Kensington Capital Acquisition Corp.
1400 Old Country Road, Suite 301
Westbury, NY 11590
Attention: Justin Mirro
Ladies and Gentlemen:
The undersigned signatory of this lock-up agreement (this Letter Agreement) understands that Kensington Capital Acquisition Corp., a Delaware corporation (KCAC), has entered into the Business Combination Agreement (as the same may be amended from time to time, the BCA), dated as of September 2, 2020, with Kensington Merger Sub Corporation, a Delaware corporation and a wholly-owned subsidiary of KCAC (Merger Sub), and QuantumScape Corporation, a Delaware corporation (the Company), pursuant to which, among other things, Merger Sub will merge with and into the Company, with the Company continuing as the surviving entity (the Merger) and as a wholly-owned subsidiary of KCAC, upon the terms and subject to the conditions set forth in the BCA and in accordance with applicable law (the Effective Time).
As a material inducement to the parties to consummate the Merger and the other transactions contemplated by the BCA, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that as follows:
| ||(a) || |
Change in Control means the transfer (whether by tender offer, merger, stock purchase, consolidation or other similar transaction), in one transaction or a series of related transactions, to a person or group of affiliated persons of KCACs voting securities if, after such transfer, such person or group of affiliated persons would hold more than 50% of outstanding voting securities of KCAC (or surviving entity) or would otherwise have the power to control the board of directors of KCAC or to direct the operations of KCAC.
| ||(b) || |
KCAC Common Stock shall mean any shares of Class A common stock or Class B common stock of KCAC as in effect upon the consummation of the Merger.
| ||(c) || |
Lock-up Period shall mean the period commencing upon the Effective Time and ending on the earliest of (i) the date that is 180 days from the Effective Time, (ii) the last consecutive trading day where the sale price of the KCAC Common Stock equals or exceeds $12.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-trading day period commencing at least 150 days after the Effective Time, or (iii) such date on which KCAC completes a liquidation, merger, stock exchange or other similar transaction that results in all of KCACs stockholders having the right to exchange their shares of KCAC Common Stock for cash, securities or other property.
| ||(h) || |
pledges of shares of KCAC Common Stock as security or collateral in connection with any borrowing or the incurrence of any indebtedness by the undersigned; provided, however, that such borrowing or incurrence of indebtedness is secured by a portfolio of assets or equity interests issued by multiple issuers;
| ||(i) || |
Transfers pursuant to a bona fide third-party tender offer, merger, stock sale, recapitalization, consolidation or other transaction involving a Change in Control of KCAC that occurs after the Effective Time; provided, however, that in the event that such tender offer, merger, recapitalization, consolidation or other such transaction is not completed, the KCAC Common Stock subject to this Letter Agreement shall remain subject to this Letter Agreement;
| ||(j) || |
the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act; provided, however, that such plan does not provide for the transfer of KCAC Common Stock or any securities convertible into or exercisable or exchangeable for KCAC Common Stock during the Lock-Up Period;
| ||(k) || |
Transfers to satisfy tax withholding obligations in connection with the exercise of options to purchase shares of KCAC Common Stock or the vesting of stock-based awards (provided such newly acquired shares are substituted for such Shares); and
| ||(l) || |
Transfers in payment on a net exercise or cashless basis of the exercise or purchase price with respect to the exercise of options to purchase shares of KCAC Common Stock (provided such newly acquired shares are substituted for such Shares);
provided, however, that in the case of any Transfer pursuant to Sections 3(b) through 3(g), each donee, distributee or other transferee shall agree in writing, in form and substance reasonably satisfactory to KCAC, to be bound by the provisions of this Letter Agreement.
| ||(a) || |
The undersigned hereby represents and warrants that the undersigned has full right and power, without violating any agreement to which it is bound, to enter into this Letter Agreement.
| ||(b) || |
This Letter Agreement constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby. This Letter Agreement may not be changed, amended, modified or waived (other than to correct a typographical error) as to any particular provision, except by a written instrument executed by all parties hereto. Notwithstanding the foregoing, the Board may waive the restrictions contained in this Letter Agreement in its sole discretion.
| ||(c) || |
This Letter Agreement shall be binding on the undersigned and its successors, heirs and assigns and permitted transferees. Nothing in this Letter Agreement shall be construed to confer upon, or give to, any person or corporation other than the parties hereto any right, remedy or claim under or by reason of this Letter Agreement. All agreements contained in this Letter Agreement shall be for the sole benefit of the parties hereto and their successors and assigns.
| ||(d) || |
This Letter Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Letter Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Letter Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
| || |
|By: || || |
| || ||Name:|
| || ||Title:|
[Signature Page to Lock-Up Agreement]