010
10/15/2026
GoDaddy
DESKTOPFACTORY.COM
8/18/2003
8/18/2022
GoDaddy
DESKTOPFACTORYMODELS.COM
12/1/2008
12/1/2020
GoDaddy
digitaldollhouse.org
4/10/2016
4/10/2022
GoDaddy
DNASCANNER.COM
6/13/2003
6/13/2020
GoDaddy
DPT-FAST.COM
12/11/1997
12/10/2023

Annex VI to Security Agreement



GoDaddy
DPTFAST.COM
5/24/2002
12/26/2023
GoDaddy
everyoneneedsalittlehead.com
6/14/2012
6/14/2019
GoDaddy
EXPRESSPATTERN.COM
4/11/1999
4/11/2022
GoDaddy
FDMPARTS.COM
5/29/2002
12/26/2023
GoDaddy
FDMPROTOTYPES.COM
12/28/2005
12/28/2021
GoDaddy
FDMQUOTE.COM
5/29/2002
12/26/2023
GoDaddy
FDMQUOTES.COM
5/29/2002
12/26/2023
GoDaddy
fetalmodels.com
1/20/2004
1/20/2022
GoDaddy
figureme.com
12/15/2008
12/15/2021
GoDaddy
figureme3d.com
12/15/2008
12/15/2021
GoDaddy
freedomofcreation.cn
10/10/2007
10/10/2019
GoDaddy
freedomofcreation.com
9/21/2000
9/21/2022
GoDaddy
freedomofcreation.eu
10/10/2007
10/31/2022
GoDaddy
freedomofcreation.net
10/1/2004
10/1/2024
GoDaddy
freedomofcreation.nl
11/21/2008
11/30/2019
GoDaddy
freedomofcreation.org
10/1/2004
10/1/2022
GoDaddy
gentlegianttoys.com
9/15/2017
9/15/2020
GoDaddy
geomagic.co.uk
6/17/2009
6/17/2019
GoDaddy
gibbscam.com
1/22/1998
1/21/2020
GoDaddy
GIMENTOR.COM
6/7/1999
6/30/2020
GoDaddy
gslb3dsystems.com
8/22/2016
8/22/2021
GoDaddy
IMTOOLING.COM
9/24/2003
12/26/2021
GoDaddy
LAPMENTOR.COM
6/17/2010
6/17/2020
GoDaddy
LASERDIGITIZER.COM
6/13/2002
6/13/2020
GoDaddy
LASERFILMDIGITIZERS.COM
6/13/2002
6/13/2020
GoDaddy
laserrepro.com
1/17/1997
1/18/2024
GoDaddy
LASERSINTER.COM
2/13/2004
2/13/2022
GoDaddy
LASERSINTERING.COM
2/13/2004
2/13/2022
GoDaddy
LASERSINTERING.NET
1/29/2009
1/24/2022
GoDaddy
LASERSINTERING.ORG
1/30/2009
1/30/2021
GoDaddy
LOWCOST3DPRINTING.COM
12/1/2008
12/1/2025
GoDaddy
medicalmodeling.net
10/22/2010
10/22/2019
GoDaddy
medicalmodeling.org
10/22/2010
10/22/2019
GoDaddy
medicalmodelling.com
1/20/2004
1/20/2020
GoDaddy
MEDICALSCANNER.COM
12/20/2000
12/20/2025
GoDaddy
MENTORLEARN.COM
3/12/2008
6/30/2021
GoDaddy
MENTORLEARN.MOBI
6/17/2010
6/17/2020
GoDaddy
MESHCAD.COM
8/13/2005
8/13/2022
GoDaddy
METALPROTOTYPES.COM
11/29/2005
11/29/2025
GoDaddy
MFGMALL.COM
1/18/2008
1/18/2021
GoDaddy
MIRACLEPARTS.COM
5/14/2006
5/14/2022
GoDaddy
MOELLERDESIGN.COM
3/8/1997
3/8/2022
GoDaddy
MOELLERDESIGN.NET
6/5/2000
6/5/2019

Annex VI to Security Agreement



GoDaddy
MOELLERDESIGN.ORG
6/5/2000
6/5/2019
GoDaddy
MQAST.COM
3/6/2009
3/6/2022
GoDaddy
MYPRINT3D.COM
7/12/2008
7/12/2025
GoDaddy
MYPRINT3D.INFO
7/12/2008
7/12/2020
GoDaddy
MYPRINT3D.NET
7/12/2008
7/12/2020
GoDaddy
MYPRINT3D.ORG
7/12/2008
7/12/2020
GoDaddy
MYQUOTE3D.COM
11/15/2007
11/15/2020
GoDaddy
MYSTEAMTRAX.COM
8/19/2015
8/19/2020
GoDaddy
NEXTDAYSLA.COM
5/14/2002
12/26/2025
GoDaddy
OBJETPARTS.COM
3/24/2006
3/24/2022
GoDaddy
ondemandmanufacturing.com
7/1/2015
7/1/2022
GoDaddy
ONLINEPROTOTYPES.COM
9/24/2003
12/26/2025
GoDaddy
orthognathicvsp.com
2/22/2011
2/22/2026
GoDaddy
orthovsp.com
11/5/2015
11/5/2023
GoDaddy
osteoguidance.com
4/5/2007
4/5/2022
GoDaddy
PART2QUOTE.COM
2/4/2008
2/4/2022
GoDaddy
PARTBENCH.COM
7/28/2010
7/28/2020
GoDaddy
PARTINSPECTION.COM
1/26/2003
1/24/2022
GoDaddy
PARTQUOTER.COM
2/4/2008
2/4/2024
GoDaddy
PARTSINCOLOR.COM
6/27/2006
6/27/2025
GoDaddy
PARTSQUOTER.COM
9/24/2003
12/26/2021
GoDaddy
PARTVIEWER.COM
3/27/2007
3/27/2022
GoDaddy
PATENT2PART.COM
3/16/2008
3/16/2022
GoDaddy
PATENTTOPART.COM
3/16/2008
3/16/2022
GoDaddy
phenix-systems.com
8/31/2000
8/31/2019
GoDaddy
PLATEDPARTS.COM
6/27/2006
6/27/2025
GoDaddy
PRINT3D.COM
8/23/1999
8/23/2019
GoDaddy
PRINT3D.US
1/23/2008
1/22/2020
GoDaddy
PRINT3DBLOG.COM
10/8/2008
10/8/2019
GoDaddy
PRINTIN3D.COM
7/5/2006
7/5/2020
GoDaddy
PRODUCTION3DPRINTERS.COM
6/2/2011
6/2/2024
GoDaddy
PROTOTYPESINCOLOR.COM
6/27/2006
6/27/2020
GoDaddy
QUICK-PARTS.COM
6/27/2006
6/27/2020
GoDaddy
quickarc.com
6/28/2005
6/28/2019
GoDaddy
QUICKCASTPATTERNS.COM
11/29/1999
11/29/2021
GoDaddy
quickcutcnc.com
4/7/2010
4/7/2019
GoDaddy
QUICKPARTS.COM.MX
11/11/2013
11/11/2021
GoDaddy
QUICKPARTS.INFO
10/18/2001
10/18/2026
GoDaddy
QUICKPARTS.MX
11/11/2013
11/11/2021
GoDaddy
QUICKPARTS.ORG
7/26/2007
7/26/2025
GoDaddy
QUICKPARTS1.COM
11/10/2007
11/10/2020
GoDaddy
QUICKPARTS3D.COM
6/11/2008
6/11/2019
GoDaddy
QUICKPARTSCAD.COM
6/11/2008
6/11/2019

Annex VI to Security Agreement



GoDaddy
QUICKPARTSGROUP.COM
6/27/2006
6/27/2019
GoDaddy
QUICKPARTSNATION.COM
6/7/2005
6/7/2019
GoDaddy
QUICKPARTSOURCE.COM
6/11/2008
6/11/2019
GoDaddy
QUICKPARTSSOURCE.COM
6/11/2008
6/11/2019
GoDaddy
QUICKQUOTE3D.COM
11/15/2007
11/15/2023
GoDaddy
RAPIDMFG.ORG
6/13/2008
6/13/2025
GoDaddy
reconvsp.com
11/5/2015
11/5/2023
GoDaddy
REMOTECTI.COM
7/7/2006
7/7/2020
GoDaddy
RPSUPPORT.COM
9/28/1998
9/27/2022
GoDaddy
SAMEDAYPROTOTYPES.COM
3/24/2006
3/24/2022
GoDaddy
SAMEDAYRP.COM
3/24/2006
3/24/2022
GoDaddy
SIERRAPLUS.COM
12/20/2000
12/20/2025
GoDaddy
SIMBIONIX.COM
6/7/1999
6/30/2022
GoDaddy
SIMBIONIXUSA.COM
10/24/2008
6/30/2019
GoDaddy
SLAPATTERNS.COM
11/29/1999
11/29/2021
GoDaddy
SLASERVICES.COM
12/7/1999
12/7/2021
GoDaddy
SLSPARTS.COM
5/29/2002
12/26/2025
GoDaddy
STEAMTRACKS.CO
8/19/2015
8/18/2020
GoDaddy
STEAMTRACKS.NET
8/19/2015
8/19/2020
GoDaddy
STEAMTRACKS.ORG
8/19/2015
8/19/2020
GoDaddy
STEAMTRACKS.US
8/19/2015
8/18/2020
GoDaddy
STEAMTRAX.CLUB
8/19/2015
8/18/2020
GoDaddy
STEAMTRAX.CO
8/19/2015
8/18/2020
GoDaddy
STEAMTRAX.INFO
8/19/2015
8/19/2020
GoDaddy
STEAMTRAX.ME
8/19/2015
8/19/2020
GoDaddy
STEAMTRAX.US
8/19/2015
8/18/2020
GoDaddy
STEAMTRAX.WEBSITE
8/19/2015
8/19/2020
GoDaddy
STEAMTRAX.WORLD
8/19/2015
8/19/2020
GoDaddy
STEMTRAX.INFO
8/19/2015
8/19/2020
GoDaddy
STEMTRAX.NET
8/19/2015
8/19/2020
GoDaddy
STEMTRAX.ORG
8/19/2015
8/19/2020
GoDaddy
STEREOLITHOGRAPHER.COM
1/3/2002
1/3/2022
GoDaddy
STEREOLITHOGRAPHIC.COM
6/12/2008
6/12/2024
GoDaddy
STEREOLITHOGRAPHY.BIZ
1/19/2011
1/18/2024
GoDaddy
STEREOLITHOGRAPHY.CO
7/20/2010
7/19/2021
GoDaddy
STEREOLITHOGRAPHY.COM
10/31/1997
10/29/2026
GoDaddy
STEREOLITHOGRAPHY.MOBI
9/24/2007
9/24/2022
GoDaddy
STEREOLITHOGRAPHY.NET
2/5/1998
2/4/2022
GoDaddy
STEREOLITHOGRAPHY.ORG
6/14/2001
6/14/2025
GoDaddy
STEREOLITHOGRAPHYINFO.COM
8/12/2000
8/12/2022
GoDaddy
STEREOLITOGRAFIA.COM
8/21/2001
8/21/2022
GoDaddy
STLVIEWER.COM
3/27/2007
3/27/2022
GoDaddy
SUPPORTCTI.COM
7/7/2006
7/7/2020

Annex VI to Security Agreement



GoDaddy
SURGICALSIMULATIONS.COM
6/17/2010
6/17/2020
GoDaddy
SYCODE.CO.UK
11/17/2005
11/17/2020
GoDaddy
SYCODE.COM
9/8/2004
9/8/2022
GoDaddy
SYCODE.INFO
11/24/2004
11/24/2020
GoDaddy
T3DS.COM
6/28/2007
6/28/2025
GoDaddy
T3DS.ORG
6/28/2007
6/28/2025
GoDaddy
tactileguidance.com
4/5/2007
4/5/2022
GoDaddy
tactileimaging.com
11/10/2004
11/10/2022
GoDaddy
TEAMPLATFORM.COM
7/10/2010
7/10/2020
GoDaddy
TEAMPLATFORM.NET
7/10/2010
7/10/2020
GoDaddy
TEAMPLATFORMS.COM
7/10/2010
7/10/2020
GoDaddy
TEAMPLATFORMS.NET
7/10/2010
7/10/2020
GoDaddy
TELERADIOLOGYSCANNER.COM
6/13/2002
6/13/2020
GoDaddy
TENDAYTOOLING.COM
10/5/2003
12/26/2021
GoDaddy
THE3DSTUDIO.COM
10/13/1999
10/13/2023
GoDaddy
THE3DSTUDIO.NET
7/1/2001
7/1/2023
GoDaddy
THE3DSTUDIO.ORG
7/1/2001
7/1/2023
GoDaddy
the3dsystemsacademy.com
10/28/2015
10/28/2025
GoDaddy
THESUGARLABS.COM
2/16/2015
2/16/2020
GoDaddy
THREEDSPRINT.COM
12/12/2014
12/12/2022
GoDaddy
TOPTOBOTTOMDENTAL.COM
3/20/2009
3/20/2022
GoDaddy
traumavsp.com
4/15/2010
4/15/2022
GoDaddy
VIDARDENTAL.COM
5/4/2010
5/4/2019
GoDaddy
VIDARDENTALDIGITIZER.COM
5/4/2010
5/4/2019
GoDaddy
VIDARDENTALSCANNER.COM
5/4/2010
5/4/2019
GoDaddy
VIDARPARTNER.NET
7/24/2002
7/24/2019
GoDaddy
VIDARVET.COM
6/14/2011
6/14/2020
GoDaddy
virtualgibbs.com
1/22/1998
1/21/2020
GoDaddy
virtualsurgicalplanning.com
9/23/2009
9/23/2019
GoDaddy
virtualsurgicalplanning.eu
11/5/2015
11/5/2023
GoDaddy
virtualsurgicalplanning.net
11/5/2015
11/5/2023
GoDaddy
virtualsurgicalplanning.org
11/5/2015
11/5/2023
GoDaddy
VIZTU.COM
3/4/2010
3/4/2022
GoDaddy
vspdistraction.com
7/3/2011
7/3/2022
GoDaddy
vspmicrotia.com
10/2/2012
10/2/2019
GoDaddy
vsporthognathics.com
7/3/2011
7/3/2022
GoDaddy
vsporthopaedics.com
9/29/2011
9/29/2019
GoDaddy
vspreconstruction.com
7/3/2011
7/3/2022
GoDaddy
vspsystem.com
12/22/2009
12/22/2025
GoDaddy
vspsystem.org
7/3/2011
7/3/2022
GoDaddy
vsptrauma.com
7/3/2011
7/3/2022
GoDaddy
3dexpressparts.com
5/3/2018
5/3/2019
GoDaddy
3dlaserparts.com
2/7/2010
2/7/2020

