Item 1.01. Entry into a Material Definitive
Agreement
Amendment to Business Combination Agreement
As previously announced, on September 2, 2020, Kensington
Capital Acquisition Corp., a Delaware corporation
(“Kensington”), Kensington Merger Sub Corp., a Delaware
corporation and a wholly-owned direct subsidiary of Kensington
(“Merger Sub”), and QuantumScape Corporation, a Delaware
corporation (the “Company”), entered into a business
combination agreement (the “Business Combination
Agreement”), pursuant to which, among other things, Kensington
and the Company will enter into a business combination. Capitalized
terms used in this Current Report on Form 8-K but not otherwise defined herein
have the meanings given to them in the Business Combination
Agreement.
On September 21, 2020, Kensington, Merger Sub and the Company
entered into Amendment No. 1 to the Business Combination
Agreement (the “Amendment”), pursuant to which the parties
agreed to: (i) provide that the name of the surviving
corporation in the merger contemplated by the Business Combination
Agreement will be as designated by the Company prior to the closing
thereunder, and (ii) amend and restate Kensington’s
certificate of incorporation, effective as of the Effective Time,
as set forth on Exhibit A to the Amendment (the “Amended and
Restated Kensington Certificate”). The certificate of
incorporation attached as Exhibit B to the Business Combination
Agreement that was signed on September 2, 2020 provided that,
following the consummation of the business combination contemplated
thereby, Kensington will have two classes of common stock,
Class A common stock, par value $0.0001 per share (“New
Class A Common Stock”), having one vote per share
and Class B common stock, par value $0,0001 per share (“New
Class B Common Stock”), having voting rights of ten
votes per share. The Amended and Restated Kensington Certificate,
among other things, provided that the New Class B Common Stock
will automatically convert into New Class A Common Stock on
the earliest to occur of:
(i) a date fixed by the Kensington board of directors that is no
less than 61 days and no more than 180 days following the date
after the closing of the transactions contemplated by the Business
Combination Agreement that the total number of shares of New
Class B Common Stock owned by Excluded Parties (as defined
below) and their Permitted Transferees (as defined in the Amended
and Restated Kensington Certificate) represents less than 20% of
the total number of outstanding shares of New Class B Common
Stock; ;
(ii) if (a) the applicable Excluded Party has designated an
Excluded Party Trustee (as defined below), the date that is the
earlier of (1) nine months after the death or disability of
the last to die or become disabled of the Excluded Parties and
(2) the date upon which such Excluded Party Trustee ceases to
hold exclusive voting control over such shares of New Class B
Common Stock; and (b) the applicable Excluded Party has not
designated an Excluded Party Trustee, the death or disability of
the last to die or become Disabled of the Excluded Parties; and
(iii) the date specified by (a) the holders of a majority of
the then outstanding shares of New Class B Common Stock,
voting as a separate class, or in an affirmative written election
executed by the holders of a majority of the then outstanding
shares of New Class B Common Stock and (b) all of the
Excluded Parties (but excluding any Excluded Party who is then
deceased or disabled or who, individually or through his “permitted
entities” or “permitted transferees,” holds less than 20% of the
aggregate number of shares of Class B Common Stock that were
held by such Excluded Party, individually or through his permitted
entities or permitted transferees, as of the effective time of the
merger contemplated by the Business Combination Agreement.
“Excluded Party” means any of Timothy Holme, Fritz
Prinz and Jagdeep Singh.
“Excluded Party Trustee” means a person, designated
by an Excluded Party and approved by the Kensington board of
directors, in his or her capacity as a voting trustee pursuant to a
written voting trust agreement entered into by such Excluded Party
prior to his death or disability, contingent and effective upon the
death or disability of such Excluded Party.
Other than as expressly modified by the Amendment, the Business
Combination Agreement, which was filed as Exhibit 2.1 to the
Current Report on Form 8-K
filed by Kensington with the Securities and Exchange Commission
(the “SEC”) on September 3, 2020, remains in full force
and effect.
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