KENN CAPI Item 1.01. Entry into a Material Definitive Agreement
General
On
As a result of the business combination, Kensington will become a wholly-owned
subsidiary of
The Business Combination Agreement
Structure of the Business Combination
The business combination is structured as follows:
(a) Prior to the Exchange Effective Time, Holdco will (i) change its legal
form from a private company with limited liability (besloten vennootschap
met beperkte aansprakelijkheid) to a public limited liability company
(naamloze vennootschap) and (ii) amend and restate the Holdco
Organizational Documents such that the Holdco Organizational Documents
are in a form to be reasonably determined by the Company in consultation
with Kensington, which Holdco Organizational Documents will remain in
effect through the Merger Effective Time and thereafter will be the
organizational documents of Holdco . The Holdco Organization Documents are
anticipated to provide, among other things, that each Holdco Ordinary A
Share will have one vote (1) per share and each Holdco Ordinary B Share
will have ten (10) votes per share;
(b) Pursuant to the Exchange Agreement (as defined below): (i) each holder of
Company Convertible Notes will convert its Company Convertible Notes into
Company Ordinary Shares (the "Convert Exchange"); and (ii) following the
Convert Exchange, each holder of Company Ordinary Shares will contribute
its Company Ordinary Shares to Holdco in exchange for Holdco Ordinary
Shares and the Company will become a wholly-owned subsidiary of Holdco
(the "Ordinary Exchange," and together with the Convert Exchange, the
"Exchanges");
(c) Following the Exchanges, pursuant to the Business Combination Agreement:
(i) Merger Sub will merge with and into Kensington (the "Merger") with
Kensington as the surviving corporation, and Kensington will become a
wholly-owned subsidiary of Holdco ; (ii) as a result of the Merger, all of
the Kensington Common Stock of the Surviving Corporation (other than
Excluded Shares) will be converted into the right to receive New
Kensington Common Stock, which will then be exchanged for Holdco Ordinary
A Shares;
(d) Contemporaneously with the execution of the Business Combination
Agreement, certain investors have entered into certain subscription
agreements, pursuant to which such investors will purchase Holdco
Ordinary Shares at a purchase price of $10.00 per share in a private
placement to be consummated immediately prior to the consummation of the
Transactions; and
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(e) Concurrently with the execution of the Business Combination Agreement,
certain employees of the Company entered into a lock-up agreement (the
"Employee Lock-Up Agreement") with Kensington, pursuant to which such
employees agreed to restrictions on the transferability of Holdco
securities for a period of up to one year following the consummation of
the Transactions, subject to certain exceptions set forth therein.
Conversion of Securities
At the effective time of the Exchanges (the "Exchange Effective Time"):
(a) (i) each issued Company Ordinary Share will be contributed in kind to
Holdco , (ii) Holdco will issue to each holder of Company Ordinary Shares
(including the Company Ordinary Shares issued upon the conversion of the
Company Convertible Notes) the number of Holdco Ordinary A Shares and/or
Holdco Ordinary B Shares, as applicable, calculated in accordance with
the Exchange Ratio and (iii) each holder of Company Ordinary Shares
(including the Company Ordinary Shares issued upon the conversion of the
Company Convertible Notes) will cease to be the holder of such Company
Ordinary Shares;
(b) each Company Option that is outstanding immediately prior to the Exchange
Effective Time, whether vested or unvested, will be converted at the
Exchange Effective Time into an option to purchase a number of shares of
the applicable class of Holdco Ordinary Shares (such option, a "Holdco
Option") equal to the product (rounded down to the nearest whole number)
of (x) the number of shares of the applicable class of Company Ordinary
Shares subject to such Company Option immediately prior to the Exchange
Effective Time and (y) the Exchange Ratio, at an exercise price per share
(rounded up to the nearest whole cent) equal to (A) the exercise price
per share of such Company Option immediately prior to the Exchange
Effective Time divided by (B) the Exchange Ratio; and
(c) The Company Ordinary Shares held by Enric Asunción and Eduard Castañeda
are expected to be exchanged for "high vote" Holdco Ordinary Shares that
have ten (10) votes per share. Upon transfer to third parties, these
shares will have one (1) vote per share.
At the effective time of the Merger (the "Merger Effective Time"), which will be immediately after the Exchange Effective Time, by virtue of the Merger and without any action on the part of Kensington, Merger Sub, the Company or the holders of any of the Company's securities:
(a) each share of Kensington Common Stock issued and outstanding immediately
prior to the Merger Effective Time (other than the Excluded Shares) will
be converted into and become one share of New Kensington Common Stock,
. . .