Annex VI to Security Agreement



GoDaddy
3dmedicalmodeling.com
2/2/2015
2/2/2020
GoDaddy
3dp4me.com
10/2/2007
10/2/2020
GoDaddy
3dprinters4gov.com
4/18/2007
4/18/2020
GoDaddy
3dprintingpartners.com
8/22/2005
8/22/2021
GoDaddy
3dprintstore.com
7/20/2008
7/20/2019
GoDaddy
3dpuser.com
5/1/2006
5/1/2020
GoDaddy
3dsystems.de
4/10/2018
4/10/2019
GoDaddy
3dsystemsgov.com
1/29/2019
1/29/2020
GoDaddy
3dxpressparts.com
2/7/2010
2/7/2020
GoDaddy
americanprecisionprototyping.com
6/27/2006
6/27/2019
GoDaddy
buyfdm.com
4/14/2003
12/26/2019
GoDaddy
buysla.com
4/14/2003
12/26/2019
GoDaddy
buysomos.com
9/8/2006
9/8/2019
GoDaddy
cadalysts.com
10/31/2008
10/31/2019
GoDaddy
clinicalmodeling.com
8/26/2012
8/26/2019
GoDaddy
craniofacialmodels.com
8/18/2003
8/18/2020
GoDaddy
dentwise.de
5/2/2018
5/2/2019
GoDaddy
dentwise.eu
3/29/2009
9/30/2019
GoDaddy
dsmquote.com
9/21/2006
9/21/2019
GoDaddy
easychinaparts.com
7/13/2005
7/13/2019
GoDaddy
fairmodelprice.com
8/24/2007
8/24/2019
GoDaddy
fairpartprice.com
8/24/2007
8/24/2019
GoDaddy
fairtoolingprice.com
8/24/2007
8/24/2019
GoDaddy
fastresin.com
8/2/2006
8/2/2019
GoDaddy
filmdigitizer.com
12/17/1998
12/17/2019
GoDaddy
filmdigitizers.com
12/16/1998
12/16/2019
GoDaddy
gentlegiantstudios.com
9/23/1998
9/22/2021
GoDaddy
geomagic.com
10/20/1996
10/19/2021
GoDaddy
highqualitylowcost.com
7/13/2005
7/13/2019
GoDaddy
htr-pmi.com
1/13/2003
1/13/2023
GoDaddy
htrpmi.com
1/13/2003
1/13/2023
GoDaddy
im-tooling.com
9/24/2003
12/26/2019
GoDaddy
imtooling.net
9/24/2003
12/26/2019
GoDaddy
instantarc.com
7/11/2007
7/11/2019
GoDaddy
instantresin.com
8/2/2006
8/2/2019
GoDaddy
instockresin.com
8/2/2006
8/2/2019
GoDaddy
inustech.com
3/14/1999
3/13/2020
GoDaddy
inustech.net
7/20/2018
7/20/2020
GoDaddy
inustechnology.com
3/14/1999
3/13/2020
GoDaddy
layeredmanufacturing.com
7/27/2006
7/27/2019
GoDaddy
layeredparts.com
7/27/2006
7/27/2019
GoDaddy
layerwise.com
3/12/2008
3/12/2020
GoDaddy
layerwise.es
2/8/2012
2/8/2020

Annex VI to Security Agreement



GoDaddy
layerwise.eu
3/13/2008
3/31/2020
GoDaddy
layerwise.nl
3/13/2008
1/31/2020
GoDaddy
managemyparts.com
8/9/2006
8/9/2019
GoDaddy
manageparts.com
8/9/2006
8/9/2019
GoDaddy
medicalmodeling.com
5/27/1997
4/6/2028
GoDaddy
mfgmgt.com
9/5/2006
9/5/2019
GoDaddy
needpartsfast.com
7/26/2006
7/26/2019
GoDaddy
needresin.com
8/2/2006
8/2/2019
GoDaddy
office3dprinter.com
7/20/2008
7/20/2019
GoDaddy
partbeat.com
8/17/2006
8/17/2019
GoDaddy
partcontrol.com
8/9/2006
8/9/2019
GoDaddy
partdirector.com
8/9/2006
8/9/2019
GoDaddy
partgps.com
8/17/2006
8/17/2019
GoDaddy
partmanagement.com
8/9/2006
8/9/2019
GoDaddy
partmgt.com
9/5/2006
9/5/2019
GoDaddy
partmonitor.com
8/9/2006
8/9/2019
GoDaddy
partnation.com
8/17/2006
8/17/2019
GoDaddy
partrecord.com
9/5/2006
9/5/2019
GoDaddy
partrfq.com
1/19/2008
1/19/2020
GoDaddy
partsalestech.com
2/4/2008
2/4/2020
GoDaddy
partsmonitor.com
8/9/2006
8/9/2019
GoDaddy
partstrax.com
8/9/2006
8/9/2019
GoDaddy
partvision.com
8/17/2006
8/17/2019
GoDaddy
print3dworld.com
8/1/2008
8/1/2019
GoDaddy
protomold1.com
11/10/2007
11/10/2019
GoDaddy
prototypesnow.com
7/26/2006
7/26/2019
GoDaddy
qp3d.com
8/17/2008
8/17/2019
GoDaddy
qparch.com
7/2/2007
7/2/2019
GoDaddy
qparchitect.com
7/2/2007
7/2/2019
GoDaddy
qpbuild.com
7/2/2007
7/2/2019
GoDaddy
qpbuilder.com
7/2/2007
7/2/2019
GoDaddy
qpcasting.com
12/26/2002
12/26/2019
GoDaddy
qpcnc.com
12/26/2002
12/26/2019
GoDaddy
qpdimension.com
12/26/2002
12/26/2019
GoDaddy
qpfactoryoutlet.com
2/18/2009
2/18/2020
GoDaddy
qpfdm.com
12/26/2002
12/26/2019
GoDaddy
qpinspection.com
12/26/2002
12/26/2019
GoDaddy
qpmachining.com
12/26/2002
12/26/2019
GoDaddy
qpmetals.com
12/26/2002
12/26/2019
GoDaddy
qpmolding.com
12/26/2002
12/26/2019
GoDaddy
qpplastics.com
12/26/2002
12/26/2019
GoDaddy
qpprod.com
12/13/2006
12/13/2019
GoDaddy
qpprototypes.com
12/26/2002
12/26/2019

Annex VI to Security Agreement



GoDaddy
qpsla.com
12/26/2002
12/26/2019
GoDaddy
qpsls.com
12/26/2002
12/26/2019
GoDaddy
qptgroup.com
10/8/2007
10/8/2019
GoDaddy
qptgroup.net
10/8/2007
10/8/2019
GoDaddy
qptgroup.org
10/9/2007
10/9/2019
GoDaddy
qptooling.com
12/26/2002
12/26/2019
GoDaddy
qptracker.com
8/9/2006
8/9/2019
GoDaddy
qqtinc.com
1/16/2008
1/16/2020
GoDaddy
qqtllc.com
1/16/2008
1/16/2020
GoDaddy
quick-arc.com
7/10/2007
7/10/2019
GoDaddy
quick-arc.net
7/10/2007
7/10/2019
GoDaddy
quick3dmodels.com
7/29/2008
7/29/2019
GoDaddy
quick3dprint.com
7/29/2008
7/29/2019
GoDaddy
quick3dprinter.com
7/20/2008
7/20/2019
GoDaddy
quick3dprinters.com
7/20/2008
7/20/2019
GoDaddy
quick3dprinting.com
7/20/2008
7/20/2019
GoDaddy
quick3dprints.com
7/29/2008
7/29/2019
GoDaddy
quickarc.cn
8/24/2007
8/24/2019
GoDaddy
quickarc.com.cn
8/24/2007
8/24/2019
GoDaddy
quickarc.net
7/10/2007
7/10/2019
GoDaddy
quickarc.org
8/24/2007
8/24/2019
GoDaddy
quickmaterials.com
8/2/2006
8/2/2019
GoDaddy
quickparts.com
5/27/1997
4/6/2028
GoDaddy
quickparts.com.cn
8/24/2007
8/24/2019
GoDaddy
quickpartschina.com
8/11/2005
8/11/2019
GoDaddy
quickpartseurope.com
8/11/2005
8/11/2019
GoDaddy
quickpartsjapan.com
8/11/2005
8/11/2019
GoDaddy
quickprint3d.com
7/20/2008
7/20/2019
GoDaddy
quickprints3d.com
7/29/2008
7/29/2020
GoDaddy
quickproduction.com
7/12/2005
7/12/2019
GoDaddy
quickqualityparts.com
7/12/2005
7/12/2019
GoDaddy
quickquotetech.com
1/29/2008
1/29/2020
GoDaddy
quote2part.com
2/4/2008
2/4/2020
GoDaddy
quoteapp.com
2/9/2006
2/9/2020
GoDaddy
quotearrk.com
2/9/2006
2/9/2020
GoDaddy
quotelaser.com
2/9/2006
2/9/2020
GoDaddy
quotemgt.com
9/5/2006
9/5/2019
GoDaddy
quoterpdg.com
2/9/2006
2/9/2020
GoDaddy
rapidarc.com
7/11/2007
7/11/2019
GoDaddy
rapidarcs.com
7/11/2007
7/11/2019
GoDaddy
rapidform.com
2/4/1999
2/4/2020
GoDaddy
rapidresin.com
8/2/2006
8/2/2019
GoDaddy
resin-stock.com
8/2/2006
8/2/2019

Annex VI to Security Agreement



GoDaddy
resinnow.com
8/2/2006
8/2/2019
GoDaddy
resinstock.com
8/2/2006
8/2/2019
GoDaddy
rfqmonitor.com
8/17/2006
8/17/2019
GoDaddy
rfqvision.com
8/17/2006
8/17/2019
GoDaddy
rpincolor.com
6/27/2006
6/27/2019
GoDaddy
sensable.com
8/2/1995
8/1/2019
GoDaddy
sensabledesign.com
5/31/2011
5/31/2022
GoDaddy
shippartstoday.com
7/26/2006
7/26/2019
GoDaddy
slaprototypes.com
12/28/2005
12/28/2019
GoDaddy
slsprototypes.com
12/28/2005
12/28/2019
GoDaddy
solidbrainwave.com
10/31/2008
10/31/2019
GoDaddy
solidworksquote.com
1/18/2005
1/18/2020
GoDaddy
stockresin.com
8/2/2006
8/2/2019
GoDaddy
sworksquote.com
1/18/2005
1/18/2020
GoDaddy
trackapart.com
8/9/2006
8/9/2019
GoDaddy
twoweekparts.com
10/5/2003
12/26/2019
GoDaddy
vidar.com
8/15/1994
8/14/2019
GoDaddy
worldof3dprinting.com
7/20/2008
7/20/2019
GoDaddy
worldpartmanager.com
8/17/2006
8/17/2019
GoDaddy
z-prints.com
8/21/2007
8/21/2021
GoDaddy
zbuilder.com
2/2/1999
2/2/2022
GoDaddy
zcorp.biz
11/16/2001
11/18/2022
GoDaddy
zcorp.cn
5/24/2004
6/24/2020
GoDaddy
zcorp.co
6/15/2010
6/14/2019
GoDaddy
zcorp.co.uk
5/24/2004
5/24/2020
GoDaddy
zcorp.com
5/27/1995
2/8/2020
GoDaddy
zcorp.com.cn
5/24/2004
6/24/2020
GoDaddy
zcorp.es
11/13/2005
11/13/2019
GoDaddy
zcorporation.com
2/21/2004
2/21/2022
GoDaddy
zcorporation.eu
11/7/2006
1/7/2020
GoDaddy
zprinter.com
5/21/2003
5/21/2021
GoDaddy
zprototypes.com
10/31/2008
10/31/2019
GoDaddy
zscanner.com
6/7/2006
6/7/2020


Licensed Trademarks

None.

Licensed Trademark Applications

None.


Annex VI to Security Agreement



Trade Secret Licenses

None.

Third Party Violations of Trademarks

None.

Claims for Grantor Violations of Trademarks

None.


    
LIST OF DEPOSIT ACCOUNTS, AND SECURITIES ACCOUNTS AND COMMODITY ACCOUNTS



Securities Accounts

None.

Commodity Accounts

None.

    
LIST OF COMMERCIAL TORT CLAIMS


Grantor
Description of Commercial Tort Claim
3D Systems, Inc.
3D Systems, Inc. vs. Paul A. Miller and Union Tech.

On September 13, 2017, 3D Systems commenced a lawsuit in federal court against a former employee, Paul A. Miller, and his new employer, Union Tech, Inc. The lawsuit is currently pending in the United States District Court, Southern District of Indiana, Indianapolis Division, 3D Systems Corporation v. Paul A. Miller and Union Tech, Inc., Case No. 1:17-cv-3252-RLY-MJD.

In its Verified Complaint, 3D Systems asserts claims against Miller and Union Tech for: (1) violation of the Federal Defend Trade Secrets Act, 28 U.S.C. § 1836 et seq.; (2) violation of the Federal Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (Miller only); (3) breach of contract (Miller only); (4) violation of the Indiana Uniform Trade Secrets Act, Ind. Code Ann. § 24-2-3-1 et seq.; (5) breach of the duty of loyalty and fiduciary duty; (6) tortious interference with contractual relations; and (7) tortious interference with contractual relations (Union Tech only).




[FORM OF]

JOINDER AGREEMENT

JOINDER AGREEMENT dated as of [_____], 20[_] by [_____], a [place of organization] [type of entity] (the “ Additional Grantor ”).

Pursuant to the Credit Agreement dated as of February 27, 2019 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among 3D Systems Corporation. (the “ Borrower ”), the guarantors party thereto (the “ Guarantors ”), each of the Lenders party thereto (the “ Lenders ”), and HSBC Bank USA, National Association, as Administrative Agent, the Borrower and certain of its Subsidiaries (collectively, the “ Grantors ”), have executed and delivered that certain Security Agreement dated as of February 27, 2019 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Security Agreement ”), pursuant to which such Grantors have jointly and severally secured the Obligations. Terms defined in the Security Agreement (including terms defined therein by reference to terms in the Credit Agreement) are used herein as defined therein.

In accordance with Section 8.1.9 and Section 8.1.12 of the Credit Agreement, the Additional Grantor hereby agrees that, from and after the date hereof, it shall be a “Grantor” for all purposes of the Credit Agreement and the Security Agreement, with all the rights and obligations of a Grantor under the Security Agreement and hereby supplements each of the Annexes to the Security Agreement in the manner set forth in Schedule I hereto .
Without limiting the foregoing, the Additional Grantor (a) hereby unconditionally, jointly and severally with the other Grantors, grants a security interest in the Collateral to the Administrative Agent for the benefit of the Secured Parties for the prompt Payment In Full when due (whether at stated maturity, by acceleration or otherwise) of all Obligations in the same manner and to the same extent as is provided in Article III of the Security Agreement and (b) submits to the non-exclusive jurisdiction of the courts, waives jury trial, all as provided in the Security Agreement as if it were an original signatory thereto.

