THIRD AMENDMENT TO THE BUSINESS COMBINATION AGREEMENT
Exhibit 2.1
THIRD AMENDMENT TO THE BUSINESS COMBINATION AGREEMENT
This Third Amendment to the Business Combination Agreement (this “Amendment” or the “Third Amendment”) is entered into as of May 3, 2024, by and among OpSec Holdings, a Cayman Islands exempted company incorporated with limited liability and having its registered office at Xxxxx-Xxxxx Financial Services Limited, Century Yard, Cricket Square, P.O. Box 1111, Xxxxxx Town, Grand Cayman KY1-1102, Cayman Islands (“Pubco”), Orca Holdings Limited, a Cayman Islands exempted company incorporated with limited liability and having its registered office at Xxxxx-Xxxxx Financial Services Limited, Century Yard, Cricket Square, P.O. Box 1111, Xxxxxx Town, Grand Cayman KY1-1102, Cayman Islands (the “Company”), Investcorp Technology Secondary Fund 2018, L.P., a Cayman Islands exempted limited partnership (“ITSF”), Mill Reef Capital Fund SCS, a limited partnership (société en commandite simple) organized under the laws of Luxembourg (“Mill Reef”, and together with ITSF, the “Company Shareholders”), and Investcorp Europe Acquisition Corp I, a Cayman Islands exempted company incorporated with limited liability, with registered number 373300 and whose registered office is at Xxxxx-Xxxxx Financial Services Limited, Century Yard, Cricket Square, P.O. Box 1111, Xxxxxx Town, Grand Cayman KY1-1102, Cayman Islands (“SPAC”, together with Pubco, the Company and the Company Shareholders, collectively, the “Parties” and individually a “Party”).
RECITALS
WHEREAS, the Parties entered into that certain Business Combination Agreement, dated as of April 25, 2023 (the “Original Business Combination Agreement”), by and among the Parties, Opal Merger Sub I, a Cayman Islands exempted company incorporated with limited liability and having its registered office at Xxxxx-Xxxxx Financial Services Limited, Century Yard, Cricket Square, P.O. Box 1111, Xxxxxx Town, Grand Cayman KY1-1102, Cayman Islands, and wholly-owned Subsidiary of Pubco, Opal Merger Sub II, a Cayman Islands exempted company incorporated with limited liability and having its registered office at Xxxxx-Xxxxx Financial Services Limited, Century Yard, Cricket Square, P.O. Box 1111, Xxxxxx Town, Grand Cayman KY1-1102, Cayman Islands, and wholly-owned Subsidiary of Pubco, Orca Midco Limited, a private limited company incorporated under the Laws of England and Wales having its registered office at 00 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxx & Xxxx, Xxxxxx Xxxxxxx, XX00 0AD (“Orca Midco”), and Orca Bidco Limited, a private limited company incorporated under the Laws of England and Wales and a Subsidiary of the Company (“Orca”), as amended by that certain First Amendment to the Business Combination Agreement, dated as of December 14, 2023 (the “First Amendment”), and as amended by that certain Second Amendment to the Business Combination Agreement, dated as of March 10, 2024 (the “Second Amendment” and, the Original Business Combination Agreement, as amended by the First Amendment and the Second Amendment, the “Business Combination Agreement”);
WHEREAS, capitalized terms used but not defined herein shall have the meanings assigned to them in the Business Combination Agreement;
WHEREAS, Orca Midco has entered into the Divestiture Agreement, which provides, among other things, for the disbursement of the Purchase Price as contemplated by the Second Amendment, and SPAC is a third-party beneficiary of the Divestiture Agreement;
WHEREAS, pursuant to Section 14.7 of the Business Combination Agreement, the Business Combination Agreement may be amended, supplemented or modified only by execution of a written instrument signed by the Parties; and
WHEREAS, the Parties desire to amend the Business Combination Agreement as set forth below in accordance with Section 14.7 of the Business Combination Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective agreements set forth in this Amendment and intending to be legally bound hereby, the Parties agree as follows:
1. Amendment to Section 9.31(a). Section 9.31(a) of the Business Combination Agreement is hereby replaced in its entirety with the following:
“(a) If the Divestiture Closing occurs prior to the Second Merger Closing, then concurrently with the Divestiture Closing, Orca Midco shall cause the Purchase Price less the Specified Transaction Expenses to be deposited into a third-party escrow account (the “Divestiture Proceeds Escrow Account”) with an escrow agent reasonably acceptable to SPAC (the “Escrow Agent”) as collateral for the payment obligations of Orca Midco, the Company, and the Company Shareholders under this Agreement. Such amount shall be held in the Divestiture Proceeds Escrow Account pursuant to an escrow agreement to be entered into by and among Orca Midco, Pubco, SPAC and the Escrow Agent, in form and substance acceptable to SPAC (the “Divestiture Proceeds Escrow Agreement”), the Escrow Agent holding such funds as nominee of and for the benefit of Orca Midco, SPAC or Pubco, as applicable, subject always to the terms of this Agreement and the Divestiture Proceeds Escrow Agreement. If the Divestiture Closing occurs prior to the Second Merger Closing, then in the event that any Permitted Payment Amount becomes due and payable in accordance with the terms of the Divestiture Agreement, Orca Midco shall promptly provide written notice of such fact to SPAC, together with any reasonable documentation and data available to it supporting such Permitted Payment Amount and consider in good faith SPAC’s comments related thereto, and subject to SPAC’s confirmation (not to be unreasonably withheld or delayed), SPAC, Orca Midco and Pubco shall promptly deliver joint written instructions to the Escrow Agent to release such Permitted Payment Amount to the recipient thereof. If the First Distribution Amount and/or the Second Distribution Amount becomes payable to Orca Midco in accordance with Section 9.34, then subject to the satisfaction of the conditions set forth therein, including the execution and delivery of a Promissory Note, SPAC, Orca Midco and Pubco shall promptly deliver joint written instructions to the Escrow Agent to release the First Distribution Amount and/or the Second Distribution Amount to Orca Midco subject to and in accordance with the terms of this Agreement. SPAC shall have the right (without any further action of Orca Midco or Pubco) to release the applicable amounts specified in each of clause (1) of Section 12.3(c), clause (i) of Section 12.3(d), Section 12.3(e) or clause (i) of Section 12.3(f) to SPAC subject to and in accordance with the terms of this Agreement (including, where applicable, the requirement that such amounts are (i) agreed in writing between the Company and SPAC, or (ii) determined by a court of competent jurisdiction, where applicable). If all of the conditions set forth in Section 11.6 are satisfied, then immediately prior to occurrence of the Second Merger Closing, and subject to the Second Merger Closing occurring, Orca
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Midco shall have the right (without any further action of Pubco or SPAC) to, and shall instruct the Escrow Agent to, release to Orca Midco (for further distribution to Pubco) all funds then held in the Divestiture Proceeds Escrow Account, and the Parties agree that, upon receipt of such funds from the Divestiture Proceeds Escrow Account, Pubco shall (A) use such funds to promptly pay (or cause to be promptly paid) all of SPAC’s Expenses and (B) within 14 days following the Second Merger Closing, to the extent permitted by applicable Law and subject to the determination of the Post-Closing Pubco Board that it is in the best interests of the holders of Pubco Ordinary Shares, use such funds to make a dividend to all holders of Pubco Ordinary Shares in such amount as determined by the Post-Closing Pubco Board, which such dividend shall be paid in cash or, at the election of the applicable holder of such Pubco Ordinary Shares, in kind in Pubco Ordinary Shares; provided, however, that if declared, such dividend shall not be less than an amount as is necessary to enable ITSF to receive dividends in aggregate equal to the First Distribution Amount (provided, that the First Distribution Amount has been released to Orca Midco pursuant to and in accordance with the terms of Section 9.34) and the Second Distribution Amount; and provided, further, that in lieu of a dividend, the Post-Closing Pubco Board may approve and effect a tender offer, repurchase of shares or other similar process by which the holders of Pubco Ordinary Shares receive the same economic benefit (including as regards the receipt of cash proceeds) as if a dividend had been declared.”.