Item 3.02. Unregistered Sales of
The disclosure set forth above in Item 1.01 of this Current Report on Form 8-K
is incorporated by reference herein. The securities of
Item 7.01. Regulation FD Disclosure.
On
Attached as Exhibit 99.3 to this Current Report on Form 8-K and incorporated herein by reference is the form of presentation to be used by Kensington in presentations for certain of Kensington's stockholders and other persons. Such exhibit and the information set forth therein shall not be deemed to be filed for purposes of Section 18 of the Exchange Act, or otherwise be subject to the liabilities of that section, nor shall it be deemed to be incorporated by reference in any filing under the Securities Act or the Exchange Act.
Important Information and Where to Find It
In connection with the Transactions,
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statement/prospectus (when available) and other documents filed with the
Participants in the Solicitation
Kensington and the Company and their respective directors and certain of their
respective executive officers and other members of management and employees may
be considered participants in the solicitation of proxies with respect to the
Transactions. Information about the directors and executive officers of
Kensington is set forth in its Registration Statement on Form S-1, as amended.
Additional information regarding the participants in the proxy solicitation and
a description of their direct and indirect interests, by security holdings or
otherwise, will be included in the Registration Statement and other relevant
materials to be filed with the
No Offer or Solicitation
This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act.
Forward-Looking Statements
This Current Report on Form 8-K includes, or incorporates by reference, certain statements that are not historical facts but are forward-looking statements for purposes of the safe harbor provisions under the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements generally are accompanied by words such as "believe," "may," "will," "estimate," "continue," "anticipate," "intend," "expect," "should," "would," "plan," "predict," "potential," "seem," "seek," "future," "outlook," and similar expressions that predict or indicate future events or trends or that are not statements of historical matters. These forward-looking statements include, but are not limited to, statements regarding estimates and forecasts of revenue and other financial and performance metrics, projections of market opportunity, expectations and timing related to product development, potential benefits of the Transactions, and expectations related to the terms and timing of the Transactions. These statements are based on various assumptions and on the current expectations of Kensington's and the Company's management and are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on by any investor as, a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and will differ from assumptions. Many actual events and circumstances are beyond the control of Kensington and the Company. These forward looking statements are subject to a number of risks and uncertainties, including general economic, financial, legal, political and business conditions and changes in domestic and foreign markets; the outcome of judicial proceedings to which Kensington or the Company may become a party (including any legal proceedings that may be instituted against Kensington or the Company following announcement of the Transactions); the inability of the parties to successfully or timely consummate the Transactions or to satisfy the other conditions to the closing of the Transactions, including the risk that any required regulatory approvals are not obtained, are delayed or are subject to unanticipated conditions that could adversely affect the combined company; the risk that the approval of the stockholders of Kensington for the Transactions is not obtained; failure to realize the anticipated benefits of the Transactions, including as a result of a delay in consummating the Transactions or difficulty in, or costs associated with, integrating the businesses of Kensington and the Company; the amount of redemption requests made by Kensington's stockholders; the occurrence of events that may give rise to a right of one or both of Kensington and the Company to terminate the Business Combination Agreement; risks related to the rollout of the Company's business, the development and performance of the Company's products, and the timing of expected business milestones; the risk that the Transactions disrupt Kensington's or the Company's current plans and operations as a result of the
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announcement of the Transactions; the ability to grow and manage growth
following the Transactions; the effects of competition on the Company's future
business; and those factors discussed in Kensington's Registration Statement on
Form S-1, as amended, under the heading "Risk Factors," and other documents of
Kensington filed, or to be filed, with the
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits. Exhibit No. Exhibit 2.1 Business Combination Agreement, dated as ofJune 9, 2021 , by and amongHoldco , Kensington, Merger Sub and the Company. 10.1 Form of Exchange Agreement. 10.2 Sponsor Support Agreement, dated as ofJune 9, 2021 , by and among Sponsor,Kensington, Holdco and the Company. 10.3 Form of Registration Rights and Lock-Up Agreement. 10.4 Form of Subscription Agreement. 10.5 Form of Employee Lock-Up Agreement. 99.1 Press Release, datedJune 9, 2021 . 99.2 Conference Call Script. 99.3 Form of Investor Presentation. 12
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