IN WITNESS WHEREOF, the Additional Grantor has caused this Joinder Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.
[NAME OF ADDITIONAL GRANTOR]
By_________________________
Name:
Title:

ACKNOWLEDGED BY :
HSBC BANK USA, NATIONAL ASSOCIATION,
as Administrative Agent
By_________________________
Name:
Title:



NAMES, LOCATIONS AND FILING DETAILS

[See Sections 2.3 , 2.4 and 4.7 ]


Names

Grantor’s correct legal name:
Previous names:
Additional names:
Type of organization:
Jurisdiction of organization/Principal Place of Residence
[___________]
 
 
 
 

Changes in Name

Grantor’s correct legal name:
Description of name changes:
[___________]
 

Filing Office

Grantor’s correct legal name:
Filing Office:
[___________]
 


    
NEW DEBTOR EVENTS

[See Section 2.4 ]

    

PLEDGED EQUITY INTERESTS AND PROMISSORY NOTES

[See definition of “Issuers” and “Initial Pledged Equity Interests” in Section 1.3 and Sections 2.5 , 2.6 , 3(j) , 3(k) and 4.1(b) ]

Part A
Pledged Stock, Pledged Partnership Interests and Pledged LLC Interests


Grantor:
Issuer:
Class of Equity Interest:
Par Value:
Certificate No(s).
No. of Equity Interests   /Units
Percentage of Outstanding Equity Interests   /Units
[___________]
 
 
 
 
 
 


Part B

Pledged Notes

Grantor:
Issuer:
Amount of Note:
Maturity Date:
[___________]
 
 
 

    
LIST OF COPYRIGHTS, APPLICATIONS FOR COPYRIGHT REGISTRATIONS, LICENSES, THIRD PARTY VIOLATIONS AND CLAIMS OF VIOLATION BY THIRD PARTIES

[See definition of “Copyright Collateral” in Section 1.3 and Section 2.7 ]

Copyrights

Grantor
Title
Jurisdiction
Registration No.
Registration Date
[___________]
 
 
 
 

Copyright Applications

Grantor
Title
Jurisdiction
Application No.
Filing Date
[___________]
 
 
 
 

Exclusively Licensed Copyrights

License Agreement
Copyright Title
Jurisdiction
Registration No.
Registration Date
[___________]
 
 
 
 


Exclusively Licensed Copyright Applications

License Agreement
Copyright Title
Jurisdiction
Application No.
Filing Date
[___________]
 
 
 
 


Other Licensed Copyrights

License Agreement
Copyright Title
Jurisdiction
Registration No.
Registration Date
[___________]
 
 
 
 


Other Licensed Copyright Applications
License Agreement
Copyright Title
Jurisdiction
Application No.
Filing Date
[___________]
 
 
 
 


Third Party Violations of Copyrights


Claims for Grantor Violation of Copyrights
    

LIST OF PATENTS, PATENT APPLICATIONS, LICENSES, THIRD PARTY VIOLATIONS AND CLAIMS OF VIOLATION BY THIRD PARTIES

[See definition of “Patent Collateral” in Section 1.3 and Section 2.7 ]

Patents

Grantor
Title
Jurisdiction
Patent No.
Issue Date
[___________]
 
 
 
 


Patent Applications

Grantor
Title
Jurisdiction
Application/ Publication No.
Filing Date
[___________]
 
 
 
 


Licensed Patents

Grantor
Title
Jurisdiction
Patent No.
Issue Date
[___________]
 
 
 
 


Licensed Patent Applications

Grantor
Title
Jurisdiction
Application/ Publication No.
Filing Date
[___________]
 
 
 
 


Third Party Violations of Patents


Claims for Grantor Violation of Patents
    
LIST OF TRADE NAMES, TRADEMARKS, SERVICES MARKS, TRADEMARK AND SERVICE MARK REGISTRATIONS,
APPLICATIONS FOR TRADEMARK AND SERVICE MARK REGISTRATIONS, DOMAIN NAMES, LICENSES, THIRD PARTY VIOLATIONS AND CLAIMS OF VIOLATION BY THIRD PARTIES

[See definition of “Trademark Collateral” in Section 1.3 and Section 2.7 ]

Trademarks

Grantor
Mark
Jurisdiction
Registration No.
Registration Date
[___________]
 
 
 
 


Trademark Applications

Grantor
Mark
Jurisdiction
ITU Status
Application No.
Filing Date
[___________]
 
 
 
 
 


Domain Names

Grantor
Title
Registration No.
Registration Date
[___________]
 
 
 

Licensed Trademarks

Grantor
Mark
Jurisdiction
Registration No.
Registration Date
[___________]
 
 
 
 

Licensed Trademark Applications

Grantor
Mark
Jurisdiction
Registration No.
Registration Date
[___________]
 
 
 
 


Trade Secret Licenses


Third Party Violations of Trademarks


Claims for Grantor Violations of Trademarks


    
LIST OF DEPOSIT ACCOUNTS, AND SECURITIES ACCOUNTS AND COMMODITY ACCOUNTS


[See Section 2.8 ]


Deposit Accounts

Grantor
Type of Account
Name and Address of Approved Depositary Bank
Account Number
[___________]
 
 
 


Securities Accounts


Grantor
Type of Account
Name and Address of Approved Securities Intermediary
Account Number
[___________]
 
 
 


Commodity Accounts

Grantor
Type of Account
Name and Address of Commodity Intermediary
Account Number
[___________]
 
 
 

    
LIST OF COMMERCIAL TORT CLAIMS


[See Sections 2.9 and 3(p) ]

Grantor
Description of Commercial Tort Claim
[___________]
 



[FORM OF]

[PATENT][COPYRIGHT][TRADEMARK]SECURITY AGREEMENT
This [PATENT][COPYRIGHT][TRADEMARK] AGREEMENT (this “ Agreement ”), dated as of [__], 20[__], made by each of the Persons listed on the signature pages hereto (each a “ Grantor ” and collectively, the “ Grantors ”), in favor of HSBC Bank USA, National Association, as Administrative Agent for the benefit of the Secured Parties (in such capacity, the “ Administrative Agent ”).

WHEREAS, pursuant to the Security Agreement, dated as of February 27, 2019 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Security Agreement ”; capitalized terms used herein and not otherwise defined herein shall have the meaning assigned to such terms in the Security Agreement), the Grantors [and [ List other parties if not all Grantors under the Security Agreement are executing this Agreement ]] have granted to the Administrative Agent, for the benefit of the Secured Parties, a security interest in, among other property, certain intellectual property of the Grantors, and have agreed to execute and deliver this Agreement, for recording with national, federal and state government authorities, including, but not limited to, the USPTO.

NOW THEREFORE , for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Grantor agrees with the Administrative Agent as follows:
Section 1.     Grant of Security . Each Grantor hereby unconditionally pledges and grants to the Administrative Agent, for the ratable benefit of the Secured Parties, a continuing security interest in and to all of such Grantor’s right, title and interest in or to the following assets and properties whether now owned or hereafter acquired or arising and wherever located or in which such Grantor now has or at any time hereafter acquires any right, title or interest in [(collectively, the “ Patent Collateral ”)[(collectively, the “ Copyright Collateral ”)][(collectively, the “ Trademark Collateral ”)]:
(a)    [the patents and patent applications set forth in Schedule I hereto and all reissues, divisions, continuations, continuations-in-part, renewals, extensions and reexaminations thereof and amendments thereto (the " Patents ")][ the copyright registrations, applications and copyright registrations and applications exclusively licensed to each Grantor set forth in Schedule I hereto, and all extensions and renewals thereof (the " Copyrights ")][ the trademark registrations and applications set forth in Schedule I hereto, together with the goodwill connected with the use of and symbolized thereby and all extensions and renewals thereof (the “ Trademarks ”), excluding only United States intent-to-use trademark applications to the extent that, and solely during the period in which, the grant, attachment or enforcement of a security interest therein would, under applicable federal law, impair the registrability of such applications or the validity or enforceability of registrations issuing from such applications];
(b)    all rights of any kind whatsoever of such Grantor accruing under any of the foregoing provided by applicable law of any jurisdiction, by international treaties and conventions and otherwise throughout the world; and
(c)    all proceeds of and revenues from the foregoing, including, without limitation, all proceeds of and revenues from any claim by such Grantor against third parties for past, present or future unfair competition with, or violation of intellectual property rights in connection with or injury to, or infringement or dilution of, any [Patent][Copyright][Trademark] owned by such Grantor (including, without limitation, any United States [Patent][Copyright][Trademark] identified in Schedule I hereto).
Section 2.     Security for Obligations . The grant of a security interest in the [Patent][Copyright][Trademark] Collateral by each Grantor under this Agreement secures the payment and performance of all of the Obligations of the Secured Parties now or hereafter existing under the Credit Agreement.
Section 3.     Recordation . Each Grantor authorizes the Commissioner for [Patent][Copyright][Trademark] and any other government officials to record and register this Agreement upon request by the Administrative Agent.
Section 4.     Loan Documents . This Agreement has been entered into pursuant to and in conjunction with the Security Agreement, which is hereby incorporated by reference. The provisions of the Security Agreement shall supersede and control over any conflicting or inconsistent provision herein. The rights and remedies of the Administrative Agent with respect to the [Patent][Copyright][Trademark] Collateral are as provided by the Credit Agreement, the Security Agreement and related documents, and nothing in this Agreement shall be deemed to limit such rights and remedies.
Section 5.     Authorization to Supplement . Grantor shall comply with the obligations set forth in Section 4.4(b) of the Security Agreement in connection with obtaining rights to any new [patent][copyright][trademark] application or issued [patent][copyright][trademark] or become entitled to the benefit of any [patent][copyright][trademark] application or [patent][copyright][trademark] for any divisional, continuation, continuation-in-part, reissue, or reexamination of any existing [patent][copyright][trademark] or [patent][copyright][trademark] application. Without limiting Grantors’ obligations under this Section, Grantors hereby authorize the Administrative Agent unilaterally to modify this Agreement by amending Schedule I to include any such new [patent][copyright][trademark] rights of each Grantor identified on the schedules delivered by Grantors to the Administrative Agent pursuant to Section 4.4(b) of the Security Agreement and which become part of the Collateral under the Security Agreement. Notwithstanding the foregoing, no failure to so modify this Agreement or amend Schedule I shall in any way affect, invalidate or detract from the Administrative Agent’s continuing security interest in all Collateral, whether or not listed on Schedule I .
Section 6.     Execution in Counterparts . This Agreement may be executed in counterparts and by different parties hereto in different counterparts, each of which shall constitute an original and all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or in electronic (i.e., "pdf" or "tif" format) shall be effective as delivery of a manually executed counterpart of this Agreement.
Section 7.     Successors and Assigns . This Agreement will be binding on and shall inure to the benefit of the parties hereto and their respective successors and assigns.
Section 8.     Governing Law . This Agreement and any claim, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement and the transactions contemplated hereby and thereby shall be governed by, and construed in accordance with, the laws of the United States and the State of New York, without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction).
Section 9.     No Strict Construction . The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.
Section 10.     Severability . In case any one or more of the provisions contained in this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.

[Signature Page Follows]


IN WITNESS WHEREOF , each Grantor has caused this Agreement to be duly executed and delivered by its officer thereunto duly authorized as of the date first above written .

GRANTOR[S] :
[GRANTOR]
By:
    
Name: [__]
Title: [__]



AGREED TO AND ACCEPTED :

 
HSBC BANK USA, NATIONAL ASSOCIATION ,
as Administrative Agent

By: _______________________________

Name: [__]
Title: [__]

Address for Notices:
HSBC Bank USA, National Association,
as Administrative Agent
[__]
Attention: [__]
Facsimile No.: [__]





[Patents

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Title
Jurisdiction
Patent No.
Issue Date
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Patent Applications]

Grantor
Title
Jurisdiction
Application/ Publication No.
Filing Date
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[Copyrights
Grantor
Title
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Registration No.
Registration Date
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Copyright Applications
Grantor
Title
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Application No.
Filing Date
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Exclusively Licensed Copyrights
License Agreement
Copyright Title
Jurisdiction
Registration No.
Registration Date
[__]
[__]
[__]
[__]
[__]

Exclusively Licensed Copyright Applications]
License Agreement
Copyright Title
Jurisdiction
Application No.
Filing Date
[__]
[__]
[__]
[__]
[__]

[Trademarks
Grantor
Mark
Jurisdiction
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Trademark Applications]
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Mark
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ITU Status
Application No.
Filing Date
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Annex VI to Security Agreement


 
 
Employment Agreement 3D Systems SA / Herbert Köck

 

Execution Version
Employment Agreement

between

3D Systems SA
Route de l’Ancienne Paperterie, PO Box 259, CH-1723 Marly
" Employer "

and

Herbert Köck
Rebmattweg 30, Merlischachen, Switzerland
" Employee "

collectively, the " Parties "
and each individually, a " Party "
Recitals
(A)
WHEREAS , commencing on September 5, 2016 (“ Commencement Date ”), Employer desires to employ Employee as Senior Vice President & General Manager - EMEA, subject to the terms and conditions of this employment agreement (“ Agreement ”); and
(B)
WHEREAS , Employee desires to be employed by Employer in the aforesaid capacity subject to the terms and conditions of this Agreement.
(C)
NOW THEREFORE , in consideration of the foregoing premises, of the mutual agreements and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows, effective as of the Commencement Date:





1.
Commencement of Employment
The employment shall commence on the Commencement Date, subject to the Employee obtaining a valid work certificate and a residence permit.
2.
Position, Place of Work
(a)
The Employee shall be appointed and employed by the Employer as of the Commencement Date, in a position as Senior Vice President & General Manager - EMEA, or in such other position as the Employer may assign to the Employee from time to time. The Employee shall report to those executive officers who are assigned to this position by the Board of Directors or the CEO from time to time. At all times during the term of this Agreement the Employee shall perform those duties and exercise such powers which are from time to time assigned to or vested in the Employee by the Board of Directors or the CEO, the executive officer to whom the Employee reports or that are listed in the relevant work description or in internal regulations of the Employer.
(b)
The Employee's place of work shall be initially at the Employee’s home office or such other premises as the Employer may use from time to time. The Employee's duties may require the Employee to regularly travel on business for the Employer to other locations both in Switzerland and abroad, such travel may include, where reasonably required, weekends and public holidays.
3.
Remuneration
(a)
The base salary shall be CHF 389,644 gross p.a. (pro rata), payable in 12 monthly installments of CHF 29,972.62 paid one month in arrears on or around the last calendar day in the respective month and a 13 th monthly salary paid pro rata temporis in late November of each year (" Base Salary "). The Base Salary shall be the remuneration for regular working time, overtime ( Überstunden ), excess-overtime ( Überzeit ), and any other service rendered by the Employee for the Employer. The Employer shall deduct from the Base Salary the social security charges and other charges due under applicable law and the pension plan of the Employer.