2. Amendments to Section 9.34. Section 9.34 of the Business Combination Agreement is hereby replaced in its entirety with the following:
“9.34 Advance of First Distribution Amount and Second Distribution Amount. If the Second Merger Closing has not occurred prior to May 28, 2024, then Orca Midco shall have the right (subject to and in accordance with the terms and procedures set forth in Section 9.31 and this Section 9.34) to receive an advance from the funds then held in the Divestiture Proceeds Escrow Account in an amount equal to the First Distribution Amount. If the Second Merger Closing has not occurred prior to August 26, 2024, then Orca Midco shall have the right (subject to and in accordance with the terms and procedures set forth in Section 9.31 and this Section 9.34) to receive an advance from the funds then held in the Divestiture Proceeds Escrow Account in an amount equal to the Second Distribution Amount. Upon receipt by Orca Midco of the First Distribution Amount and/or the Second Distribution Amount, Orca Midco shall have the right (which the SPAC acknowledges) to loan such amounts to ITSF or any of its Subsidiaries. As a condition to receive any release of the First Distribution Amount or the Second Distribution Amount from the Divestiture Proceeds Escrow Account, Orca Midco shall execute, issue and deliver to the Escrow Agent (for the benefit of the Divestiture Proceeds Escrow Account) a promissory note in form and substance acceptable to SPAC in the principal amount of the First Distribution Amount or the Second Distribution Amount (as applicable), on the same terms, structure and conditions, including, but not limited to, interest rate, security and guarantees, as the facility set forth on Schedule VIII (provided, that, following the Second Merger Closing, such interest shall cease to accrue) (a “Promissory Note”). The Parties agree that any dividends declared by the Post-Closing Pubco Board pursuant to clause (B) of Section 9.31(a) that are payable to ITSF in respect of the Pubco Ordinary Shares it holds shall first be applied towards the unpaid principal balance and accrued but unpaid interest under the Promissory Note(s) as of the date of such dividends until such amounts under the Promissory Note(s) are paid in full, and then shall be paid to ITSF.”.
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3. Amendment to Article IX. Article IX of the Business Combination Agreement is hereby amended to add the following as a new Section 9.35:
“9.35 Advance of Specified SPAC Transaction Expenses. Promptly following the Divestiture Closing, each of Pubco, Orca Midco and SPAC shall instruct the Escrow Agent to release an amount equal to the Specified SPAC Transaction Expenses to SPAC or such other Person(s) as SPAC shall direct in connection with the settlement of its Expenses. The Parties agree that if the Share Contribution is consummated, such advance of the Specified SPAC Transaction Expenses shall be treated as a part payment by Orca Midco of Pubco’s obligation to bear SPAC’s Expenses pursuant to Section 12.3.”
4. Amendments to Section 12.1(h). Section 12.1(h) of the Business Combination Agreement is hereby replaced in its entirety with the following:
“(h) by written notice from SPAC to the Company if there has been an Intervening Event Recommendation Change made pursuant to clause (b) of the definition of “Intervening Event”; provided, that the termination right exercisable pursuant to this Section 12.1(h) shall only be exercisable within the period following the Divestiture Closing and ending on and including August 10, 2024.”.
5. Amendments to Section 12.3. Section 12.3 of the Business Combination Agreement is hereby amended to add the following as a new clause (c):
“(c) Notwithstanding anything to the contrary contained in this Agreement, the Parties agree that concurrently with or promptly following the Divestiture Closing, the Specified Transaction Expenses shall be paid to payees in the amounts set forth on Schedule IX. The Parties agree that if the Share Contribution is consummated, such advance of the Specified Transaction Expenses shall be treated as a part payment by Orca Midco of Pubco’s obligation to bear the Expenses of the Target Companies pursuant to this Section 12.3.”
6. Amendments to Section 15.1. The following amendments are hereby made to Section 15.1 of the Business Combination Agreement:
| (a) | The definition of “Distribution Amount” is deleted. |
| (b) | The definition of “Termination Amount” is hereby replaced in its entirety with the following: |
““Termination Amount” means if payable pursuant to (a) Section 12.3(d) or Section 12.3(f), (i) in the event that written notice of such termination is provided during the period following the Divestiture Closing and ending on and including August 10, 2024, $30,000,000 minus the Specified SPAC Transaction Expenses plus notional interest accruing daily from the date that the Specified SPAC Transaction
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Expenses are released to SPAC (or such Person(s) as SPAC shall direct) in accordance with Section 9.35 up to and including the date of termination of this Agreement at a rate of 8% per annum and (ii) in the event that written notice of such termination is provided at any other time that such termination right is exercisable in accordance with this Agreement, $25,000,000 minus the Specified SPAC Transaction Expenses plus notional interest accruing daily from the date that the Specified SPAC Transaction Expenses are released to SPAC (or such Person(s) as SPAC shall direct) in accordance with Section 9.35 up to and including the date of termination of this Agreement at a rate of 8% per annum, and (b) Section 12.3(c) or Section 12.3(e), $30,000,000 minus the Specified SPAC Transaction Expenses plus notional interest accruing daily from the date that the Specified SPAC Transaction Expenses are released to SPAC (or such Person(s) as SPAC shall direct) in accordance with Section 9.35 up to and including the date of termination of this Agreement at a rate of 8% per annum.”
| (c) | The following definitions are hereby added in alphabetical order: |
““First Distribution Amount” means $3,000,000.”