(b)
The Employee shall be entitled to participate in the Employer's bonus program, if any, with an annual bonus target of 50% of Base Salary subject to the terms and conditions of such bonus program as communicated by Employer from time to time. The Employee acknowledges and agrees that the Employer may unilaterally amend or change the bonus program from time to time or discontinue a bonus program at any time. Any bonus payment





shall be paid-out at such times as such payments are customarily made by the Employer. The Employer shall deduct from any bonus payment the social security charges and other charges due under applicable law and the pension plan of the Employer.
(c)
Unless otherwise expressly agreed upon in writing, the payment of any other gratuities, bonuses, profit shares, premiums or other extra payments shall be on a voluntary basis, subject to the provision that even repeated payments without the explicit repetition of such reservation shall not create any claim for the Employee, either in respect to their cause or their amount, either for the past or for the future.
4.
Expenses
(a)
Expenses including taxis, meals when traveling, air travel and hotel accommodation costs shall be reimbursed by the Employer, against lawful invoices, provided that they were reasonably incurred by the Employee when promoting the business of the Employer and in performing services hereunder and are incurred in accordance with the policies and procedures established by the Employer from time to time.
(b)
The Employee acknowledges and agrees that he shall not be paid any compensation for the use of his home office and the respective infrastructure.
5.
Hours of Work
The hours of work are such as may be required for the proper performance of the Employee's duties, normally between 8 a.m. and 6 p.m., and at such other times as may be appropriate without any additional remuneration or the grant of extra time off or other compensation.
6.
Employee's General Obligations
(a)
The Employee shall faithfully and diligently perform his tasks, in compliance with the instructions given to him by the Board of Directors.
(b)
The Employee shall devote his full working time to the Employer and shall not undertake other professional activities, whether paid or unpaid, and/or accept other employments, positions, or any corporate function (e.g. board membership) during the term of this Agreement.
7.
Incapacity
(a)
Should the Employee be incapacitated due to illness, accident or the like to perform his duties required under this Agreement, the Employee shall notify the Employer immediately and shall provide a medical certificate evidencing such incapacity. The Employer reserves the right to require the Employee, at any time, to undergo a medical examination conducted by the Employer's medical doctor, at the Employer's expense,





and to provide a medical certificate. The Employee hereby authorizes such medical doctor to disclose and discuss with the Employer the results of its examination relating to the Employee's incapacity to work.
(b)
During absence from work due to illness, accident or the like, the Employee shall be paid in accordance with Swiss law and the Zurich scheme (" Zürcher Skala ") the Base Salary less any statutory sick pay or other benefits to which the Employee is entitled.
8.
Holidays
(a)
The Employee shall be entitled to 25 days of paid holiday p.a. (pro rata) in addition to the public holidays as applicable in the jurisdiction of the registered place of incorporation of the Employer.
(b)
Holidays shall be taken at times agreed with the Employer. The Employee shall give sufficient notice of intention to take holidays to his superior, of whom the written approval to the specific dates is required.
(c)
Any holiday taken shall be deducted from the most recent holiday accrued, and untaken holiday from earlier years shall forfeit in accordance with the applicable statute of limitations.
9.
Term and Termination, Probation Period, Transfer
(a)
This Agreement shall run for an indefinite period of time. It may be terminated by either Party giving three (3) months prior written notice, such notice being effective as per the relevant date of the expiry of the notice period (and, for the avoidance of doubt, not as per the end of the month following the expiry of the notice period).
(b)
The first three (3) months after the Commencement Date qualify as probation period (in accordance with Article 335b Swiss Code of Obligations) during which this Agreement may be terminated anytime upon 7 days' notice.
(c)
The Employee hereby acknowledges and agrees that the Employer may, in its sole discretion and at any time, transfer this Agreement to an affiliate in Germany. As a result of such transfer, the Employee shall automatically work for and be subject to instructions given by a new employer. All other terms and conditions (including but not limited to substantive Swiss law governing this agreement) shall remain in effect as set forth herein. Such new employer shall comply with its obligations arising under this Agreement, register itself for Swiss social security purposes and use reasonable best efforts to accede to the Employer's pension plan.  





10.
Confidentiality
(a)
As used herein, " Confidential Information " shall include, but not be limited to, all technical, business and trade information of the Employer and/or any of its subsidiary, sister, and parent companies and affiliates (collectively, the " Group "), and of any third party, which is of a confidential, trade secret and/or proprietary character and which is either developed by the Employee (alone or with others) or to which the Employee has had access during his employment hereunder.
(b)
The Employee shall be prohibited at any time during the continuance of his employment hereunder or at any time thereafter to directly or indirectly disseminate, disclose, and/or use for his own purposes or for any purposes other than those of the Employer, or through any failure to exercise due care and diligence cause any unauthorized disclosure of, Confidential Information, except
(i)
as may be required by law,
(ii)
in the proper performance of the Employee's duties or
(iii)
as authorized in writing by the Employer.
(c)
Upon termination of his employment hereunder (for whatever reason) and at any other time at the Employer's request the Employee shall, without retaining any copies or other record thereof, deliver to the Employer or any person the Employer may nominate each and every document and all other material of whatever nature in the possession or under the control of the Employee containing or relating directly or indirectly to any Confidential Information.
(d)
The confidentiality undertaking set forth in this Section 10 shall cease to apply to any information which shall become available to the public generally otherwise than through the default of the Employee.
(e)
Employee shall not, during his/her employment with the Employer or at any time thereafter, use or disclose to the Employer any confidential, trade secret, or other proprietary information or material of any previous employer or other person, and Employee shall not bring onto the Employer’s premises any unpublished document (or derivation thereof) or any other property belonging to any former employer without the prior written consent of that former employer.
11.
Intellectual Property
(a)
All intellectual property, including inventions and designs, and other proprietary work effort which the Employee either alone or in conjunction with others invents, conceives,





makes or produces while employed by the Employer (whether during working hours or not) and which directly or indirectly:
(i)
relate to matters within the scope of the Employee's duties or field of responsibility; or
(ii)
are based on the Employee's knowledge of the actual or anticipated business or interests of the Employer or any of the Group companies; or
(iii)
are aided by the use of time, materials, facilities or information of the Employer or any of the Group companies
and all legal rights therein shall be the sole and exclusive property of the Employer.
(b)
The Employee shall communicate promptly and confidentially in writing to those persons authorised for the purpose by the Board of Directors and to no other persons all such inventions, designs and work effort of a proprietary nature.
(c)
The Employer reserves the right to acquire any invention, design and proprietary work effort invented, conceived, made or produced by the Employee merely on occasion of his employment activity, but not during the performance of his contractual duties. The Employer shall inform the Employee in writing within six months upon receipt of the Employee's notice pursuant to Section (b) whether it wishes to acquire the rights to such invention, design, or proprietary work effort or whether such invention, design or proprietary work effort will be released to the Employee.
(d)
The Employee shall execute and perform at the expense of the Employer both during the continuance of his employment hereunder and at all times thereafter all such applications, assignments, documents, acts and things as may reasonably be required by the Employer for the purpose of obtaining and enforcing in such countries as the Employer may direct all necessary legal protection in respect of inventions, designs and other proprietary work effort owned by the Employer and for vesting the same in the Employer or as the Employer may direct.
12.
Data Protection, Communication Infrastructure
(a)
With the execution of this Agreement, the Employee consents that the Employer may store, transfer, change and delete all personal data in connection with this employment relationship. In particular, the Employee consents to the transfer of personal data concerning the Employee by the Employer to an affiliated company of the Employer outside Switzerland also in case such affiliated company of the Employer should not be subject to data protection rules similar to the ones applicable in Switzerland.





(b)
The Employee shall comply with the Employer's policies and instructions regarding the use of the Employer's telephones and telefax, computers, e-mail system, internet services and software programmes (" Communication Infrastructure "). The Employee shall at all times refrain from using the Communication Infrastructure for any excessively private or any inappropriate or illegal purpose. The Employee acknowledges and agrees that all activities on the Communication Infrastructure are automatically saved, and that the Employer has complete access to, and may, in order to verify compliance with the Employer's policies and instructions, monitor at any time the Employee's usage of the Communication Infrastructure, including but not limited to the review of all material and e-mail correspondence and the Employees' internet usage that is saved on or performed via the Communication Infrastructure.
13.
Non-Competition, Non-Solicitation
(a)
The Employee shall not, for as long as the Employee remains an employee of the Employer and, upon written request by the Employer, during a period of one (1) year from the taking effect of the termination of this Agreement, alone, or jointly with, or as manager of, agent for, or employee of any person or as a shareholder directly or indirectly carry on or be engaged, concerned or interested in any business competitive to the business of the Group worldwide in all those countries where the Group conducts business at the time of the termination of this Agreement or twelve months prior to such termination date.
(b)
Provided that the Employer requests the Employee to comply with the non-compete undertaking set forth in Section 13(a) above, and further provided that Employee fully complies with such request, Employer shall pay to the Employee on a monthly basis after the termination of the employment having become effective as an incentive for the compliance with the non-compete undertaking an amount (gross) corresponding to one monthly instalment of the Base Salary as in force at the time of termination (" Incentive "). If the Employer releases the Employee any time prior to end of the one (1) year period, the Incentive shall be paid until such release. The Employer shall deduct from any Incentive the social security charges and other charges due under applicable law.
(c)
The Employee shall not, for as long as he remains an employee of the Group and during a period of one (1) year from the taking effect of the termination of this Agreement
(i)
solicit, induce or attempt to induce any person who is an employee of the Group to leave the Group or to engage in any business that competes with the Group;





(ii)
hire or assist in the hiring of any person who is an employee of the Group to work for any business that competes with the Group, or
(iii)
solicit, induce or attempt to induce any person or company that is a customer of the Group to discontinue or modify its customer relationship with the Employer.
14.
Liquidated Damages
For each violation of the covenants set forth in Sections 10 and/or 13, the Employee shall pay to the Employer an amount of CHF 100,000. as liquidated damages ( Konventionalstrafe ) plus such additional damages as may be incurred by the Employer. The payment of this sum shall not operate as a waiver of the above obligations. The Employer shall, in addition to all other damages, be entitled to obtain a court's order for specific performance, as well as adequate injunctive relief or any other adequate judicial measure, to immediately stop such violation.
15.
General Provisions
(a)
This Agreement and the policies, rules, and/or regulations listed in Section (d) constitute the entire agreement and understanding among the Parties with respect to the employment of the Employee with the Employer, and shall supersede all prior oral and written agreements or understandings of the Parties relating hereto. Any representation or statement (in whatever form) made to the Employee in connection with the Employee's employment not incorporated in this Agreement or the policies, rules, and/or regulations listed in Section (d) shall not be valid and have no effect.
(b)
This Agreement may only be modified or amended by a document signed by the Parties. Any provision contained in this Agreement may only be waived by a document signed by the Party waiving such provision. No waiver of any violation or non-performance of this Agreement in one instance shall be deemed to be a waiver of any violation or non-performance in any other instance. All waivers must be in writing.
(c)
If any provision of this Agreement is found by any competent authority to be void, in-valid or unenforceable, such provision shall be deemed to be deleted from this Agreement and the remaining provisions of this Agreement shall continue in full force. In this event, the Agreement shall be construed, and, if necessary, amended in a way to give effect to, or to approximate, or to achieve a result which is as close as legally possible to the result intended by the provision hereof determined to be void, illegal or unenforceable.
(d)
The following policies, rules, and/or regulations, each as amended from time to time, shall be incorporated into this Agreement by reference, and the Employee acknowledges





to have received a copy of, and hereby agrees to, all such policies, rules, and/or regulations:
(i)
Code of Conduct
(ii)
Insider Trading Policy
16.
Governing Law and Jurisdiction
(a)
This Agreement, including the jurisdiction clause, shall be governed by, interpreted and construed in accordance with the substantive laws of Switzerland.
(b)
Exclusive jurisdiction for all disputes arising out of or in connection with this Agreement shall be with the ordinary courts at the registered place of incorporation of the Employer.

Rock Hill, SC USA, August 24, 2016
 
Merilschachen, August 24, 2016
Place, Date
 
Place, Date
3D Systems SA
 
Herbert Köck
/s/ Andrew M. Johnson, Director
 
/s/ Herbert Koeck
Name, job title
 
Name, job title







March 5, 2018

Herbert Koeck
Rebmattweg 30
6402 Merlischachen

Letter of Secondment
Dear Herbert,    

I would like to take this opportunity to confirm our offer to you for an international secondment with relocation benefits in San Diego, CA. USA. The start date is January 13, 2018, and the secondment is for a period of 2 years, subject to earlier termination as provided for below. 3D Systems may also change your length of stay as determined by our business objectives, or for any other reasons. Your position will be Senior Vice President, Global Go To Market . Your point of origin is Zurich, Switzerland (the “home” location) and your residence during your secondment is San Diego, CA, USA. and the place where your work activities will be performed is the office of 3D Systems located at 16550 West Bernardo Dr. Bldg 5, San Diego, CA. 92127 (your “host” location). Your relocation benefits related to this secondment are based on these home and host locations. While on secondment, you will remain for all purposes an employee of 3D Systems SA., Route de l’Ancienne Papeterie, CH-1723 Marly (the “Company”), and all employer authority shall remain with the Company, at all times. Your employment agreement with the Company dated September 5, 2016 shall remain in full force and effect, subject to the terms of this letter.


Salary

In connection with your secondment, you are eligible to receive compensation, which consists of base salary, potential target bonus, and a system of allowances, deductions, and reimbursements. Payments are made through the 3D Systems’ payroll and will be direct deposited into your U.S. bank account.

Base Salary : As of your secondment start date, your base salary of $490,000 (inclusive of gross ups) will be direct deposited into your U.S. bank account on a bi-weekly basis. You will be responsible for arranging to have funds transferred as needed into your host location bank account. For the duration of this secondment, salary administration will be based on your home country policies and practices as well as your performance. Your salary will be reviewed for a merit increase under your current annual cycle and applicable policies.

Bonus: While on secondment your annual performance bonus target will be 50% of your annual base salary during the year, subject to the terms and conditions of the 3D Systems annual bonus plan. Any annual bonus paid to you will be subject to tax withholding.

This secondment is contingent upon your work visa being approved by USA Consulate in Vienna, Austria.

Attached is a summary of the relocation benefits for which you will be eligible.


III. BENEFITS, TAXES, & HOLIDAYS

Work Schedule/Holidays - You agree that you will observe the work schedule in effect for similarly situated employees in the San Diego office of 3D Systems.


Paid Time Off/ Vacation - While on secondment, you will be eligible for annual vacation benefits equal to the greater of the number of vacation days for which you are eligible under San Diego Office Vacation Plan and the vacation days provided under you existing employment agreement with the Company

Benefits - You will continue to participate in Swiss based benefits and compensation plans during your secondment.

Taxes

While on secondment, your annual salary will be grossed up to an amount that will result in a net zero tax advantage. This gross up is reflected in the base salary described above.






Pursuant to applicable law, you will be required to pay host and home income tax based on full disclosure of your worldwide taxable earnings during your international assignment and timely file all applicable income tax returns. The Company will provide tax assistance from PwC for the first year and last year of your secondment.

Payroll - Compensation will be paid to you through the U.S. Payroll.


IV. REPATRIATION

Repatriation

Other than in cases of involuntary termination (with cause), and voluntary resignation, you are guaranteed a right of return to your home location at the end of the international secondment. Failure to return to Switzerland at the end of your secondment will be deemed a voluntary resignation. Subject to your satisfactory performance while on secondment and the Company’s business needs, 3D Systems will take reasonable efforts to return you to a position at least equivalent to the position held prior to your secondment.

Separation Without Cause

Your secondment is scheduled to last for two (2) years. Should your employment with the Company be terminated involuntarily during this secondment without cause, 3D Systems will pay to transport you and your family and household goods back to Switzerland provided you return to Switzerland within 30 days of termination. Termination will require immediate settlement of outstanding tax, travel and other advances.

If you are terminated without cause prior to January 13, 2020, 3D Systems shall pay you a severance payment in a lump sum equal to 12 months’ base salary calculated on the applicable rates payable pursuant to your employment contract with the Company (not a grossed up secondment rate). You will be eligible for any US-based benefits continuation under COBRA for a 12-month period.

Resignation

In the event that you voluntarily resign for any reason during the secondment, you are responsible for the cost of all transportation for you and your dependent family members and personal effects from your secondment location to your home country. Cash equivalent payments for these expenses will not be made, nor will you be entitled to any relocation allowance or further housing or other allowances from 3D Systems.

Code of Conduct

You should understand that you can be, and often are, highly visible representatives of 3D Systems Inc. in the host location. As such, you will need to be familiar with and adhere to the Company policies and applicable home and host country work laws. It is imperative that you and your family members follow both the letter and the spirit of the law, not only to protect yourselves from criminal or civil penalties, but also to maintain and advance the Company’s image as a reputable corporate citizen in the countries in which we operate. You will be expected to operate in compliance with the Company’s Code of Conduct at all times.


By signing below, you agree that your employment relationship and all terms and conditions of your employment relationship shall be governed exclusively by and construed in accordance with U.S. law, and that any action, claim, cause of action, charge, or complaint relating to or arising out of your employment or your separation from employment shall be brought for resolution in U.S. Federal Court.

Please let me know if you have questions.

Sincerely,

/s/ Andrew M. Johnson, EVP, CLO & Secretary, 3D Systems Corporation / March 7, 2018


I AGREE TO THE TERMS AND CONDITIONS COVERING MY TEMPORARY ASSIGNMENT AS SET FORTH IN THIS LETTER






/s/ Herbert Koeck                March 7, 2018


Herbert Koeck
Secondee                    Date






    
Execution Version


3D SYSTEMS CORPORATION
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this “ Agreement ”) is made on this 24 th day of August to become effective and commence upon September 1, 2016 (the “ Effective Date ”), by and between 3D Systems Corporation, a corporation organized and existing under the laws of the State of Delaware (“ Company ”), and Philip Schultz (“ Executive ”).
RECITALS
WHEREAS , commencing on the Effective Date, Company desires to employ Executive as Senior Vice President & General Manager - On Demand Solutions, subject to the terms and conditions of this Agreement; and
WHEREAS , Executive desires to be employed by Company in the aforesaid capacity subject to the terms and conditions of this Agreement.
NOW THEREFORE , in consideration of the foregoing premises, of the mutual agreements and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows, effective as of the Effective Date:
AGREEMENT
1.
Employment .
Company hereby agrees to employ Executive, and Executive hereby accepts employment, as Senior Vice President & General Manager - On Demand Solutions, or such other position as mutually agreed to between Executive and the Company pursuant to the terms of this Agreement, with such employment to commence as of the Effective Date. Executive shall have the duties and responsibilities and perform such administrative and managerial services of that position as are set forth by the Chief Executive Officer from time to time. Executive shall carry out Executive’s responsibilities hereunder on a full-time basis for and on behalf of Company; provided that Executive shall be entitled to devote time to outside boards of directors, personal investments, civic and charitable activities, and personal education and development, so long as such activities do not interfere with or conflict with Executive’s duties hereunder in any material respect, and provided that Executive notifies the Corporate Governance and Nominating Committee (the “ Governance Committee ”) of the Board of Directors of the Company (the “ Board ”) of any outside boards of directors on which Executive intends to serve, and the Governance Committee consents to such service, which consent may be granted or withheld in the sole discretion of the Governance Committee. Notwithstanding the foregoing, Executive agrees that, during the term of this Agreement, Executive shall not act as an officer or employee of any for profit business other than Company without the prior written consent of Company.





2.
Term .
The term of Executive’s employment by Company under this Agreement (the “ Employment Period ”) shall commence on the Effective Date and shall continue in effect through the second (2 nd ) anniversary of the Effective Date, unless earlier terminated as provided herein. Thereafter, unless Company or Executive shall elect not to renew the Employment Period upon the expiration of the initial term or any renewal term, which election shall be made by providing written notice of nonrenewal to the other party at least thirty (30) days prior to the expiration of the then current term, the Employment Period shall be extended for an additional twelve (12) months. If Company elects not to renew the Employment Period at the end of the initial term or any renewal term, such nonrenewal shall be treated as a termination of the Employment Period and Executive’s employment without Cause by Company for the limited purpose of determining the payments and benefits available to Executive under this Agreement (e.g., Executive shall be entitled to the severance benefits set forth in Section 4.5.1). If Executive elects not to renew the Employment Period, such nonrenewal shall constitute a termination of Executive’s employment and the Employment Period by Executive without Constructive Discharge, and Executive shall only be entitled to the payments and benefits set forth in Section 4.5.2.
3.
Compensation and Benefits .
In consideration for the services Executive shall render under this Agreement, commencing upon the Effective Date, Company shall provide or cause to be provided to Executive the following compensation and benefits:
3.1      Base Salary . During the Employment Period Company shall pay to Executive an annual base salary of $330,000 per annum, subject to all appropriate federal and state withholding taxes and which shall be payable in accordance with Company’s normal payroll practices and procedures. Executive’s base salary shall be reviewed annually, and may be increased in the sole discretion of the Company, based on Executive’s performance during the preceding calendar year. Executive’s base salary, as such base salary may be increased hereunder, is hereinafter referred to as the “ Base Salary .”
3.2     Performance Bonuses . Executive shall be eligible to receive cash bonuses in accordance with this Section 3.2 (each a “ Performance Bonus ”). Payment of any Performance Bonus will be subject to the sole discretion of the Company, and such Performance Bonus shall be determined in the sole discretion of the Company. Subject to the foregoing exercise of discretion, Executive’s annual target Performance Bonus shall be not less than 50% of Executive’s Base Salary (the “ Target Performance Bonus ”), provided that the actual Performance Bonus shall be based on performance, which may be less than or exceed the Target Performance Bonus Performance Bonuses, if any, shall be paid according to the terms of the bonus plan or program in which Executive participates from time to time. Subject to Section 4.5.1 and Section 4.5.3 below, Executive must be employed to be entitled to any portion of any Performance Bonus, and the Performance Bonus shall not be considered earned under this Agreement until such Bonus is paid.
3.3     Benefits . During the Employment Period and as otherwise provided hereunder, Executive shall be entitled to the following:
3.3.1     Vacation . Executive shall be entitled to participate in the Company’s vacation policy for similarly-situated executives of the Company.
3.3.2     Participation in Benefit Plans . Executive shall be entitled to health and/or dental benefits, including immediate coverage for Executive and Executive’s eligible dependents, which are generally available to Company’s executive employees and as provided by Company, subject to the terms of its group health insurance plan. In addition, Executive shall be entitled to participate in any profit sharing plan, retirement plan, group life insurance plan or other insurance plan or medical expense plan maintained by Company for its executives generally, in accordance with the general





eligibility criteria therein and subject to the terms of any applicable plan. Nothing in this Agreement shall be construed as a promise to provide any particular benefit, should the Company decide to discontinue or amend any particular benefit plan for other executives.
3.3.3     Perquisites . Executive shall be entitled to such other benefits and perquisites that are generally available to Company’s executive employees and as provided in accordance with Company’s plans, practices, policies and programs for executive employees of Company.
3.4     Expenses . Company shall reimburse Executive for proper and necessary expenses incurred by Executive in the performance of Executive’s duties under this Agreement from time to time upon Executive’s submission to Company of invoices of such expenses in reasonable detail and subject to all standard policies and procedures of Company with respect to such expenses.
3.5     Stock Awards . Executive shall be eligible to participate in any applicable stock bonus, restricted stock award, restricted stock unit, stock option, or similar plan, if any, implemented by Company and generally available to its executive employees. The amount of the awards, if any, made thereunder shall be in the sole discretion of the Board or Compensation Committee of the Board. Any such award that may be granted shall be subject to the terms of any applicable plan or agreement, and Executive shall not be entitled to any award if Executive does not sign, or comply with, the terms of any plan or agreement required for the award.
3.6     New Hire Grant . Executive shall receive the following equity grants under the terms of the 2015 Incentive Plan of 3D Systems Corporation, the terms of which shall be reflected in one or more award agreements to be issued contemporaneously with the commencement of Executive’s employment hereunder:
3.6.1    Restricted Stock Award with respect to 35,000 shares of the common stock, $0.001 par value per share, of the Company (“ Common Stock ”), which shall vest and become exercisable in three equal annual installments during the continuation of Executive’s employment hereunder;
3.6.2    Stock Option Grant with respect to 50,000 shares of Common Stock that vest and become exercisable when the closing price of the Common Stock on the principal stock exchange on which the Company’s shares are listed is $30 per share or greater for each trading day in any 90 calendar day period during the continuation of Executive’s employment hereunder;
3.6.3    Restricted Stock Award with respect to 10,000 shares of Common Stock, which shall vest and become exercisable when the closing price of the Common Stock on the principal stock exchange on which the Company’s shares are listed is $30 per share or greater for each trading day in any 90 calendar day period during the continuation of Executive’s employment hereunder;
3.6.4    Stock Option Grant with respect to 50,000 shares of Common Stock that vest and become exercisable when the closing price of the Common Stock on the principal stock exchange on which the Company’s shares are listed is $40 per share or greater for each trading day in any 90 calendar day period during the continuation of Executive’s employment hereunder; and
3.6.5    Restricted Stock Award with respect to 10,000 shares of Common Stock, which shall vest and become exercisable when the closing price of the Common Stock on the principal stock exchange on which the Company’s shares are listed is $40 per share or greater for each trading day in any 90 calendar day period during the continuation of Executive’s employment hereunder.
provided, however , that notwithstanding any provision of the foregoing to the contrary, none of the awards listed above in this section shall become vested and exercisable prior to the expiration of six (6) months after the Effective Date and only if Executive’s employment hereunder is continuing at that time. The awards described above shall be subject to such additional terms and conditions and documentation as may be determined by the Board or the Compensation Committee in its sole discretion.
4.
Termination of Services Prior To Expiration of Agreement .
Executive’s employment and the Employment Period may be terminated at any time as follows (the effective date of such termination hereinafter referred to as the “ Termination Date ”):





4.1     Termination upon Death or Disability of Executive .
4.1.1    Executive’s employment and the Employment Period shall terminate immediately upon the death of Executive. In such event, all rights of Executive and/or Executive’s estate (or named beneficiary) shall cease except for the right to receive payment of the amounts set forth in Section 4.5.3 of the Agreement.
4.1.2    Company may terminate Executive’s employment and the Employment Period upon the disability of Executive. For purposes of this Agreement, Executive shall be deemed to be “ disabled ” if Executive, as a result of illness or incapacity, shall be unable to perform substantially Executive’s required duties for a period of three (3) consecutive months or for any aggregate period of three (3) months in any six (6) month period. In the event of a dispute as to whether Executive is disabled, Company may refer Executive to a licensed practicing physician who is mutually acceptable to Executive and Company, and Executive agrees to submit to such tests and examination as such physician shall deem appropriate to determine Executive’s capacity to perform the services required to be performed by Executive hereunder. In such event, the parties hereby agree that the decision of such physician as to the disability of Executive shall be final and binding on the parties. Any termination of the Employment Period under this Section 4.1.2 shall be effected without any adverse effect on Executive’s rights to receive benefits under any disability policy of Company, but shall not be treated as a termination without Cause and Executive shall be entitled to no further benefits or compensation under this Agreement.
4.2     Termination by Company for Cause . Company may terminate Executive’s employment and the Employment Period for Cause (as defined herein) upon written notice to Executive, which termination shall be effective on the date specified by Company in such notice; provided, however, that in respect of Sections 4.2.1 and 4.2.4 only, Executive shall have a period of ten (10) days after the receipt of the written notice from Company to cure the particular action or inaction, to the extent a cure is possible. For purposes of this Agreement, the term “ Cause ” shall mean:
4.2.1    The willful failure by Executive to perform Executive’s duties and obligations hereunder in any material respect, as determined by the Chief Executive Officer of the Company in his reasonable judgment, other than any such failure resulting from the disability of Executive;
4.2.2    Executive’s commission of a crime or offense involving the property of Company, or any crime or offense constituting a felony or involving fraud or moral turpitude;
4.2.3    Executive’s violation of any law, which violation is materially injurious or could reasonably be expected to be materially injurious to the operations, prospects or reputation of Company;
4.2.4    Executive’s material violation of this Agreement or any generally recognized policy of Company or Executive’s refusal to follow Company’s reasonable and lawful instructions;
4.2.5    Executive’s commission, by act or omission, of any material act of dishonesty in performing employment duties; or
4.2.6    Executive’s use of alcohol or illegal drugs that interferes with performing employment duties, as determined by the Company.
Any notice of termination for Cause provided to Executive pursuant to Sections 4.2.1, 4.2.4 or 4.2.5 shall specify in reasonable detail specific facts regarding any such assertion.
4.3     Termination by Company without Cause; Termination by Executive without Constructive Discharge . Executive may terminate Executive’s employment and the Employment Period at any time for any reason upon thirty (30) days’ prior written notice to Company. Company may terminate Executive’s employment and the Employment Period without Cause effective immediately upon written notice to Executive. Upon termination of Executive’s employment with Company for any reason, Executive shall be deemed to have resigned from all positions with the Company and each of its subsidiaries and shall take all appropriate steps and cooperate with Company to effect such terminations (provided, that any such deemed resignations shall not affect Executive’s entitlement (if any) to severance pay and benefits hereunder).
4.4     Termination by Executive for Constructive Discharge .