““Second Distribution Amount” means $73,800,000 less the First Distribution Amount to the extent the First Distribution Amount has been released to Orca Midco prior to the release of the Second Distribution Amount to Orca Midco pursuant to and in accordance with the terms of Section 9.34.”
““Specified SPAC Transaction Expenses” means the Expenses of SPAC in an amount equal to $7,800,000.”
““Specified Transaction Expenses” means the fees, costs and expenses set forth on Schedule IX.”
7. Amendment to Schedules to the Business Combination Agreement. The Schedules to the Business Combination Agreement are hereby amended to add Schedule IX attached hereto.
8. Effectiveness. This Amendment shall be effective as of the date hereof. Except as set forth in this Amendment, all terms and provisions of the Business Combination Agreement shall remain in full force and effect.
9. References to the Business Combination Agreement. After giving effect to this Amendment, each reference in the Business Combination Agreement to “this Agreement”, “hereof”, “hereunder” or words of like import referring to the Business Combination Agreement shall refer to the Business Combination Agreement as amended by this Amendment, and all references in the Ancillary Documents to “the Agreement” shall refer to the Business Combination Agreement as amended by this Amendment. Notwithstanding the foregoing, all references (a) in the Business Combination Agreement or the Disclosure Schedules to “the date hereof” or “the date of this Agreement” or (b) in the Business Combination Agreement or the Ancillary Documents to “the date of the Business Combination Agreement” or “the date of the Agreement”, or words of
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like import, shall (except to the extent any such references are amended (or amended and restated) pursuant to the terms of this Amendment) refer to April 25, 2023, and all references in the Business Combination Agreement to “prior to the date of this Agreement” or words of like import shall mean before the Business Combination Agreement was executed on April 25, 2023 (without regard to this Amendment).
10. Entire Agreement. This Amendment, the Business Combination Agreement (including Schedules I, II, III, IV, V, VI, VII, VIII and IX and Exhibits A, B, C, D, E, F, G, H, I, J and K thereto) and the Ancillary Documents together set out the entire agreement among the Parties in respect of the subject matter contained herein and therein and supersede and extinguish any prior drafts, agreements, undertakings, warranties, promises, assurances and arrangements of any nature whatsoever, whether or not in writing, relating to the subject matter hereof and thereof.
11. Miscellaneous. The provisions of Article XIV (Miscellaneous) of the Business Combination Agreement shall, to the extent not already set forth in this Amendment, apply mutatis mutandis to this Amendment, and to the Business Combination Agreement as modified by this Amendment, taken together as a single agreement, reflecting the terms as modified hereby.
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IN WITNESS WHEREOF, the Parties have executed and delivered this Amendment on the date first written above.
| SPAC: | ||
| By: |
/s/ Baroness Xxxx XxXxxxxx-Xxxxx | |
| Name: |
Baroness Xxxx XxXxxxxx-Xxxxx | |
| Title: |
Chief Executive Officer | |
[Signature Page to Third Amendment to the Business Combination Agreement]
| Pubco: | ||
| OPSEC HOLDINGS | ||
| By: The Director Ltd. | ||
| By: |
/s/ Xxxxxx Xxxxxxx | |
| Name: |
Xxxxxx Xxxxxxx | |
| Title: |
Director | |
[Signature Page to Third Amendment to the Business Combination Agreement]
| Company: | ||
| ORCA HOLDINGS LIMITED | ||
| By: The Director Ltd. | ||
| By: |
/s/ Xxxxxx Xxxxxxx | |
| Name: |
Xxxxxx Xxxxxxx | |
| Title: |
Director | |
[Signature Page to Third Amendment to the Business Combination Agreement]
| As Company Shareholder: | ||
| INVESTCORP TECHNOLOGY SECONDARY FUND 2018, L.P. | ||
| By: |
Investcorp Technology Secondary Fund 2018 GP Limited Partnership, its general partner | |
| By: |
ITV Limited, its general partner | |
| By: |
/s/ Xxxx Xxxxxxx | |
| Name: |
Xxxx Xxxxxxx | |
| Title: |
Director | |
[Signature Page to Third Amendment to the Business Combination Agreement]
| As Company Shareholder: | ||
| MILL REEF CAPITAL FUND SCS | ||
| By: Mill Reef Capital GP Sàrl, its general partner | ||
| By: |
/s/ Xxxxx Xxxxxxx | |
| Name: |
Xxxxx Xxxxxxx | |
| Title: |
Manager | |
| By: |
/s/ Xxxxxx Xxxxxxx | |
| Name: |
Xxxxxx Xxxxxxx | |
| Title: |
Manager | |
[Signature Page to Third Amendment to the Business Combination Agreement]