4.4.1    Executive may terminate Executive’s employment and the Employment Period, in accordance with the process set forth below, as a result of a Constructive Discharge. For purposes of this Agreement “ Constructive Discharge ” shall mean the occurrence of any of the following:
(i) a failure of Company to meet its obligations in any material respect under this Agreement, including, without limitation, (x) a greater than 10% reduction in Base Salary or (y) any failure to pay the Base Salary (other than, in the case of clause (y), the inadvertent failure to pay a de minimis amount of the Base Salary, which payment is immediately made by Company upon notice from Executive);
(ii)      a material diminution in or other substantial adverse alteration in the nature or scope of Executive’s responsibilities, authority, or duties with Company from those in effect on the Effective Date; or
(iii)      without Executive’s prior written agreement, Executive’s principal place of business is moved to a location that is more than seventy-five (75) miles from the Company’s offices located in San Diego, California.
In the event of the occurrence of a Constructive Discharge, Executive shall have the right to terminate Executive’s employment hereunder and receive the benefits set forth in Section 4.5.1 below, upon delivery of written notice to Company no later than the close of business on the sixtieth (60th) day following the effective date of the Constructive Discharge; provided, however, that such termination shall not be effective until the expiration of thirty (30) days after receipt by Company of such written notice if Company has not cured such Constructive Discharge within the 30-day period. If Company so effects a cure, the Constructive Discharge notice shall be deemed rescinded and of no force or effect. Notwithstanding the foregoing, such notice and lapse of time shall not be required with respect to any event or circumstance which is the same or substantially the same as an event or circumstance with respect to which notice and an opportunity to cure has been given within the previous six (6) months. The Termination Date due to Constructive Discharge shall be the date of Executive’s “separation from service” (within the meaning of Treas. Reg. Section 1.409A‑1(h)).
4.5     Rights upon Termination . Upon termination of Executive’s employment and the Employment Period, the following shall apply:
4.5.1    Termination by Company Without Cause or for Constructive Discharge. If Company terminates Executive’s employment and the Employment Period without Cause, or if Executive terminates Executive’s employment and the Employment Period as a result of a Constructive Discharge, Executive shall be entitled to receive payment of any Base Salary amounts that have accrued but have not been paid as of the Termination Date, and the unpaid Performance Bonus, if any, with respect to the calendar year preceding the calendar year in which the Termination Date occurs (such Performance Bonus, if any, to be determined in the manner that it would have been determined, and payable at the time it would have been payable, under Section 3.2 had there been no termination of the Employment Period). In addition, subject to Sections 4.5.2 and 4.7, below, Company shall, subject to Sections 8.13, 8.14 and 8.15, be obligated to pay Executive (or provide Executive with) the following benefits as severance:
(i) an amount equal to Executive’s Base Salary, payable in twelve (12) equal monthly installments commencing on the Termination Date, such amount to be payable regardless of whether Executive obtains other employment and is compensated therefor (but only so long as Executive is not in violation of any provision of Section 5) (with the first two (2) installments to be paid on the sixtieth (60th) day following the Termination Date and the remaining ten (10) installments being paid on the ten (10) following monthly anniversaries of such date);
(ii) any unused vacation time accrued in the calendar year in which the Termination Date occurs;





(iii) if Executive elects to continue Executive’s then current enrollment (including family enrollment, if applicable) in the health and/or dental insurance benefits set forth in Section 3.3.2 in accordance with COBRA, then for a period of up to twelve (12) months following the Termination Date, the Company will continue to pay a portion of the premiums such that Executive’s contribution to such plans will remain the same as if Executive were employed by Company, such contributions to be paid by Executive in the same period (e.g., monthly, bi-weekly, etc.) as all other employees of Company (but deductions from Executive’s monthly severance payments may be deemed acceptable for this purpose in the discretion of Company); provided, however that Company may terminate such coverage if payment from Executive is not made within ten (10) days of the date on which Executive receives written notice from Company that such payment is due; and provided, further, that such benefits shall be discontinued earlier to the extent that Executive is no longer eligible for COBRA continuation coverage. In addition, this benefit is contingent upon timely election of COBRA continuation coverage and will run concurrent with the COBRA period. Executive acknowledges and agrees that the amount of any such premiums paid by the Company will constitute taxable wages for income and employment tax purposes; and
(iv) in the event, and only in the event, that such Termination Date occurs on or prior to December 31, 2017, a pro-rata portion of the Performance Bonus, if any, with respect to the calendar year in which the Termination Date occurs (such Performance Bonus, if any, to be determined in the manner that it would have been determined, and payable at the time it would have been payable, under Section 3.2 had there been no termination of the Employment Period).
For purposes of Section 409A of the Code (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), Executive’s right to receive the foregoing payments shall be treated as a right to receive a series of separate payments and, accordingly, each installment payment shall at all times be considered a separate and distinct payment.
4.5.2    Termination With Cause by Company or Without Constructive Discharge by Executive. If Company terminates Executive’s employment and the Employment Period with Cause, or if Executive terminates Executive’s employment and the Employment Period other than as a result of a Constructive Discharge, (i) Company shall be obligated to pay Executive any Base Salary amounts that have accrued but have not been paid as of the Termination Date, (ii) any unpaid Performance Bonus to which Executive otherwise would be entitled shall be forfeited; and (iii) any unused vacation time accrued in the calendar year in which the Termination Date occurs.
4.5.3    Termination Upon Death or Disability. If Executive’s employment and the Employment Period are terminated because of the death of Executive or because Executive is disabled, Company shall, subject to Sections 8.13 and 8.14, be obligated to pay Executive or, if applicable, Executive’s estate, the following amounts: (i) earned but unpaid Base Salary; (ii) the unpaid Performance Bonus, if any, with respect to the calendar year preceding the calendar year in which the Termination Date occurs (such Performance Bonus, if any, to be determined in the manner it would have been determined, and payable at the time it would have been payable, under Section 3.2 had there been no termination of the Employment Period); and (iii) any unused vacation time accrued in the calendar year in which the Termination Date occurs.
4.6     Effect of Notice of Termination . Any notice of termination by Company, in the discretion of the Company, whether for Cause or without Cause, may specify that, during the notice period, Executive need not attend to any business on behalf of Company.
4.7     Requirement of a Release; Exclusivity of Severance Payments under this Agreement . As a condition to the receipt of the severance payments and termination benefits to be provided to Executive pursuant to this Section 4 upon termination of Executive’s employment without Cause or with Constructive Discharge, Executive shall execute and deliver to Company (without revoking during any applicable revocation period specified in the release) a general release of claims against Company and its affiliates in a customary form reasonably satisfactory to Company within forty-five (45) days following the Termination Date, which shall be in form and substance satisfactory to the Company (provided, that Executive shall not





be required to release any rights under this Agreement or any other agreement with the Company or any of its affiliates with respect to any payments or obligations of the Company or such affiliates that under the terms of the applicable agreement are to be made or satisfied after the Termination Date, any rights to insurance coverage or any rights under benefit plans that by their terms survive the termination of Executive’s employment, or any indemnification or related rights under Company’s certificate of incorporation or Bylaws or under any indemnification agreement between Company and Executive or any rights under any director and officer liability insurance policy maintained by Company for the benefit of Executive). In addition, the severance payments and termination benefits to be provided to Executive pursuant to this Section 4 upon termination of Executive’s employment shall constitute the exclusive payments in the nature of severance or termination pay or salary continuation which shall be due to Executive upon a termination of employment and shall be in lieu of any other such payments under any severance plan, program, policy or other arrangement which has heretofore been or shall hereafter be established by Company or any of its affiliates, other than payments to Executive under any indemnification or related rights under Company’s certificate of incorporation or Bylaws or under any indemnification agreement between Company and Executive or under any director and officer liability insurance policy maintained by Company for the benefit of Executive. Without limiting Executive’s obligations under Section 5.10, Executive shall furthermore agree, as a condition to Company’s obligation to pay severance payments and termination benefits, to return any and all Company property and to abide by any existing restrictive covenant obligations set forth in this Agreement that survive the termination of this Agreement.
5.
Restrictive Covenants .
The growth and development of Company and its affiliates and subsidiaries (collectively, “ 3D Systems ”) depends to a significant degree on the possession and protection of its customer list, customer information and other confidential and proprietary information relating to 3D Systems’ products, services, methods, pricing, costs, research and development and marketing. All 3D Systems employees and others engaged to perform services for 3D Systems have a common interest and responsibility in seeing that such customer information and other Confidential Information, as that term is defined in Section 5.6 below, is not disclosed to any unauthorized persons or used other than for 3D Systems’ benefit. This Section 5 expresses a common understanding concerning Company’s and Executive’s mutual responsibilities. Therefore, in consideration for Company’s agreement to employ or continue to employ Executive and grant Executive access to its Confidential Information, trade secrets, customer relationships and business goodwill, and for other good and valuable consideration from Company, including, without limitation, compensation, benefits, raises, bonus payments or promotions, the receipt and sufficiency of which are hereby acknowledged, and the severance benefits payable pursuant to Section 4.5, Executive covenants and agrees as follows, which covenant and agreement is essential to this Agreement and Executive’s employment with Company:
5.1     Solicitation. Executive acknowledges that the identity and particular needs of 3D Systems’ customers are not generally known and were not known to Executive prior to Executive’s employment with 3D Systems; that 3D Systems has relationships with, and a proprietary interest in the identity of, its customers and their particular needs and requirements; and that documents and information regarding 3D Systems’ pricing, sales, costs and specialized requirements of 3D Systems’ customers are highly confidential and constitute trade secrets. Accordingly, Executive covenants and agrees that during the Employment Period and for a period of twelve (12) months after the Termination Date, regardless of the reason for such termination, Executive will not, except on behalf of 3D Systems during and within the authorized scope of Executive’s employment with 3D Systems, directly or indirectly, use any Confidential Information to: (i) call on, sell to, solicit or otherwise deal with any accounts, or customers of 3D Systems which Executive called upon, contacted, solicited, sold to, or about which Executive learned Confidential Information while employed by 3D Systems, for the purpose of soliciting, selling and/or providing, to any such account or customer, any products or services similar to or in competition with any products or services then being sold by 3D Systems; or (ii) solicit the services of any person who is an employee of 3D Systems; or (iii) solicit, induce or entice





any employee of 3D Systems to terminate employment with 3D Systems or to work for anyone in competition with 3D Systems or its subsidiaries.
5.2     Non-Interference with Business Relationships . Executive covenants and agrees that during the Employment Period, Executive will not interfere with the relationship or prospective relationship between 3D Systems and any person or entity with which 3D Systems has a business relationship, or with which 3D Systems is preparing to have a business relationship.
5.3      Non-Competition . Executive agrees that during the Employment Period, Executive shall not, directly or indirectly, for Executive’s own benefit or for the benefit of others, own any interest in, develop, manage, control, participate in, consult, render services, organize, or in any manner engage (whether as an officer, director, employee, independent contractor, partner, member, joint venturer, agent, representative, or otherwise, but in each instance, in a role similar to or the same as, or with any of the same or similar duties and responsibilities as, any position or services held or rendered by Employee on behalf of 3D Systems during Employee’s employment with 3D Systems) in any activity or enterprise providing 3D or additive manufacturing content-to-print solutions, including 3D printers, print materials, on-demand custom parts services and 3D authoring solutions for professionals and consumers anywhere in the United States or the world. Notwithstanding the terms of this Section 5.3, Employee shall not be prohibited from (i) being a beneficial owner of not more than five percent (5%) of the outstanding stock of any class of stock which is publicly traded and which enterprise is competitive with the Business of 3D Systems, so long as Employee has no active participation in the business of such person or (ii) serving as a director or advisor to any non-profit organization or governmental entity.
5.4     Reasonableness of Restriction . Executive acknowledges that the foregoing non‑solicitation, non-competition and non-interference restrictions placed upon Executive are necessary and reasonable to avoid the improper disclosure or use of Confidential Information, and that it has been made clear to Executive that Executive’s compliance with Section 5 of this Agreement is a material condition to Executive’s employment by Company. Executive further acknowledges and agrees that, if Executive breaches any of the requirements of Sections 5.1, 5.2 or 5.3, the restricted periods set forth therein shall be tolled during the time of such breach, but not for longer than the length of the restricted periods set forth therein.
Executive further acknowledges and agrees that 3D Systems has attempted to impose the restrictions contained hereunder only to the extent necessary to protect 3D Systems from unfair competition and the unauthorized use or disclosure of Confidential Information. However, should the scope or enforceability of any restrictive covenant be disputed at any time, Executive specifically agrees that a court may modify or enforce the covenant to the full extent it believes to be reasonable under the circumstances existing at the time.
5.5     Non-Disclosure . Executive further agrees that, other than as needed to fulfill the authorized scope of Executive’s duties with 3D Systems, Executive will not during the Employment Period or thereafter use for Executive’s benefit or for others or divulge or convey to any other person (except those persons designated by 3D Systems) any Confidential Information obtained by Executive during the period of Executive’s employment with 3D Systems. Executive agrees to observe all Company policies and procedures concerning such Confidential Information. Executive agrees that, except as may be permitted by written Company policies, Executive will not remove from Company’s premises any of such Confidential Information without the written authorization of Company. Executive’s obligations under this Agreement will continue with respect to Confidential Information until such information becomes generally available from public sources through no fault of Executive’s. During the Employment Period and thereafter Executive shall not disclose to any person the terms and conditions of Executive’s employment by 3D Systems, except: (i) to close family members, (ii) to legal and accounting professionals who require the information to provide a service to Executive, (iii) as required by law or (iv) to the extent necessary to inform a prospective or actual subsequent employer of Executive’s duties and obligations under this Agreement. If Executive is requested, becomes legally compelled by subpoena or otherwise, or is required by a regulatory body to make any





disclosure that is prohibited by this Section 5.5, Executive will, except to the extent prohibited by law, promptly notify Company so that 3D Systems may seek a protective order or other appropriate remedy if 3D Systems deems such protection or remedy necessary under the circumstances. Subject to the foregoing, Executive may furnish only that portion of Confidential Information that Executive is legally compelled or required to disclose. The restrictions set forth herein are in addition to and not in lieu of any obligations Executive may have by law with respect to Confidential Information, including any obligations Executive may have under the Uniform Trade Secrets Act and/or similar statutes as applicable in the state of Executive’s residence and/or the state of Executive’s primary work location. Despite the foregoing, nothing in this Agreement shall be deemed to restrict Executive from communicating with any member of the United States Congress, from giving truthful testimony in any legal proceeding instituted or maintained, or from fully and candidly cooperating in connection with any investigation, inquiry or proceeding undertaken by, any agency or representative of the United States government, any State, or any of their respective political subdivisions having authority over any aspect of Company’s business operations, nor shall any such provision be deemed to require any party to seek the authority of the other in connection therewith. Further, the Executive is hereby notified in accordance with the Defend Trade Secrets Act of 2016 that the Executive will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that: (a) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (b) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding.
5.6     Definition of Confidential Information . As used herein, “ Confidential Information ” shall include, but is not limited to, the following categories of information, knowledge, or data currently known or later developed or acquired relating to 3D Systems’ business or received by 3D Systems in confidence from or about third parties, in each case when the same is not in the public domain or otherwise publicly available (other than as result of a wrongful act of an agent or employee of 3D Systems):
5.6.1    Any information concerning 3D Systems’ products, business, business relationships, business plans or strategies, marketing plans, contract provisions, actual or prospective suppliers or vendors, services, actual or anticipated research or development, new product development, inventions, prototypes, models, solutions, discussion guides, documentation, techniques, actual or planned patent applications, technological or engineering data, formulae, processes, designs, production plans or methods, or any related technical or manufacturing know-how or other information;
5.6.2    Any information concerning 3D Systems’ financial or profit data, pricing or cost formulas, margins, marketing information, sales representative or distributor lists, or any information relating to corporate developments (including possible acquisitions or divestitures);
5.6.3    Any information concerning 3D Systems’ current or prospective customer lists or arrangements, equipment or methods used or preferred by 3D Systems’ customers, or the customers or patients of customers;
5.6.4    Any information concerning 3D Systems’ use of computer software, source code, object code, or algorithms or architecture retained in or related to 3D Systems’ computer or computer systems;
5.6.5    Any personal or performance information about any 3D Systems’ employee;
5.6.6    Any information supplied to or acquired by 3D Systems under an obligation to keep such information confidential, including without limitation Protected Health Information (PHI) as that term is defined by the Health Insurance Portability and Accountability Act (HIPAA);
5.6.7    Any information, whether or not designated as confidential, obtained or observed by Executive or other 3D Systems employees during training sessions related to Executive’s work for 3D Systems;
5.6.8    Any “trade secrets” as such term is defined by California law; and
5.6.9    Any other information treated as trade secrets or otherwise confidential by 3D Systems.
Executive hereby acknowledges that some of this information may not be a “trade secret” under applicable law. Nevertheless, Executive agrees not to disclose it.





5.7     Inventions, Discoveries, and Work for Hire . Executive recognizes and agrees that all ideas, works of authorship, inventions, patents, copyrights, designs, processes (e.g., development processes), methodologies (e.g., development methodologies), machines, manufactures, compositions of matter, enhancements, and other developments or improvements and any derivative works based thereon, including, without limitation, potential marketing and sales relationships, research, plans for products or services, marketing plans, computer software (including source code and object code), computer programs, original works of authorship, characters, know-how, trade secrets, information, data, developments, discoveries, improvements, modifications, technology and algorithms, whether or not subject to patent or copyright protection (the “ Inventions ”) that (i) were made, conceived, developed, authored or created by Executive, alone or with others, during the time of Executive’s employment, whether or not during working hours, that relate to the business of 3D Systems or to the actual or demonstrably anticipated research or development of 3D Systems, (ii) were used by Executive or other personnel of 3D Systems during the time of Executive’s employment, even if such Inventions were made, conceived, developed, authored or created by Executive prior to the start of Executive’s employment, (iii) are made, conceived, developed, authored or created by Executive, alone or with others, within one (1) year from the Termination Date and that relate to the business of 3D Systems or to the actual or demonstrably anticipated research or development of 3D Systems, or (iv) result from any work performed by Executive for 3D Systems (collectively with (i)-(iii), the “ Company Inventions ”) are the sole and exclusive property of Company.
Notwithstanding the foregoing, Company Inventions do not include any Inventions made, conceived, developed, authored or created by Executive, alone or with others, for which no equipment, supplies, facility or trade secret information of 3D Systems was used and which were developed entirely on Executive’s own time, unless (1) the Invention relates (A) to the business of 3D Systems, or (B) to the actual or demonstrably anticipated research or development of 3D Systems, or (2) the Company Invention results from any work performed by Executive for 3D Systems. Employee understands that 3D Systems agrees that notwithstanding anything to the contrary in this Section 5.7, nothing in this Agreement shall apply to any Inventions that qualify fully under the provisions of Section 2870 of the California Labor Code.
For the avoidance of doubt, Executive expressly disclaims any and all right title and interest in and to all Company Inventions. Executive acknowledges that Executive has and shall forever have no right, title or interest in or to any patents, copyrights, trademarks, industrial designs or other rights in connection with any Company Inventions.
Executive hereby assigns to Company all present and future right, title and interest Executive has or may have in and to the Company Inventions. Executive further agrees that (i) Executive will promptly disclose all Company Inventions to 3D Systems; and (ii) all of the Company Inventions, to the extent protectable under copyright laws, are “works made for hire” as that term is defined by the Copyright Act, 17 U.S.C. § 101, et seq .
At the request of and without charge to Company, Executive will do all things deemed by Company to be reasonably necessary to perfect title to the Company Inventions in Company and to assist in obtaining for Company such patents, copyrights or other protection in connection therewith as may be provided under law and desired by Company, including but not limited to executing and signing any and all relevant applications, assignments, or other instruments. Executive further agrees to provide, at Company’ request, declarations or affidavits and to give testimony, in depositions, hearings or trials, in support of inventorship. These obligations continue even after the Termination Date. Company agrees that Executive will be reimbursed for reasonable expenses incurred in providing such assistance to Company. In the event Company is unable, after reasonable effort, to secure Executive’s signature on any document or documents needed to apply for or prosecute any patent, copyright or other right or protection relating to any Company Invention, for any reason whatsoever, Executive hereby irrevocably designates and appoints Company and its duly





authorized officers and agents as Executive’s agent and attorney-in-fact to act for and on Executive’s behalf to execute and file any such application or other document and to do all other lawfully permitted acts to further the prosecution and issuance of patents, copyrights, or similar protections thereon with the same legal force and effect as if executed by Executive.
For purposes of this Agreement, a Company Invention shall be deemed to have been made during Executive’s employment if, during such period, the Company Invention was conceived, in part or in whole, or first actually reduced to practice or fixed in a tangible medium during Executive’s employment with Company. Executive further agrees and acknowledges that any patent or copyright application filed within one (1) year after the Termination Date shall be presumed to relate to a Company Invention made during the term of Executive’s employment unless Executive can provide evidence to the contrary.
5.8     Covenants Are Independent Elements . The parties acknowledge that the restrictive covenants contained in this Section 5 are essential independent elements of this Agreement and that, but for Executive agreeing to comply with them, Company would not continue to employ Executive and would not provide the compensation herein. Accordingly, the existence or assertion of any claim by Executive against Company, whether based on this Agreement or otherwise, shall not operate as a defense to Company’s enforcement of the covenants this Section 5. An alleged or actual breach of the Agreement by the Company will not be a defense to enforcement of the provisions of Section 5 or other obligations of Executive to the Company.
5.9     Prior Employment . Executive hereby agrees that during the course and scope of the employment relationship with Company, Executive shall neither disclose nor use any confidential information, invention, or work of authorship derived from, developed or obtained in any prior employment relationship, and understands that any such disclosure or use would be injurious to the economic and legal interests of Company. Executive represents that Executive has informed Company of any non-competition, non-solicitation, confidentiality, work-for-hire or similar agreements to which Executive is subject or may be bound, and has provided Company with copies of any such non-competition and non-solicitation agreements.
5.10     Return of Data . In the event of the termination of Executive’s employment with Company for any reason whatsoever, Executive agrees to deliver promptly to Company all formulas, correspondence, reports, computer programs and similar items, customer lists, marketing and sales data and all other materials pertaining to Confidential Information, and all copies thereof, obtained by Executive during the period of Executive’s employment with Company which are in Executive’s possession or under his control. Executive further agrees that Executive will not make or retain any copies of any of the foregoing and will so represent to Company upon termination of his employment.
5.11     Non-Disparagement . Executive agrees that during the Employment Period and at all times thereafter, Executive will not make any statement, nor imply any meaning through Executive’s action or inaction, if such statement or implication would be adverse to the interests of 3D Systems, its customers or its vendors or may reasonably cause any of the foregoing embarrassment or humiliation; nor will Executive otherwise cause or contribute to any of the foregoing being held in disrepute by the public or any other 3D Systems customer(s), vendor(s) or employee(s). Company agrees to instruct its officers, directors and agents speaking regarding Executive with the prior knowledge and the express approval of an executive officer or director of the Company not to disparage Executive to future employers of the Executive or others; provided, however, that nothing contained in this Section 5.11 will restrict or impede Company from (i) complying with any applicable law, legal process, regulation or stock exchange requirement, including disclosure obligations under securities laws and regulations, or a valid order of a court of competent jurisdiction or an authorized government agency or entity; (ii) making any statement required or reasonably desirable in connection with the enforcement or defense of any claim, legal proceeding or investigation involving Executive or the Company or any of their respective Affiliates; or (iii) providing information to any future





employer or prospective employer of Executive regarding Executive’s obligations under this Agreement or any other agreement to which Executive is a party. Nothing herein prevents disclosure, in the sole discretion of the Company and its employees, of this Agreement, or discussion of Executive’s employment with, and separation of employment from, the Company, by and among employees and other agents of Company with a business need to know such information. The restrictions of this Section 5.11 shall apply to, but are not limited to, communication via the Internet, any intranet, or other electronic means, such as social media web sites, electronic bulletin boards, blogs, email messages, text messages or any other electronic message. The restrictions of this Section 5.11 shall not be construed to prohibit or limit Executive, Company or any other Person from testifying truthfully in any proceeding, arbitration or governmental investigation.
5.12     Injunctive Relief and Additional Remedies for Breach . Executive further expressly acknowledges and agrees that any breach or threatened breach of the provisions of this Section 5 shall entitle 3D Systems, in addition to any other legal remedies available to it, to obtain injunctive relief, to prevent any violation of this Section 5 without the necessity of 3D Systems posting bond or furnishing other security and without proving special damages or irreparable injury. Executive recognizes, acknowledges and agrees that such injunctive relief is necessary to protect 3D Systems’ interest. Executive understands that in addition to any other remedies available to 3D Systems at law or in equity or under this Agreement for violation of this Agreement, other agreements or compensatory or benefit arrangements Executive has with 3D Systems may include provisions that specify certain consequences thereunder that will result from Executive’s violation of this Agreement, which consequences may include repaying 3D Systems or foregoing certain equity awards or monies, and any such consequences shall not be considered by Executive or any trier of fact as a forfeiture, penalty, duplicative remedy or exclusive remedy. Notwithstanding Section 8.9, the exclusive venue for any action for injunctive or declaratory relief with respect to this Section 5 shall be the state or federal courts located in San Diego County, California. Company and Executive hereby irrevocably consent to any such courts’ exercise of jurisdiction over them for such purpose.
5.13     Notification to Third Parties . Company may, at any time during or after the termination of Executive’s employment with Company, notify any person, corporation, partnership or other business entity employing or engaging Executive or evidencing an intention to employ or engage Executive as to the existence and provisions of this Agreement.
5.14     Cooperation . The parties agree that certain matters in which the Executive will be involved during the Employment Period may necessitate the Executive’s cooperation in the future. Accordingly, following the termination of the Executive’s employment for any reason, to the extent reasonably requested by the Company, the Executive shall cooperate with the Company in connection with matters arising out of the Executive’s service to the Company; provided that, the Company shall make reasonable efforts to minimize disruption of the Executive’s other activities. The Company shall reimburse the Executive for reasonable expenses incurred in connection with such cooperation and, to the extent that the Executive is required to spend substantial time on such matters, the Company shall compensate the Executive at an hourly rate based on the Executive’s Base Salary on the Termination Date.
6.
No Mitigation .
In no event shall Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to Executive under any of the provisions of this Agreement and, except as otherwise provided herein, such amounts shall not be reduced whether or not Executive obtains other employment.
7.
Clawback .
All incentive compensation paid to Executive pursuant to this Agreement or otherwise in connection with Executive’s employment with Company shall be subject to forfeiture, recovery by Company or other action pursuant to any clawback or recoupment policy which Company may adopt from time to time.






8.
Miscellaneous .
8.1     Valid Obligation . This Agreement has been duly authorized, executed and delivered by Company and has been duly executed and delivered by Executive and is a legal, valid and binding obligation of Company and of Executive, enforceable in accordance with its terms.
8.2     No Conflicts . Executive represents and warrants that the performance by Executive of the duties that are reasonably expected to be performed hereunder will not result in a material breach of any agreement to which Executive is a party.
8.3     Applicable Law . This Agreement shall be construed in accordance with the laws of the State of South Carolina (the “ Applicable State Law ”), without reference to South Carolina’s choice of law statutes or decisions.
8.4     Severability . The provisions of this Agreement shall be deemed severable, and the invalidity or unenforceability of any one or more of the provisions hereof shall not affect the validity or enforceability of any other provision. If any provision of this Agreement shall be prohibited by or invalid under the Applicable State Law, the prohibited or invalid provision(s) shall be deemed severed herefrom and shall be unenforceable to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement. In the event any clause of this Agreement is deemed to be invalid, the parties shall endeavor to modify that clause in a manner which carries out the intent of the parties in executing this Agreement.
8.5     No Waiver . The waiver of a breach of any provision of this Agreement by any party shall not be deemed or held to be a continuing waiver of such breach or a waiver of any subsequent breach of any provision of this Agreement or as nullifying the effectiveness of such provision, unless agreed to in writing by the parties.
8.6     Notices . All demands, notices, requests, consents and other communications required or permitted under this Agreement shall be in writing and shall be personally delivered or sent by facsimile machine (with a confirmation copy sent by one of the other methods authorized in this Section), or by commercial overnight delivery service, to the parties at the addresses set forth below:
To Company:
3D Systems Corporation
333 Three D Systems Circle
Rock Hill, South Carolina 29730
Attention: Chief Executive Officer
With a copy to the Chief Legal Officer
To Executive:
At the address and/or fax number most recently contained in Company’s records
Notices shall be deemed given upon the earliest to occur of (i) receipt by the party to whom such notice is directed, if hand delivered; (ii) if sent by facsimile machine, on the day (other than a Saturday, Sunday or legal holiday in the jurisdiction to which such notice is directed) such notice is sent if sent (as evidenced by the facsimile confirmed receipt) prior to 5:00 p.m. Central Time and, if sent after 5:00 p.m. Central Time, on the day (other than a Saturday, Sunday or legal holiday in the jurisdiction to which such notice is directed) after which such notice is sent; or (iii) on the first business day (other than a Saturday, Sunday or legal holiday in the jurisdiction to which such notice is directed) following the day the same is deposited with the commercial carrier if sent by commercial overnight delivery service. Each party, by notice duly given in accordance therewith may specify a different address for the giving of any notice hereunder.





8.7     Assignment of Agreement . This Agreement shall be binding upon and inure to the benefit of Executive and Company, their respective successors and permitted assigns and Executive’s heirs and personal representatives. Executive may not assign any rights or obligations hereunder to any person or entity without the prior written consent of Company. This Agreement shall be personal to Executive for all purposes.
8.8     Entire Agreement; Amendments . Except as otherwise provided herein, this Agreement contains the entire understanding between the parties, and there are no other agreements or understandings between the parties with respect to Executive’s employment by Company and Executive’s obligations thereto other than Executive’s indemnification or related rights under Company’s certificate of incorporation or Bylaws or under any indemnification agreement between Company and Executive and Executive’s rights under any equity incentive plans or bonus plans of Company. Subject to applicable law, Executive will be provided indemnification to the maximum extent permitted by the Company’s Bylaws and certificate of incorporation, including, if applicable, any directors and officers insurance policies, with such indemnification to be on terms determined by the Board or any of its committees, but on terms no less favorable than provided to any other Company executive officer or director and subject to the terms of any separate written indemnification agreement. Executive acknowledges that Executive is not relying upon any representations or warranties concerning Executive’s employment by Company except as expressly set forth herein. No amendment or modification to the Agreement shall be valid except by a subsequent written instrument executed by the parties hereto.
8.9     Dispute Resolution and Arbitration . The following procedures shall be used in the resolution of disputes:
8.9.1    Dispute. In the event of any dispute or disagreement between the parties under this Agreement (excluding an action for injunctive or declaratory relief as provided in Section 5.12), the disputing party shall provide written notice to the other party that such dispute exists. The parties will then make a good faith effort to resolve the dispute or disagreement. If the dispute is not resolved upon the expiration of fifteen (15) days from the date a party receives such notice of dispute, the entire matter shall then be submitted to arbitration as set forth in Section 8.9.2.
8.9.2    Arbitration. Should any legal claim (other than those excepted below) arising out of or in any way relating to this Agreement or Executive's employment or the termination of Executive's employment not be resolved by negotiation or mediation, it shall be subject to binding and final arbitration in Rock Hill, South Carolina, which is in York County. The fees of the arbitrator and any other fees for the administration of the arbitration that would not normally be incurred if the action were brought in a court of law shall be paid by Company.  However, Executive shall be required to pay the amount of those fees equal to that which Executive would have been required to pay to file a lawsuit in court. Any demand for arbitration shall be in writing and must be communicated to the other party prior to the expiration of the applicable statute of limitations. Unless otherwise provided herein, the arbitration shall be conducted by a single arbitrator in accordance with the Employment Arbitration Rules and Mediation Procedures published by the American Arbitration Association. If the arbitrator selected as set forth herein determines that this location constitutes a significant hardship on the Executive and constitutes an impermissible barrier to Executive’s efforts to enforce Executive’s statutory or contractual rights, such arbitration may be conducted in some other place determined to be reasonable by the arbitrator. The arbitrator shall be selected by mutual agreement of the parties. If the parties cannot agree on an arbitrator within thirty (30) days after written request for arbitration is made by one party to the controversy, a neutral arbitrator shall be appointed according to the procedures set forth in the American Arbitration Association Employment Arbitration Rules and Mediation Procedures. In rendering the award, the arbitrator shall have the authority to resolve only the legal dispute between the parties, shall not have the authority to abridge or enlarge substantive rights or remedies available under existing law, and shall determine the rights and obligations of the parties according to the substantive laws of the Applicable State Law and any applicable federal law. In addition, the arbitrator's decision and award shall be in writing and signed by the arbitrator, and accompanied by a concise written explanation of





the basis of the award. The award rendered by the arbitrator shall be final and binding, and judgment on the award may be entered in any court having jurisdiction thereof. The arbitrator is authorized to award any party a sum deemed proper for the time, expense, and trouble of arbitration, including arbitration fees and attorneys’ fees.
8.9.3    Types of Claims. All legal claims brought by Executive or Company related to this Agreement, the employment relationship, terms and conditions of Executive’s employment, and/or termination from employment are subject to this dispute resolution procedure. These include, by way of example and without limitation, any legal claims based on alleged discrimination or retaliation on the basis of race, sex (including sexual harassment), religion, national origin, age, disability or other protected classification, whether based on state or federal law; payment of wages, bonuses, or commissions; workers’ compensation retaliation; defamation; invasion of privacy; infliction of emotional distress and/or breach of an express or implied contract. Disputes and actions excluded from Section 8.9 are: (1) claims for workers’ compensation or unemployment benefits; (2) claims for benefits under a Company plan or program that provides its own process for dispute resolution; (3) claims for declaratory or injunctive relief (any such proceedings will be without prejudice to the parties’ rights under Section 8.9 to obtain additional relief in arbitration with respect to such matters); (4) claims for unfair labor practices filed with the National Labor Relations Board; and (5) actions to compel arbitration or to enforce or vacate an arbitrator's award under Section 8.9, such action to be governed by the Federal Arbitration Act (“ FAA ”) and the provisions of Section 8.9. Nothing in this Agreement shall be interpreted to mean that Executive is precluded from filing complaints with the Equal Employment Opportunity Commission, the National Labor Relations Board or any similar state or federal agency. Any controversy over whether a dispute is arbitrable or as to the interpretation of Section 8.9 with respect to such arbitration will be determined by the arbitrator.
8.10     Survival . For avoidance of doubt, the provisions of Sections 4.5, 5, 7 and 8 of this Agreement shall survive the expiration or earlier termination of the Employment Period.
8.11     Headings . Section headings used in this Agreement are for convenience of reference only and shall not be used to construe the meaning of any provision of this Agreement.
8.12     Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the same instrument. Signatures delivered via facsimile or electronic file shall be the same as original signatures.
8.13     Taxes . Executive shall be solely responsible for taxes imposed on Executive by reason of any compensation and benefits provided under this Agreement and all such compensation and benefits shall be subject to applicable withholding.
8.14     Section 409A of the Code . It is intended that this Agreement will comply with Section 409A of the Code (and any regulations and guidelines issued thereunder) to the extent the Agreement is subject thereto, and the Agreement shall be interpreted on a basis consistent with such intent. If an amendment of the Agreement is necessary in order for it to comply with Section 409A, the parties hereto will negotiate in good faith to amend the Agreement in a manner that preserves the original intent of the parties to the extent reasonably possible. No action or failure by Company in good faith to act, pursuant to this Section 8.14, shall subject Company to any claim, liability, or expense, and Company shall not have any obligation to indemnify or otherwise protect Executive from the obligation to pay any taxes pursuant to Section 409A of the Code.
In addition, notwithstanding any provision to the contrary in this Agreement, if Executive is deemed on the date of Executive’s “ separation from service ” (within the meaning of Treas. Reg. Section 1.409A‑1(h)) to be a “ specified employee ” (within the meaning of Treas. Reg. Section 1.409A‑1(i)), then with regard to any payment that is required to be delayed pursuant to Section 409A(a)(2)(B) of the Code (the “ Delayed Payments ”), such payment shall not be made prior to the earlier of (i) the expiration of the six (6) month period measured from the date of Executive’s “separation from service” and (ii) the date of Executive’s death. Any payments due under this Agreement other than the Delayed Payments shall be paid in accordance with the normal payment dates specified herein. In no case will the delay of any of the Delayed Payments by





Company constitute a breach of Company’s obligations under this Agreement. For the provision of payments and benefits under this Agreement upon termination of employment, reference to Executive’s “termination of employment” (and corollary terms) with Company shall be construed to refer to Executive’s “separation from service” from Company (as determined under Treas. Reg. Section 1.409A‑1(h), as uniformly applied by Company) in tandem with Executive’s termination of employment with Company.
In addition, to the extent that any reimbursement or in-kind benefit under this Agreement or under any other reimbursement or in-kind benefit plan or arrangement in which Executive participates during the term of Executive’s employment under this Agreement or thereafter provides for a “deferral of compensation” within the meaning of Section 409A of the Code, (i) the amount eligible for reimbursement or in-kind benefit in one calendar year may not affect the amount eligible for reimbursement or in-kind benefit in any other calendar year (except that a plan providing medical or health benefits may impose a generally applicable limit on the amount that may be reimbursed or paid), (ii) the right to reimbursement or an in-kind benefit is not subject to liquidation or exchange for another benefit, and (iii) subject to any shorter time periods provided herein, any such reimbursement of an expense or in-kind benefit must be made on or before the last day of the calendar year following the calendar year in which the expense was incurred.
If the sixty (60)-day period following a “separation from service” begins in one calendar year and ends in a second calendar year (a “ Crossover 60-Day Period ”), then any severance payments that would otherwise occur during the portion of the Crossover 60-Day Period that falls within the first year will be delayed and paid in a lump sum during the portion of the Crossover 60-Day Period that falls within the second year.
8.15     Limitation on Payments .
8.15.1    Parachute Payments. In the event that the payments and benefits provided for in this Agreement or other payments and benefits payable or provided to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section 8.15, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s payments and benefits under this Agreement and other payments or benefits (the “ 280G Amounts ”) will be either:
(i) delivered in full, or
(ii) delivered as to such lesser extent which would result in no portion of such payments or benefits being subject to excise tax under Section 4999 of the Code,
whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of 280G Amounts, notwithstanding that all or some portion of the 280G Amounts may be taxable under Section 4999 of the Code.
8.15.2    Reduction Order. In the event that a reduction of 280G Amounts is being made in accordance with Section 8.15.1, the reduction will occur, with respect to the 280G Amounts considered parachute payments within the meaning of Section 280G of the Code, in the following order:
i. reduction of cash payments in reverse chronological order (that is, the cash payment owed on the latest date following the occurrence of the event triggering the excise tax will be the first cash payment to be reduced);
ii. cancellation of equity awards that were granted “contingent on a change in ownership or control” within the meaning of Code Section 280G in the reverse order of date of grant of the awards (that is, the most recently granted equity awards will be cancelled first);
iii. reduction of the accelerated vesting of equity awards in the reverse order of date of grant of the awards (that is, the vesting of the most recently granted equity awards will be cancelled first); and





iv. reduction of employee benefits in reverse chronological order (that is, the benefit owed on the latest date following the occurrence of the event triggering the excise tax will be the first benefit to be reduced).
In no event will Executive have any discretion with respect to the ordering of payments.
8.15.3    Accounting or Valuation Firm. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 8.15 will be made in writing by a nationally recognized accounting or valuation firm (the “Firm”) selected by the Company, whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 8.15, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section 8.15. The Company will bear all costs and make all payments for the Firm’s services relating to any calculations contemplated by this Section 8.15.
8.16     Payment by Subsidiaries . Executive acknowledges and agrees that Company may satisfy its obligations to make payments to Executive under this Agreement by causing one or more of its subsidiaries to make such payments to Executive. Executive agrees that any such payment made by any such subsidiary shall fully satisfy and discharge Company’s obligation to make such payment to Executive hereunder (but only to the extent of such payment).

[ Signature Page to Follow ]

IN WITNESS WHEREOF , the parties have executed this Agreement as of the date and year first above written, to be effective at the Effective Date.
EXECUTIVE
/s/ Philip C. Schultz         
Philip Schultz

3D Systems Corporation
/s/ Andrew M. Johnson         
By: Andrew M. Johnson
Title: Executive Vice President, Chief Legal Officer and Secretary







Consent of Independent Registered Public Accounting Firm

3D Systems Corporation
Rock Hill, South Carolina
We hereby consent to the incorporation by reference in the Registration Statements on Form S­3 (No. 333-219223) and Form S-8 (No. 333-115642, No. 333-204305, and No. 333-219222) of 3D Systems Corporation of our reports dated February 28, 2019, relating to the consolidated financial statements, and the effectiveness of 3D Systems Corporation’s internal control over financial reporting, which appears in the Annual Report to Shareholders, which is incorporated by reference in this Annual Report on Form 10-K.

/s/ BDO USA, LLP

Charlotte, North Carolina
February 28, 2019






Exhibit 31.1

໿
Certification of
Principal Executive Officer of
3D Systems Corporation

I, Vyomesh I. Joshi, certify that:  

1.
I have reviewed this report on Form 10-K of 3D Systems Corporation;
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: February 28, 2019






 
By:
/s/ Vyomesh I. Joshi
 
Vyomesh I. Joshi
Title:
President & Chief Executive Officer

(principal executive officer)







Exhibit 31.2

໿
Certification of
Principal Executive Officer of
3D Systems Corporation

I, John N. McMullen, certify that:  

1.
I have reviewed this report on Form 10-K of 3D Systems Corporation;
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: February 28, 2019






 
By:
/s/ John N. McMullen
 
John N. McMullen
Title:
Executive Vice President and Chief Financial Officer

(principal financial and accounting officer)







Exhibit 32.1

໿
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

This certification is provided pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 and accompanies the Annual Report on Form 10-K (the “Form 10-K”) for the year ended December 31, 2018  of 3D Systems Corporation (the “Issuer”).

I, Vyomesh I. Joshi, the President and Chief Executive Officer (principal executive officer) of the Issuer, certify that, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, to the best of my knowledge:

(i)
the Form 10-K fully complies with the requirements of Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934; and
(ii)
The information contained in the Form 10-K fairly presents, in all material respects, the financial condition and results of operations of the Issuer .
Date: February 28, 2019
/s/  Vyomesh I. Joshi
Name: Vyomesh I. Joshi
(principal executive officer)







Exhibit 32.2

໿
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

This certification is provided pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 and accompanies the Annual Report on Form 10-K (the “Form 10-K”) for the year ended December 31, 2018  of 3D Systems Corporation (the “Issuer”).

I, John N. McMullen, the President and Chief Executive Officer (principal executive officer) of the Issuer, certify that, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, to the best of my knowledge:

(i)
the Form 10-K fully complies with the requirements of Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934; and
(ii)
The information contained in the Form 10-K fairly presents, in all material respects, the financial condition and results of operations of the Issuer .
Date: February 28, 2019
/s/  John N. McMullen
Name: John N. McMullen
(principal financial and accounting officer)